United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.
cause comes before the Court sua sponte. For the
reasons that follow, this case is remanded to the Tenth
Judicial Circuit, in and for Polk County, Florida for lack of
subject matter jurisdiction.
courts have limited subject matter jurisdiction.”
Morrison v. Allstate Indem. Co., 228 F.3d 1255,
1260-61 (11th Cir. 2000). Before delving into the merits of
any case, this Court must determine “whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party.” Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006). Indeed, “it 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).
“Without jurisdiction the court cannot proceed at all
in any cause.” Id. In removed cases, 28 U.S.C.
§ 1447(C) specifies: “If at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.”
action was removed to this Court from the Tenth Judicial
Circuit, in and for Polk County, Florida on July 9, 2018, on
the basis of diversity jurisdiction. (Doc. # 1). When
jurisdiction is premised upon diversity of citizenship, 28
U.S.C. § 1332(a) requires, among other things, that
“the matter in controversy exceeds the sum or value of
$75, 000, exclusive of interests and costs.” 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). When “damages are unspecified, the removing
party bears the burden of establishing the jurisdictional
amount by a preponderance of the evidence.” Lowery
v. Ala. Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007).
Complaint does not allege a specific amount of damages. (Doc.
# 2 at ¶ 1)(“This is an action for damages in
excess of the sum of FIFTEEN THOUSAND ($15, 000)
DOLLARS.”). Instead, in its Notice of Removal, Family
Dollar relies on two pre-suit demand letters - the first
demanding $150, 000 and the second demanding $75, 000 - to
establish the amount in controversy. (Doc. # 1 at 3-4). On
July 9, 2018, the Court entered an Order (Doc. # 3)
explaining that it was not convinced that the amount in
controversy requirement had been satisfied by a preponderance
of the evidence.
the Court explained that demand letters do not automatically
establish the amount in controversy. (Id.)(citing
Lamb v. State Farm Fire. Mut. Auto. Ins. Co., No.
3:10-cv-615-J-32JRK, 2010 WL 6790539, at *2 (M.D. Fla. Nov.
5, 2010)(stating that demand letters and settlement offers
“do not automatically establish the amount in
controversy for purpose of diversity jurisdiction”);
Piazza v. Ambassador II JV, L.P., No.
8:10-cv-1582-T-23-EAJ, 2010 WL 2889218, at *1 (M.D. Fla. July
21, 2010)(same)). Rather, courts evaluate whether demand
letters “‘reflect puffing and
posturing'” or “whether they provide
‘specific information to support the plaintiff's
claim for damages.'” Lamb, 2010 WL
6790539, at *2 (quoting Jackson v. Select Portfolio
Servicing, Inc., 651 F.Supp.2d 1279, 1281 (S.D. Ala.
2009)); see also Jenkins v. Myers, No.
8:16-cv-344-T-17EAJ, 2016 WL 4059249, at *4 (M.D. Fla. July
27, 2016)(stating a demand letter that appears to be mere
puffery or an attempt at posturing, “is insufficient to
prove by a preponderance of the evidence that the amount in
controversy meets or exceeds $75, 000”). Because the
Court determined the demand letters were “mere puffery,
” it directed Family Dollar to provide additional
information by July 16, 2018, “establishing, if
possible, that the amount in controversy requirement had been
met.” (Doc. # 3).
Dollar timely filed its “Notice of Compliance with
Endorsed Order Providing Additional Information Regarding
Amount in Controversy” on July 16, 2018. (Doc. # 6).
But Family Dollar still fails to show by a preponderance of
the evidence that the amount in controversy exceeds $75, 000.
In fact, Family Dollar fails to provide any additional
information regarding the amount in controversy and states it
has served Mitchell with an Amount in Controversy Request for
Admissions, with Mitchell's responses due August 14.
(Id. at 2).
than provide additional information, Family Dollar reiterates
its opinion that Mitchell's two pre-suit demand letters
establish that the amount in controversy exceeds $75, 000.
Yet, the only concrete damages to date are the approximately
$7, 000 in past medical expenses. (Doc. # 1-4 at 2). And
Mitchell's letters merely estimate her total damages to
be “$59, 440, plus future medical needs”
(Id.). There are no specific facts to support this
hypothetical calculation, which suggests these demands are
mere puffery, rather than accurate assessments of the amount
in controversy. Considering these estimates, the Court
determines that Mitchell's first settlement demand of
$150, 000 was nothing more than an aggressive negotiation
tactic. See Rodriguez v. Family Dollar, No.
8:17-cv-1340-T-33JSS, 2017 U.S. Dist. LEXIS 88594 (M.D. Fla.
June 9, 2017)(remanding similar case where the amount in
controversy was based on hypothetical future medical damages
and similarly reasoning that the pre-suit settlement offers
were negotiation tactics).
final settlement demand of $75, 000 provides further evidence
that the demand letters amount to nothing more than puffery
and posturing. (Doc. # 1-4 at 3). Mitchell's final
settlement demand is not only significantly less than the
initial demand of $150, 000, but is also below the
jurisdictional minimum requirement. See 28 U.S.C.
§ 1332(a)(requiring that “the matter in
controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs” for diversity
jurisdiction to exist (emphasis added)).
Mitchell admitted to seeking damages in excess of $75, 000 in
her response to the requests for admission, such admission
would not establish the amount in controversy by a
preponderance of the evidence. A plaintiff's mere
concession that the amount in controversy exceeds $75, 000 is
insufficient because “[j]urisdictional objections
cannot be forfeited or waived.” Eckert v. Sears,
Roebuck and Co., No. 8:13-cv-2599-T-23EAJ, 2013 WL
5673511, at *1 (M.D. Fla. Oct. 17, 2013)(citation omitted)
(remanding removed action where defendant's sole basis
for establishing the amount in controversy was
plaintiff's admission); see also MacDonald v. Circle
K Stores, Inc., No. 6:08-cv-1825-Or1-22DAB, 2009 WL
113377 (M.D. Fla. Jan. 16, 2009)(remanding slip-and-fall case
where removal was based on plaintiff's responses to
requests for admissions and interrogatory answers regarding
the amount in controversy).
as previously stated, the Court is skeptical that the
hypothetical damages exceed the jurisdictional threshold and
any doubt as to propriety of removal should be resolved in
favor of remand. Tauriga Sciences, Inc. v. ClearTrust,
LLC, No. 8:14-cv-2545-T-33TBM, 2014 WL 5502709, at *2
(M.D. Fla. Oct. 2014)(citing Butler v. Polk, 592
F.2d 1293, 1296 (5th Cir. 1979)).
the Court is not convinced that Mitchell's approximately
$7, 000 in medical costs, estimated damages at “$59,
440, plus future medical needs, ” (Doc. # 1-4 at 2),
and demand letters seeking either $150, 000 or $75, 000 prove
by a preponderance of the evidence that the amount in
controversy exceeds $75, 000. And Family Dollar fails to
provide additional information to support that the amount in
controversy exceeds the jurisdictional requirement.
Therefore, Family Dollar has not carried its burden of