MSP Recovery Claims, Series LLC v. Security National Insurance Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-23194-ALTMAN/Reid

MSP RECOVERY CLAIMS,

SERIES LLC, et al.,

Plaintiffs,

v.

SECURITY NATIONAL

INSURANCE COMPANY,

Defendant.

______________________________/

ORDER GRANTING MOTION TO REMAND

The Plaintiffs have filed a Motion to Remand [ECF No. 12]—which, after careful review, we

GRANT in part and DENY in part.1

THE FACTS

On December 20, 2018,2 the Plaintiffs (MSP Recovery Claims, Series LLC; MSPA Claims 1,

LLC; and Series PMPI) sued two Defendants (Security National Insurance Company and General

Security National Insurance Company) in the Circuit Court of the Eleventh Judicial Circuit in and for

1 The Motion to Remand is ripe for resolution. The Defendant filed its Response to the Plaintiffs’

Motion to Remand (the “Response”) [ECF No. 19] on October 5, 2023, and the Plaintiff filed its

Reply in Support of the Motion to Remand [ECF No. 22] on October 12, 2023.

2 Under 28 U.S.C. § 1446(c)(1), a “case may not be removed under subsection (b)(3) on the basis of

jurisdiction conferred by section 1332 more than 1 year after commencement of the action, unless the

district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from

removing the action.” But 28 U.S.C. § 1453(b) provides that a “class action may be removed to a

district court of the United States in accordance with section 1446 [and] the 1-year limitation under

section 1446(c)(1) shall not apply.” The Defendant removed this case under the Class Action Fairness

Act, so the one-year statute of limitations probably doesn’t apply. In any event, because the Plaintiffs

don’t advance a timeliness argument in their Motion to Remand, they’ve forfeited any such argument

here. See 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect other than lack

of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal

under section 1446(a).”).

Miami-Dade County, asserting one count for a pure bill of discovery. See Complaint [ECF No. 1-6] at

9–35. On June 28, 2019, while still in state court, the Plaintiffs filed an Amended Complaint against

one Defendant, Security National Insurance Company—again asserting one count for a pure bill of

discovery. See First Amended Complaint [ECF No. 1-6] at 177–203. On August 22, 2023, the Circuit

Court of the Eleventh Judicial Circuit granted the Plaintiffs’ Motion for Leave to File a Second

Amended Complaint. See [ECF No. 1-6] at 439. That same day, the Plaintiffs filed their Second

Amended Complaint (the “SAC”) [ECF No. 1-2]. The SAC, brought as a putative class action, seeks

declaratory relief and a bill of discovery. See SAC ¶¶ 74, 84. The putative class is defined as follows:

“All non-governmental organizations and their assignees (collectively ‘Secondary Payors’), that

provide health and prescription benefits in the State of Florida to Members who are also insured by

the Security National Insurance Defendant under a No-Fault, [Personal Injury Protection], or Med

Pay insurance policies.” Id. ¶ 53.

Later that same day (August 22, 2023), the Defendant removed this case to federal court under

the provisions of 28 U.S.C. §§ 1331, 1332(d), 1441, 1446, and 1453. See Notice of Removal [ECF No.

1] at 1. The Defendant says that we have subject-matter jurisdiction over this case because “[a]ll

requirements for removal under the Class Action Fairness Act (‘CAFA’) have been met,” and because

“the Second Amended Complaint presents a federal question, independently supporting removal[.]”

Id. ¶¶ 3–4. On September 21, 2023, the Plaintiffs timely filed a Motion to Remand, arguing that the

Defendant “fails to establish jurisdiction under [CAFA] as this action does not meet the amount in

controversy thresholds required by 28 U.S.C. §§ 1332(a) [and] also fails to establish federal question

jurisdiction.” Motion to Remand at 1. The Plaintiffs also ask for “attorneys’ fees and costs in

connection with Defendant’s improper removal pursuant to 28 U.S.C. § 1447(c).” Ibid.

THE LAW

A federal court should remand to state court any case that has been improperly removed. See

28 U.S.C. § 1447(c). The party attempting to invoke the federal court’s jurisdiction bears the burden

of establishing that jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., Inc., 298 U.S. 178, 189

(1936). “Not only does the language of the Act of 1887 evidence the Congressional purpose to restrict

the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress

regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation.”

