The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TAMMY CONNALLY,
Plaintiff,
v. Case No. 8:21-cv-2750-VMC-CPT
FLORIDA HMA REGIONAL
SERVICE CENTER, LLC,
Defendant.
______________________________/
ORDER
This matter is before the Court on consideration of
Plaintiff Tammy Connally’s Motion to Remand (Doc. # 12), filed
on December 22, 2021. Defendant Florida HMA Regional Service
Center, LLC responded on January 5, 2022. (Doc. # 14). For
the reasons that follow, the Motion is granted.
I. Background
Connally initiated this Florida Civil Rights Act (FCRA)
action against her former employer, Florida HMA, in state
court in September 2021. (Doc. # 1-7; Doc. # 1-1).
Florida HMA then removed the case to this Court on the
basis of diversity jurisdiction on November 23, 2021. (Doc.
# 1). Now, Connally argues that the case should be remanded.
(Doc. # 12). Florida HMA has responded (Doc. # 14), and the
Motion is ripe for review.
II. Legal Standard
“Federal courts have limited subject matter
jurisdiction.” Morrison v. Allstate Indem. Co., 228 F.3d
1255, 1260-61 (11th Cir. 2000). As such, “[a] federal court
not only has the power but also the obligation at any time to
inquire into jurisdiction whenever the possibility that
jurisdiction does not exist arises.” Fitzgerald v. Seaboard
Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985).
When jurisdiction is premised upon diversity of
citizenship, 28 U.S.C. § 1332(a) requires that the action is
between “citizens of different States” and that “the matter
in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs.” If “the jurisdictional amount is not
facially apparent from the complaint, the court should look
to the notice of removal and may require evidence relevant to
the amount in controversy at the time the case was removed.”
Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.
2001).
When “damages are unspecified, the removing party bears
the burden of establishing the jurisdictional amount by a
preponderance of the evidence.” Lowery v. Ala. Power Co., 483
F.3d 1184, 1208 (11th Cir. 2007). But “Eleventh Circuit
precedent permits district courts to make ‘reasonable
deductions, reasonable inferences, or other reasonable
extrapolations’ from the pleadings to determine whether it is
facially apparent that a case is removable.” Roe v. Michelin
N. Am., Inc., 613 F.3d 1058, 1061–62 (11th Cir. 2010)
(citations omitted).
III. Analysis
Connally argues that this case should be remanded to
state court because Florida HMA has not established that the
amount in controversy exceeds $75,000 by a preponderance of
the evidence. (Doc. # 12).
A. Back Pay
“The Court believes that back pay should be calculated
only to the date of removal. The reason for this is simple:
the amount in controversy needs to be determined at the time
the case is removed.” Bragg v. Suntrust Bank, No. 8:16-cv-
139-VMC-TBM, 2016 WL 836692, at *2 (M.D. Fla. Mar. 4, 2016).
According to Florida HMA’s notice of removal, the back pay up
to the date of removal is $96,935.72 (133 weeks x
$728.84/week). (Doc. # 1 at 10-11).
But Connally notes in her Motion that this back pay
amount must be reduced to account for the wages she earned at
other jobs between her termination and the removal of this
action. (Doc. # 12 at 7); see Walcott v. Ferrelgas, Inc., No.
6:21-cv-154-GAP-DCI, 2021 WL 3518204, at *2 (M.D. Fla. Mar.
8, 2021) (“This [back pay] calculation should also, of course,
be adjusted for any mitigating employment income earned prior
to removal when those mitigating efforts are supported by a
plaintiff’s sworn affidavit. Any amount of money that a
plaintiff has made from another job would not be ‘in
controversy’ because it would not be recoverable.” (citation
omitted)). She has submitted an affidavit, declaring that she
earned a total of $74,337.60 in wages between the end of her
employment with Florida HMA and the removal of this action to
federal court. (Doc. # 12-1 at 2).
Therefore, $74,337.60 must be subtracted from the back
pay amount of $96,935.72. This leaves $22,598.12 as the total
amount of back pay to be included in the amount in controversy
calculation — far below the amount in controversy threshold.
B. Front Pay
In the notice of removal, Florida HMA argues that
$37,899.68 in front pay should be included in the amount in
controversy calculation. (Doc. # 1 at 12). Florida HMA
calculated this amount assuming that Connally would be
awarded one year of front pay. (Id.).
