United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on a sua sponte review of the
record. Plaintiff originally filed this action on July 19,
2019, in the Circuit Court of the Eleventh Judicial Circuit
in and for Miami-Dade County, Florida. ECF No.  at 1. On
August 28, 2019, Defendants filed a Notice of Removal
(“Notice”). Id. The Court has carefully
reviewed the Notice, the underlying Complaint, the record and
applicable law, and is otherwise fully advised.
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, a lawsuit must satisfy the
jurisdictional prerequisites of either federal question
jurisdiction, pursuant to 28 U.S.C. § 1331, or diversity
jurisdiction, pursuant to 28 U.S.C. § 1332. Federal
question jurisdiction exists when the civil action arises
“under the Constitution, laws, or treaties of the
United States.” Id. § 1331. Diversity
jurisdiction exists when the parties are citizens of
different states and the amount in controversy exceeds $75,
000.00. Id. § 1332(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).
“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 jurisdictional requirement.” Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir.
2010); see also 28 U.S.C. § 1332(a). Further, in
determining whether subject matter jurisdiction exists, the
Court must focus on the amount in controversy at the time of
removal, not at any later point. Pretka, 608 F.3d at
751 (citations omitted); see also Coker v. Amoco Oil
Co., 709 F.2d 1433, 1440 (11th Cir. 1983)
(“Removability should be determined ‘according to
the plaintiff's pleading at the time of the petition for
removal.'” (citing Pullman Co. v. Jenkins,
305 U.S. 534, 537 (1939))).
general rule is that attorneys' fees do not count toward
the amount in controversy unless they are allowed for by
statute or contract.” Federated Mut. Ins. Co. v.
McKinnon Motors, LLC, 329 F.3d 805, 808 n.4 (11th Cir.
2003) (citing Graham v. Henegar, 640 F.2d 732, 736
(5th Cir. 1981)); Morrison v. Allstate Indem. Co.,
228 F.3d 1255, 1265 (11th Cir. 2000) (“When a statute
authorizes the recovery of attorney's fees, a reasonable
amount of those fees is included in the amount in
controversy.”); see also Missouri State Life Ins.
Co. v. Jones, 290 U.S. 199, 202 (1933). However,
“when the amount in controversy substantially depends
on a claim for attorney fees, that claim should receive
heightened scrutiny.” Cohen v. Office Depot,
Inc., 204 F.3d 1069, 1080 n.10 (11th Cir. 2000).
“a federal court always has jurisdiction to determine
its own jurisdiction.” United States v. Ruiz,
536 U.S. 622, 628 (2002) (citing United States v. Mine
Workers, 330 U.S. 258, 291 (1947)). Accordingly,
“[t]he district court may remand a case sua sponte for
lack of subject matter jurisdiction at any time.”
Corp. Mgmt. Advisors, Inc. v. Artjen Complexus,
Inc., 561 F.3d 1294, 1296 (11th Cir. 2009) (citing 28
U.S.C. § 1447(c)); see also Lexington-Fayette Urban
Cty. Gov't Civil Serv. Comm'n v. Overstreet, 115
Fed.Appx. 813, 816-17 (6th Cir. 2004) (“A federal court
may remand a case sua sponte where the allegations of the
complaint which gave rise to the federal jurisdictional basis
are insufficient to confer subject matter jurisdiction on the
court.” (citation omitted)). As such, “once a
federal court determines that it is without subject matter
jurisdiction, the court is powerless to continue.”
Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405,
410 (11th Cir. 1999).
Notice in the instant action states that subject-matter
jurisdiction exists pursuant to 28 U.S.C. § 1332 on the
basis of the parties' diversity of citizenship. ECF No.
 at 2. Defendant is incorporated in Delaware, with its
principal place of business in California. Id.
Plaintiff is allegedly a citizen of Florida. Id.
Thus, the parties are diverse.
contends that the amount in controversy in this case is $65,
454.07. Id. at 3. Moreover, Plaintiff seeks to
recover attorney's fees under Florida Statutes §
626.9373, should he prevail, which Defendant notes
“could easily result in a claim of attorney's fees
exceeding $9, 545.93.” Id. (citing Morrison,
228 F.3d at 1265). Therefore, Defendant argues that this
Court has subject-matter jurisdiction because the amount in
controversy in this action exceeds $75, 000.00. Id.
upon review of Plaintiff's Complaint and Defendant's
Notice, the Court concludes that remand back to the state
court is appropriate because Defendant has failed to
establish the requisite jurisdictional amount in controversy.
