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Reyes v. American Security Insurance Co.

United States District Court, S.D. Florida

May 26, 2017

Juan Reyes and Haday Reyes, Plaintiffs,
v.
American Security Insurance Co., Defendant.

          ORDER ON MOTION TO REMAND

          Robert N. Scola, Jr. United States District Judge

         This matter is before the Court on the Plaintiffs Juan and Haday Reyes's motion to remand (ECF NO. 16). The Plaintiffs filed a complaint in state court, which was served on the Defendant on August 25, 2016, alleging a common law breach of contract claim and seeking attorney's fees pursuant Florida Statutes. (Notice Ex. 3, ECF No. 1-4.) The Defendant American Security Insurance Company properly removed the complaint on September 16, 2016. Now, seven months later, the Plaintiffs claim that this Court should remand the case to state court because the amount in controversy does not exceed the required $75, 000.[1] (Mot. ¶¶ 5-6, ECF No. 16.) The Defendants oppose remand and assert that the Plaintiffs' claims exceed the jurisdictional amount in controversy. (Resp. ¶¶ 6-8, ECF No. 18.) Having reviewed the Motion, the record, and the relevant legal authorities, for the reasons that follow, the Court denies the motion to remand (ECF No. 16).

         1. Background

         The Plaintiffs originally filed this action on June 1, 2015, in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida. (Notice Ex. 3, Case no. 16-cv-20518-UU, ECF No. 1-4.) American Security properly removed that case to federal court, but Judge Ursula Ungaro dismissed the case after the Plaintiffs' repeated failure to comply with the court's orders. (Order, Case no. 16-cv-20518-UU, ECF No. 13.) In that case, the Plaintiffs admitted that the amount in controversy exceeded $75, 000. (Notice Ex. 6 at 3-4, ECF No. 1-7.)

         Then, the Plaintiffs refiled their action in state court on August 19, 2016. (Notice Ex. 3, ECF No. 1-4.) American Security again removed the case to federal court. (Notice, ECF No. 1.) American Security's notice of removal included the cost estimate to repair cosmetic damages totaling $65, 018 and the Plaintiff's admissions from the earlier case. (Notice Exs. 5 and 6, ECF Nos. 1-6 and 1-7.)

         1. Legal Standard for Diversity Jurisdiction

         Federal courts are courts of limited jurisdiction. Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 239 F.3d 805, 807 (11th Cir. 2003). A civil action may be removed from state court to federal district court if the action is within the “original jurisdiction” of the federal court. 28 U.S.C. § 1441(a). Original diversity jurisdiction exists where the action is between citizens of different states and the amount in controversy exceeds $75, 000. See 28 U.S.C. § 1332. The removing party has the burden to prove by a preponderance of the evidence that federal jurisdiction exists. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010) (internal citations omitted).

         The parties dispute only whether the amount in controversy in this action exceeds $75, 000.00, as required by Section 1332(a). In determining the amount of damages, “the district court is not bound by the plaintiff's representations regarding its claim, ” and may review the record for evidence relevant to the amount in controversy. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). The jurisdictional requirements of removal do not limit the types of evidence that may be used to satisfy the preponderance of the evidence standard and defendants may introduce their own “affidavits, declarations, or other documentation” to meet their burden. Pretka, 608 F.3d at 755.

         2. Analysis

         The Plaintiffs' complaint only specifically seeks $65, 018, and their primary argument for remand rests on the assertion that American Security improperly included attorney's fees in the calculation of the amount in controversy. (Mot. ¶¶ 5, 13-15.) American Security raises three arguments in opposition: (1) the Plaintiffs sued to recover benefits under an insurance policy and statutory attorney's fees; (2) the Plaintiffs previously admitted to an amount in controversy in excess of $75, 000; and (3) if sinkhole activity were confirmed, Florida law requires American Security to cover not just the cost of cosmetic damages but also the cost to perform and monitor subsurface repairs. (Resp. at 2, 4.)

         “When a statute authorizes the recovery of attorney's fees, and the plaintiff has requested attorney's fees, a reasonable amount of those fees is included in the amount in controversy.” DO Restaurants, Inc. v. Aspen Specialty Ins. Co., 984 F.Supp.2d 1342, 1345 (S.D. Fla. 2013) (Scola, J.) (citing Missouri State Life Ins. Co. v. Jones, 290 U.S. 199, 201 (1933); Morrison v. Allstate Indemnity Co., 228 F.3d 1255, 1265 (11th Cir. 2000)). To determine whether those fees are reasonable a court may look at evidence within the complaint and the defendants may introduce their own “affidavits, declarations, or other documentation” to meet their burden. See Pretka, 608 F.3d at 755; Mirras v. Time Ins. Co., 578 F.Supp.2d 1351, 1352 (M.D. Fla. 2008). The evidence provided must establish by a preponderance of the evidence that the attorney's fees are not speculative, but the evidence does not need “to establish the amount in controversy beyond all doubt or banish all uncertainty about it.” Pretka, 608 F.3d at 755.

         The Plaintiffs have requested attorney's fees under section 627.428, Florida Statutes (2013), which provides:

Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured . . . under a policy or contract executed by the insurer, the trial court . . . shall adjudge or decree against the insurer and in favor of the insured . . . a reasonable sum as fees or compensation for the insured's . . . attorney prosecuting the suit in which recovery is had.

         If the Plaintiffs were to prevail, they would be entitled to an award of attorney's fees under section 627.428. As such, the inclusion of attorney's fees in the ...


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