United States District Court, S.D. Florida
RANDY ROSENBERG, D.C., P.A, a/a/o Danielle Russell, on behalf of itself and all others similarly situated, Plaintiff,
GEICO GENERAL INSURANCE COMPANY, Defendant.
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Plaintiff Randy
Rosenberg, D.C., P.A.'s (“Plaintiff”) Motion
for Consideration of Remand (“Motion for
Remand”), ECF No. , seeking to remand the
proceedings back to state court in Broward County. 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 denied.
brings a class claim for declaratory relief against Geico
General Insurance Company (“Defendant”), alleging
that Defendant have a wide-spread practice of improperly
paying personal injury protection (“PIP”) claims
at a reduced amount. See ECF No. [1-2] (the
“Complaint”). In addition to declaratory relief,
Plaintiff seeks an order “awarding monetary damages to
the individual plaintiff only [and] requiring re-adjustment
of all claims based on a proper reading of the insurance
policy.” Id. at 16. Plaintiff challenges
Defendant's interpretation of a specific endorsement to
one of its automobile policies, FLPIP (01-13). The
endorsement includes 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, Danielle Russell (“Russell”)
was insured under an automobile insurance policy with
Defendant. Id. ¶ 17. Russell was involved in a
motor vehicle accident while insured. Id. ¶ 16.
Plaintiff is a health care provider who provided medical care
through an assignment of benefits to Russell for injuries
sustained in the motor vehicle accident. Id. ¶
17. The Complaint lists four charges for medical services to
Russell for which Plaintiff submitted claims to Defendant.
Id. ¶¶ 18-21.
four 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. For each charge that was below the fee schedule
amount Defendant reimbursed Plaintiff for 80% of the billed
amount and provided an Explanation of Review
(“EOR”) that contained the code “BA.”
Id. ¶ 22. The BA code indicated that Defendant
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, 55.
Defendant has taken a contrary position. Id.
¶¶ 15, 56.
case was originally filed in the Seventeenth Judicial Circuit
in and for Broward County, Florida. Defendant 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. The
instant Motion for Remand, ECF No. , then followed.
Motion for Remand, Plaintiff states that the motion was filed
“in an abundance of caution” for the Court to
consider “whether remand of this case for lack of
subject matter jurisdiction under Article III is
appropriate.” Id. at 3. Plaintiff brings to
the Court's attention the recent holding in Gerber
Chiropractic LLC v. GEICO Gen. Ins. Co., in which the
Eleventh Circuit Court of Appeals stated that “when a
plaintiff is seeking declaratory relief without a claim for
money damages for injuries already suffered, the plaintiff
must allege facts from which it appears that there is a
substantial likelihood that he will suffer injury in the
future.” 925 F.3d 1205, 1214- 15 (11th Cir. 2019).
Plaintiff notes that the instant case may be distinguishable
from Gerber because Plaintiff is seeking monetary
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. § 1331 or 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).
CAFA “expanded considerably the subject matter
jurisdiction of the federal courts over class actions that
meet certain minimal requirements.” Dudley v. Eli
Lilly & Co., 778 F.3d 909, 911 (11th Cir. 2014)
(citing Miedema v. Maytag Corp., 450 F.3d 1322, 1327
(11th Cir. 2006)). “Specifically, CAFA grants federal
district courts jurisdiction over class actions where (1) any
member of the plaintiff class is a citizen of a state
different from the state of citizenship of any defendant, (2)
the aggregate amount in controversy exceeds $5 million, and
(3) the proposed plaintiff class contains at least 100
members.” Id. (emphasis omitted) (citing 28
U.S.C. § 1332(d)(2), (5)-(6)); see S. Florida
Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315
(11th Cir. 2014) (hereinafter,
“Wellness”). While normally a court
shall “presume[ ] that a cause lies outside this
limited jurisdiction, ” Kokkonen, 511 U.S. at
377, the Supreme Court has “made clear that ‘no
anti-removal presumption attends cases invoking CAFA, which
Congress enacted to facilitate adjudication of certain class
actions in federal court.'” Dudley, 778
F.3d at 912 (quoting Dart Cherokee Basin Operating Co.,
LLC v. Owens, 135 S.Ct. 547, 554 (2014)). Nevertheless,
a defendant seeking removal on the basis of diversity
jurisdiction must demonstrate the existence of federal
jurisdiction and the amount in controversy by a preponderance
of the evidence. See 28 U.S.C. § 1446(c)(2)(B);
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
752 (11th Cir. 2010); Williams v. Best Buy Co., 269
F.3d 1316, 1319 (11th Cir. 2001).
question before the Court is whether Plaintiff has standing
under Article III of the Constitution. To establish Article
III standing, a “plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016).
Gerber, the plaintiff challenged the interpretation
of the same fee schedule endorsement at issue in the present
case by the same Defendant as in the present case.
Gerber, 925 F.3d 1205, 1209. There, the plaintiff
sought declaratory relief and did not seek monetary damages.
Id. (“Although the complaint sought a
declaration that GEICO had breached the policy, the complaint
stated that ‘there is no claim for monetary relief'
in the case.”). The Eleventh Circuit reiterated the
governing precedent for Article III standing for declaratory
relief claims: 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)). The
Eleventh Circuit reasoned that because the defendant paid
plaintiff's assignor more than he was entitled to under
the insurance ...