Stern v. First Liberty Ins. Corp.
Decision Date | 24 January 2020 |
Docket Number | Case No. 19-cv-24876-BLOOM/Louis |
Citation | 424 F.Supp.3d 1264 |
Parties | Jeffrey P. STERN, et al., Plaintiffs, v. The FIRST LIBERTY INS. CORP., Defendant. |
Court | U.S. District Court — Southern District of Florida |
David Avellar Neblett, James Marcus Mahaffey, III, Perry and Neblett PA, Miami, FL, for Plaintiff
Matthew John Lavisky, Jamie Rebecca Combee, Butler Weihmuller Katz Craig LLP, Tampa, FL, for Defendant
ORDER ON PLAINTIFFS' MOTION TO REMAND
THIS CAUSE is before the Court upon Plaintiffs, Jeffrey P. Stern and Sheilah R. Stern's ("Plaintiffs"), Motion to Remand, ECF No. [10] ("Motion"). Defendant, The First Liberty Insurance Corporation ("Defendant"), filed its Response to Plaintiffs' Motion to Remand, ECF No. [13] ("Response") to which Plaintiffs filed their Reply to Response to Motion to Remand, ECF No. [15] ("Reply"). The Court has considered the Motion, the Response, the Reply, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motion is denied.
Plaintiffs filed a Complaint in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida on June 21, 2019 and served Defendant on July 5, 2019. ECF No. [1]. Plaintiffs bring nine counts against Defendant sounding in contract, tort, and statutory violations arising from Defendant's alleged failure to pay an insurance claim for property damage to Plaintiffs' property on or about November 1, 2015. ECF No. [1-6]. In the Complaint, Plaintiffs allege that the damages are in excess of $15,000.00, exclusive of interest, costs, and attorney's fees. Id. Plaintiffs additionally seek attorney's fees pursuant to Florida Statutes §§ 627.70131 and 627.428(1). Id.
On November 25, 2019, Defendant filed its Notice of Removal, ECF No. [1] ("Removal Notice"), pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, asserting diversity jurisdiction. In the Removal Notice, Defendant contends that the amount in controversy exceeds $75,000.00 based on four items: (1) Plaintiff Sheilah Stern's answers to Defendant's first set of interrogatories in which she indicated that she is seeking "$268,848.64 for coverage under the dwelling" based on a "detailed 45-page damage report and estimate" that was prepared by Stellar Public Adjusting Services ("Stellar Report") that Defendant should "refer to[.]" ECF No. [1-3]; (2) the Stellar Report indicating total damages of $268,848.64, ECF No. [1-4]; (3) Plaintiffs' Statement of Loss Worksheet listing total coverages of $290,586.64 under the policy, ECF No. [1-5]; and (4) the Complaint's demand for attorney's fees, which fees are authorized by statute, ECF No. [1] at ¶ 20. Defendant asserts that the Removal Notice was filed within thirty days of receipt of Plaintiffs' answers to interrogatories, the Stellar Report, and the Statement of Loss Worksheet. Id. at ¶ 10.
Plaintiffs now file the instant Motion seeking to remand the action back to state court. ECF No. [10]. The Motion concedes that the parties are diverse but argues that the Court cannot exercise subject matter jurisdiction over this action. Id. More specifically, Plaintiffs maintain that the amount in controversy does not exceed $75,000.00 because the Stellar Report is a "pre-suit demand" that cannot underlie diversity jurisdiction, the attorney's fees demanded in the Complaint are unspecified and require speculation, Defendant cannot rely upon the Stellar Report for removal purposes after having previously rejected the document's accuracy, remand will conserve limited federal judicial resources, and the State of Florida's interest in adjudicating insurance matters disfavors adjudication in federal court. Id.
Defendant responds that the case is properly situated in federal court. ECF No. [13]. It contends that Plaintiffs improperly analyzed the Removal Notice's bases for removal by mischaracterizing the Stellar Report as a "pre-suit demand." Id. Defendant stresses that even if the Stellar Report was part of a "pre-suit demand," removal is nonetheless proper because Defendant timely removed upon receipt of Plaintiff Sheila Stern's interrogatory answers. Id. Moreover, Defendant responds that federal court resources, docket loads, and a state court's interests in adjudicating the matter are irrelevant to the remand-removal analysis once a district court has subject matter jurisdiction over an action. Id.