The Court will not include this amount because it is
purely speculative. “Speculation regarding front pay cannot
be used to supplement insufficient back pay for the purpose
of meeting the jurisdictional requirement.” Avery v. Wawa,
Inc., No. 8:18-cv-403-VMC-TGW, 2018 WL 1008443, at *3 (M.D.
Fla. Feb. 22, 2018); see also Brown v. Am. Express Co., No.
09-61758-CIV, 2010 WL 527756, at *5 (S.D. Fla. Feb. 10, 2010)
(removing defendant suggested that one year of the
plaintiff’s base salary — $30,010.00 — was reasonable to
include in the amount in controversy analysis, but the court
found that to “include this figure in calculating the amount
in controversy would require this Court to ‘engage in
impermissible speculation’”).
Thus, the Court will not include any amount of front pay
in its amount in controversy calculation.
C. Compensatory Damages
Next, Connally challenges Florida HMA’s inclusion of
compensatory damages in its estimation of the amount in
controversy. (Doc. # 12 at 10-12). Indeed, in the notice of
removal, Florida HMA asserts that “[a]wards of compensatory
damages are uncapped under the FCRA and regularly meet or
exceed $75,000.00.” (Doc. # 1 at 12). And, in its response to
this Motion, Florida HMA maintains that $55,000 in
compensatory damages is a “conservative” estimate based on
other cases in which large compensatory damages amounts were
awarded. (Doc. # 14 at 11-13). According to Connally, however,
compensatory damages are “too speculative” to be included in
the amount in controversy calculation. (Doc. # 12 at 11).
The Court agrees with Connally that her unspecified
request for compensatory damages in the amended complaint is
too speculative to include in the amount in controversy
calculation. See Mathew v. S & B Eng’rs and Constr., Ltd.,
No. 8:08–cv–1801–VMC-TGW, 2009 WL 249931 (M.D. Fla. Jan. 30,
2009) (holding that plaintiff’s claim for unspecified
compensatory damages, her back pay damages of approximately
$66,000, and evidence of her failure to stipulate regarding
the jurisdictional amount were insufficient to establish the
jurisdictional amount). The Court is not persuaded that the
other FCRA cases cited by Florida HMA establish that Connally
has actually suffered tens of thousands of dollars’ worth of
non-economic damages, such as emotional distress, as a result
of Florida HMA’s actions. See Bragg, 2016 WL 836692, at *2
(“SunTrust cites to three prior employment discrimination
cases in which plaintiffs were awarded damages in excess of
$75,000 for mental anguish, [] but does not explain why that
amount would be awarded in this case.” (emphasis in
original)); see also Kruse v. Sam’s W., Inc., No. 8:20-cv-
2305-CEH-JSS, 2021 WL 2632436, at *5 (M.D. Fla. June 25, 2021)
(“Sam’s West predicates the support for this calculation upon
citations to cases in which other courts included
compensatory damages in the amount in controversy. However,
Sam’s West fails to explain whether these cited cases are
comparable to this action. Even if the Court treats those
cases as ‘comparable’ cases, Sam’s West does not explain why
the compensatory damages in those cases justify including
$15,000 in the amount in controversy here.”).
Because the record is devoid of sufficient allegations
regarding Connally’s non-economic damages and Florida HMA
failed to provide additional information about Connally’s
particular damages, the Court cannot reasonably determine
what amount of compensatory damages should be included in the
amount in controversy. See Golden v. Dodge-Markham Co., 1 F.
Supp. 2d 1360, 1366 (M.D. Fla. 1998) (“Compensatory damages
are extremely nebulous. Making a general blanket statement
that, if Plaintiff prevails, compensatory damages could
certainly entitle him to thousands of dollars, does not rise
to the levels of proving, by a preponderance of the evidence,
that the amount in controversy exceeds $75.000.00.”).
Therefore, the Court will not include an amount of
compensatory damages in its calculation.
D. Punitive Damages
In the notice of removal, Florida HMA argues that
$100,000 in punitive damages should be added to the amount in
controversy because that is the maximum amount allowed under
the FCRA. (Doc. # 1 at 14).
