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