Tavares v. Pelican International, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LAWRENCE TAVARES and

JOANNA TAVARES,

Plaintiffs,

vs. Case No. 3:22-cv-554-MMH-MCR

PELICAN INTERNATIONAL, INC.,

et al.,

Defendants.

/

O R D E R

THIS CAUSE is before the Court sua sponte. Federal courts are courts

of limited jurisdiction and therefore have an obligation to inquire into their

subject matter jurisdiction. See Kirkland v. Midland Mortg. Co., 243 F.3d 1277,

1279–80 (11th Cir. 2001). This obligation exists regardless of whether the

parties have challenged the existence of subject matter jurisdiction. See Univ.

of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“[I]t is well

settled that a federal court is obligated to inquire into subject matter

jurisdiction sua sponte whenever it may be lacking.”). “In a given case, a federal

district court must have at least one of three types of subject matter jurisdiction:

(1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction

pursuant to 28 U.S.C. § 1331; or (3) diversity jurisdiction pursuant to 28 U.S.C.

§ 1332(a).” Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469 (11th Cir.

1997).

On May 19, 2022, Defendant Pelican International, Inc. (Pelican), filed a

Notice of Removal (Doc. 1; Notice) removing this case from the Circuit Court,

Fourth Judicial Circuit in and for Duval County, Florida. See id. at 1. In the

Notice, Pelican asserts that this Court has diversity jurisdiction over the

instant action pursuant to 28 U.S.C. § 1332(a). See Notice at 3. However, upon

review of the Notice and Complaint (Doc. 4; Complaint), the Court finds that

Pelican fails to allege sufficient facts to establish the citizenship of the parties

and to plausibly demonstrate that the amount in controversy exceeds $75,000.

First, Pelican does not sufficiently allege the citizenship of the parties.

For a court to have diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), “all

plaintiffs must be diverse from all defendants.” Univ. of S. Ala., 168 F.3d at

412. To establish diversity over a natural person, a complaint must include

allegations of the person’s citizenship, not where he or she resides. See Taylor

v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). A natural person’s citizenship

is determined by his or her “domicile,” or “the place of his true, fixed, and

permanent home and principal establishment . . . to which he has the intention

of returning whenever he is absent therefrom.” McCormick v. Aderholt, 293

F.3d 1254, 1257–58 (11th Cir. 2002) (quotation and citation omitted). Here,

although Pelican appears to allege Plaintiffs’ domicile, Pelican does so only

“[u]pon information and belief.” See Notice at 3. Allegations premised only on

“information and belief,” are plainly insufficient to establish the citizenship of

Plaintiffs as necessary to invoke this Court’s subject matter jurisdiction. See,

e.g., Payne v. Ivy, No. 6:18-cv-3-Orl-18KRS, 2018 WL 1155987, at *1 (M.D. Fla.

Jan. 22, 2018) (“Allegations made ‘upon information and belief’ are not

sufficient to support jurisdictional allegations, however.”); Matos-Cruz v.

JetBlue Airways Corp., No. 6:17-cv-380-Orl-37TBS, 2017 WL 3268956, at *2

(M.D. Fla. Aug. 1, 2017) (“Courts have held that allegations concerning a party’s

citizenship based only ‘on information and belief’ are insufficient.”); Principle

Solutions LLC v. Feed.ing BV, No. 13-C-223, 2013 WL 2458630, at *2 (E.D. Wis.

June 5, 2013).

Pelican also alleges insufficient information regarding the citizenship of

the corporate Defendants. “The federal diversity jurisdiction statute provides

that ‘a corporation shall be deemed to be a citizen of any State by which it has

been incorporated and of the State where it has its principal place of business.’”

Hertz Corp. v. Friend, 559 U.S. 77, 80 (2010) (quoting 28 U.S.C. § 1332(c)(1)).

In Hertz, the Supreme Court defined “principal place of business” to mean “the

place where a corporation’s officers direct, control, and coordinate the

corporation’s activities,” also known as its “nerve center.” Id. at 92–93. In

practice, this normally is “the place where the corporation maintains its

headquarters—provided that the headquarters is the actual center of direction,

control, and coordination . . . and not simply an office where the corporation

holds its board meetings.” Id. at 93. Here, Pelican asserts that it is a

corporation organized under the laws of Canada “with its headquarters in

Quebec, Canada.” Notice at 4. Similarly, Pelican asserts that unserved

Defendant Zorg, Inc., is a Canadian corporation with its headquarters in

Quebec, Canada, and that unserved Defendant Dick’s Sporting Goods, Inc., is a

Delaware corporation with its headquarters in Pennsylvania. Id. A

corporation’s headquarters is normally, but not necessarily, its principal place

of business. See Hertz, 559 U.S. at 93. Therefore, Pelican must clarify the

location of each Defendant’s principal place of business.

