Castillo v. GEOVERA SPECIALTY INSURANCE COMPANY

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 21-cv-20059-BLOOM/Otazo-Reyes

JENNIFER CASTILLO and

ALAIN SANCHEZ,

Plaintiffs,

v.

GEOVERA SPECIALTY INSURANCE

COMPANY,

Defendant.

_________________________________/

ORDER REMANDING CASE

THIS CAUSE is before the Court upon a sua sponte review of Defendant’s Notice of

Removal, ECF No. [1] (“Notice”), and Plaintiffs’ Complaint (“Complaint”), ECF No. [1-1] at 7-

9, which was removed from the Eleventh Judicial Circuit in and for Miami-Dade County, Florida

to this Court. For the reasons set forth below, the Court finds that Defendant has failed to establish

the existence of subject matter jurisdiction in this case.

“Federal courts are courts of limited jurisdiction. They possess only that power authorized

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). “It is to be presumed

that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests

upon the party asserting jurisdiction.” Id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11

(1799) and McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-183 (1936)). A “district

court may act sua sponte to address the issue of subject matter jurisdiction at any time.” Herskowitz

v. Reid, 187 F. App’x 911, 912-13 (11th Cir. 2006). This is because federal courts are “‘empowered

to hear only those cases within the judicial power of the United States as defined by Article III of

the Constitution,’ and which have been entrusted to them by a jurisdictional grant authorized by

Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor

v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “once a federal court determines

that it is without subject matter jurisdiction, the court is powerless to continue.” Id. at 410.

In the Notice, Defendant asserts that this Court has diversity jurisdiction over Plaintiffs’

claims pursuant to 28 U.S.C. § 1332. ECF No. [1]. “A removing defendant bears the burden of

proving proper federal jurisdiction.” Coffey v. Nationstar Mortg., LLC, 994 F. Supp. 2d 1281, 1283

(S.D. Fla. 2014). District courts have diversity jurisdiction over cases in which the parties are

completely diverse and the amount in controversy exceeds $75,000.00. 28 U.S.C. § 1332. “Where,

as here, the plaintiff has not pled a specific amount of damages, the removing defendant must

prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdiction

requirement.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010) (citing

Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)); see also 28 U.S.C.

§ 1332(a).

“To determine whether this standard is met, a court first examines whether it is facially

apparent from the complaint that the amount in controversy exceeds the jurisdictional

requirement.” Miedema v. Maytag Corp., 450 F.3d 1322, 1330 (11th Cir. 2006) (citation omitted),

abrogated on other grounds by Dudley v. Eli Lilly & Co., 778 F.3d 909 (11th Cir. 2014). “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.” Id. (citation omitted). Even so, “a removing defendant is not required to prove

the amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka, 608 F.3d

at 754 (citations omitted). “Where, as in this case, the complaint alleges an unspecified amount of

damages, ‘the district court is not bound by the plaintiff’s representations regarding its claim,’ and

may review the record for evidence relevant to the amount in controversy.” DO Rests., Inc. v.

Aspen Specialty Ins. Co., 984 F. Supp. 2d 1342, 1344 (S.D. Fla. 2013) (citing Roe v. Michelin N.

Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)). Moreover, “defendants may submit a wide range

of evidence in order to satisfy the jurisdictional requirements of removal,” including “affidavits,

declarations, or other documentation.” Pretka, 608 F.3d at 755. The Court may also use its judicial

experience and make reasonable inferences and deductions to determine the amount in

controversy. See Roe, 613 F.3d at 1061-62; Pretka, 608 F.3d at 754 (discussing the difference

between reasonable deductions and inferences with “conjecture, speculation, or star gazing”);

E.S.Y., Inc. v. Scottsdale Ins. Co., 217 F. Supp. 3d 1356, 1360 (S.D. Fla. 2015). “However, courts

must be mindful that removal statutes are construed narrowly and that uncertainties are resolved

in favor of remand.” Chiu v. Terminix Co. Int’l, L.P., No. 8:16-cv-306-T-24 JSS, 2016 WL

1445089, at *1 (M.D. Fla. Apr. 13, 2016) (citing Burns v. Windsor, 31 F.3d 1092, 1095 (11th Cir.

1994)).

The Court first reviews the allegations in the Complaint – the operative pleading – to

determine whether the amount in controversy is satisfied. Plaintiffs’ Complaint asserts claims for

damages sustained as a result of Hurricane Irma, and Defendant’s failure to provide coverage

pursuant to an insurance policy. Significantly, in the first paragraph of the Complaint, Plaintiffs

allege only that: “[t]his is an action for damages greater than the sum of THIRTY THOUSAND

DOLLARS, exclusive of interest, costs, and attorney’s fees . . . .” ECF No. [1-1] at 7, ¶ 1. As

such, it is not facially apparent from the Complaint that the amount in controversy is satisfied.

