United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Plaintiff Theodore
Dukes's Motion to Remand (the “Motion”) [ECF
No. 7]. The Court has considered the Motion and the record
and is otherwise fully advised. Because the Court finds that
Defendant Integon National Insurance Company cannot establish
that the amount in controversy exceeds the requisite
jurisdictional amount, the Motion is
to the allegations set forth in the Complaint [ECF No. 3-3]
and Notice of Removal [ECF No. 1], Plaintiff had an insurance
policy with Defendant (the “Policy”). Plaintiff
paid premiums on the Policy through June 10, 2018, when the
property sustained direct physical damages from sudden water
leaks. Plaintiff made a coverage claim under the Policy.
Plaintiff alleges that Defendant failed to adjust or
otherwise make a coverage decision within ninety days as
required by Florida Statute § 627.70131(5)(a). As such,
Plaintiff claims that Defendant breached the Policy by
failing to pay for part or all of the covered loss.
filed this one count breach of contract action in the
Eleventh Judicial Circuit in and for Miami-Dade County,
Florida, on May 1, 2019. [ECF No. 3-3]. The Complaint claimed
damages in excess of $15, 000.00. [Id. ¶ 1].
Defendant removed this action to federal court on May 29,
2019, claiming diversity jurisdiction. [ECF No. 1]. As
evidence of the amount in controversy, Defendant pointed to a
Sworn Statement in Proof of Loss (the
“Statement”) that Plaintiff provided during
Defendant's claim investigation that placed
Plaintiff's damages at $75, 339.10. [ECF No. 7-1]. The
Statement places the actual cash value of Plaintiff's
claim at $72, 839.10 after subtracting the deductible of $2,
U.S.C. § 1441 permits a defendant to remove a civil case
filed in state court to federal court if the federal court
has diversity jurisdiction under 28 U.S.C. § 1332.
Diversity jurisdiction requires fully diverse citizenship of
the parties and an amount in controversy over $75, 000,
assessed at the time of removal. Vega v. T-Mobile USA,
Inc., 564 F.3d 1256, 1268 n.12 (11th Cir. 2009); see
also 28 U.S.C. § 1332(a). “[A]
defendant's notice of removal need include only a
plausible allegation that the amount in controversy exceeds
the jurisdictional threshold.” Dart Cherokee Basin
Operating Co. v. Owens, 135 S.Ct. 547, 554 (2014)
(citing 28 U.S.C. § 1446(a)).
there is a dispute regarding the amount in controversy, the
burden rests on the defendant to prove by a preponderance of
the evidence that the amount in controversy exceeds the
jurisdictional threshold. Id. at 553-54 (quoting 28
U.S.C. § 1446(c)(2)(B)). “In such a case, both
sides submit proof and the court decides, by a preponderance
of the evidence, whether the amount-in-controversy
requirement has been satisfied.” Id. at 554.
“If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, ”
e.g., because the amount-in-controversy requirement has not
been satisfied, “the case shall be remanded.” 28
U.S.C. § 1447(c). The Court must construe the removal
statutes narrowly and resolve any doubt against removal,
Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.
1996), but it must be “equally vigilant” in
protecting the right to proceed in federal court as it is in
permitting a state court to retain its jurisdiction,
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
766 (11th Cir. 2010).
diversity of citizenship is not in dispute,  the only issue
here is whether Defendant has met its burden of demonstrating
by a preponderance of the evidence that the amount in
controversy is met. The parties agree that Plaintiff's
damages fall short of the $75, 000.00 needed.Defendant contends
that Plaintiff's attorney's fees push his damages
over that mark and provides an affidavit to prove it. See
Valladares v. Praetorian Ins. Co., No. 16-cv-21678, 2017
WL 272310, at *1 (S.D. Fla. Jan. 20, 2017) (affidavit
provided detailed estimation of legal fees needed to reach
amount in controversy).
problem with Defendant's argument is that it relies on
attorney's fees as calculated through the entire case.