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941). Indeed, “[d]ue regard for the rightful

independence of state governments, which should actuate federal courts, requires that they

scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Healy

v. Ratta, 292 U.S. 263, 270 (1934).

In 2005, Congress enacted the Class Action Fairness Act (“CAFA”), PUB. L. NO. 109–2 § 2(b),

119 STAT. 4, “which amended the federal diversity jurisdiction statute, 28 U.S.C. § 1332, to provide

special rules for class action lawsuits,” Smith v. Marcus & Millchap, Inc., 991 F.3d 1145, 1149–50 (11th

Cir. 2021). “CAFA grants federal district courts jurisdiction over class actions where (1) any member

of the plaintiff class is a citizen of a state different from the state of citizenship of any defendant, (2)

the aggregate amount in controversy exceeds $5 million, and (3) the proposed plaintiff class contains

at least 100 members.” Dudley v. Eli Lilly & Co., 778 F.3d 909, 911 (11th Cir. 2014); see also 28 U.S.C.

§ 1332(d)(2), (5)–(6). In CAFA actions, as in “traditional” cases, “the party seeking a federal venue

must establish the venue’s jurisdictional requirements.” Lowery v. Ala. Power Co., 483 F.3d 1184, 1207

(11th Cir. 2007).

“Under the federal question jurisdiction statute, 28 U.S.C. § 1331, a district court has subject

matter jurisdiction over ‘all civil actions arising under the Constitution, laws, or treaties of the United

States.’” Smith v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (quoting 28 U.S.C. § 1331).

“Whether a claim arises under federal law for purposes of 28 U.S.C. § 1331 is generally determined by

the well-pleaded complaint rule, ‘which provides that federal jurisdiction exists only when a federal

question is presented on the face of the plaintiff’s properly pleaded complaint.’” Ibid. (quoting

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987)). In other words, “[f]ederal question jurisdiction

exists only when the ‘well-pleaded complaint standing alone establishes either that federal law creates

the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a

substantial question of federal law.’” Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1472 (11th Cir. 1997)

(quoting Franchise Tax Bd. of the State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 27–28

(1983)).

Although courts continue to apply the well-pleaded-complaint rule, the Supreme Court has

said that the delicate balance of federalism concerns has “kept [it] from stating a ‘single, precise, all-

embracing’ test for jurisdiction over federal issues embedded in state-law claims between nondiverse

parties.” Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 314 (2005). The Supreme

Court has therefore refused to “treat[ ] ‘federal issue’ as a password opening federal courts to any state

action embracing a point of federal law.” Ibid. In evaluating whether the “particular factual

circumstances of a case give rise to removal jurisdiction, we strictly construe the right to remove and

apply a general presumption against the exercise of federal jurisdiction, such that all uncertainties as

to removal jurisdiction are to be resolved in favor of remand.” Scimone v. Carnival Corp., 720 F.3d 876,

882 (11th Cir. 2013) (cleaned up); see also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)

(“[W]here plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of

remand.”).

ANALYSIS

I. The Class Action Fairness Act

The Plaintiffs ask us to remand this case for two reasons: One, the Defendant (they say) “fails

to establish jurisdiction under [CAFA] as this action does not meet the amount in controversy

thresholds required by 28 U.S.C. §[ ] 1332(a)”; two, the Defendant (they insist) independently “fails to

establish federal question jurisdiction.” Motion to Remand at 1. On the first argument, we agree with

the Plaintiffs that the Defendant hasn’t established, by a preponderance of the evidence, that the

amount in controversy exceeds $5 million, which is “required for federal subject matter jurisdiction

under CAFA.” Dudley, 778 F.3d at 910 (citing 28 U.S.C. § 1332(d)(2)). The Eleventh Circuit has

“repeatedly held that the removing party bears the burden of proof to establish by a preponderance

of the evidence that the amount in controversy exceeds the jurisdictional minimum.” Id. at 913. “[I]n

making this calculation, a court may rely on evidence put forward by the removing defendant, as well

as reasonable inferences and deductions drawn from that evidence.” Ibid.

In this case, the Plaintiffs’ operative complaint—the Second Amended Complaint—seeks

declaratory relief and a pure bill of discovery. See SAC ¶¶ 74, 84. In their first claim, the Plaintiffs

request prospective declaratory relief to clarify the parties’ “rights and obligations” under Florida law.