Because Plaintiffs do not plead a specific amount of damages, the Court next looks at the

Notice to determine whether the amount in controversy is satisfied, mindful that it is Defendant’s

burden to establish subject matter jurisdiction. Defendant contends that the amount in controversy

is satisfied because Plaintiffs have provided a repair estimate totaling $61,416.83, and Plaintiffs

have made a demand for $100,000.00 inclusive of attorney’s fees and costs under Florida Statutes

§ 627.428. In addition, Defendant asserts that because Plaintiffs seek to recover attorney’s fees,

the Court may include such fees in the amount in controversy and conclude that a reasonable

attorney’s fee in this case would easily exceed the amount necessary to satisfy the amount in

controversy. The Court disagrees.

“The general rule is that attorneys’ fees do not count towards the amount in controversy

unless they are allowed for by statute or contract.” Federated Mut. Ins. Co. v. McKinnon Motors,

LLC, 329 F.3d 805, 808 n.4 (11th Cir. 2003) (citing Graham v. Henegar, 640 F.2d 732, 736 (5th

Cir. 1981)); Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1265 (11th Cir. 2000) (“When a

statute authorizes the recovery of attorney’s fees, a reasonable amount of those fees is included in

the amount in controversy.”); see also Mo. State Life Ins. Co. v. Jones, 290 U.S. 199, 202 (1933).

However, “when the amount in controversy substantially depends on a claim for attorney fees, that

claim should receive heightened scrutiny.” Cohen v. Office Depot, Inc., 204 F.3d 1069, 1080 n.10

(11th Cir. 2000).

Although the Eleventh Circuit has explained that, “[w]hen a statute authorizes the recovery

of attorney’s fees, a reasonable amount of those fees is included in the amount in controversy,”

Morrison, 228 F.3d at 1265, it has not yet clarified whether the amount of attorney’s fees included

in the amount in controversy is the amount accrued at the time of removal or the prospective

amount of attorney’s fees required to litigate the entire case. This issue of including statutory

attorney’s fees in the amount in controversy has caused a split in district courts within the Eleventh

Circuit. See Bender v. GEICO Gen. Ins. Co., No. 8:17-cv-872-T-33TBM, 2017 WL 1372166, at

*1 (M.D. Fla. Apr. 17, 2017) (discussing the divide among courts in this Circuit “over whether to

include the projected amount of attorney’s fees or only attorney’s fees as of the time of removal”

(citations omitted)); Brown v. Am. Exp. Co., Inc., No. 09-61758-CIV, 2010 WL 527756, at *7

(S.D. Fla. Feb. 10, 2010) (discussing the “[c]onflicting case law [that] exists as to whether the

amount of attorney’s fees for the amount-in-controversy analysis should be calculated as of the

date of removal or through the end of the case” (citations omitted)).

Despite this split, many district courts across Florida have calculated these statutorily

authorized attorney’s fees as those accrued at the time of removal, especially in determining

whether federal jurisdiction exists.1 This conclusion is in line with Eleventh Circuit precedent

establishing that “[j]urisdictional facts are assessed on the basis of plaintiff's complaint as of the

time of removal. . . . That plaintiff might ask for or recover more after removal is not sufficient to

support jurisdiction.” Burns, 31 F.3d at 1097 n.13 (citations omitted). In addition, calculating

attorney’s fees as of the time of removal comports with “the general rule that post-removal events,

such as the subsequent generation of attorney fees, cannot create jurisdiction that was lacking at

the outset.” Lott & Friedland, P.A., 2010 WL 2044889, at *4 (citing Rogatinsky, 2009 WL

3667073, at *3 (“post-removal events . . . will not retroactively establish subject-matter

jurisdiction.”)); Waltemyer, 2007 WL 419663, at *2 (“While attorney fees through the conclusion

of the litigation are included when the action is filed initially in federal court, there is no reason to

1 See Frisher v. Lincoln Benefit Life Co., No. 13-20268-CIV, 2013 WL 12092525, at *2 (S.D. Fla. Aug. 19,

2013); Gold v. Traveler Indem. Co., No. 12-80036-CIV, 2012 WL 13019199, at *2 (S.D. Fla. Mar. 29,

2012); Lott & Friedland, P.A. v. Creative Compounds, LLC, No. 10-20052-CV, 2010 WL 2044889, at *4

