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Punales v. Hartford Insurance Co. of Midwest

United States District Court, S.D. Florida

July 26, 2019




         THIS 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 granted.


         According 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 Policy.

         On 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].

         The 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].

         Only 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 Settlement Offer.


         “[A] 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)).

         Under 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.


         Plaintiffs 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 Removal.

         Section 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)).

         A 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 ...

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