United States District Court, M.D. Florida, Orlando Division
ADDONIS L. BALKUM, Plaintiff,
PIER 1 IMPORTS (U.S.), INC., Defendant.
BDALTONI JR. UNITED STATES DISTRICT JUDGE
instant action, Plaintiff filed a Motion to Remand. (Doc. 9
(“Motion”).) Defendant then
filed a Response and Incorporated Memorandum of Law in
Opposition. (Doc. 14.) Upon consideration, the Court finds
that the Motion is due to be granted.
7, 2017, Plaintiff filed this action in state court under the
Florida Civil Rights Act
(“FCRA”) and the Florida
Private-Sector Whistleblower Act
(“FWA”). (Doc. 2.) In the
Complaint, Plaintiff alleges that her former employer
discriminated and retaliated against her as a result of her
non-conformity to traditional gender stereotypes.
(Id. ¶¶ 63-65, 74, 77.) On July 14, 2017,
Defendant removed the case on the basis of diversity
jurisdiction. (Doc. 1.) Arguing that the amount in
controversy requirement (“AIC”)
is not met, Plaintiff now moves for remand. (Doc. 9.)
Defendant opposes remand. (Doc. 14.)
courts exercise limited subject matter jurisdiction, ”
and, as such, are “empowered to hear only those cases
within the judicial power of the United States as defined by
Article III of the Constitution or otherwise authorized by
Congress.” Taylor v. Appleton, 30 F.3d 1365,
1367 (11th Cir. 1994). In diversity cases, district courts
have original jurisdiction over cases in which the parties
are completely diverse and the AIC exceeds $75, 000,
exclusive of interests and costs. See 28 U.S.C.
first filed in state court that invoke diversity jurisdiction
may be removed by defendants to federal court. See
28 U.S.C. § 1446(b). Where it is not “facially
apparent” from the state-court complaint that the
amount in controversy is satisfied, “the removing
defendant must prove by a preponderance of the evidence that
the amount in controversy more likely than not exceeds . . .
the jurisdictional requirement.” Roe v.
Michelin, 613 F.3d 1058, 1060-61 (11th Cir. 2010)
(internal citation and quotation marks omitted); see also
Lowery v. Ala. Power Co., 483 F.3d 1184, 1208 (11th Cir.
2007); Williams v. Best Buy Co., 269 F.3d 1316, 1319
(11th Cir. 2001). To meet their burden, defendants may offer
additional evidence to demonstrate that removal is proper.
Roe, 613 F.3d at 1061. Courts combine
defendants' evidence with “judicial experience and
common sense” to determine whether removal is proper.
Id. at 1064. But “all doubts about
jurisdiction [are] resolved in favor of remand to state
court.” Univ. of S. Ala. v. Am. Tobacco Co.,
168 F.3d 405, 411 (11th Cir. 1999).
measure amount in controversy at the time of removal.
Pretka v. Kolter City Plaza II, 608 F.3d 744, 751,
754-56 (11th Cir. 2010). Here, Plaintiff maintains that
diversity jurisdiction does not exist because the AIC did not
exceed $75, 000 when Defendant removed. (Doc. 9, p. 4.) As
support, Plaintiff combines back pay and attorneys' fees
through removal, but does not add compensatory and punitive
damages to the calculation because their quantity has yet to
be determined. (See Doc. 9, pp. 6-13.) Defendant
opposes, contending that the AIC is met if the Court
considers these damages and calculates Plaintiff's claims
for back pay and attorneys' fees through a future trial
date. (See Doc. 14, pp. 9-10, 14, 16-17.)
review, the Court rejects Defendant's argument and finds
that the case is due to be remanded. Specifically, the Court
finds that: (1) at the time of removal, Plaintiff incurred at
most $8, 455 in back pay and $4, 760 in attorneys' fees,
which is well-below the requisite $75, 000 threshold; and (2)
Defendant failed to meet their burden for the Court to
include compensatory and punitive damages in the AIC
“calculating a back pay award, the trial court must
determine what the employee would have earned had she not
been the victim of discrimination.” Love v. N. Tool
& Equip. Co., No. 08-20453-CIV, 2008 WL 2955124, at
*3 (S.D. Fla. Aug. 1, 2008). Both parties recognize that at
the time of removal, Plaintiff had incurred seventy-six weeks
of potential lost back pay that could total $8, 455. (Doc. 9,
p. 8, Doc. 14, p. 10.) But Defendant contends that the AIC
should include back pay that accrues after the date of
removal. (Doc. 14, p. 10.) The Court disagrees.
courts within this District hold differing opinions on
whether back pay that accrues in the time period following
removal through trial or judgment should be included when
ascertaining the AIC. The U.S. Court of Appeals for the Eleventh
Circuit has not resolved this split. But, consistent with the
rule that the AIC should be measured at the time of removal,
Pretka, 608 F.3d at 751, this Court calculates back
pay only through the date of removal and not through a later,
speculative date. The fact that courts may use
“deduction, inference, or other extrapolation” in
determining the AIC, see Pretka, 608 F.3d at 753-54,
does not lend support for throwing a dart at a future trial
calendar- assuming the case will actually be tried, or
disregarding the almost certain evidence of mitigation of
wage loss damages. As such, only back pay in the amount of
$8, 455 will be counted toward the AIC.