(S.D. Fla. Apr. 21, 2010); Rogatinsky v. Metropolitan Life Ins. Co., No. 09-80740-CIV, 2009 WL 3667073,

at *3 (S.D. Fla. Oct. 26, 2009); Waltemyer v. Nw. Mut. Life Ins. Co., No. 2:06-cv-597-FtM-29DNF, 2007

WL 419663, at *2 (M.D. Fla. Feb. 2, 2007).

deviate from the general rule that in a removed case the amount in controversy is determined as of

the time of removal and the court cannot rely on post-removal events in examining its subject

matter jurisdiction.” (citing Morrison, 228 F.3d at 1265; Poore v. Am.-Amicable Life Ins. Co. of

Tex., 218 F.3d 1287, 1290-91 (11th Cir. 2000)), overruled on other grounds by Alvarez v. Uniroyal

Tire Co., 508 F.3d 639, 640 (11th Cir. 2007)).

Therefore, the amount in controversy does not include highly speculative, prospective

amounts of attorney’s fees, but rather includes only those fees accrued as of the time of removal.

Gold, 2012 WL 13019199, at *2 (“The Seventh Circuit . . . , considered this issue and ruled that

the amount in controversy calculation should not include ‘the value of legal services that have not

been and may never be incurred’ because the amount of legal fees are not ‘in controversy’ until

they are accrued.” (quoting Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir.

1998))). Here, other than Defendant’s conclusory assertion that a reasonable attorney’s fee would

easily exceed the amount necessary to satisfy the amount in controversy, Defendant has provided

no evidence of the amount of fees incurred by Plaintiffs to date.

Moreover, Defendant may not rely exclusively on Plaintiffs’ cursory $100,000.00 demand

to satisfy its burden in this case. “[E]vidence of a settlement demand in excess of $75,000 may

constitute evidence that the jurisdictional requirement has been met.” Wrubel v. Safeco Ins. Co. of

Ill., 266 F. Supp. 3d 1372, 1374 (S.D. Fla. 2017). This is especially so where the demand contains

specific and corroborating evidence reflecting an honest assessment of damages rather than mere

puffing and posturing. Moses v. Home Depot U.S.A., Inc., No. 13-60546-CIV, 2013 WL 11977917,

at *3 (S.D. Fla. June 19, 2013); see also Shields v. Fresh Mkt., Inc., No. 19-CV-60725, 2019 WL

1648974, at *2 (S.D. Fla. Apr. 17, 2019) (explaining that while a “demand letter, standing alone,

may not be enough to satisfy the jurisdictional amount,” when it is “combined with” supporting

documentation, it can establish the amount in controversy); Wilson v. Target Corp., No. 10-80451-

CIV, 2010 WL 3632794, *4 (S.D. Fla. Sept. 14, 2010) (detailed pre-suit demand letter delineated

the extent of the alleged injuries, the physicians who had treated the plaintiff, and the medical care

received from each of those physicians which could be considered reliable evidence that damages

exceeded $75,000.00); Katz v. J.C. Penney Corp., Inc., No. 09-CV-60067, 2009 WL 1532129, *5

(S.D. Fla. June 1, 2009) (the amount in controversy was met where Plaintiff had made a pre-suit

demand, based on medical reports, in the amount of $58,995.78 in current medical expenses and

$39,800.00 in future medical expenses); Livolsi v. State Farm Mut. Auto. Ins. Co., No. 17-CV-

80407, 2017 WL 7792572, at *2 (S.D. Fla. June 30, 2017) (remand avoided based, in part, on

demand letter that “is specific and details past and future medical expenses” exceeding the

jurisdictional threshold). Here, Plaintiffs’ demand contains no detailed basis or evidentiary

support. Rather, the demand was made in an e-mail, in which counsel simply states: “Initial

Demand: 100,000 (inclusive of attorney’s fees and cost).” ECF No. [1] at 63.

Upon review, the Court finds that Defendant’s Notice is facially deficient in that it fails to

demonstrate that the $75,000.00 amount-in-controversy requirement has been satisfied. The Court,

therefore, concludes that diversity jurisdiction is lacking, rendering it without subject matter

jurisdiction to preside over Plaintiffs’ claims.

Accordingly, it is ORDERED AND ADJUDGED that this case is REMANDED to the

Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The Clerk

of Court is directed to CLOSE this case.

Case No. 21-cv-20059-BLOOM/Otazo-Reyes

DONE AND ORDERED in Chambers at Miami, Florida, on January 7, 2021.

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record