Id. ¶ 77. Specifically, they ask for “declaratory relief under Florida’s Declaratory Judgment Act set

forth in Chapter 86 of the Florida Statutes, regarding the [Defendant’s] failure to comply with its

primary obligations pursuant to section 627.736(4), Florida Statutes, and the Plaintiffs’ and the Class’s

obligations under sections 627.736(5) and 627.736(10), Florida Statutes.” Id. ¶ 4. The Plaintiffs thus

want us to enter the following decrees:

a. Security National Insurance Defendant must determine whether its insureds are

also Members covered by Secondary Payors, and if so, then, the Security National

Insurance Defendant must coordinate benefits with Secondary Payors;

b. Security National Insurance Defendant must alert Secondary Payors of its primary

obligations pursuant to Fla. Stat. § 627.736(4);

c. Unlike Healthcare Providers lawfully rendering treatment to an injured person for

bodily injury covered by PIP insurance, Secondary Payors are not obligated to

submit a demand for reimbursement on a properly completed 1500 Claim Form,

UB 92 Form, or any other standard form under Fla. Stat. § 627.736(5)(d); and

d. Secondary Payers are not obligated to comply with the strict requirements of Fla.

Stat. § 627.736(10), when seeking reimbursement demands and that:

i. Security National Insurance Defendant must notify the Secondary Payors

of the name of the insured upon which such benefits are primary;

ii. Secondary Payors are not required to provide a standard “assignment”

typically given to providers by insureds; and

iii. Security National Insurance Defendant must notify the Secondary Payors

of the claim number or policy number upon which such claim was

originally submitted to the Security National Insurance Defendant.

Id. ¶ 81. In their second claim (for a bill of discovery), the Plaintiffs “seek to obtain information that

is in the exclusive possession of [the Defendant] to coordinate benefits,” including “policyholder name

and address; name and address of insurer or administrator; policy identification number or other

identifier; claim identification number”; and so on. Id. ¶ 85. The Plaintiffs ask us to issue declaratory

judgments on the “rights of the parties, grant the bill of discovery, and award the Plaintiffs their

attorneys’ fees and costs pursuant to Section 627.428, Florida Statutes[.]” Id. at 33.

In its Notice of Removal, the Defendant maintains that the “$5 million CAFA amount in

controversy requirement is satisfied” because the Plaintiffs “sent Defendant ‘over 20 reimbursement

demands’ and filed ‘20 Civil Remedy Notices . . . to resolve these reimbursement demands.’ . . . .

Defendant has identified 10 of these 20 demands and calculated that the total amount sought in just

these 10 letters is $3,890,031.68 . . . . Therefore, the Plaintiffs’ own demands to Defendant, before

even considering the claims of class members, almost certainly exceed $5 million.” Notice of Removal

¶¶ 25–26 (quoting SAC ¶ 47). “Considering the potential claims brought on behalf of absent class

members,” the Defendant continues, “the total amount in controversy only balloons further.” Id. ¶

27.

We disagree. The SAC alleges that the “Plaintiffs have not sought damages and instead are

seeking prospective declaratory relief and a bill of discovery.” Motion to Remand at 6. None of the

demand letters—which the Defendant relies on to establish the amount in controversy, and which the

Plaintiffs sent to the Defendant in the ordinary course of business—are in any way at issue in this case.

As Chief Judge Altonaga held in remanding a strikingly similar case:

[I]f this were a lawsuit to recover on the Demand Letter’s claim . . . it is possible the

Court would have subject matter jurisdiction . . . . But Plaintiffs are not seeking to

recover the amount in the Demand Letter, or any amount at all, in this lawsuit. The

Demand Letter is merely an example of the type of claim Plaintiffs are seeking to

potentially recover in the future. In other words, there are no specific reimbursement

demands at issue in this case. Plaintiffs are merely trying to have access to information

and obtain declaratory relief that could make it easier for them to recover on these

types of claims in the future.

Order on Mot. to Remand, MSP Recovery Claims, Series LLC et al. v. Zurich Am. Ins. Co. et al., 23-cv-

22450 (S.D. Fla. Sept. 11, 2023) (Altonaga, C.J.), ECF No. 22 at 7–8. So too here. The Plaintiffs’

demand letters (some of which are attached as Exhibits to the Motion to Remand3) are not the subject

of this action, and there are no specific reimbursement demands at issue in this case.

