Flynn v. Thermacell Repellents, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

JACQUELINE FLYNN,

Plaintiff,

v. Case No: 6:23-cv-1890-PGB-DCI

THERMACELL REPELLENTS,

INC. and LOWE’S HOME

CENTERS, LLC,

Defendants.

/

ORDER

This cause comes before the Court on Plaintiff Jacqueline Flynn’s

(“Plaintiff”) Motion to Remand. (Doc. 17 (the “Motion”)). Defendant Thermacell

Repellents, Inc. (“Thermacell”) filed a response in opposition. (Doc. 24 (the

“Response”)). Defendant Lowe’s Home Centers (“Lowe’s”) has not responded in

opposition to the Motion and the time to do so has now passed. Upon

consideration, the Motion is due to be denied.

I. BACKGROUND

This is a products liability case arising out of damages Plaintiff sustained due

to a fire in Plaintiff’s home (the “Property”). (Doc. 1-1 (the “Complaint”)). On or

about January 21, 2021, Plaintiff purchased Thermacell’s Patio Shield Mosquito

Protection Device (the “Product”) from Lowe’s. (Id. ¶ 9). Plaintiff alleges she used

the Product at the Property as intended and foreseeable by Thermacell and Lowe’s

(collectively, the “Defendants”). (Id.). Shortly thereafter, the Property and its

contents were damaged by a fire that Plaintiff alleges was caused by the Product.

(Id. ¶ 10).

Accordingly, Plaintiff initiated the instant action by filing suit in state court.

(Doc. 1-1). With regard to the amount in controversy, Plaintiff merely alleged that

“[t]his is an action for damages in an amount in excess of $50,000.00, exclusive of

interest, costs, and attorney’s fees.” (Id. ¶ 4). Ultimately, Defendant removed the

case to this Court on the basis of diversity jurisdiction. (Doc. 1 (the “Notice of

Removal”)). Plaintiff then moved to remand, asserting that the removal was

untimely. (Doc. 17). The parties do not dispute that complete diversity exists or

that the amount in controversy is met. (See Docs. 17, 24). Instead, Plaintiff’s sole

argument for remand is that Thermacell did not remove the case within thirty days

of receiving a document that Plaintiff asserts unequivocally established that the

amount in controversy was met. (See Doc. 17).

II. LEGAL STANDARD

28 U.S.C. § 1441(a) allows a defendant to remove a civil action from state

court to federal district court where the basis for the underlying claim is federal

question jurisdiction or diversity jurisdiction. Hawkinson v. State Farm Mut.

Auto. Ins. Co., 325 F. Supp. 3d 1293, 1296 (M.D. Fla. 2018).

Diversity jurisdiction requires complete diversity of citizenship between the

parties and an amount in controversy in excess of $75,000. 28 U.S.C. § 1332(a). If

the plaintiff does not plead a specific amount in damages, the removing defendant

bears the burden of establishing that the jurisdictional threshold is met by a

preponderance of the evidence. Lowery v. Ala. Power Co., 483 F.3d 1184, 1208–

09 (11th Cir. 2007); McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002)

(per curiam).

28 U.S.C. § 1446(b)(1) requires the removing defendant to file its notice of

removal “within 30 days after the receipt by the defendant, through service or

otherwise, of a copy of the initial pleading setting forth the claim for relief upon

which such action or proceeding is based.” However, “if the case stated by the

initial pleading is not removable,” then the removing defendant may file its notice

of removal within 30 days of its receipt, “through service or otherwise, 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.” § 1446(b)(3).

Because removal from a state court constitutes an infringement upon state

sovereignty, the district court must construe the removal requirements strictly,

and “all doubts about jurisdiction should be resolved in favor of remand to state

court.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999).