The Court disagrees. While the Court may consider
punitive damages in determining the amount in controversy,
the fact that Connally has requested punitive damages and a
maximum of $100,000 in punitive damages is available under
the statute does not establish that $100,000 in punitive
damages should be added to the calculation here. If it did,
“every [FCRA] case filed in state court containing a request
for punitive damages would automatically meet the
jurisdictional minimum for removal to federal court. That
result would be untenable.” Boyd v. N. Tr. Co., No. 8:15-cv-
2928-VMC-TBM, 2016 WL 640529, at *4 (M.D. Fla. Feb. 18, 2016).
And it would be rank speculation for the Court to add an
amount of punitive damages to the amount in controversy
calculation as no evidence of the actual punitive damages at
issue in this case has been provided. Thus, the Court will
not include an amount of punitive damages in its calculation.
E. Attorney’s Fees
The amount of attorney’s fees and costs incurred before
removal can be included in the amount in controversy
calculation. See Miller Chiropractic & Med. Centers, Inc. v.
Progressive Select Ins. Co., No. 8:16-cv-3034-VMC-MAP, 2016
WL 6518782, at *2 (M.D. Fla. Nov. 3, 2016) (“For
jurisdictional purposes, the attorney’s fees included in the
amount-in-controversy calculation are set as of the date of
removal.”).
In its notice of removal, Florida HMA did not provide an
estimate of Connally’s attorney’s fees up to the date of
removal. (Doc. # 1 at 14-18). Instead, Florida HMA estimates
that the attorney’s fees through the end of trial would be
approximately $75,000. (Id.). But this is irrelevant, as only
attorney’s fees at the time of removal are included in the
amount in controversy. See Balkum v. Pier 1 Imports (U.S.),
Inc., No. 6:17-cv-1299-RBD-DCI, 2017 WL 3911560, at *3 (M.D.
Fla. Sept. 7, 2017) (“[W]hen a statute allows the recoupment
of attorneys’ fees, the Court measures the amount expended at
the time of removal.”).
And Florida HMA has not provided an estimate of the
attorney’s fees incurred only up to the time of removal in
its response to the Motion. Thus, the Court will not include
an estimate of the attorney’s fees incurred up to the date of
removal in the amount in controversy calculation.
F. Calculation of the Amount in Controversy
Combining all of these categories, Florida HMA has only
established that the amount in controversy is approximately
$22,598.12. This falls far short of $75,000. Therefore, this
Court lacks jurisdiction and remand is required.
G. Connally’s Request for Attorney’s Fees
Finally, Connally requests an award of attorney’s fees
and costs related to filing this Motion. (Doc. # 12 at 17-
18). True, 28 U.S.C. § 1447(c) provides that: “An order
remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a
result of the removal.”
“The Supreme Court has held that, absent unusual
circumstances, attorney’s fees should not be awarded under §
1447(c) when the removing party has an objectively reasonable
basis for removal.” Young v. GEICO Gen. Ins. Co., No. 8:10-
cv-1798-VMC-AEP, 2010 WL 11629267, at *4 (M.D. Fla. Oct. 12,
2010) (citing Martin v. Frankling Cap. Corp., 546 U.S. 132,
136 (2005)). “The appropriate test for awarding fees under §
1447(c) should recognize the desire to deter removals sought
for the purpose of prolonging litigation and imposing costs
on the opposing party, while not undermining Congress’ basic
decision to afford defendants a right to remove as a general
matter, when the statutory criteria are satisfied.” Martin,
546 U.S. at 140. Thus, “the standard for awarding fees should
turn on the reasonableness of the removal” and “when an
objectively reasonable basis exists, fees should be denied.”
Id. at 141.
Here, Florida HMA had an objectively reasonable basis
for removal: its calculation of back pay up to the date of
removal exceeded $96,000, thereby meeting the amount in
controversy threshold. Although the additional information
Connally has since provided about her mitigation efforts
reduced this amount significantly, Florida HMA reasonably
believed the amount in controversy exceeded $75,000 based on
the information it had at the time of removal. Therefore, the
Court declines to award fees and costs to Connally.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Plaintiff Tammy Connally’s Motion to Remand (Doc. # 12)
is GRANTED. The Clerk is directed to REMAND this case to state
court and, thereafter, CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of January, 2022.
fan 9. Menerby (neiVh
VIR! IA M. HERNANDEZ*COVINGTON
UNITED STATES DISTRICT JUDGE
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