Opinion

Leise v. Walmart Inc.

Court
District Court, M.D. Florida
Filed
Oct 19, 2023
Cited by
0 cases
Authority
More cited than 20.0%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GRANT W. LEISE,

Plaintiff,

v. Case No. 8:23-cv-2281-VMC-AEP

WALMART INC. (STORE #968),

Defendant.

_____________________________/

ORDER

This cause comes before the Court sua sponte. For the

reasons that follow, this case is remanded to state court for

lack of subject matter jurisdiction.

Discussion

“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).

Plaintiff initiated this Florida Civil Rights Act

(“FCRA”) case in state court on September 1, 2023. (Doc. # 1-

1). Thereafter, on October 6, 2023, Defendant removed the

case to this Court on the basis of diversity jurisdiction.

(Doc. # 1).

When jurisdiction is premised upon diversity of

citizenship, 28 U.S.C. § 1332(a) requires, among other

things, 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).

The complaint does not state a specified claim to

damages. See (Doc. # 1-1 at 3) (“This is an action for damages

which exceed thirty thousand dollars ($30,000).”). Instead,

in its notice of removal, Defendant relied upon its

calculation of Plaintiff’s back pay up to the time of trial,

twelve months’ front pay, compensatory damages, punitive

damages, and attorney’s fees through trial. (Doc. # 1 at 4-

7).

Upon review of the notice of removal, the Court was not

persuaded that the amount in controversy has been satisfied.

(Doc. # 5). Specifically, the Court wrote in relevant part:

Here, the Court is not convinced that the amount in

controversy requirement has been met. To establish

that the amount in controversy exceeds $75,000,

Defendant relies on Plaintiff’s back pay up to the

time of trial, 12 months’ front pay, compensatory

damages, punitive damages, and attorney’s fees

through trial. However, the Court may only include

Plaintiff’s attorney’s fees up to the date of

removal, and Defendant does not even attempt to

speculate as to the attorney’s fees incurred up to

removal. For this reason, the Court will not

consider the attorney’s fees up to removal in its

amount in controversy calculation. Additionally,

“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).

Thus, only Plaintiff’s back pay up to removal —

$21,440 ($536 per week x 40 weeks) — is included in

the Court’s amount in controversy calculation,

which falls far short of $75,000. Next, the Court

considers the front pay and compensatory damages

calculations too speculative to include in its

amount in controversy calculation. See 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’”); 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). Finally,

while the Court may consider punitive damages in

determining the amount in controversy, the fact

that Plaintiff has arguably 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

Florida Civil Rights Act 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. In short, Defendant has only

proven by a preponderance of the evidence that the

amount is controversy in this case is approximately

$21,440.

(Id.). The Court gave Defendant an opportunity to provide

additional information to establish the amount in

controversy.

Defendant has now responded to the Court’s Order in an

attempt to establish this Court’s diversity jurisdiction.

(Doc. # 12). But Defendant has not even attempted to provide

the Court with any additional evidence to support that the

amount in controversy exceeds $75,000. Rather, Defendant

merely bickers with the Court’s earlier Order and reiterates

its own amount-in-controversy calculation from the notice of

removal. (Id.).

The Court is unpersuaded. Again, there is no evidence of

the attorney’s fees incurred by Plaintiff pre-removal, and

these are the only attorney’s fees the Court considers. 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.”); Unwin v.

Hartford Ins. Co. of the Midwest, No. 2:21-cv-135-SPC-NPM,

2021 WL 1821415, at *2 (M.D. Fla. Apr. 9, 2021) (“The Court

will follow the approach adopted by many other courts in this

District and include those [attorney’s] fees likely accrued

at the time of removal.”).

And the Court reiterates its earlier ruling that back

pay up to the time of removal is all that is relevant. See

Avery v. Wawa, Inc., No. 8:18-cv-403-VMC-TGW, 2018 WL

1008443, at *3 (M.D. Fla. Feb. 22, 2018) (“[T]his Court has

repeatedly held that ‘the amount in controversy is determined

at the time of removal and thus does not include post-removal

back pay.’” (citation omitted)). Here, that amount is less

than $22,000. (Doc. # 5). The front pay and compensatory

damages calculations remain too speculative to include in its

amount in controversy calculation. See Avery, 2018 WL

1008443, at *3 (“Speculation regarding front pay cannot be

used to supplement insufficient back pay for the purpose of

meeting the jurisdictional requirement.”).

Finally, it is inappropriate to include the statutory

maximum $100,000 in punitive damages in the amount-in-

controversy calculation because, following Defendant’s

proposed approach, “every Florida Civil Rights Act case filed

in state court containing a request for punitive damages would

automatically meet the jurisdictional minimum for removal to

federal court.” Boyd v. N. Tr. Co., No. 8:15-cv-2928-VMC-TBM,

2016 WL 640529, at *4 (M.D. Fla. Feb. 18, 2016). Inclusion of

punitive damages in the amount in controversy is doubly

inappropriate here where, as Defendant acknowledges, the

complaint does not include an explicit request for punitive

damages. Rather, at most, Plaintiff demands “other economic

losses proximately caused and allowable under the FCRA.”

(Doc. # 1-1 at 6).

In short, Defendant has not carried its burden of

establishing this Court’s diversity jurisdiction by a

preponderance of the evidence. The Court, finding that it

lacks subject matter jurisdiction, remands this case to state

court.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

The Clerk is directed to REMAND this case to the Circuit

Court of the Tenth Judicial Circuit, in and for Polk County,

Florida, because the Court lacks subject matter jurisdiction.

After remand, the Clerk shall CLOSE this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

19th day of October, 2023.

Eigen Maca ee

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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