The Defendant also tries to extrapolate the “value” of the Plaintiffs’ requested declaratory

relief far into the future, insisting that the “Plaintiffs’ goal for the declaratory relief is to clear the path

for collection on claims . . . . Those alleged claims, for a total amount in excess of $3.89 million, remain

open and pending.” Motion to Dismiss at 10. Two problems with this. For one thing, even if the

Plaintiffs are “completely successful, and a declaratory judgment [is] entered stating that [the

Defendant] ha[s] to provide the full relief sought,” that would not “necessarily mean that [the

Defendant] would be obligated to pay [the Plaintiffs] the amounts associated with the policies.” Order

on Mot. to Remand, Zurich Am. Ins. Co., ECF No. 22 at 9. As Judge Gayles recently explained in

remanding another (very) similar case:

To establish the amount in controversy, Defendants ask the Court to assume Plaintiffs

are successful in their potential future suits, estimating future damages of more than

$50 million based on Plaintiffs’ demand letters. But Plaintiffs allege no such details in

the FAC or Proposed SAC. To the contrary, Plaintiffs merely seek a declaration of

3 See Demand Letters and Responses [ECF Nos. 12-2, 12-3].

Defendants’ obligations and information that may be used to later bring a lawsuit

against unspecified defendants for an unspecified sum . . . . Plaintiffs do not specify

which Plaintiffs or which demand letters will be involved in potential lawsuits. Without

such detail, Defendants cannot establish that the amount in controversy exceeds the

threshold by a preponderance of the evidence: at best, it’s rank speculation . . . .

Though Plaintiffs might use the outcome of their declaratory claim as a basis for a

future action that seeks monetary damages, that possibility does not negate the fact

that there is no amount in controversy in this action . . . . Whether it is one demand

letter or 811, Defendants cannot, with reasonable certainty, predict which demand

letters or parties will be involved in any future litigation. At this time, the demand

letters are merely examples of the claims information Plaintiffs seek. Thus, the Court

finds that Defendants cannot establish the amount of controversy necessary for

diversity or statutory jurisdiction.

Order on Mot. to Remand, MSP Recovery Claims, Series LLC et al. v. Hartford Accident & Indem. Co., et al.,

23-cv-22244 (S.D. Fla. Nov. 7, 2023) (Gayles, J.), ECF No. 28 at 8–9.

For another, “in estimating the amount that [the] [p]laintiff put at issue by seeking declaratory

judgments, for amount in controversy purposes, the value of injunctive or declaratory relief is the

value of the object of the litigation measured from the plaintiff’s perspective.” Amkin Mgmt., LLC v. Am.

Home Assurance Co., 2021 WL 6750537, at *3 (S.D. Fla. May 3, 2021) (Ungaro, J.) (emphasis added); see

also Gonzalez v. United States Ctr. for SafeSport, 374 F. Supp. 3d 1284, 1295 (S.D. Fla. 2019) (Scola, J.)

(“In actions seeking declaratory relief . . . it is well established that the matter in controversy is

measured by the value of the object of the litigation. This determination is made by measuring the

value of the object of litigation solely from the plaintiff’s perspective.” (cleaned up)). And, as we’ve

explained, the Plaintiffs do not value their requested declaratory relief at over five million dollars. On

the contrary, they say that “[n]o money damages are sought” through this action—and that (as a result)

“there is no amount in controversy.” Motion to Remand at 8.

Still resisting, the Defendant notes that, according to the Eleventh Circuit, “the value of

declaratory relief is the monetary value of the benefit that would flow to the plaintiff if the relief he is

seeking were granted. For CAFA purposes, we aggregate the claims of individual class members and

consider the monetary value that would flow to the entire class if declaratory relief were granted.” S.

Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1316 (11th Cir. 2014) (cleaned up). That’s all true—

but it doesn’t help the Defendant here because, in a sentence the Defendant chooses not to quote, the

Eleventh Circuit made clear that “the value of declaratory or injunctive relief must be sufficiently

measurable and certain to satisfy the amount-in-controversy requirement . . . . That requirement is not

satisfied if the value of the equitable relief is too speculative and immeasurable.” Ibid. (cleaned up &

emphasis added). In our case, the “amount in controversy remains speculative and uncertain,” Order

on Mot. to Remand, Zurich Am. Ins. Co., ECF No. 22 at 10, because it’s not at all clear how (or whether)

our interpretation of FLA. STAT. §§ 627.736(4), 627.736(5), and 627.736(10), would impact the

Plaintiffs’ recovery on future claims, see Amkin Mgmt., 2021 WL 6750537, at *3 (“What happens after

the resolution of the declaratory judgment issues is impossible to predict at this juncture. Speculation

that it may dispositively resolve issues relating to the $32 million claim are unsubstantiated, and do

not provide a sufficient basis to satisfy the $75,000 amount in controversy requirement to provide

jurisdiction for this [c]ourt.”). We, therefore, reject the Defendant’s attempt to look into the future

and to aggregate the expected value of the Plaintiffs’ requested declaratory relief.

II. Federal-Question Jurisdiction

In their second remand argument, the Plaintiffs say that “[t]here is no federal question

presented in this action” because no “federal question is presented on the face of the [Plaintiffs’]

properly pleaded complaint.” Motion to Remand at 13. In saying so, they point out that “[t]he SAC

does not seek relief under the MSP Act’s private cause of action” and that the “claims asserted for

prospective declaratory relief . . . arise under Florida’s expansive Declaratory Relief Act and Florida’s

Motor Vehicle No Fault law.” Id. at 14. Finally, the Plaintiffs contend that “[a]ny federal question here

is unexceptional and tangential; it is at most a minor issue capable of resolution in state court without

upsetting the federal-state balance . . . . [T]here is no question that the Defendant is a primary payer

or that the Plaintiffs’ assignors are secondary payers entitled to reimbursement under the MSP Act.

Certainly, the SAC assumes this to be true. The controversy here is whether and when the Secondary

Payers must comply with discrete pre-suit notice requirements under the Defendant’s written policies

and under Florida’s No-Fault and PIP law.” Id. at 15. The Defendant, for its part, counters that the

“Plaintiffs’ request for declaratory relief regarding the obligations of Defendant to coordinate benefits

vis-à-vis [Medicare Advantage Organizations (‘MAOs’)] presents a federal question because the

resolution of that issue necessarily depends on the resolution of a substantial question of federal law

concerning the MSP Act.” Response at 15.

“[I]n the absence of a federally created cause of action, ‘in limited circumstances, federal-

question jurisdiction may [ ] be available if a substantial, disputed question of federal law is a necessary

element of a state cause of action.’” Brown v. Endo Pharms., Inc., 38 F. Supp. 3d 1312, 1319 (S.D. Ala.

2014) (quoting Jairath v. Dyer, 154 F.3d 1280, 1282 (11th Cir. 1998)). A “substantial” question of federal

law is one that is “importan[t]” to “the federal system as a whole.” Gunn v. Minton, 568 U.S. 251, 260

(2013); see also Bollea v. Clem, 937 F. Supp. 2d 1344, 1353 (M.D. Fla. 2013) (Whittemore, J.) (“Issues

that will ‘change the real-world result’ for future cases and future litigants are substantial.” (quoting

Gunn, 568 U.S. at 260)).

After carefully reviewing the SAC, we agree with the Plaintiffs that their right to relief does

not depend on our resolution of a substantial question of federal law. It’s undisputed that the Plaintiffs

advance no federal claims: The SAC doesn’t seek relief under the MSP Act’s private cause of action,

and the Plaintiffs assert their claims only under state law. See SAC ¶ 74 (requesting declaratory relief

“pursuant to Chapter 86, Florida Statutes”); id. ¶¶ 84–90 (laying out a claim for a pure bill of discovery

under Florida law); Response at 15 (arguing that the SAC “attempts to defeat removal by omitting to

plead necessary federal questions” (cleaned up)). In their claim for declaratory relief, moreover, the

Plaintiffs make clear that they’re “in doubt concerning their rights” under Florida (not federal) law and

that “a bona fide present controversy exists between the Plaintiffs, the Class, and the [Defendant]

concerning the proper interpretation of Sections 627.736(4), 627.736(5), and 627.736(10), Florida

Statutes[.]” SAC ¶ 81. As redress, they seek a variety of declaratory decrees aimed at clarifying the

parties’ obligations under these Florida (not federal) statutes. For example, they ask us to declare that

the “Defendant must alert Secondary Payors of its primary obligations pursuant to Fla. Stat. §

627.736(4)” and that “Secondary Payers are not obligated to comply with the strict requirements of

Fla. Stat. § 627.736(10), when seeking reimbursement demands.” Ibid.