Although the Court of Appeals for the Eleventh Circuit has
explained that, “[w]hen a statute authorizes the
recovery of attorney's fees, a reasonable amount of those
fees is included in the amount in controversy, ”
Morrison, 228 F.3d at 1265, it has not yet clarified
whether the amount of attorney's fees included in the
amount in controversy is the amount accrued at the time of
removal or the prospective amount of attorney's fees
required to litigate the entire case. In fact, this issue of
including statutory attorney's fees in the amount in
controversy has caused a split in district courts within the
Eleventh Circuit. See Bender v. GEICO Gen. Ins. Co.,
No. 8:17-cv-872-T-33TBM, 2017 WL 1372166, at *1 (M.D. Fla.
Apr. 17, 2017) (discussing the divide among courts in this
circuit “over whether to include the projected amount
of attorney's fees or only attorney's fees as of the
time of removal” (citations omitted)); Brown v. Am.
Exp. Co., Inc., No. 09-61758-CIV, 2010 WL 527756, at *7
(S.D. Fla. Feb. 10, 2010) (discussing the
“[c]onflicting case law [that] exists as to whether the
amount of attorney's fees for the amount-in-controversy
analysis should be calculated as of the date of removal or
through the end of the case” (citations omitted)).
this split, many district courts across the State of Florida
have calculated these statutorily authorized attorney's
fees as those accrued at the time of removal, especially in
determining whether jurisdiction exists. This conclusion is
consistent with the Eleventh Circuit precedent establishing
that “[j]urisdictional facts are assessed on the basis
of plaintiff's complaint as of the time of removal. . . .
That plaintiff might ask for or recover more after removal is
not sufficient to support jurisdiction.” Burns v.
Windsor Ins. Co., 31 F.3d 1092, 1097 n.13 (11th Cir.
1994) (emphasis in original) (citations omitted). In
addition, calculating attorney's fees as of the time of
removal comports with “the general rule that
post-removal events, such as the subsequent generation of
attorney fees, cannot create jurisdiction that was lacking at
the outset.” Lott & Friedland, P.A., 2010
WL 2044889, at *4 (citing Rogatinsky, 2009 WL
3667073, at *3 (“post-removal events . . . will not
retroactively establish subject-matter jurisdiction”));
Waltemyer, 2007 WL 419663, at *2 (“While
attorney fees through the conclusion of the litigation are
included when the action is filed initially in federal court,
there is no reason to deviate from the general rule that in a
removed case the amount in controversy is determined as of
the time of removal and the court cannot rely on post-removal
events in examining its subject matter jurisdiction.”
(citing Morrison, 228 F.3d at 1265; Poore v.
American-Amicable Life Ins. Co. of Texas, 218 F.3d 1287,
1290-91 (11th Cir. 2000))).
the Court concludes that the amount in controversy does not
include highly speculative, prospective amounts of
attorney's fees, but rather includes only those fees
accrued as of the time of removal. Gold, 2012 WL 13019199, at
*2 (“The Seventh Circuit in Gardynski-Leschuck v.
Ford Motor Company, considered this issue and ruled that
the amount in controversy calculation should not include
‘the value of legal services that have not been and may
never be incurred' because the amount of legal fees are
not ‘in controversy' until they are accrued.”
(quoting Gardynski-Leschuck v. Ford Motor Co., 142
F.3d 955, 958 (7th Cir. 1998))). Here, Defendant presents no
evidence to establish that Plaintiff has accrued $9, 545.93
in attorney's fees as of the time of this removal. As
such, Defendant has failed to satisfy its burden of
establishing that the amount in controversy in this case
exceeds $75, 000.00. Coffey, 994 F.Supp.2d at 1283
(“A removing defendant bears the burden of proving
proper federal jurisdiction.”). Therefore, the Court
concludes that it does not have subject-matter jurisdiction
over the instant action.
foregoing reasons, it is ORDERED AND ADJUDGED that this case
is REMANDED to the Circuit Court for the Eleventh Judicial
Circuit in and for Miami-Dade County, Florida. The Clerk of
Court is directed to CLOSE this case.