In the Reply, Plaintiffs for the first time argue that the Removal Notice is untimely pursuant to 28 U.S.C. § 1446(b). ECF No. [15]. Plaintiffs assert that Defendant should have known that the lawsuit was removable to federal court as of June 21, 2019 at the very latest. Id. In particular, Plaintiffs state that they demanded policy limits in their June 21, 2019 Notice of Civil Remedy ("CRN"),1 ECF No. [15-1], which insurance policy provides $362,300 in Coverage A limits. Id. at ECF No. [15]. Plaintiffs also contend that Defendant's public adjusters' investigations indicated that the property at hand suffered certain damage so as to trigger the CRN's demand for policy limits. Id. Moreover, Plaintiffs claim that Defendant was aware that the amount in controversy exceeded $75,000.00 based on the "business practice" of public adjusters. Id.
The Motion is now ripe for adjudication.
Title 28 U.S.C. § 1332(a) vests a district court with subject matter jurisdiction when the parties are diverse and the amount in controversy exceeds $75,000.00. Id. A party may remove the action from state court to federal court if the action is within the federal court's subject matter jurisdiction. 28 U.S.C. § 1441(a). The procedure for removal is governed by 28 U.S.C. § 1446. Generally, a notice of removal "shall be filed within 30 days after the receipt by the defendant...of a copy of the initial pleading[.]" 28 U.S.C. § 1446(b)(1). However, "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)(3).
"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 jurisdiction 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); E.S.Y., Inc. v. Scottsdale Ins. Co. , 217 F. Supp. 3d 1356, 1360 (S.D. Fla. 2015). "To determine whether this standard is met, a court first examines whether ‘it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement.’ " Miedema v. Maytag Corp. , 450 F.3d 1322, 1330 (11th Cir. 2006) (quoting Williams v. Best Buy Co., Inc. , 269 F.3d 1316, 1319 (11th Cir. 2001) ), abrogated on other grounds by Dudley v. Eli Lilly & Co. , 778 F.3d 909 (11th Cir. 2014). "If the jurisdictional amount is not facially apparent from the complaint, the court should look to the notice of removal and may require evidence relevant to the amount in controversy at the time the case was removed." Id. (quoting Williams , 269 F.3d at 1319 ).
"[A] removing defendant is not required to prove the amount in controversy beyond all doubt or to banish all uncertainty about it." Pretka , 608 F.3d at 754 (citations omitted). "Where, as in this case, the complaint alleges an unspecified amount of damages, ‘the district court is not bound by the plaintiff's representations regarding its claim,’ and may review the record for evidence relevant to the amount in controversy." DO Rests., Inc. v. Aspen Specialty Ins. Co. , 984 F. Supp. 2d 1342, 1344 (S.D. Fla. 2013) (citing Roe v. Michelin N. Am., Inc. , 613 F.3d 1058, 1061 (11th Cir. 2010) ). Moreover, "defendants may submit a wide range of evidence in order to satisfy the jurisdictional requirements of removal," including "affidavits, declarations, or other documentation." Pretka , 608 F.3d at 755. The Court may also use its judicial experience and make reasonable inferences and deductions to determine the amount in controversy. See Roe , 613 F.3d at 1061-62 ; Pretka , 608 F.3d at 754 ( ); E.S.Y., Inc. , 217 F. Supp. 3d at 1360.
Through this lens, the Court analyzes the instant Motion and the parties' arguments.
Deciding whether this case should be remanded to state court raises two overarching issues. The first is whether Defendant timely filed the Removal Notice, and the second is whether the jurisdictional threshold for the amount in controversy has been satisfied. The Court will address the issue of timeliness first and then address Plaintiffs' remaining arguments.
After Defendant filed its Response to the Motion, Plaintiffs first raised the argument in their Reply that the Removal Notice was untimely. ECF No. [15]. In support, Plaintiffs assert that the CRN was filed on June 21, 2019—the very same day that Plaintiffs filed the Complaint in state court—and that the CRN demanded policy limits, which limits exceeded $75,000.00. Id. at ¶¶ 2-3. Plaintiffs add that Defendant's public adjusters' investigations pre-suit found damage at Plaintiffs' property that should have triggered the CRN's demand, id. at ¶¶ 4-9, and that Defendant was aware of the damages pre-suit because "it is the business practice of public adjusters...
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