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Avery v. Wawa, Inc.

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

February 22, 2018

JOSHUA AVERY, Plaintiff,
WAWA, INC., Defendant.



         This 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).

         I. Background

         Plaintiff 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).

         Avery 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).

         On 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.”

         II. Workers Compensation Retaliation Claim

         Federal 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.”).

         This 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 remand.

         III. Florida Civil Rights Act Claims

         The 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).

         As to 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.” Id.

         Here, 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.” Id.

         In an 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 emotional ...

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