In addition, the Court finds that Pelican’s allegations as to the amount in

controversy are also insufficient. Where a defendant removes an action from

state court to federal court, the defendant “bears the burden of proving that

federal jurisdiction exists.” See Williams v. Best Buy Co., Inc., 269 F.3d 1316,

1319 (11th Cir. 2001). In Dart Cherokee Basin Operating Co. v. Owens, the

Supreme Court explained that a defendant’s notice of removal must include “a

plausible allegation that the amount in controversy exceeds the jurisdictional

threshold.” See 574 U.S. 81, 89 (2014). If the plaintiff contests the allegation,

or the court questions it, a defendant must then present evidence establishing

that the amount in controversy requirement is met. Id. (citing 28 U.S.C. §

1446(c)(2)(B)); see also Dudley v. Eli Lilly & Co., 778 F.3d 909, 912 (11th Cir.

2014). Notably, “[a] conclusory allegation in the notice of removal that the

jurisdictional amount is satisfied, without setting forth the underlying facts

supporting such an assertion, is insufficient to meet the defendant’s burden.”

See Williams, 269 F.3d at 1320. Indeed, the Court may not speculate or guess

as to the amount in controversy. See Pretka v. Kolter City Plaza II, Inc., 608

F.3d 744, 752 (11th Cir. 2010). Rather, a removing defendant should make

“specific factual allegations establishing jurisdiction” and be prepared to

“support them (if challenged by the plaintiff or the court) with evidence

combined with reasonable deductions, reasonable inferences, or other

reasonable extrapolations.” Id. at 754 (emphasis added). In those

circumstances, a court is able to determine the amount in controversy without

relying on impermissible “conjecture, speculation, or star gazing.” Id.1

Here, Pelican fails to present a “plausible allegation” of the amount in

controversy. This case arises out of an incident in which a kayak sank while

Plaintiffs and their five-year-old son were inside. See Complaint ¶¶ 9–11. In

1 The Court notes that Dart, Dudley, and Pretka, all involved cases removed to federal

court under the Class Action Fairness Act of 2005 (CAFA). Because remand orders are not

ordinarily reviewable on appeal, except in class action cases, see 28 U.S.C. § 1447(d), § 1453(c),

appellate decisions on removal usually involve cases removed under CAFA. See, e.g., Pretka,

608 F.3d at 752. Nonetheless, with limited exception, “CAFA’s removal provision expressly

adopts the procedures of the general removal statute, 28 U.S.C. § 1446.” Pretka, 608 F.3d at

756–57 & n.11 (citations omitted). Thus, although the cases cited above involved removal

under CAFA, they interpret and apply the general removal procedures, and the Court finds

the analysis of those cases applicable here. See Bender v. Mazda Motor Corp., 657 F.3d 1200,

1204 n.2 (11th Cir. 2011) (addressing an appeal involving a non-CAFA removal and citing to

Pretka as authority regarding removal procedures).

the Complaint, Plaintiffs allege that damages exceed $30,000, exclusive of costs.

See id. ¶ 1. Plaintiffs assert that as a result of the kayaking incident, they

“suffered damages, including . . . permanent physical injury and resulting pain

and suffering, disability, mental pain and suffering, and loss of capacity for

enjoyment of life,” in addition to “the expense of hospitalization, medical and

nursing care and treatment, loss of earnings, [and] loss of ability to earn

money.” Id. ¶¶ 17, 32. Plaintiffs further allege that the losses are “permanent

and continuing.” Id. In support of removal, Pelican merely points to these

allegations and states that “Plaintiffs have made a settlement demand far in

excess of $75,000.” Notice at 3.

Pelican’s recitation of the generic, vague and categorical allegations of the

Complaint, combined with an undetailed reference to a settlement demand, do

not provide the Court with any specific, factual information by which to

determine whether Plaintiffs’ damages plausibly exceed the jurisdictional

threshold. Indeed, based on the allegations in the Notice and Complaint, the

Court can discern only that Plaintiffs suffered some sort of physical injuries

when the kayak sank. See Complaint ¶¶ 11, 15, 17, 32; Notice at 3. The Court

can do no more than speculate regarding the nature and severity of those

injuries and whether they implicate damages in excess of $75,000. Thus,

“without facts or specific allegations, the amount in controversy [can] be

‘divined [only] by looking at the stars’—only through speculation—and that is

impermissible.” Pretka, 608 F.3d at 753–54 (third alteration in original)

(quoting Lowery v. Ala. Power Co., 483 F.3d 1184, 1209, 1215 (11th Cir. 2007)).

