United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Plaintiffs',
Eduardo and Dania Punales, Motion to Remand (the
“Motion”), filed on January 26, 2019. [ECF No.
4]. The Court has considered the Motion and the record and is
otherwise fully advised. Because the Court agrees that
Defendant's Notice of Removal was untimely, the Motion is
to allegations set forth in the Complaint [ECF No. 1-2] and
Notice of Removal [ECF No. 1], Plaintiffs had an insurance
policy with Defendant that provided coverage for damages to
Plaintiffs' residence (the “Policy”). In
September of 2017, Plaintiffs' residence was damaged by
Hurricane Irma. Defendant partially denied coverage under the
January 30, 2018, Plaintiff filed a breach of insurance
contract action and petition for declaratory relief against
Defendant in the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida. The Complaint did not claim a
specific amount of damages, instead stating “this is an
action for damages in excess of FIFTEEN THOUSAND DOLLARS
($15, 000.00), exclusive of interest, attorney fees and costs
. . . .” [ECF No. 1-2].
parties proceeded to litigate the case. On May 22, 2018,
Plaintiffs sent Defendant an email titled “Eduardo
& Dania Punales v Hartford | OFFER TO
SETTLE/DEMAND” (the “Settlement Offer”)
which attached a 28-page estimate, prepared by Barba Public
Adjusters, of itemized potential damages to Plaintiffs'
property (the “Estimate”). [ECF No. 4-3]. The
Estimate totaled $119, 941.00. [Id. at 2-29]. On
September 4, 2018, Plaintiffs responded to Defendant's
interrogatories, one of which had requested that Plaintiffs
state the amount of damages they claimed (the
“Interrogatory Answer”). [ECF No. 4-2].
Plaintiffs repeatedly answered, “Please see
Plaintiffs' Response to Defendant's Request for
Production pursuant to Fla.R.Civ.P.1.280(c) [sic].”
[Id. at 6-7]. On September 5, 2018, Plaintiffs
responded to Defendant's Requests for Production by
referring to and attaching the Estimate (the “Response
to Request for Production”). [ECF No. 4-1]. On November
30, 2018, Mrs. Punales stipulated in her deposition that
Plaintiffs were relying on the Estimate as a figure for
damages and that certain line items in the Estimate, totaling
$12, 642.00, were no longer sought. [ECF No. 1-5, at 4].
then, on December 27, 2018, did Defendant file its Notice of
Removal. Defendant attached Mrs. Punales's deposition
testimony and the Estimate to support its contention that
removal was proper. Plaintiffs timely filed their Motion to
Remand, arguing that removal was untimely and attaching their
Response to Request for Production, Interrogatory Answer, and
defendant who seeks to remove a case to federal court must
timely file in the federal court a notice of removal and a
‘short and plain statement of the grounds for
removal.'” Goldstein v. GFS Market Realty Four,
LLC, No. 16-60956, 2016 WL 5215024, at *3 (S.D. Fla.
Sept. 21, 2016) (quoting 28 U.S.C. § 1446(a)). 28 U.S.C.
Section 1446(b) governs the timeliness of removal, including
for actions that later become removable by virtue of filing
or service of “an amended pleading, motion, order[, ]
or other paper . . . .” 28 U.S.C. § 1446(b)(3). In
such cases, “[t]he documents received by the defendant
must contain an unambiguous statement that clearly
establishes federal jurisdiction.” Pretka v. Kolter
City Plaza II, Inc., 608 F.3d 744, 763 (11th Cir. 2010)
(quoting Lowery v. Alabama Power Co., 483 F.3d 1184,
1213 (11th Cir. 2007)).
Section 1446(b)(3), “[a] district court may consider .
. . any later received paper from the plaintiff . . . when
deciding upon a motion to remand.” Gannon
Int'l, Ltd. v. U.S. Fire Ins. Co., No. 10-24589,
2011 WL 13100239, at *2 (S.D. Fla. Apr. 27, 2011) (citing
Lowery, 483 F.3d at 1213-14). Courts should only
consider the “limited universe of evidence available
when the motion to remand is filed” when evaluating
whether removal was proper under Section 1446(b).
Lowery, 483 F.3d at 1214. “If that evidence is
insufficient to establish that removal was proper or that
jurisdiction was present, neither the defendants nor the
court may speculate in an attempt to make up for the
notice's failings.” Id. at 1214-15.
argue that the $119, 941.00 Estimate referenced in their
Settlement Offer (dated May 22, 2018), Interrogatory Answer
(dated September 4, 2018), and Response to Request for
Production (dated September 5, 2018) gave Defendant knowledge
that the amount in controversy exceeded $75, 000.00,
consequently triggering Section 1446(b)(3)'s thirty-day
clock for removal and rendering Defendant's Removal
(dated December 27, 2018) untimely. Therefore, the sole issue
here is whether Plaintiffs' Estimate and corresponding
communications began the thirty-day clock for Defendant's
1446(b)(3) provides that if the case stated by the initial
pleading is not removable, the clock begins “when three
conditions are present: there must be (1) ‘an amended
pleading, motion, order or other paper,' which
(2) the defendant must have received from the
plaintiff . . . and from which (3) the defendant can
‘first […] ascertain' that federal
jurisdiction exists.'” Goldstein, 2016 WL
5215024, at *7 (emphasis added and alteration in original)
(quoting Lowery, 483 F.3d at 1213 n.63). “The
definition of ‘other paper' is broad and may
include any formal or informal communication received by a
defendant.” Wilson v. Target Corp., No.
10-80451, 2010 WL 3632794, at *2 (S.D. Fla. Sept. 14, 2010)
(citing Yarnevic v. Brink's, Inc., 102 F.3d 753,
755 (4th Cir. 1996)).
post-suit settlement offer is considered an “other
paper” that provides evidence of the amount in
controversy if it is supported by specific information
detailing from where the requested damages arise. Compare
Mitzelfeld v. Safeco Ins. Co. of Illinois, No. 15-80381,
2015 WL 11348283, at *1 (S.D. Fla. May 22, 2015) (finding
that a settlement demand held more weight in evaluating an
amount in controversy when it “went into great detail
as to Plaintiff's damages, including surgery and a
finding of permanent disability after the accident”);
withJackson v. Select Portfolio Servicing,
Inc., 651 F.Supp.2d 1279, 1281 (S.D. Ala. 2009)
(remanding case because plaintiff's ...