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Balkum v. Pier 1 Imports (U.S.), Inc.

United States District Court, M.D. Florida, Orlando Division

September 7, 2017

PIER 1 IMPORTS (U.S.), INC., Defendant.



         In the 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.

         I. Background

         On June 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.[1] (Doc. 9.) Defendant opposes remand. (Doc. 14.)

         II. Standards

         “Federal 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. § 1332(a).

         Actions 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).

         III. Analysis

         Courts 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.)

         Upon 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 calculation.

         A. Back Pay

         When “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.

         Notably, 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.[2] The U.S. Court of Appeals for the Eleventh Circuit has not resolved this split.[3] 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.[4] 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.

         B. ...

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