# Hart v. National Specialty Insurance Company

> District Court, S.D. Florida · August 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10119589

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** August 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-CV-60641-RAR

ANGELA C. HART, et al.,

Plaintiffs,

v.

NATIONAL SPECIALTY INSURANCE
COMPANY,

Defendant.
_______________________________/

ORDER DENYING MOTION TO REMAND

THIS CAUSE comes before the Court on Plaintiffs’ Motion to Remand [ECF No. 6]
(“Motion”). Having considered the Motion, Defendant’s Brief in Opposition [ECF No. 15], and
the record, and being otherwise fully advised, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion [ECF No. 6] is DENIED for the
reasons set forth below.
BACKGROUND

This action arises from a homeowner’s insurance contract between the parties. On May
17, 2020, Plaintiffs’ home suffered substantial physical damage during a windstorm. Notice of
Removal [ECF No. 1] at 7. When Plaintiffs filed a claim with Defendant to collect proceeds for
the damages, Defendant refused to provide coverage. Id. Plaintiffs commenced this action
asserting a breach of contract claim in the Circuit Court of the Seventeenth Judicial District in and
for Broward County, Florida, on December 15, 2020. Id. at 1. The Complaint does not plead a
specific amount in damages but states only that the damages exceed $30,000—the jurisdictional
minimum for the state court where it was filed. See generally id. at 6–10 (containing the original
state court Complaint).
On February 3, 2021, Defendant served a Request for Admissions seeking information on
Plaintiffs’ claim for damages. Id. at 2. In their Response to Defendant’s Request for Admissions,
filed on March 3, 2021, Plaintiffs admitted to their Florida citizenship and to seeking an amount
exceeding $75,000. Id. at 32. On March 23, 2021, Defendant filed a Notice of Removal to federal
court, asserting subject matter jurisdiction based on Plaintiffs’ admissions. Mot. [ECF No. 6] at
2. Plaintiffs are citizens of Florida, and Defendant is a Texas corporation with its principal place
of business in Texas. Notice of Removal [ECF No. 1] at 2.

LEGAL STANDARD

A defendant may remove a case from state court to federal court if the case originally could
have been brought in federal court. 28 U.S.C. § 1441. Such cases include actions where the federal
court has diversity jurisdiction under 28 U.S.C. section 1332, which requires complete diversity
of citizenship between the plaintiff and all defendants and an amount in controversy exceeding
$75,000.
As to the timeliness of removal, Congress has established a bifurcated removal regime
whereby a state court defendant may remove a case to federal court at one—and, critical to this
case, only one—of two procedurally distinct moments in time. If the initial pleading is removable
on its face, 28 U.S.C. section 1446(b)(1) requires removal “within 30 days after the receipt by the
defendant . . . of a copy of the initial pleading setting forth the claim for relief upon which such
action is based.” Otherwise, “a notice of removal may be filed within 30 days after receipt by the
defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has become removable.” Id. § 1446(b)(3).
District courts in this Circuit construe the 30-day removal period prescribed by section 1446(b) to
commence as soon as a defendant can ascertain intelligently that the action is removable. Imperial
Fund, I, LLC v. Orukotan, No. 21-60162, 2021 WL 752577, at *2 (S.D. Fla. Feb. 25, 2021).
On a motion to remand, the removing party shoulders the burden of establishing federal
subject matter jurisdiction. Conn. State Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337,
1343 (11th Cir. 2009). Because removal jurisdiction raises significant federalism concerns, this
Circuit directs district courts to construe removal statutes strictly. Indeed, district courts should
resolve all doubts regarding jurisdiction in favor of remand to state court. Univ. of S. Ala. v. Am.
Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999).
ANALYSIS

As a threshold matter, this case satisfies the section 1332 requirements for federal subject
matter jurisdiction. The parties agree that there is complete diversity and that the amount in
controversy exceeds $75,000. See Mot. [ECF No. 6] at 4; Notice of Removal [ECF No. 1] at 3.
Hence, the Court’s analysis hinges on the timeliness of Defendant’s otherwise proper removal.
Under section 1446(b)(1), Defendant had 30 days after receiving a copy of the initial
pleading on December 15, 2020, to file its Notice of Removal—but only if the initial pleading was
removable on its face. Plaintiffs’ initial pleading states neither Plaintiffs’ citizenship nor that the
amount in controversy exceeds $75,000. See generally Notice of Removal [ECF No. 1] at 6–10
(original state court Complaint). Plaintiffs implicitly acknowledge this omission, arguing instead
that because they had sent Defendant two documents—a Civil Remedy Notice and a Sworn Proof

