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Johnson v. Leevers Supermarket, Inc.

United States District Court, S.D. Florida

July 30, 2019

LINDA JOHNSON, Plaintiff,
v.
LEEVERS SUPERMARKET, INC., Defendant.

          ORDER ON MOTION FOR REMAND

          BETH BLOOM UNITED STATES DISTRICT JUDGE.

         THIS CAUSE is before the Court upon Plaintiff Linda Johnson's Motion for Remand, ECF No. [9], (“Motion”). Defendant Leevers Supermarket, Inc. filed its Response, ECF No. [12], (“Response”) to which Plaintiff did not reply. The Court has considered the Motion, the Response the record in this case and the applicable law and is otherwise fully advised. For the reasons set forth below, the Motion is denied.

         I. BACKGROUND

         Plaintiff Linda Johnson brings this negligence action, seeking damages for personal injuries sustained in the Defendant's supermarket from a slip and fall. ECF No. [1-1], Plaintiff originally filed her complaint in state court on August 24, 2018 and the Defendant thereafter removed the case on May 13, 2019, ECF No. [1], (“Notice”), based on diversity jurisdiction. Plaintiff now seeks to remand the case, arguing that Defendant has failed to establish that the amount in controversy exceeds $75, 000.00, and that the removal was untimely.

         II. LEGAL STANDARD

         Pursuant to 28 U.S.C. § 1441(a), any civil action brought in a state court of which the district courts of the United States have original jurisdiction, may be removed by a defendant to the district court of the United States for the district and division embracing the place where such action is pending.

         “A removing defendant bears the burden of proving proper federal jurisdiction.” Coffey v. Nationstar Mortg., LLC, 994 F.Supp.2d 1281, 1283 (S.D. Fla. 2014). A district court has subject matter jurisdiction where the parties are diverse and the amount in controversy exceeds $75, 000.00. 28 U.S.C. § 1332(a). “Where, as here, the plaintiff has not pled a specific amount of damages, the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdiction requirement.Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010); see also 28 U.S.C. § 1332(a). “To determine whether this standard is met, a court first examines whether it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement.” Miedema v. Maytag Corp., 450 F.3d 1322, 1330 (11th Cir. 2006) (citation omitted), abrogated on other grounds by Dudley v. Eli Lilly & Co., 778 F.3d 909 (11th Cir. 2014). “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. (citation omitted).

         “[A] removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka, 608 F.3d at 754 (citations omitted). The use of reasonable inferences and deductions is permissible to show the amount that is in controversy in the case. See id. (discussing the difference between reasonable deductions and inferences with “conjecture, speculation, or star gazing”). However, district courts narrowly construe removal statutes, and where a plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095, (11th Cir. 1994), superseded in part by statute, 28 U.S.C. § 1446.

         Furthermore, the time limit for removal is set forth in 28 U.S.C. § 1446(b), which provides in relevant part:

(3) [I]f 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 be first ascertained that the case is one which is or has become removable.

         Answers to discovery requests-including responses to requests for admission and interrogatories-constitute “other paper” pursuant to the statute. Lowery v. Ala Power Co., 483 F.3d 1184, 1212 n.62 (11th Cir. 2007) (citing Wilson v. Gen. Motors Corp., 888 F.2d 779, 780 (11th Cir. 1989) and Akin v. Ashland Chem. Co., 156 F.3d 1030, 1036 (10th Cir. 1998)) (additional citations omitted). With these standards in mind, the Court analyzes the Motion.

         III. DISCUSSION

         In the Motion, Plaintiff argues that this case should be remanded because Defendant has failed to establish that the amount in controversy requirement has been met, and because the Defendant' Notice of Removal is untimely. The Court considers each argument in turn.

         i. Amount ...


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