United States District Court, S.D. Florida
RANDY ROSENBERG, D.C., P.A., a/a/o Dorothy Johnson and Tina Scott, on behalf of itself and all others similarly situated, Plaintiff,
GEICO INDEMNITY COMPANY, and GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendants.
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiff Randy
Rosenberg, D.C., P.A.'s (“Plaintiff”) Motion
for Remand, ECF No. , 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.
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.
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. ¶¶
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.
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. . 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.
. This Court approved and adopted the stipulation.
Initial Action, ECF No. .
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.  ¶ 7; ECF No. [5-1]
(Corrected Notice of Removal) ¶ 7. The instant Motion
for Remand, ECF No. , then followed.
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.
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).
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); see
Whitt, 147 F.3d at 1329; see also Shamrock Oil &
Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).
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