United States District Court, S.D. Florida, Miami Division
ORDER DENYING PLAINTIFF'S MOTION TO
FEDERICO A. MORENO, UNITED SJATES DISTRICT JUDGE
case arises from a single statement allegedly posted on
Facebook. On July 13, 2017, Isaac Aflalo sued Eugene Weiner
in state court, alleging defamation per se and intentional
infliction of severe emotional distress. Aflalo claims that
the alleged statement has caused financial loss, reputational
damage, and physical and mental stress, and he seeks an
unspecified amount of compensatory and punitive damages
exceeding $15, 000.
September 20, Weiner's counsel-Scott Bassman-called
Aflalo's counsel-Gary Rosenberg-to determine if Aflalo
was seeking more than $75, 000, which would make removal
proper. The parties dispute what was said. Bassman claims
that Rosenberg stated that his client was seeking damages
"well in excess of $75, 000." Rosenberg claims that
he stated that he would argue at trial for damages in excess
of $75, 000, but only as puffing.
September 29, Weiner removed the case to this Court on the
basis of diversity jurisdiction. Aflalo now moves to remand
the case to state court. There is no dispute that the parties
are of diverse citizenship, but Aflalo argues that the
jurisdictional amount-in-controversy is not met.
motion to remand, the removing party bears the burden of
establishing jurisdiction. Tapscottv. MS Dealer Serv.
Corp., 77 F.3d 1353, 1356-57 (11th Cir. 1996),
overruled on other grounds by Cohen v. Office Depot,
Inc., 204 F.3d 1069 (11th Cir. 2000). The removal
statute should be construed narrowly, with uncertainties
resolved in favor of remand. Diaz v. Sheppard, 85
F.3d 1502, 1505 (11th Cir. 1996). Where, as here, plaintiff
has not pled a specific amount of damages, the removing
defendant must prove by a preponderance of the evidence that
the amount in controversy exceeds $75, 000. See
Tapscott, 77 F.3d at 1356-57. "When the complaint
does not claim a specific amount of damages, removal from
state court is proper if it is facially apparent from the
complaint that the amount in controversy exceeds the
jurisdictional requirement. If the jurisdictional amount is
not facially apparent from the complaint, the court should
look to the notice of removal and may require evidence
relevant to the amount in controversy at the time the case
was removed." Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir. 2001).
it is not facially apparent from the complaint that the
amount in controversy exceeds $75, 000, as Aflalo alleged
only that damages exceed $15, 000. Thus, the Court looks to
Weiner's notice of removal and other evidence relevant to
the amount in controversy at the time the case was removed.
Weiner relies on two pieces of evidence to support
Weiner relies on his counsel's affidavit describing the
phone call with Aflalo's counsel during which he
allegedly stated that Aflalo is seeking more than $75, 000. A
defendant seeking removal may submit affidavits,
declarations, or other evidence to meet his burden of showing
a jurisdictional basis for removal. Pretka v. Kolter City
Plaza II, Inc., 608 F.3d 744, 755 (11th Cir. 2010).
Further, the Court may consider evidence submitted after the
removal petition, so long as the evidence pertains to the
time of removal. Sierminski v. Transouth Fin. Corp.,
216 F.3d 945, 949 (11th Cir. 2000); see also Lazo v. U.S.
Airways, Inc., No. 08-80391, 2008 WL 3926430, at *4
(S.D. Fla. Aug. 26, 2008) (Ryskamp, J.) (citing AAA
Abachman Enters., Inc. v. Stanley Steemer Int'l,
Inc., 268 Fed.App'x 864, 866-67 (11th Cir. 2008))
(in response to motion to remand, defense counsel filed an
affidavit attesting to conversation with plaintiffs counsel
regarding amount of recovery sought). Here, the affidavits
and emails submitted by the parties in briefing the motion to
remand pertain to evidence directly relating to the amount in
controversy at the time of removal. Thus, they may be
considered by the Court.
attacks the phone call evidence in three ways. First, he
argues that Mr. Rosenberg stated that he would argue at
trial for damages in excess of $75, 000-not that his
client was seeking damages "well in excess of
$75, 000." But, this small distinction makes no
difference, as where else would Aflalo be seeking damages but
at trial? Either statement makes it clear that the amount in
controversy at the time of removal exceeds the jurisdictional
minimum. Second, Aflalo argues that Mr. Bassman could not
make any representations about Weiner or about the case
during the call because he had not yet filed an appearance.
Of course, this simply is not true as lawyers often represent
clients without a notice of appearance in a particular
proceeding, if there is a proceeding at all. Third, Aflalo
argues that Mr. Rosenberg's comments were only meant as
puffing concerning possible damages in the case. Generally, a
settlement offer that contains little more than "puffing
and posturing" should be afforded little weight, but a
settlement offer containing specific information supporting a
demand for damages is entitled to greater weight. See
Perez-Santos v. Target Corp., No. 13-24263, 2014 WL
11946883, at *1 (S.D. Fla. Jan. 23, 2014) (Williams, J.).
However, here, Mr. Rosenberg's statements were not made
in the settlement context. Rather, he was representing the
amount of damages that Aflalo was seeking or would be seeking
at trial. Thus, the Court affords the statement more weight
than mere puffing, but less weight than a demand supported
with specific information. See Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1094 (11th Cir. 1994) (standards for
diversity jurisdiction give great weight to a plaintiff's
assessment of the value of his case).
than the telephone call, Weiner also relies on Aflalo's
refusal to stipulate to damages less than $75, 000.
Aflalo's refusal to stipulate the actual amount of
damages does not, standing alone, support jurisdiction.
See Williams, 269 F.3d at 1320. But, it should be
considered when assessing the amount in controversy. See
Devore v. Howmedica Osteonics Corp., 658 F.Supp.2d 1372,
1380 (M.D. Fla. 2009). Thus, Aflalo's refusal to
stipulate to damages less than or equal to $75, 000
strengthens Weiner's argument for removal.
has submitted evidence that proves the amount in controversy
exceeds $75, 000. Aflalo has had the opportunity to provide
evidence that his damages do not exceed $75, 000, but has
failed to do so. Had Aflalo provided any evidence to refute
the jurisdictional amount in controversy, Weiner may have had
difficulty meeting his burden to establish jurisdiction.
However, on multiple occasions, Aflalo's counsel has
indicated that Aflalo is seeking more than $75, 000. Thus, he
took his chances that federal jurisdiction may be
established. Weiner has met his burden in proving by a
preponderance of the evidence that the amount in controversy
exceeded $75, 000 at the time of removal. Therefore, it is
AND ADJUDGED that Aflalo's ...