Brian Fettner, & Elevate Football, LLC v. Reed
| Decision Date | 27 July 2016 |
| Docket Number | Case No. 16-cv-81118-BLOOM/Valle |
| Parties | BRIAN FETTNER, and ELEVATE FOOTBALL, LLC, Plaintiffs, v. JORDAN REED, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
THIS CAUSE is before the Court upon Plaintiffs' Motion to Remand, ECF No. [11] ("Motion" or "Mot."), based on untimely removal pursuant to 28 U.S.C. § 1146. The Motion also seeks attorney's fees for improper removal as governed by 28 U.S.C. § 1447(c). See id. Plaintiffs Brian Fettner and Elevate Football, LLC (together, "Plaintiffs"), originally filed this action on December 29, 2015, in the Fifteenth Judicial Circuit Court of Florida, in and for Palm Beach County. See Case No. 502015CA014400XXXXMB. The underlying complaint seeks damages against Defendant Jordan Reed ("Defendant") for failure to repay monies lent to him by the Plaintiffs.1 See generally ECF No. [11-1] ("Complaint" or "Compl."). On June 24, 2016, Defendant filed a Notice of Removal, ECF No. [1] ("Notice of Removal"), to District Court, premised upon diversity jurisdiction. The Court has carefully reviewed the record, the parties' briefs, and the applicable law. For the reasons that follow, the Plaintiffs' Motion to Remand is granted.
"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." Id. § 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 procedure for removal is governed by 28 U.S.C. § 1146. Generally, a notice of removal "shall be filed within thirty days after the receipt by the defendant . . . of a copy of the initial pleading." 28 U.S.C. § 1446(b)(1). Except in cases where removal is based on diversity of citizenship, "if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(2). "Courts have held that responses to request for admissions, settlement offers, and other correspondence between parties can be 'other paper' under 28 U.S.C. § 1446(b)." Wilson v. Target Corp., -- F. Supp. 2d --, 2010 WL 3632794, at *2 (S.D. Fla. Sept. 14, 2010) ().
Where jurisdiction is not absolutely clear, the Eleventh Circuit favors remand. See Allen v. Christenberry, 327 F.3d 1290, 1293 (11th Cir. 2003) (). In meeting its burden, a defendant must provide facts justifying removal. See Hobbs v. Blue Cross Blue Shield of Ala., 276 F.3d 1236, 1242 (11th Cir. 2001) (). A defendant seeking late removal on the basis of "other papers" bears the heightened burden of proving that "the case 'has become removable' due to changed circumstances." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 760 (11th Cir. 2010) (citing 28 U.S.C. § 1446(b)) ("Although the second paragraph of § 1446(b) offers an additional avenue for removal, that road is not an easy one for defendants to travel."). "Under either paragraph, the documents received by the defendant must contain an unambiguous statement that clearly establishes federal jurisdiction." Lowery, 483 F.3d at 1215.
The pleadings in this case establish that Reed was served with the instant Complaint on January 6, 2016, see [11-2], and waited until June 24, 2016 - almost six months after initial service of the Complaint - to file his Notice of Removal in this Court. Accordingly, the Court must determine which document, whether the Complaint or other paper, triggered the thirty-day removal period prescribed by § 1446(b)(1) - that is, which document provided notice to Defendant that the amount in controversy in this action "exceeds the sum or value of $75,000, exclusive of interest and costs," 28 U.S.C. § 1332(a).
As noted above, "[w]hen determining if the defendant has satisfied this burden to establish jurisdiction by a preponderance of the evidence, the court will consider first whether it is facially apparent from the complaint that the jurisdictional amount is in controversy." Pretka, 608 F.3d at 754 (quoting 16 James Wm. Moore et al., Moore's Federal Practice § 107.14[2][g], at 107-86.4 to 107-86.5 (3d ed. 2010)) (alterations adopted). In Pretka, the Eleventh Circuit instructed that district courts are permitted to make "reasonable deductions" and "reasonable inferences," and need not "suspend reality or shelve common sense in determining whether the face of a complaint . . . establishes the jurisdictional amount." Id. at 770. "Instead, courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements." Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1062 (11th Cir. 2010); see Maiz v. Virani, 253 F.3d 641, 664 (11th Cir. 2001) () (quoting G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d 1526, 1539 (11th Cir. 1985)).
The Complaint here, on its face, asserts allegations that demonstrate unequivocally that the amount in controversy exceeded the jurisdictional amount needed for diversity jurisdiction:
Id. In addition to the forgoing, Plaintiffs' default notice to Reed, which noted that Defendant was in default under the certain notes, and that he owed $381,717.00, was attached to the Complaint and incorporated therein.6
Somehow Defendant, faced with these same facts, contends that his untimely removal is proper as he was unable to ascertain that the amount in controversy exceeded the jurisdictional requirements of this Court until sometime after the appearance of his current Counsel, Darren Heitner, Esq., on May 17, 2016, three-and-a-half months following the appearance of Defendant's first counsel in the State Court Action.7 In fact, Defendant repeats this position in his Response, ECF No. [20] ("Response" or "Resp."), and his Removal Status Report, ECF No. [9], in which he contends that "the instant action was properly removed in accordance with 28 U.S.C. § 1446(b)(3) due to the fact undersigned counsel, upon being retained and talking to opposing counsel and conducting due diligence, was able to ascertain the actual amount of controversy exceeded the jurisdictional requirement needed to assert diversity jurisdiction." Id. § 6; see Resp. at 20 (). But, "a district court does not measure the amount in controversy by a plaintiff's statement of his minimal damage expectations, but rather by 'a reasonable reading of the value of the rights being litigated.'" Id. at 1063 (quoting Angus v. Shiley Inc., 989 F.2d 142, 146 (3d Cir. 1993));
Defendant's argument, which eschews a reasonable reading of the value of rights being litigated in the Complaint in favor of cherry-picking convenient paragraphs therein, is not well-taken. Indeed, correspondence attached to Plaintiffs' Motion between Counsel for Plaintiffs and Counsel for Defendant8 reveals that Reed does not even buy his own position. Specifically, Counsel for Defendant conceded that "[u]nfortunately, prior counsel had not conducted proper diligence into the matter and was unable to determine the amount at...
To continue reading
Request your trial