In the absence of any information regarding the nature of Plaintiffs’ injuries, or

the cost of their subsequent medical care or loss of earning capacity, the Court

is unable to determine whether the amount in controversy requirement is

satisfied here.

Pelican’s reference to the settlement demand is also insufficient. “When

referencing a demand letter to ascertain the amount in controversy, courts

analyze ‘whether demand letters merely reflect puffing and posturing or

whether they provide specific information to support the plaintiff’s claim for

damages.’” See Boyd v. State Farm Mut. Auto. Ins. Co., No. 6:15-cv-1965-Orl-

22TBJ, 2015 WL 12838805, at *2 (M.D. Fla. Dec. 16, 2015) (quoting Moser v.

Cincinnati Ins. Co., No. 8:14-cv-3121-CEH-TWG, 2015 WL 628961, at *2 (M.D.

Fla. Feb. 12, 2015)). If a pre-suit demand letter provides “a reasonable

assessment of the value of the claim,” then it is “more indicative of the true

amount in controversy,” especially where the letter “contains supporting

information, such as medical bills or a specific medical diagnosis.” Id. (internal

quotation omitted); see also Hernandez v. Burlington Coat Factory of Fla., LLC,

No. 2:15-cv-403-FtM-29CM, 2015 WL 5008863, at *2 (M.D. Fla. Aug. 20, 2015).

In contrast, a demand for a lump sum amount “without the slightest suggestion

how in the world the plaintiff[] could support such a figure,” is considered

nothing more than mere posturing. Jackson v. Select Portfolio Servicing, Inc.,

651 F. Supp. 2d 1279, 1281 (S.D. Ala. 2009). Here, Pelican does not provide the

Court with any information explaining on what facts, if any, Plaintiffs

substantiated the demand. Without more information, the Court cannot

discern whether Plaintiffs’ demand “far in excess of $75,000,” Notice at 3,

amounts to a reasonable assessment of the value of the claim or is more akin to

mere “puffing and posturing.” As such, Pelican has failed to provide the Court

with sufficient information for the Court to determine whether it has

jurisdiction over this action.2

In light of the foregoing, the Court will give Pelican an opportunity to

provide the Court with additional information as to the parties’ citizenship, the

2 Indeed, carefully ascertaining the citizenship of the parties and whether the Court

has subject matter jurisdiction over this action is more than just an academic exercise, as is

evident from two Eleventh Circuit cases decided in 2017. See Thermoset Corp. v. Bldg.

Materials Corp of Am., 849 F.3d 1313, 1316–1317 (11th Cir. 2017) (vacating summary

judgment order after three years of litigation where court determined on appeal that the

pleadings below had not sufficiently alleged the citizenship of a defendant limited liability

company, and upon further inquiry, found that the defendant limited liability company had a

non-diverse member); see also Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d

1218, 1222, 1228 (11th Cir. 2017) (discussing whether sanctions were warranted in a case

where summary judgment was reversed on appeal after the appellate court discovered that

the pleadings did not sufficiently allege the citizenship of the plaintiff LLC, leading to the

realization that there was no diversity jurisdiction) (“While the requirements of diversity

jurisdiction in this scenario are complicated, they are the law. No party in this case acted with

bad intentions, but the result was a colossal waste of time and effort. We trust that the

damage done to the parties' credibility, finances, and time is enough of a sanction to curb their

conduct and to serve as a warning to future diversity jurisdiction litigants. In the end, when

the parties do not do their part, the burden falls on the courts to make sure parties satisfy the

requirements of diversity jurisdiction. We must be vigilant in forcing parties to meet the

unfortunate demands of diversity jurisdiction in the 21st century.”).

amount 1n controversy, and this Court’s diversity jurisdiction over the instant

action. Accordingly, it is

ORDERED:

Defendant Pelican International, Inc., shall have up to and including

June 10, 2022, to provide the Court with sufficient information so that it can

determine whether it has diversity jurisdiction over this action.

DONE AND ORDERED in Jacksonville, Florida, on May 23, 2022.

MARCIA MORALES HOWARD

United States District Judge

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Copies to:

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