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Burrows v. State Farm Mutual Automobile Insurance Co

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

March 23, 2018

TIFFANY BURROWS, Plaintiff,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.

          ORDER

          JAMES D. WHITTEMORE, United States District Judge.

         BEFORE THE COURT is Plaintiffs (Second) Motion to Remand Matter (Dkt. 14), which Defendant opposes (Dkt. 16). Upon consideration, the Motion (Dkt. 14) is GRANTED.

         I. Background

         Tiffany Burrows filed this Florida Civil Rights Act employment discrimination action in Polk County Circuit Court. (Dkt. 2). State Farm first removed the case on January 26, 2017 based on diversity jurisdiction.[1] The case was remanded to Polk County Circuit Court on August 3, 2017. On August 14, State Farm removed the case again based on diversity jurisdiction, contending that new facts supported removal. (Dkt. 1). Plaintiff moves to remand, contending that State Farm essentially seeks reconsideration of the order remanding the prior case, and alternatively, that State Farm fails to prove that the amount in controversy exceeds $75, 000.[2] (Dkt. 14).

         II. Standard

         In diversity cases, federal courts have original jurisdiction over cases in which the parties are completely diverse and the amount in controversy exceeds $75, 000, exclusive of costs and interest. 28 U.S.C. § 1332(a). And where, as here, the case is not removable by the initial pleading, the removal is governed by § 1446(b)(3) (formerly a second paragraph removal), which provides:

Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

28 U.S.C. § 1446(b)(3).

[And], [i]f the case stated by the initial pleading is not removable solely because the amount in controversy does not exceed the amount specified in section 1332(a), information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an "other paper" under subsection (b)(3).

25 U.S.C. § 1446(c)(3)(A).

         The defendant must receive, not generate or compile, the "other paper" containing "an unambiguous statement that clearly establishes federal jurisdiction."[3] Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 762 (11th Cir. 2010); Loweryv. Ala. Power Co., 483 F.3d 1184, 1215 (11th Cir. 2007) (as applied to second paragraph or § 1446(b)(3) removals); Bosky v. Kroger Texas, LP, 288 F.3d 208, 212 (5th Cir. 2002) (holding that "the information supporting removal must be 'unequivocally clear and certain' to start the time limit" for a notice of removal). And, "a party is not entitled, under existing laws, to file a second petition for removal upon the same grounds, where, upon the first removal by the same party, the federal court declined to proceed and remanded the suit " St. Paul & C. Railway Co. v. McLean, 108 U.S. 212, 217 (1883); see Watson v. Carnival Corp., 436 Fed.Appx. 954, 955 (11th Cir. 2011). "The prohibition against removal 'on the same ground' does not concern the theory on which federal jurisdiction exists (i.e., federal question or diversity jurisdiction), but rather the pleading or event that made the case removable." S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492 (5th Cir. 1996); see Watson, 436 Fed.Appx. at 956.

         III. Discussion

         As a threshold matter, Plaintiff contends that State Farm's removal is based on the same grounds as its first removal. Although the theory State Farm relies on, diversity jurisdiction, is the same, the events it relies on are new. Notwithstanding, those events do not support removal.

         State Farm relies on three measures of damages to reach the jurisdictional threshold: lost wages, compensatory damages, and attorney's fees. And, it relies on Plaintiff s deposition testimony, the docket in the prior federal case, and an affidavit from ...


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