Despite all this, the Defendant insists that “federal question jurisdiction . . . nevertheless

attach[es]” to the Plaintiff’s claim for declaratory relief because, “[t]o consider the declaration sought,

this Court must interpret the MSP Act.” Id. at 15–16. The Defendant adds:

Plaintiffs seek declaratory relief as to the obligation of Defendant to coordinate

benefits with “Secondary Payors,” which Plaintiffs define to include MAOs. See SAC

¶ 81, n.1. Specifically, Plaintiffs request a declaration that Defendant “must determine

whether its insureds are also Members covered by Secondary Payors, and if so, then,

the . . . Defendant must coordinate benefits with Secondary Payors.” See id. ¶ 81(a).

The coordination of benefits between insurers like Defendant and MAOs is governed

by federal law. In particular, the federal MSP Act and its implementing regulations

specifically set forth the obligations of MAOs and insurers that may be “primary

payers” with respect to the coordination of benefits. See 42 U.S.C. § 1395y(b)(4)-(8)

(detailing coordination of benefits and information sharing obligations); see also 42

C.F.R. § 422.108(b)[;] MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co.,

2019 WL 6311987, at *6 (C.D. Ill. Nov. 25, 2019), aff’d, 994 F.3d 869 (7th Cir. 2021)

(“[T]he implementing regulations require MAOs to identify and coordinate with

primary insurers.”).

Response at 15–16.

Again, we’re not persuaded. On November 8, 2023, Chief Judge Altonaga rejected this exact

same argument in an order remanding a virtually identical case. See Order Granting Mot. to Remand,

MSP Recovery Claims, Series LLC et al. v. The Travelers Cas. Co. et al., 23-cv-23156 (S.D. Fla. Nov. 8, 2023)

(Altonaga, C.J.), ECF No. 23. In her order, Chief Judge Altonaga specifically rejected the proposition

(which the Defendants repackage here) that, because the MSP Act governs the coordination of

benefits in some contexts, the Plaintiffs’ request that we determine the proper coordination of benefits

under state law necessarily hinges on a substantial question of federal law. In her words:

Defendants argue that the relief Plaintiffs seek “arises under federal law” because the

subject of their requested declaratory relief is the coordination of benefits, and the

coordination of benefits “is expressly governed by federal law.” As previously

explained, however, Plaintiffs claim only a right to relief under Florida law; the basis

of their claim for declaratory relief is that Florida statutes impose certain obligations

on Defendants, which Defendants must now honor. See [FLA. STAT. §§ 627.736(1),

(4)–(5)]. Because these claims arise under state law, they do not obviously give rise to

federal question jurisdiction.

Undeterred, Defendants argue that the Court’s analysis must consider the federal

framework for coordination of benefits because Plaintiffs’ right to relief necessarily

depends on resolution of a substantial question of federal law, and, therefore, federal

question jurisdiction may attach to the state-law claim . . . . But “[t]he fact that a court

must . . . construe federal law to determine whether the plaintiff is entitled to relief will

not confer federal subject matter jurisdiction — the implicated federal issue must be

substantial.” Dunlap v. G&L Holding Grp., Inc., 381 F.3d 1285, 1291–92 (11th Cir. 2004)

. . . . Defendants point to the possibility that federal law may foreclose the declaratory

relief that Plaintiffs seek and call this a “substantial question of federal law . . . [whose

resolution] will necessarily depend on the construction of the MSP Act and its

implementing regulations.”

Assuming without deciding that Defendants are correct, this argument is at best a

defense that can be raised after the state court has addressed Plaintiffs’ state law claims

— and even then, only if the state court agrees with Plaintiffs. If the state court

disagrees that Plaintiffs have a right to declaratory relief under state law, the federal

framework will not be implicated at all. This conditional connection to federal law is

not enough; the test for federal question jurisdiction “look[s] to the face of the

complaint rather than to defenses, for the existence of a federal question.” Jones v. LMR

Int’l, Inc., 457 F.3d 1174, 1178 (11th Cir. 2006) (alteration added; citation omitted); see

also Dunlap, 381 F.3d at 1292 (reversing district court’s exercise of jurisdiction where

“the only potential issue involving federal law . . . would be raised only as a defense

after [the plaintiff] had successfully established the existence of a valid contract under

state law[.]”).

