United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United States District Judge
CAUSE is before the Court sua sponte.
Federal courts are courts of limited jurisdiction and
therefore have an obligation to inquire into their subject
matter jurisdiction. See Kirkland v. Midland Mortg.
Co., 243 F.3d 1277, 1279-80 (11th Cir. 2001). This
obligation exists regardless of whether the parties have
challenged the existence of subject matter jurisdiction.
See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d
405, 410 (11th Cir. 1999) (“[I]t is well settled that a
federal court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be
lacking.”); see also Johansen v. Combustion
Eng'g, Inc., 170 F.3d 1320, 1328 n.4 (11th Cir.
1999). “In a given case, a federal district court must
have at least one of three types of subject matter
jurisdiction: (1) jurisdiction under a specific statutory
grant; (2) federal question jurisdiction pursuant to 28
U.S.C. § 1331; or (3) diversity jurisdiction pursuant to
28 U.S.C. § 1332(a).” Baltin v. Alaron Trading
Corp., 128 F.3d 1466, 1469 (11th Cir. 1997).
23, 2017, Defendants PEG, LLC (PEG) and Sandy Gallo
(together, Defendants) filed Defendant's Notice of and
Petition for Removal (Doc. No. 1; Notice) removing this case
from the Circuit Court of the Fourth Judicial Circuit in and
for Duval County, Florida. See Notice at 1; Verified
Complaint for Injunctive and Other Relief (Doc. No. 2;
Complaint). In the Notice, Defendants assert that the
“Complaint is removable on the basis of diversity
pursuant to 28 U.S.C. § 1332 because: (1) there is
complete diversity of citizenship between Plaintiff and
Defendants; and (2) the amount in controversy exceeds $75,
000 with respect to Plaintiff's claim against
Defendants.” Notice at 2. However, despite this
assertion, the Court is unable to determine whether it has
jurisdiction over this action.
the Court notes that “[d]iversity jurisdiction exists
where the suit is between citizens of different states and
the amount in controversy exceeds the statutorily prescribed
amount, in this case $75, 000.” Williams v. Best
Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)
(citing 28 U.S.C. § 1332(a)). Here, the Notice's
allegation as to the citizenship of PEG is deficient.
Specifically, Defendants identify PEG as a Virginia limited
liability company, but allege its citizenship as if it is a
corporation. See Notice at 3. As such, the Court is
unable to determine PEG's citizenship. If PEG is, indeed,
a limited liability company, then it is reminded that
“a limited liability company is a citizen of any state
of which a member of the company is a citizen.”
Rolling Greens MHP, L.P. v. Comcast SCH Holdings
L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). Therefore,
to sufficiently allege citizenship as a limited liability
company, PEG must list the citizenship of each of its
members, be it an individual, corporation, LLC, or other
entity. See id.
the Court may not speculate or guess as to the amount in
controversy. See Pretka v. Kolter City Plaza II,
Inc., 608 F.3d 744, 752 (11th Cir. 2010). Nevertheless,
“when a removing defendant makes specific factual
allegations establishing jurisdiction and can support them
(if challenged by the plaintiff or the court) with evidence
combined with reasonable deductions, reasonable inferences,
or other reasonable extrapolations[, ]” reliance on
such reasoning to establish jurisdiction “is not akin
to [impermissible] conjecture, speculation, or star
gazing.” Id. at 754. Indeed, “a removing
defendant is not required to prove the amount in controversy
beyond all doubt or to banish all uncertainty about
it.” Id. All that is required is that a
removing defendant show, by a preponderance of the evidence,
that the amount in controversy exceeds the jurisdictional
requirement. See id. at 752 (quoting Williams v.
Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001)).
review of the Notice and Complaint, it is not facially
apparent that the amount in controversy exceeds the $75, 000
jurisdictional amount. See 28 U.S.C. §
1332(a)(1). While Defendants do allege that “Plaintiff
expressly claims damages in excess of $60, 000, ” and
that “the true expected amount of [statutory]
attorneys' fees alone is far more likely to exceed $75,
000[, ]” these types of conclusory assertions are
insufficient to confer the Court's subject matter
jurisdiction over this action. See Williams, 269
F.3d at 1319-20 (recognizing that when removing a case to
federal court, if the plaintiff does not allege a specific
amount of damages, and it is not apparent from the face of
the complaint that the amount in controversy exceeds the
jurisdictional amount, a “conclusory allegation in the
notice of removal that the jurisdictional amount is
satisfied, without setting forth the underlying facts
supporting such an assertion, is insufficient to meet the
defendant's burden” of establishing diversity
jurisdiction); see also Pretka, 608 F.3d at 752.
the Court notes that, although Defendants contend that
“[f]or the purposes of establishing the amount in
controversy, an estimate of legal fees through trial is
appropriate[, ]” Notice at 10, “courts in this
circuit are divided over whether to include the projected
amount of attorney's fees or only attorney's fees as
of the time of removal[, ]” Miller Chiropractic
& Med. Ctrs., Inc. v. Progressive Select Ins. Co.,
No. 8:16-CV-3034-T-33MAP, 2016 WL 6518782, at *1 (M.D. Fla.
Nov. 3, 2016) (citing conflicting cases). While the Court
is inclined to agree with the general rule that only
pre-removal attorney's fees can contribute to the amount
in controversy for the purpose of establishing subject matter
jurisdiction, as Defendants must supplement their
jurisdictional allegations, the Court also will allow
Defendants to address the question of whether
“speculative attorney's fees should be included in
the diversity jurisdiction calculus.” Lott &
Friedland, 2010 WL 2044889, at *3.
light of the foregoing, the Court will give Defendants an
opportunity to establish diversity of citizenship between the
parties and the amount in controversy such that this Court
has jurisdiction over the action. Accordingly, it is
PEG, LLC and Sandy Gallo shall have until June 2, 2017, to
provide the Court with sufficient information so that it can
determine whether it has jurisdiction over this action.
See, e.g., Keller v.
Jasper Contractors, Inc., No. 8:15-CV-1773-T-23-TBM,
2015 U.S. Dist. LEXIS 106110, at *3 (M.D. Fla. Aug. 12, 2015)
(noting that “only the attorney's fees accrued to
the day of removal can contribute to the amount in
controversy”); Lott & Friedland, P.A. v.
Creative Compounds, LLC, No. 10-20052-CV, 2010 WL
2044889, at *4 (S.D. Fla. Apr. 21, 2010) (“The Court
agrees 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.”);
Rogatinsky v. Metro. Life Ins. Co., No.
09-80740-CIV, 2009 WL 3667073, at *2 ...