of Loss—stating an amount of $159,038.38 prior to commencing the action, Defendant “waived
its right of removal by failing to file a Notice of Removal within thirty days after receiving
Plaintiffs’ initial pleading.” Mot. [ECF No. 6] at 1, 4. These documents, say Plaintiffs, “clearly
put [Defendant] on notice more than a month prior to being served with the initial complaint that
the amount of controversy exceeded $75,000.” Id. at 4. In other words, Plaintiffs contend that
their initial pleading triggered section 1446(b)(1), but only because the pre-suit documents
constituted “other paper” that triggered section 1446(b)(3).
Aside from impermissibly rewriting the statute by merging distinct provisions of section
1446, Plaintiffs’ argument fails because pre-suit documents are not “other paper” under section
1446(b)(3). Firtell v. USAA Cas. Ins. Co., No. 19-60945, 2019 WL 7708460, at *2 (S.D. Fla. Aug.
12, 2019). Though “other paper” is broadly defined and may include any formal or informal
communication received by a defendant, the Court has held that documents a defendant receives
prior to the commencement of a suit are not “other paper” under section 1446(b)(3). Id.
Documents are “other paper” under section 1446(b)(3) only if the defendant receives them after

receiving the initial pleading. Lambertson v. Go Fit, LLC, 918 F. Supp. 2d 1283, 1286 (S.D. Fla.
2013). This rule avoids the uncertainty and judicial inefficiency that would result from requiring
courts to peer into what a defendant subjectively knew before the case even started. Id. The Court
has no interest in imputing knowledge of pre-suit documents to defendants and thus finds these
pre-suit documents concerning the amount in controversy immaterial as to the removability of this
case.1
Alternatively, Plaintiffs invoke a letter their counsel sent to Defendant’s counsel on January
18, 2021, issuing a $165,000 settlement demand. Mot. [ECF No. 6] at 4–5. They assert that if
their initial pleading (coupled with the pre-suit documents) did not provide Defendant with
sufficient knowledge to intelligently ascertain removability, then the letter certainly did so. Id.

This argument also fails. The Court has recognized that a settlement demand letter may qualify as
“other paper” for the purpose of opening the 30-day window of opportunity to remove a case to
federal court. Beauliere v. JetBlue Airways Corp., No. 20-60931, 2020 WL 6375170, at *2 (S.D.
Fla. Oct. 29, 2020). However, the Court must analyze whether such a letter reflects mere puffing

1 The Court also notes, without further analysis, the absurdity that would result if the Court allowed a
document Defendant received more than a month before the initial pleading to trigger removability under
section 1446(b)(3)—namely, that the 30-day limit would have expired before the case even began.
and posturing as opposed to reasonably communicating the value of the claim. /d. Here, Plaintiffs
have provided the Court with no record indicating that the January 18, 2021 demand letter was
accompanied by support for their $165,000 claim. Accord id. at *3 (requiring “specific evidence
substantiating the... offer’). The letter also lacked any statement regarding Plaintiffs’ citizenship,
which further precluded Defendant from ascertaining intelligently that this action was removable.
The Court finds that neither Plaintiffs’ initial pleading on December 15, 2020, nor their
proffered letter from January 18, 2021, establishes federal subject matter jurisdiction on their face
and that Plaintiffs improperly rely on pre-suit documents. The document triggering Defendant’s
30 days to file a notice of removal was Plaintiffs’ Response to Defendant’s Request for
Admissions, and Defendant properly removed during this period. The Court therefore rejects
Plaintiffs’ claims that Defendant’s removal was untimely.
CONCLUSION
Plaintiffs left Defendant in the dark on the issue of federal subject matter jurisdiction until
March 3, 2021, when they admitted, at Defendant’s request, that they are citizens of Florida and
that the amount in controversy exceeds $75,000. Until Defendant received this “other paper,”
Defendant could not ascertain intelligently that this action was removable. Plaintiffs’ late
admissions opened Defendant’s 30-day window of opportunity to remove this case under 28
U.S.C. section 1446(b)(3), and Defendant’s Notice of Removal filed 20 days later was timely.
Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiffs’ Motion [ECF No. 6] is DENIED.
DONE AND ORDERED in Fort Lauderdale, Florida, this 26th day of August, 2021.

UNITED STATES DISTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10119589. Public record. Not legal advice.