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Maltese v. Burlington Coat Factory Direct Corp.

United States District Court, M.D. Florida, Fort Myers Division

September 19, 2019


          OPINION AND ORDER [1]


         Before the Court is Defendant Burlington Coat Factory Direct Corporation’s Motion to Dismiss Complaint or Alternatively for a More Definite Statement (Doc. 3). Plaintiff Giovannia Maltese never responded, and the time to do so expired. Also here is Maltese’s Motion to Remand to State Court (Doc. 14) and Burlington’s Response in Opposition (Doc. 17). For these reasons, the Court grants in part the Motion to Dismiss and denies the Motion to Remand.


         This is a slip-and-fall negligence case. (Doc. 4). Maltese went to a Burlington store. (Doc. 4 at 1). While there, Maltese “slipped and fell because the Defendant negligently maintained premises by allowing clothes tag(s) and/or other transitory foreign substances to accumulate on the floor.” (Doc. 4 at 2). Those are the only relevant facts in the Complaint. (Doc. 4 at 2). The balance of the pleading is a few conclusory statements of elements for an unlabeled cause of action. (Doc. 4 at 2).


         Each Motion is taken in turn below.

         A. Motion to Remand

         First, the Court denies Maltese’s Motion to Remand this case. (Doc. 14). This Motion offers a smorgasbord of reasons for denial. But the Court sticks to one procedural and one substantive.

         Preliminarily, the Motion violates Local Rule 3.01(g) because Maltese failed to confer with Burlington before filing. M.D. Fla. R. 3.01(g). Thus, the Motion should be denied. See Volusia Cty. Cattlemen’s Ass’n v. W. World Ins., No. 6:15-cv-1239-Orl-41DAB, 2015 WL 13554966, at *1 (M.D. Fla. Dec. 28, 2015).

         Because the Motion to Remand goes to jurisdiction, however, the Court considers the merits all the same. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (Courts “have an independent obligation to determine whether subject-matter jurisdiction exists.”); 28 U.S.C. § 1447(c). Courts construe removal statutes strictly and resolve all jurisdictional doubts in favor of remand. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999). Diversity is the jurisdictional basis. (Doc. 1). And the parties only dispute the amount in controversy.

         A defendant may remove a case from state to federal court if the amount in controversy exceeds $75,000, exclusive of interests and costs, and complete diversity exists. 28 U.S.C. §§ 1332(a); 1441(a). When a complaint does not specify damages- like here-the removing party must prove amount in controversy by preponderance of the evidence. Lowery v. Ala. Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007). “The substantive jurisdictional requirements of removal do not limit the types of evidence that may be used.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 755 (11th Cir. 2010).Among the evidence courts can consider are “affidavits, declarations, and other documentation.” Id. But federal law also “allows consideration of discovery responses.” Harrison v. Red Bull Distribution Co., No. 2:19-cv-17-FtM-99MRM, 2019 WL 1123691, at *2 (M.D. Fla. Mar. 12, 2019); see also Rowe v. U.S. Bancorp, 569 Fed.Appx. 701, 703 (11th Cir. 2014) (“[T]he court may consider facts alleged in the notice of removal [and] judicial admissions made by the plaintiffs.” (citation omitted)).

         Here, the amount in controversy exceeds the jurisdictional limit by a preponderance of the evidence for several reasons. Most notably, Maltese admitted in state court that both amount in controversy and damages exceed $75,000. (Doc. 17-2). Maltese argues a state procedural rule precludes consideration of that discovery response here. But Florida procedural law does not apply. E.g., Castleberry v. Goldome Credit Corp., 408 F.3d 773, 783 (11th Cir. 2005). And federal courts often allow removing defendants to rely on admissions that plaintiffs made in state court. E.g., Red Bull, 2019 WL 1123691, at *2; Plotkin v. Target Corp., No. 15-cv-62427-GAYLES/Turnoff, 2016 WL 1752815, at *1 (S.D. Fla. May 3, 2016). So the Court holds Maltese to the admissions. That is not the only evidence of amount in controversy exceeding the jurisdictional amount. Buttressing the admissions are nondispositive facts like Maltese’s $250,000 settlement demand and refusal to limit damages to $75,000. (Docs. 17-1; 17-2; 17-5); see Ralph v. Target Corp., No. 6:09-cv-1328-Orl-19KRS, 2009 WL 3200680, at *2-3 (M.D. Fla. Sept. 30, 2009) (considering a settlement demand and refusal to stipulate before denying remand).

         Given the amount in controversy over $75,000 and diversity of the parties, the Court has jurisdiction. So the Motion to Remand is denied. (Doc. 14).

         B. ...

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