[ECF No. 1-7, ¶¶ 5-6]. Although there is a split in
authority about how to calculate attorney's fees at
removal when determining if the amount in controversy is
satisfied, Brown v. Am. Exp. Co., Inc., 09-cv-61758,
2010 WL 527756, at *7 (S.D. Fla. 2010), this Court agrees
that the proper method to do so is by calculating
attorney's fees as accumulated at time of removal-and no
further. E.g., Coopersmith v. Scottsdale Ins.
Co., No. 18-cv-23382, 2019 WL 1252627, at *2 (S.D. Fla.
Mar. 19, 2019) (Gayles, J.) (“Attorney's fees as
calculated at the time of removal may be included in the
amount in controversy.”) (citing Hannat v. USAA
Gen. Indem. Co., No. 17-cv-21754, 2017 WL 4712667, at
*2-3 (S.D. Fla. Oct. 19, 2017)); Vigliarolo v. Geico Gen.
Ins. Co., No. 13-cv-80767, 2014 WL 2195198, at *1-2
(S.D. Fla. May 27, 2014) (“[A] court's analysis of
the amount-in-controversy requirement focuses on how much is
in controversy at the time of removal, not later.”
(quoting Pretka, 608 F.3d 744, 751 (11th Cir.
2010))); Lott & Friedland, P.A. v. Creative
Compounds, LLC, No. 10-cv-20052, 2010 WL 2044889, at
*3-4 (S.D. Fla. Apr. 21, 2010) (“The Court agrees 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.”) (citing
cases); see also Luch v. Scottsdale Ins. Co., No.
17-cv-21507, 2017 WL 5643314, at *2 (S.D. Fla. June 9, 2017)
(“Again, the amount in controversy is ‘determined
at the time of removal.'” (quoting Pretka,
608 F.3d at 751)). This method ensures that courts do not
rely on speculation when determining if federal jurisdiction
exists and promotes the goal of zealously safeguarding access
to federal courts. See Pretka, 608 F.3d at 766;
see also Koepp v. Bank of Am., No. 807-CV-1755T-24,
2007 WL 3334403, at *1-2 (M.D. Fla. Nov. 7, 2007) (noting
that “uncertainties are to be resolved in favor of
this standard, the Court cannot exercise jurisdiction over
this action because there is no basis to find that
Plaintiff's attorney's fees at removal would bring
the amount in controversy above $75, 000.00. Plaintiff filed
her Complaint 28 days before Defendant removed it. The
Complaint is simple and straightforward: it brings one count
of breach of contract. Moreover, Defendant's affidavit
does not address what Plaintiff's fees would be at
removal. The affidavit only addresses what the entire cost of
the litigation might be when all is said and done.
[ECF No. 1-7, ¶¶ 5-6]. The Court is therefore free
to use its reason and experience when determining the amount
of reasonable attorney's fees at removal. Roe v.
Michelin N. Am., Inc., 613 F.3d 1058, 1064 (11th Cir.
2010). Based on the filing of a relatively simple Complaint
and absent any indication of pre-removal litigation, the
Court cannot find that Plaintiffs pre-removal attorney's
fees generated the additional $4, 917.94 needed for federal
Court has also considered whether Plaintiff is entitled to
attorney's fees and costs as the prevailing party on its
Motion pursuant to 28 U.S.C. § 1447(c). “[C]ourts
may award attorney's fees under § 1447(c) only where
the removing party lacked an objectively reasonable basis for
seeking removal.” Galbis v. Praetorian Ins.
Co., No. 18-cv-23144, 2018 WL 5918911, at *3 (S.D. Fla.
Nov. 13, 2018) (quoting Martin v. Franklin Capital
Corp.,546 U.S. 132, 141 (2005)). Defendant's
position, that this case was removable because attorney's
fees should be calculated with respect to the entire
litigation for purposes of determining the amount in