United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE
cause comes before the Court pursuant Defendant Wawa,
Inc.'s Notice of Removal (Doc. # 1), which was filed on
February 16, 2018. For the reasons set forth below, the Court
determines that it lacks subject matter jurisdiction and
accordingly remands the action to state court pursuant to 28
U.S.C. § 1447(c).
Joshua Avery was a cashier at a Clearwater, Florida Wawa.
(Doc. # 2 at ¶¶ 1-6). During his employment, Avery
suffered from “Osteoarthritis/Degenerative Joint/Disc
Disease and Herniated Disc in Neck Region.”
(Id. at ¶ 8). In May of 2016, he was prescribed
a back brace by his doctor. (Id. at ¶ 11).
Avery claims that Wawa thereafter cut his hours and began
discriminating against him. (Id. at ¶¶ 12,
15). Then, Avery had a workplace injury when a box fell on
him. (Id. at ¶ 16). According to Avery,
“Wawa knew and knows that Avery's workplace
accident required him to miss time under workers'
compensation leave, however, Wawa called the days missed
‘unexcused absences'” and, “while Avery
was out on workers' compensation leave after his injury,
Wawa fired Avery for unexcused absences.” (Id.
at ¶¶ 17-18).
accordingly filed a state court complaint against Wawa
containing the following counts: disability discrimination in
violation of the Florida Civil Rights Act, Florida Statutes
Chapter 760 (“FCRA”) (count 1); failure to
accommodate in violation of the FCRA (count 2); retaliation
in violation of the FCRA (count 3); and Workers'
Compensation Retaliation (count 4). (Doc. # 2).
February 16, 2018, Wawa removed the action on the basis of
the Court's diversity jurisdiction. (Doc. # 1). At this
juncture, the Court sua sponte addresses the issue of
jurisdiction. “[I]t is well settled that a federal
court is obligated to inquire into subject matter
jurisdiction sua sponte whenever it may be lacking.”
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
410 (11th Cir. 1999). Furthermore, in the context of cases
removed to federal court, 28 U.S.C. § 1447(c) states,
“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the
case shall be remanded.”
Workers Compensation Retaliation Claim
law prohibits the removal of certain types of actions by
designating them as non-removable. 28 U.S.C. § 1445. In
particular, civil actions brought in state court
“arising under the workmen's compensation laws of
such State may not be removed to any district court of the
United States.” 28 U.S.C. § 1445(c). The Eleventh
Circuit has held that retaliation claims brought under
Chapter 440.205 of Florida's Workers' Compensation
laws fall within the ambit of 28 U.S.C. § 1445(c) and
that such removed claims must be remanded for lack of subject
matter jurisdiction. See Reed v. Heil Co., 206 F.3d
1055, 1061 (11th Cir. 2000)(remanding workers'
compensation retaliation claim for lack of subject matter
jurisdiction pursuant to 28 U.S.C. § 1445(c));
Alansari v. Tropic Star Seafood, Inc., 388 F.
App'x 902, 905 (11th Cir. 2010)(“[B]ecause the
district court lacked subject-matter jurisdiction over
Alansari's state workers' compensation retaliation
claim, we conclude that it erred in refusing to remand the
claim to state court.”).
Court lacks subject matter jurisdiction over the Florida
Workers' Compensation-related claim asserted in count
four of the Complaint and that claim is subject to sua sponte
Florida Civil Rights Act Claims
remaining claims are asserted pursuant to the FCRA, and Wawa
removed those claims on the basis of complete diversity of
citizenship. Under 28 U.S.C. § 1441, a defendant can
remove an action to a United States District Court if that
court has original jurisdiction over the action. 28 U.S.C.
§ 1441(a). United States District Courts have original
jurisdiction over all civil actions between parties of
diverse citizenship where the amount in controversy exceeds
$75, 000.00. See 28 U.S.C. § 1332(a). The
parties are completely diverse. Avery is a citizen of Florida
and Wawa is a New Jersey corporation with its principal place
of business in Pennsylvania. (Doc. # 1 at 2).
the amount in controversy requirement, removal is proper if
the complaint makes it “facially apparent” that
the amount in controversy exceeds $75, 000.00. Williams
v. Best Buy, Co., 269 F.3d 1316, 1319 (11th Cir. 2001).
“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.”
the Complaint alleges that “the amount in controversy
is more than $15, 000 but less than $75, 000. (Doc. # 1 at
¶ 4). Because the plaintiff has specifically alleged
that the damages are less than the jurisdictional threshold
amount, it is up to Wawa to prove, to a legal certainty, that
the claim exceeds $75, 000. See Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994). According to
the Eleventh Circuit, this is a “heavy” burden
and a “strict standard.” Id. at 1095-96.
Indeed, as recognized by the Burns Court, “the
plaintiff is the master of his own claim.” Id.
at 1095. “[R]emoval statutes are construed narrowly;
where plaintiff and defendant clash about jurisdiction,
uncertainties are resolved in favor of remand.”
attempt to demonstrate that the Court has jurisdiction over
the case, Wawa states that Avery's January 31, 2018,
responses to Wawa's First Set of Interrogatories
“clearly demonstrated that the amount in controversy
was actually well in excess of $75, 000.” (Doc. # 1 at
2). Wawa summarizes the interrogatory answers as follows:
“Avery disclosed that he is seeking back pay damages
based on $23, 000/year from October 7, 2016 to present; front
pay based on two years of pay of $46, 000, as well as