JOY MATHEW, Plaintiff, v. S&B ENGINEERS AND CONSTRUCTION, LTD., Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:08-cv-1801-T-33TGW. January 30, 2009. Virginia M. Hernandez Covington, Judge.
ORDER
This cause comes before the Court upon consideration of United States Magistrate Judge Thomas G. Wilson’s report and recommendation (Doc. # 16), filed on January 9, 2009, recommending that Plaintiff’s motion to remand (Doc. # 6), be granted. As of this date, neither party has filed an objection to the report and recommendation, and the time for the parties to file such objections has elapsed.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
In the absence of specific objections, there is no requirement that a district judge review factual findings de novo, Garvey v. Vaughn, 993 F.2d 776, 779 n. 9 (11th Cir. 1993), and the court may accept, reject or modify, in whole or in part, the findings and recommendations. 28 U.S.C. § 636(b)(1)(C). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994); Castro Bobadilla v. Reno, 826 F. Supp. 1428, 1431-32 (S.D. Fla. 1993), aff’d, 28 F.3d 116 (11th Cir. 1994) (Table).
After conducting a careful and complete review of the findings, conclusions and recommendations, and giving de novo review to matters of law, the Court accepts the factual findings and legal conclusions of the magistrate judge, and the recommendation of the magistrate judge.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1) United States Magistrate Judge Thomas G. Wilson’s report and recommendation (Doc. # 16) is ACCEPTED and ADOPTED.
(2) Plaintiff’s motion to remand (Doc. # 6) is GRANTED.
(3) This case is remanded to the Circuit Court for the Tenth Judicial Circuit, in and for Polk County, Florida for all further proceedings. The Clerk shall close this case.
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REPORT AND RECOMMENDATION
(WILSON, THOMAS G., U.S. Magistrate Judge.) This cause came on to be heard upon the Plaintiff’s Motion to Remand (Doc. 6) which has been referred to me for a report and recommendation (Doc. 8). Because this court does not have subject matter jurisdiction of this case, I recommend that the motion to remand be granted.
I.
This suit, alleging race and national origin discrimination and retaliation, was filed in state court pursuant to the Florida Civil Rights Act, Fla. Stat., §760.01 et seq. (Doc. 1, ¶¶ 1, 3). There were no federal claims alleged in the suit. The defendant timely filed a notice of removal of the suit to this court based on diversity jurisdiction (Doc. 1). The plaintiff then filed a motion to remand, alleging that the defendant failed to meet its burden of showing that the amount in controversy exceeds $75,000 (Doc. 6). A hearing was subsequently held on that motion (Doc. 15).
II.
Under 28 U.S.C. 1446(a), a defendant desiring to remove a civil action from state court can do so by filing a notice of removal in federal court setting forth a short and plain statement of the grounds for removal. In this case, the notice of removal alleged that this court had jurisdiction over the action because it involves a controversy between citizens of different states and the amount in controversy exceeds $75,000, which is a jurisdictional requirement (Doc. 1, ¶ 4). See 28 U.S.C. 1332(a).
The plaintiff timely filed her motion to remand within 30 days after the filing of the notice of removal. 28 U.S.C. 1447(c). Regardless, under § 1447, the case is properly remanded if at any time it appears that this court lacks subject matter jurisdiction. Id. That is the situation here.
The defendant, in its notice of removal, contended that complete diversity exists between the parties (Doc. 1, ¶ 4). Thus, the plaintiff is a citizen of the state of Florida, and the defendant is a citizen of Texas, with its principal place of business also in Texas (id., ¶¶ 7, 8, 11). There is no dispute that the parties are diverse citizens.
The defendant alleges that the amount in controversy exceeds $75,000 (id., ¶ 16). The plaintiff, however, filed a motion to remand on the ground that the defendant did not meet its burden of showing, by a preponderance of the evidence, that the amount in controversy exceeds $75,000 (Doc. 6, ¶ 4). Accordingly, the only issue presented is the amount in controversy.
The complaint alleges merely that the action exceeds the $15,000 jurisdictional limit of the state court (Doc. 2, ¶ 4). Moreover, the plaintiff has declined to stipulate to an amount of damages over $75,000.
