United States District Court, S.D. Florida
ALTMAN, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on the Plaintiff's
Motion to Remand (“Motion”) [ECF No. 12], filed
on October 3, 2019. On October 17, 2019, the Defendant,
Lowe's Home Centers, LLC (“Lowe's”),
filed a Response in Opposition (“Response”) [ECF
No. 15]. The Plaintiff did not file a timely Reply.
August 27, 2019, the Plaintiff, Yvette Helen Biddle
(“Biddle”), filed a single-count, state-court
complaint, in which she alleged that the Defendant violated
the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”). See [ECF No. 1-2]. Biddle
seeks damages of “no more than $5, 000, exclusive of
interest, costs, and for attorney's fees and costs”
arising from her purchase of a single Roundup container that
cost her $11.97. Compl. ¶¶ 1, 5; see also
Image of Product Display at Exhibit A [ECF No. 1-2 at 28].
Biddle avers that Lowe's, which sold her the container,
“fail[ed] to warn the consumer that the [Roundup]
Product contains health hazardous ingredients and dangerous
chemicals by lacking proper use instructions on the
Product's label.” Compl. ¶ 10.
removed the case to federal court on September 9, 2019.
See generally Notice of Removal [ECF No. 1].
According to Lowe's, the Court may exercise
subject-matter jurisdiction over this case because (1) the
parties are completely diverse and (2) the amount in
controversy exceeds $75, 000. Id. On October 3,
2019, Biddle filed her Motion to Remand. [ECF No. 12].
federal court should remand to state court any case that has
been improperly removed. See 8 U.S.C. §
1447(c). The party attempting to invoke the federal
court's jurisdiction bears the burden of establishing
that jurisdiction. See McNutt v. Gen. Motors Acceptance
Corp. of Ind., Inc., 298 U.S. 178, 189 (1936).
“Not only does the language of the Act of 1887 evidence
the Congressional purpose to restrict the jurisdiction of the
federal courts on removal, but the policy of the successive
acts of Congress regulating the jurisdiction of federal
courts is one calling for the strict construction of such
legislation.” Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941). Indeed, “[d]ue
regard for the rightful independence of state governments,
which should actuate federal courts, requires that they
scrupulously confine their own jurisdiction to the precise
limits which the statute has defined.” Healy v.
Ratta, 292 U.S. 263, 270 (1934). “Defendant's
right to remove and plaintiff's right to choose his forum
are not on equal footing; for example, unlike the rules
applied when plaintiff has filed suit in federal court with a
claim that, on its face, satisfies the jurisdictional amount,
removal statutes are construed narrowly; where plaintiff and
defendant clash about jurisdiction, uncertainties are
resolved in favor of remand.” Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
courts have original jurisdiction over “all civil
actions where the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs, and is
between” the citizens of one state and the citizens or
subjects of a foreign state. See 28 U.S.C. §
1332(a). Diversity jurisdiction requires complete diversity:
every plaintiff must be diverse from every defendant. See
Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 1287
(11th Cir. 1998) (citing Tapscott v. MS Dealer Serv.
Corp., 77 F.3d 1353, 1355 (11th Cir. 1996)). For
purposes of diversity jurisdiction, a corporation is
“deemed to be a citizen of any State by which it has
been incorporated and of the State where it has its principal
place of business.” 28 U.S.C. § 1332(c)(1).
party invoking federal jurisdiction must establish that the
amount in controversy exceeds $75, 000. See 28
U.S.C. § 1332(a). If left unchallenged, a removing
defendant, “as specified in § 1446(a)[, ] . . .
need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold.”
Dart Cherokee Basin Operating Co., LLC v. Owens, 574
U.S. 81, 89 (2014). But, once challenged, “a conclusory
allegation that the amount in controversy requirement is
satisfied [is] insufficient to sustain jurisdiction.”
Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1273
(11th Cir. 2000). “[W]here jurisdiction is based on a
claim for indeterminate damages, the . . . party seeking to
invoke federal jurisdiction bears the burden of proving by a
preponderance of the evidence that the claim on which it is
basing jurisdiction meets the jurisdictional minimum.”
Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329
F.3d 805, 807 (11th Cir. 2003); see also Dart Cherokee
Basin, 574 U.S. at 88.
parties agree that they are completely diverse and that
FDUTPA contains a fee-shifting provision, by which the losing
party may be required to pay the prevailing party's
attorney's fees and costs. See generally Motion
and Response. At issue here is a related question: whether,
in calculating the amount in controversy in a removed case, a
federal court should (a) attempt to extrapolate the
reasonable amount of attorney's fees the plaintiff might
incur if the case were to proceed to trial or (b) consider
only the attorney's fees and costs the plaintiff actually
incurred at the time of removal. As the parties point out,
the Eleventh Circuit has not resolved this question, and
district courts in the Circuit are decidedly split on the
issue. See Tatum v. Progressive Select Ins. Co., No.
5:18-CV-165-MCR-GRJ, 2018 WL 7350671, at *2 (N.D. Fla. Oct.
16, 2018) (collecting cases). Notably, neither party suggests
that the attorney's fees and costs Biddle had incurred
by the time of removal are sufficient to satisfy the
amount in controversy requirement. And, in considering
whether the amount in controversy requirement has been met,
federal courts may use their “judicial experience and
common sense.” Roe v. Michelin N. Am., Inc.,
613 F.3d 1058, 1063 (11th Cir. 2010).
recent case, this Court opted to consider only the amount of
attorney's fees and costs the plaintiff had incurred
at the time of removal in rejecting Target
Corporation's argument that the amount in controversy
requirement of § 1332 had been satisfied. See Shelly
v. Target Corporation, No. 9:19-81231-CIV-Rosenberg, ECF
No. 13 (S.D. Fla. Sept. 24, 2019). In that case, as here, the
plaintiff alleged that Target had failed to warn her of the
health risks associated with her use of Roundup, which she
had purchased from one of its stores. Id. When
Target removed the case to federal court, the
plaintiff-again, as here-challenged Target's assertion
that it had satisfied the amount in controversy requirement.
Id. After acknowledging the split within this
Circuit on the appropriate point in time at which fees and
costs should be calculated, Judge Rosenberg noted that the
“date of removal approach appears to predominate”
in this Circuit. Id. at 3 (citing cases). In
adopting this approach, Judge Rosenberg arrived at two
important conclusions: first, she explained, any
approach that attempted to extrapolate, for purposes of the
amount in controversy requirement, the amount of fees and
costs a plaintiff might incur through the date of some
hypothetical future trial would, practically speaking,
eviscerate the requirement itself and result in federal
courts assuming jurisdiction “over a large swath of
state-law claims”; second, she noted, the
single-count, state-law, failure-to-warn complaint before her
was not particularly complex and would not, under normal
circumstances, require a significant amount of legal work.
Id. at 4-5.
Court agrees with Judge Rosenberg's approach-which
follows the majority rule in this Circuit-and concludes that,
for purposes of the amount in controversy requirement in a
removed case, courts should consider only the amount of
attorney's fees and costs incurred at the time of
removal. And, because Lowe's never suggests that the
amount of fees and costs Biddle incurred by the time of
removal-when added to the price of the Roundup
container-exceeded $75, 000, Lowe's has failed to meet
its burden of satisfying the amount in controversy
even were the Court to speculate about the amount of fees and
costs Biddle might incur through the date of some
hypothetical future trial, the Court would still find that
Lowe's has failed to establish the requisite amount in
controversy. Where, as here, a party's proffer with
respect to the amount in controversy determination
“substantially depends on a claim for attorney fees,
that claim should [arguably] receive heightened
scrutiny.” Cohen v. Office Depot, Inc., 204
F.3d 1069, 1080 (11th Cir. 2000). With the benefit of some
“judicial experience”-and a modicum of
“common sense, ” see Michelin, 613 F.3d
at 1063-the Court agrees with the Plaintiff that this is a
straightforward, garden variety FDUTPA case. See
Tatum, 2018 WL 7350671 at *3 ...