United States District Court, M.D. Florida, Orlando Division
ALBERT J. OSTROWSKI, Plaintiff,
AMERICAN TIRE DISTRIBUTORS, INC., HERCULES TIRE HOLDINGS, LLC and COASTAL TIRES, INC., Defendants.
GERGORY A. PRESNELL UNETED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion to Remand (Doc.
6) filed by the Plaintiff, Albert J. Ostrowski; the Response
in Opposition (Doc. 10) filed by Defendants, American Tire
Distributors, Inc. and Hercules Tire Holdings, LLC (together
“ATD”); and Ostrowski's Reply (Doc. 16)
filed the instant case in state court on February 16, 2017,
alleging that he suffered injuries as a result of an accident
caused by tread separation on a Hercules H-402 tire. (Doc.
2.) Ostrowski claims that the tire was defective and that the
Defendants are liable under the theory of strict products
liability. (Id.) ATD removed the case to this Court
on April 4, 2017, on diversity grounds. (Doc. 1.) Ostrowski
now seeks remand, arguing that ATD's removal was
untimely, that the parties lack complete diversity, and that
ATD failed to demonstrate that the amount controversy exceeds
$75, 000.00. In response, ATD argues that its
Florida-resident co-defendant, Coastal Tires Inc.
(“Coastal”), was fraudulently joined, that its
notice of removal was timely under 28 U.S.C. §
1446(b)(3), and that the face of the Complaint (Doc. 2) shows
that the amount-in-controversy requirement has clearly been
order to invoke a federal court's diversity jurisdiction,
a plaintiff must show that the amount in controversy exceeds
$75, 000.00, 28 U.S.C. § 1332(a), and all parties to the
action must be completely diverse. Palmer v. Hosp. Auth.
Randolph Cty., 22 F.3d 1559, 1564 (11th Cir. 1994).
Removal statutes are to be construed narrowly, with any
uncertainties to be resolved in favor of remand. Syngenta
Crop. Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002);
Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
Cir. 1994). The party seeking removal bears the burden of
establishing federal jurisdiction. Harris Corp. v.
Kollsman, Inc., 97 F.Supp.2d 1148, 1151 (M.D. Fla.
2000). Generally, “jurisdictional facts are assessed on
the basis of the plaintiff's complaint as of the time of
removal.” Burns, 31 F.3d at 1097 n. 13.
However, post-removal evidence may be considered if it is
relevant to the time of the removal. Sierminski v.
Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir.
The Amount-in-Controversy Requirement Has Been Met.
jurisdiction is based on a claim for indeterminate damages,
the party invoking federal jurisdiction must prove by a
preponderance of the evidence that the claim on which it is
basing jurisdiction meets the jurisdictional minimum. Roe
v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir.
2010). The Court may use its “judicial experience and
common sense” to deduce, infer, or extrapolate whether
the case meets jurisdictional requirements. Id. at
1062; Pretka v. Kolter City Plaza II, Inc., 608 F.3d
744, 754 (11th Cir. 2010).
Ostrowski has not pleaded a specific amount of damages and
has only stated that his action is one for damages that
exceed $15, 000.00, the jurisdictional threshold for Florida
circuit courts. Fla. Stat. §§ 26.012(2)(a),
34.01(1)(c). Therefore, his claim is for indeterminate
damages, and it is ATD's burden to show that the
amount-in-controversy requirement is met by a preponderance
of the evidence. See Pretka, 608 F.3d at 748
(“As for the amount in controversy . . . the complaint
is indeterminate. It states that the case ‘is an action
for monetary damages in excess of $15, 000.00, exclusive of
interest, costs and attorney's fees.'”). To
carry its burden, ATD relies on the face of the Complaint
Complaint (Doc. 2), Ostrowski alleges that he has sustained
personal and bodily injuries that are permanent in nature.
His alleged injuries include aggravation of pre-exiting
conditions, pain and suffering, disability, permanent
scarring and disfigurement, impairment of working ability,
inconvenience, mental anguish, and loss of enjoyment of life.
He also alleges that he has incurred medical expenses in the
care and treatment of these injuries, and that his injuries
will require future treatment. (Doc. 2 ¶¶ 43-162.)
Clearly, it can reasonably be inferred from the face of the
Complaint (Doc. 2) that the amount in controversy exceeds
There Is Complete Diversity.
argues that the parties are not completely diverse because
both he and Coastal are Florida residents. ATD does not
dispute the residency of Coastal, but instead argues that
Coastal was fraudulently joined to defeat complete diversity.
plaintiff names a non-diverse defendant for the sole purpose
of defeating federal diversity jurisdiction, “the
district court must ignore the presence of the non-diverse
defendant and deny any motion to remand the matter back to
state court.” Henderson v. Wash. Nat'l Ins.
Co., 454 F.3d 1278, 1281 (11th Cir. 2006). To show that
a co-defendant was fraudulently joined, the removing
defendant must demonstrate either “(1) there is no
possibility the plaintiff can establish a cause of action
against the resident defendant; or (2) the plaintiff has
fraudulently pled jurisdictional facts to bring the resident
defendant into state court.” Id. (citation
omitted). Further, the Court's determination of
“whether a resident defendant has been fraudulently
joined must be based upon the plaintiff's pleadings at
the time of removal, supplemented by any affidavits and
deposition transcripts submitted by the parties.”
Shannon v. Albertelli Firm, P.C., 610 Fed. App'x
866, 871 (11th Cir. 2015) (emphasis in original) (citing
Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir.
2005)). And, “[w]hen the defendant submits ...