United States District Court, S.D. Florida
ORDER ON MOTION TO REMAND
N. Scola, Jr. United States District Judge
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. (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).
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.)
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.)
Legal Standard for Diversity Jurisdiction
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
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.
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.)
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.
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.
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 ...