The defendant argues that the approximately $66,240 in back pay damages combined with the estimated compensatory damages demonstrates that the plaintiff is seeking damages in excess of $75,000 (Doc. 7, pp. 3-4). The plaintiff does not contest that $66,240 is the appropriate amount of back pay damages. However, the plaintiff argued at the hearing that the compensatory damages are too speculative to meet the amount in controversy.
In Lowery v. Alabama Power Co., 483 F.3d 1184, 1211 (11th Cir. 2007), the Eleventh Circuit stated “that the removal-remand scheme set forth in 28 U.S.C. §§ 1446(b) and 1447(c) requires that a court review the propriety of removal on the basis of the removing documents. If the jurisdictional amount is either stated clearly on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction.” The court added, “[t]hough the defendant in a diversity case, unlike the plaintiff, may have no actual knowledge of the value of the claims, the defendant is not excused from the duty to show by fact, and not mere conclusory allegation, that federal jurisdiction exists.” Id. at 1217. Consequently, when the plaintiff fails to specify damages, the removing party bears the burden of establishing the jurisdictional amount by a preponderance of the evidence. Id. at 1208.
However, a district court may consider post-removal evidence in determining whether the jurisdictional amount was satisfied at the time of removal. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000). On the other hand, contrary to the defendant’s request, a court is not authorized to permit discovery concerning the jurisdictional amount. Lowery v. Alabama Power Co., supra, 483 F.3d at 1215-18.
The defendant in this case has failed to make an adequate showing of the jurisdictional amount. Thus, the defendant argues only that the plaintiff’s failure to stipulate, her back pay damages of approximately $66,000, and her claim for unspecified compensatory damages demonstrate that the jurisdictional amount is more likely than not satisfied (Doc. 7, pp. 3-5). This argument is insufficient.
The Eleventh Circuit has said that there are several reasons why a plaintiff would not stipulate to the amount in controversy, so that a refusal to stipulate, standing alone, does not satisfy the defendant’s burden of proof. Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1320 (11th Cir. 2001). Of course, the back pay claim of $66,240 does not reach the jurisdictional amount. Further, that amount cannot be satisfied by speculation as to the amount of compensatory damages.
In affirming the district court’s decision to remand, the court of appeals in Lowery said that, “in situations like the present one — where damages are unspecified and only the bare pleadings are available — we are at a loss as to how to apply the preponderance burden meaningfully. We have no evidence before us by which to make any informed assessment of the amount in controversy. . . . As such, any attempt to engage in a preponderance of the evidence assessment at this juncture would necessarily amount to unabashed guesswork, and such speculation is frowned upon.” Lowery v. Alabama Power Co., supra, 483 F.3d at 1210-11. The court of appeals added, “[t]he absence of factual allegations pertinent to the existence of jurisdiction is dispositive and, in such absence, the existence of jurisdiction should not be divined by looking to the stars.” Id. at 1215.
In line with these principles, this court has remanded cases to state court due to indeterminate damages. Thus, District Judge Elizabeth A. Kovachevich granted a motion to remand in a case in which the defendant argued that plaintiff’s lost wages of approximately $41,000, combined with the request for compensatory damages, established that the amount in controversy exceeded $75,000. Golden v. Dodge-Markham Co., Inc., 1 F. Supp.2d 1360 (M.D. Fla. 1998). Judge Kovachevich concluded that compensatory damages were too nebulous to be considered in proving, by a preponderance of the evidence, the jurisdictional amount. Id. at 1366.
At the hearing in this case, plaintiff’s attorney cited to his recent case, Grable v. Taser International, Inc. (8:08-CV-1755-T-24MAP), where the plaintiffs he represented made no specified claim for damages. In that case, District Judge Susan C. Bucklew granted the plaintiffs’ motion to remand as the defendant did not meet its burden of showing the requisite amount in controversy, despite the “serious nature of the injuries that Plaintiffs allege” (Doc. 12, p. 2).
III.
For the foregoing reasons, the defendant has failed to carry its burden of demonstrating the jurisdictional amount. This court, therefore, does not have subject matter jurisdiction of the claim by the plaintiff against the defendant. Consequently, I recommend that the motion to remand be granted and that this case be remanded to state court.
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