Order Granting Mot. to Remand, The Travelers Cas. Co., ECF No. 23 at 13–14.

We agree with our Chief’s well-reasoned analysis and adopt this portion of Travelers Casualty in

full. As in Travelers Casualty, our Plaintiffs seek only declaratory relief related to “the parties’ rights and

obligations under Florida state insurance law.” Motion to Remand at 13. And (again, as in Travelers

Casualty) it’s not at all obvious that the Plaintiffs have a right to declaratory relief, in which case the

MSP Act would never be implicated. In any event, even if the Defendant is right that a court will (one

day) need to interpret the MSP Act to give the Plaintiffs the declaratory relief they’ve requested, “[t]he

mere fact that a court must apply or interpret federal law to determine whether [a] plaintiff is entitled

to relief is not sufficient to confer federal question jurisdiction.” Austin v. Ameriquest Mortg. Co., 510 F.

Supp. 2d 1218, 1226 (N.D. Ga. 2007).

The Plaintiffs (it’s true) note that the “sole controversy for which class certification was sought

is one of policy language and statutory construction in light of the 11th Circuit’s recent opinion in

MSP Recovery Claims, Series LLC v. United Auto. Ins. Co., 60 F.4th 1314 (11th Cir. 2023)[,] which expressly

held that the Medicare Secondary Payer Act does not preempt F.S. Section 627.736(10).” Motion to

Remand at 12–13. But, as Chief Judge Altonaga noted in Travelers Casualty, even if the Eleventh

Circuit’s decision in United Auto spurred the Plaintiffs to seek class certification in this case, “the

Eleventh Circuit’s decision resolved a federal issue, and the remaining issue raised by Plaintiffs is the

impact of that decision on state law. This is not a federal issue, nor is it a question that the Court needs

to resolve; after all, ‘state courts are generally presumed competent to interpret and apply federal law.’”

Order Granting Mot. to Remand, The Travelers Cas. Co., ECF No. 23 at 13 n.10 (quoting Adventure

Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1301 (11th Cir. 2008)). After all, the existence of a “federal

issue” is not “a password opening federal courts to any state action embracing a point of federal law.”

Grable, 545 U.S. at 314. And, under the well-pleaded-complaint rule, “the plaintiff [is] the master of

the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar, 482

U.S. at 392. For all these reasons, we disagree that the Plaintiff’s SAC arises under federal law.

III. Attorneys’ Fees

“When a case is remanded due to improper removal, the court may award the plaintiff

attorneys’ fees and costs.” Point Conversion, LLC v. Tropical Paradise Resorts, LLC, 339 F. Supp. 3d 1350,

1358 (S.D. Fla. 2018) (Altonaga, J.) (citing 28 U.S.C. § 1447(c)). “[T]he standard for awarding fees

should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award

attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis

for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.”

Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).

Although we’ve agreed to remand this case back to state court, we don’t think the Defendant

lacked an objectively reasonable basis for seeking removal. Significantly, we’ve relied in this Order on

two cases—Travelers Casualty and Hartford Accident ¢ Indemnity—that were decided afier the Defendant

removed this case. See generally Notice of Removal. Because our rationale for remand leans on the

reasoning in these two recent cases, we cannot say that the Defendant acted unreasonably in seeking

our federal jurisdiction. We therefore DENY the Plaintiffs’ motion for attorneys’ fees and costs.

* * *

After careful review, therefore, we hereby ORDER and ADJUDGE as follows:

1. The Plaintiff's Motion to Remand [ECF No. 12] is GRANTED as to the request for a

remand and DENIED with respect to the request for attorneys’ fees and costs.

2. ‘The case is REMANDED to the Circuit Court of the 11th Judicial Circuit in and for

Miami-Dade County, Florida.

3. The Clerk of Court is directed to CLOSE this case. All pending deadlines and hearings

are TERMINATED, and any pending motions, including the Defendant’s Motion to

Dismiss [ECF No. 11], ace DENIED AS MOOT.

DONE AND ORDERED in the Southern re 17, 2023.

ROYK.ALTMAN —————

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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