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Randy Rosenberg, D.C., P.A. v. Geico Indemnity Co.

United States District Court, S.D. Florida

August 13, 2019

RANDY ROSENBERG, D.C., P.A., a/a/o Dorothy Johnson and Tina Scott, on behalf of itself and all others similarly situated, Plaintiff,



         THIS CAUSE is before the Court upon Plaintiff Randy Rosenberg, D.C., P.A.'s (“Plaintiff”) Motion for Remand, ECF No. [8], seeking to remand the proceedings back to state court in Broward County, Florida. The Court has carefully reviewed the Motion for Remand, the record and applicable law, and is otherwise fully advised. For the reasons that follow, the Motion for Remand is granted.

         I. BACKGROUND

         Plaintiff brings class claims for declaratory relief against Geico Indemnity Company (“GIC”) and Government Employees Insurance Company (“Government”, collectively “Defendants”), alleging that Defendants have a wide-spread practice of improperly paying personal injury protection (“PIP”) claims at a reduced amount. See ECF No. [5-2] (the “Complaint”). Plaintiff challenges Defendants' interpretation of a specific endorsement to one of their automobile policies, FLPIP (01-13). The endorsement included the following language: “A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted.” Id. ¶ 14.

         According to the Complaint, Tina Scott (“Scott”) was insured under an automobile insurance policy with GIC and Dorothy Johnson (“Johnson”) was insured under an automobile insurance policy with Government. Id. ¶¶ 17, 22. They were each involved in motor vehicle accidents while insured. Id. ¶¶ 16, 21. Plaintiff is a health care provider who provided medical care through an assignment of benefits to Johnson and Scott for injuries sustained in the motor vehicle accidents. Id. ¶¶ 17, 22. The Complaint lists two charges for medical services to Scott and three charges for medical services to Johnson for which Plaintiff submitted claims to the respective Defendant. Id. ¶¶ 18-19, 23-25.

         The five charges listed in the Complaint were in amounts less than the amount permitted by a permissive fee schedule in the Florida PIP Statute, Section 627.736, Florida Statutes. Id. ¶¶ 17-19, 22-24. For each charge that was below the fee schedule amount Defendants reimbursed Plaintiff for 80% of the billed amount and provided an Explanation of Review (“EOR”) that contained the code “BA.” Id. ¶ 20. The BA code indicated that Defendants reduced reimbursement of the charge to 80% of the billed amount. Id. Plaintiff believes that the language in the endorsement required full payment of bills for an amount that was less than the fee schedule, as opposed to only 80% of the amount billed. Id. ¶¶ 15, 60. Defendants have taken a contrary position. Id. ¶¶ 15, 61.

         This case was originally filed in federal court on March 16, 2018. See Rosenberg v. GEICO, Case No. 18-cv-60576 (S.D. Fla. 2018) (“Initial Action”). The case was transferred to this Court because it was found to be substantially related to A&M Gerber Chiropractic LLC a/a/o Conor Carruthers, on behalf of itself and all others similarly situated, v. GEICO General Insurance Company, Case No. 16-cv-62610-BLOOM/Valle (“Gerber”). This Court, sua sponte, issued an order staying the Initial Action pending appellate review of an order in Gerber granting summary judgment in favor of plaintiff. Initial Action, ECF No. [9]. The Eleventh Circuit Court of Appeals issued an opinion in Gerber Chiropractic LLC v. GEICO Gen. Ins. Co., 925 F.3d 1205, 1215 (11th Cir. 2019) (the “Gerber Opinion”), holding that the insured in that case lacked a potential future injury sufficient to confer Plaintiff with Article III standing. The Eleventh Circuit reversed this Court's final judgment with instruction to this Court to remand the case to state court. Gerber, 925 F.3d at 1216. The parties to the Initial Action then entered into a stipulation that the Initial Action should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). Initial Action, ECF No. [12]. This Court approved and adopted the stipulation. Initial Action, ECF No. [13].

         After dismissal of the Initial Action, on April 26, 2019, Plaintiff filed the almost identical claim in the Seventeenth Judicial Circuit in and for Broward County, Florida under the Florida Declaratory Judgment Act. Defendants filed a Notice of Removal on June 6, 2019, relying on the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332, 28 U.S.C. § 1441(a) and (b), and 28 U.S.C. § 1453, asserting that “this is a putative class action with more than 100 putative class members that are seeking to recover in excess of $5, 000, 000 in the aggregate, and there is minimal diversity.” ECF No. [1] ¶ 7; ECF No. [5-1] (Corrected Notice of Removal) ¶ 7. The instant Motion for Remand, ECF No. [8], then followed.

         In the Motion for Remand, Plaintiff argues that the Complaint does not assert an injury-in-fact sufficient to confer federal court jurisdiction. Plaintiff relies on the Gerber Opinion, holding on similar facts and allegations that the plaintiff failed to allege a potential future injury sufficient to confer Article III standing. 925 F.3d at 1216. Defendants counter that the Gerber Opinion is non-final and subject to withdrawal or amendment because the defendant-appellant in that case filed a motion for rehearing on June 19, 2019. Defendants also argue that this Court has subject matter jurisdiction because the CAFA requirements are met. Finally, Defendants contend that remanding this action would violate the rule against splitting causes of actions.


         “It is axiomatic that federal courts are courts of limited jurisdiction.” Ramirez v. Humana, Inc., 119 F.Supp.2d 1307, 1308 (M.D. Fla. 2000) (citing Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)). Removal to federal court is proper in “any civil action brought in a state court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). To establish original jurisdiction, an action must satisfy the jurisdictional prerequisites of either federal question jurisdiction under 28 U.S.C. § 1331or diversity jurisdiction under 28 U.S.C. § 1332. Federal question jurisdiction exists when the civil action arises “under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Diversity jurisdiction exists when the parties are citizens of different states, and the amount in controversy exceeds $75, 000. See Id. § 1332(a). The removing party has the burden of showing that removal from state court to federal court is proper. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir. 2002). “To determine whether the claim arises under federal law, [courts] examine the ‘well pleaded' allegations of the Complaint and ignore potential defenses.” Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 5 (2003).

         “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. §§ 1441(a), 1446. “Federal district courts, of course, have original jurisdiction over diversity cases and matters arising under federal law.” Whitt v. Sherman Int'l Corp., 147 F.3d 1325, 1329 (11th Cir. 1998) (citing 28 U.S.C. §§ 1331, 1332). “Removal is a matter of federal right, ” but on a motion to remand, “‘ambiguities are generally construed against removal.'” Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir.1979)[1]; see Whitt, 147 F.3d at 1329; see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).


         In the Gerber Opinion, the Eleventh Circuit reiterated the governing precedent for Article III standing for declaratory relief claims. To satisfy Article III's standing requirement, a plaintiff seeking declaratory relief only “must allege facts from which it appears that there is a ‘substantial likelihood that he will suffer injury in the future.'” Gerber, 925 F.3d at 1211 (quoting Malowney v. Federal Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999)). “Accordingly, if a plaintiff does not assert a reasonable ...

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