III. DISCUSSION

Plaintiff asserts that this case should be remanded to state court because

Thermacell did not remove the case within thirty days of receiving a copy of an

“other paper” from which Thermacell could first ascertain that the case was

removable. See § 1446(b)(3); (Doc. 17). Plaintiff argues that Thermacell should

have determined that the amount in controversy was met once Plaintiff sent

Thermacell a copy of a Fire Report created by Orange County Fire Rescue

regarding the fire at the Property. (Doc. 17-5, pp. 5–13 (the “Fire Report”); see

also Doc. 17). As a result, Plaintiff argues removal was untimely, and thus, the

Court lacks jurisdiction.

The context in which the Fire Report was sent to Thermacell is as follows.

On August 1, 2023, in an e-mail, Thermacell’s counsel granted Plaintiff an

extension of time to respond to certain discovery requests. (Id. at pp. 2–3). In the

same e-mail, Thermacell’s counsel also asked, “could you send me the fire

department and law enforcement reports regarding the fire?” (Id.). On August 7,

2023, Plaintiff’s counsel replied by e-mail, attaching the Fire Report and stating

“Please see the attached. We are still locating the rest.” (Id. at p. 2).

Plaintiff asserts the aforementioned e-mail and attachment represented an

unambiguous statement that clearly established this Court’s jurisdiction. (Doc. 17).

Specifically, the Fire Report contained a section referencing the total “Losses” as

$280,000: $200,000 for the “Property” and $80,000 for its “Contents.” (Doc. 17-

5, p. 5). Notably, however, the Fire Report does not provide any statements to

support these figures. (See id. at pp. 5–13). For example, it does not describe the

physical damage to the Property’s structure. (Id.). Instead, the Fire Report

primarily describes technical aspects of the Fire Department’s response to the fire

and does not clearly allude to the nature or extent of the damages. (Id.).

Consequently, in its Response, Thermacell argues that the Fire Report did

not “clearly, unequivocally, . . . or unambiguously establish” that the amount in

controversy was met, and thus, did not trigger the thirty-day removal window

under § 1446(b)(3). Thermacell further asserts that “[n]o federal court appears to

have concluded that a non-expert[] damage estimate, not produced in discovery,

and not provided in connection with a demand for damages, is an ‘other paper’

from which the amount in controversy may be ascertained and proven.” (Id. at p.

6). Thermacell also notes that, post-removal, a defendant bears the burden of

establishing that federal jurisdiction is proper. (Id. at p. 10). As a result, Thermacell

argues that it “prudently” waited until receiving the damages estimate of Plaintiff’s

homeowner’s insurer before removing the case. (Id.).

Although the Eleventh Circuit has not articulated a single test for identifying

what constitutes an “other paper” triggering the thirty-day removal window under

§ 1446(b)(3), many documents have been found to qualify, such as settlement

offers, demand letters, and email correspondence containing estimates. Lowery,

483 F.3d at 1212 n.62 (collecting sources). Accordingly, even informal documents

can constitute such “other papers.” See id.

However, a defendant’s receipt of an “other paper” only triggers the 30-day

removal window if it contains an “unambiguous statement that clearly establishes

federal jurisdiction.” Lowery, 483 F.3d at 1213 n.63 (first citing Bosky v. Kroger,

288 F.3d 208, 212 (5th Cir. 2002) (providing that the removal window is triggered

only when it is “unequivocally clear and certain” that federal jurisdiction exists);

then citing Huffman v. Saul Holdings, LP, 194 F.3d 1072, 1078 (10th Cir. 1999)

(same)); Lambertson v. Go Fit, LLC, 918 F. Supp. 2d 1283, 1286 (S.D. Fla. 2013)

(“Congress has made clear its intent that defendants must be circumspect in

deciding whether to remove a case.” (quoting Vill. Square Condo. of Orlando, Inc.

v. Nationwide Mut. Fire Ins. Co., No. 6:09-cv-1711-Orl-31DAB, 2009 WL

4855700, at *4 (M.D. Fla. Dec. 10., 2009))).1

After careful consideration, the Court finds that, while Plaintiff’s e-mail

attaching the Fire Report may have suggested or implied that there could be federal

jurisdiction, it did not render this fact “unequivocally clear and certain.” See Bosky,

