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Randy Rosenberg, D.C., P.A. v. Geico General Insurance Co.

United States District Court, S.D. Florida

August 19, 2019

RANDY ROSENBERG, D.C., P.A, a/a/o Danielle Russell, 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 Consideration of Remand (“Motion for Remand”), ECF No. [7], 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.

         I. BACKGROUND

         Plaintiff 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.

         According 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.

         The 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.

         This 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. [1] ¶ 7. The instant Motion for Remand, ECF No. [7], then followed.

         In the 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 damages.


         “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. § 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).

         The 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).


         The 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).

         In 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 ...

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