Opinion
Case No: 2:15-cv-668-FtM-38CM
01-11-2016
GARY ALLEN FENN and KATHIE Y. FENN, Plaintiffs, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant.
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This matter comes before the Court on Plaintiffs Gary Allen Fenn and Kathie Y. Fenn's Motion for Remand and Award for Costs, Including Attorney's Fees (Doc. #19) filed on November 23, 2015. Defendant State Farm Mutual Automobile Insurance Company filed its Response to Plaintiffs' Motion for Remand (Doc. #20) on December 7, 2015. The Motion is now ripe for the Court's review.
BACKGROUND
On June 10, 2011, a motor vehicle collision with a negligent uninsured motorist caused Plaintiff Gary Allen Fenn serious injuries. (Doc. #19 at ¶ 1). Five months later, Plaintiffs filed the suit against Defendant to obtain payment for their insurance benefits. (Doc. #19 at ¶ 4). That underlying suit ultimately concluded by arbitration and resulted in an Arbitrator's Award in favor of Plaintiffs for $815,171.91. (Doc. #19 at ¶ 5). This award was then reduced to a final judgment in favor of Plaintiffs. (Doc. #19 at ¶ 5). Thereafter, Defendant paid its $375,000 UM policy limits in January 2013, leaving a balance of$440,171.91, excluding interest. (Doc. #19 at ¶ 6).
On June 4, 2015, Plaintiffs filed this action against Defendant in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. (Doc. #2). Plaintiffs allege that Defendant acted in bad faith when it failed to tender the balance of the final judgment to them. (Doc. #2 at ¶¶ 29-33). On October 28, 2015, Defendant removed this case to this Court. (Doc. #1). Plaintiffs, in response, move to remand on the ground that Defendant did not timely file the Notice of Removal. (Doc. #19).
LEGAL STANDARD
Under 28 U.S.C. § 1446, a defendant may remove a case to federal court. The defendant must file a notice of removal in a civil action "within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." Id. § 1446(b). Should the case be removed, the plaintiff may make a motion to remand "on the basis of any defect other than lack of subject matter jurisdiction" within 30 days after the filing of the notice of removal. Id. § 1447(c). The plaintiff has a thirty-day window "to challenge the propriety of the removal itself, whether that challenge be on the basis of a procedural defect or a lack of subject matter jurisdiction." Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 n.64 (11th Cir. 2007) (citations omitted). Any uncertainty regarding removal jurisdiction should be resolved in favor of remand. See Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001) (citing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)).
DISCUSSION
In Plaintiffs' Motion to Remand, they contend that Defendant failed to remove the instant action within the requisite 30-day deadline. (Doc. #19 at 7). Plaintiffs also demand attorneys' fees for the costs and expenses incurred because of the improper removal. (Doc. #19 at 12). In response, Defendant contends Plaintiffs never explicitly alleged an amount in controversy in the Complaint. (Doc. #20 at 2). Defendant further asserts that once it was able to ascertain the amount in controversy exceeded $75,000, it removed this action to this Court. (Doc. #20 at 2). The Court will address each issue in turn.
A. Improper Removal
Absent a specific amount of damages listed in the complaint, removal from state court remains jurisdictionally proper "if it is facially apparent from the complaint that the amount in controversy exceeds the jurisdictional requirement." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010) (citing Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)). A complaint seeking indeterminate damages sometimes confuses two separate and independent issues (1) whether removal is jurisdictionally proper; and (2) whether removal is timely. See Garcia v. Wal-Mart Stores E., L.P., No. 6:14-CV-255-Orl-36TBS, 2014 WL 1333208, at *3 (M.D. Fla. Apr. 3, 2014) (citing Pretka, 608 F.3d at 751). The issue of timely removal does not address the question of whether the case originally could have been brought in federal court; instead, timely removal addresses a procedural defect. See id. (citing Corporate Mgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1297 (11th Cir. 2009)).
Upon review, the Court first notes that it is facially apparent from the Complaint that the amount in controversy exceeded $75,000. (Doc. #2). Although the Complaint contends the amount in damages exceeds $15,000, which is the state court jurisdictional threshold, it lists the arbitration amount of $815,171.91 awarded to Plaintiffs. (Doc. #2 at ¶ 25). This latter figure clearly exceeds the federal jurisdictional threshold required to satisfy the amount in controversy. Given the diverse parties and the satisfaction of the amount in controversy, Defendant possessed the ability to remove the instant case within 30 days from when it was served the Complaint. Since Defendant failed to remove the case in a timely manner, the Court will remand the instant case to state court. B. Attorney's Fees, Costs & Expenses
Next, 28 U.S.C. § 1447(c) provides, in pertinent part, that a remand order "may require payment of just costs and any actual expenses, including attorney's fees, incurred as a result of the removal." It is in the court's discretion to determine whether to award such costs and fees. See Tran v. Waste Mgmt., Inc., 290 F. Supp. 2d 1286, 1295 (M.D. Fla. 2003). "The intent of the statute is to reimburse plaintiffs who have incurred expenses in attacking improper removals." Liebig v. DeJoy, 814 F. Supp. 1074, 1077 (M.D. Fla. 1993).
Here, the Court declines to award Plaintiffs attorney's fees and costs for an improper removal caused by a procedural defect. See Tran, 290 F. Supp. 2d at 1295 (granting attorney's fees where Defendant failed to show fraudulent joinder); see also Liebig, 814 F. Supp. at 1077 (granting attorney's fees where notice was both untimely and improper because the federal court lacked subject matter jurisdiction) (emphasis added).
Accordingly, it is now
ORDERED:
Plaintiffs Gary Allen Fenn and Kathie Y. Fenn's Motion for Remand and Award for Costs, Including Attorney's Fees (Doc. #19) is GRANTED in part and DENIED in part as follows:
(1) Plaintiffs Gary Allen Fenn and Kathie Y. Fenn's Motion for Remand is GRANTED. This case is REMANDED to the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida.
(2) Plaintiffs Gary Allen Fenn and Kathie Y. Fenn's request for attorney's fees is DENIED.
DONE and ORDERED in Fort Myers, Florida this 11th day of January, 2015.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE Copies: All Parties of Record