288 F.3d at 212; see also Lowery, 483 F.3d at 1213 n.63. “[T]he rules of removal

are designed to encourage defendants to use early discovery to flesh out the

amount in controversy, rather than remove cases prematurely on an equivocal

record.” Jennings v. Powermatic, No. 3:14-cv-250-J-32JRK, 2014 WL 2003116, at

*3 (M.D. Fla. May 15, 2014) (citing Lamb v. State Farm Mut. Auto. Ins. Co., No.

3:10-cv-615-J-32JRK, 2010 WL 6790539, at *2 (M.D. Fla. Nov. 5, 2010)). Here, it

is unclear what the purpose of providing an estimate of “losses” was in the specific

context of the Fire Report, who arrived at the estimate, their qualifications for

providing such an estimate, or the facts upon which it was based. See id.; (Doc. 17-

5, p. 5); cf. Stefchack v. Geovera Specialty Ins. Co., No. 6:20-cv-1092-Orl-22GJK,

2020 WL 6478527, at *2 (M.D. Fla. Aug. 26, 2020) (explaining that it is “well-

established that courts often consider a proof of loss statement as a reliable source

of alleged damages in determining whether the amount in controversy is met,” and

1 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th Cir.

2007).

reasoning that such statements represent “an honest assessment of damages,” as

they are prepared by a public adjuster and “reflect[] specific information” to

support the amount at issue (citations omitted)); Lamb, 2010 WL 6790539, at *2

(noting that settlement offers only trigger the removal window where they provide

specific information to support the amount offered and thus provide a reasonable

assessment as to the claim’s value (citations omitted)); Towers of Oceanview S.

Condo. Ass’n v. Great Am. Ins. Co. of N.Y., No. 14-61329-CIV, 2014 WL 4376147,

at *3–4 (S.D. Fla. Sept. 4, 2014) (same).

In the instant case, the Fire Report was attached to a two-line e-mail sent by

Plaintiff’s counsel in response to Thermacell’s request for a copy of any such

reports. (See Doc. 17-5, pp. 2–3). Neither the Fire Report, nor the e-mail to which

it was attached, provided any detail to support the bald statement of losses

contained therein. Under the circumstances, the Court finds that Plaintiff’s e-mail

attaching the Fire Report did not “unambiguously” and “clearly” establish federal

jurisdiction here.2 See Lowery, 483 F.3d at 1213 n.63. As a result, the Court finds

that Defendant’s removal of this action was timely under § 1443(b)(3).

2 Plaintiff’s Motion also references that representatives for Thermacell attended a site

inspection of the property more than two years before Plaintiff filed the Complaint in this

action. (See Doc. 17, p. 8). This fact does not weigh in favor of remand for at least two reasons.

First, § 1446(b)(3) describes when the removal window is triggered based upon a defendant’s

receipt of “a copy of an amended pleading, motion, order or other paper.” § 1446(b)(3)

(emphasis added). Yet, Plaintiff provides no legal support for the notion that a site inspection

can serve as an “other paper,” despite the fact that this appears to contradict the plain language

of the removal statute. (See Doc. 17). Second, even assuming the site inspection could be

considered such a paper here, it would constitute a pre-suit document. (See Doc. 17, p. 8).

However, “policies regarding removal counsel against adopting a rule that would impute

knowledge of pre-suit documents to defendants.” Lambertson, 918 F. Supp. at 1286 (quoting

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED that Plaintiffs Motion to

Remand (Doc. 17) is DENIED.

DONE AND ORDERED in Orlando, Florida on August 29, 2024.

<.

PAUL G.

UNITED STATES®ISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties

Village Square, 2009 WL 4855700, at *4). Consequently, information learned prior to the

filing of a lawsuit “do[es] not trigger the thirty-day clock in 28 U.S.C. § 1446.” Id.