Opinion
CASE NO. 6:12-CV-1006-Orl-36DAB
08-15-2012
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., P.A., Plaintiff, v. AUTO-OWNERS INSURANCE COMPANY, Defendant.
ORDER
This cause comes before the Court upon the Report and Recommendation of Magistrate Judge David A. Baker, filed on July 30, 2012 (Doc. 13). In the Report and Recommendation, the Magistrate Judge recommends that the Court grant Plaintiff's Motion to Remand to State Court and for Award of Attorneys' Fees and Costs (Doc. 7). Specifically, the Magistrate Judge recommends that this case be remanded to the state court from which it was removed and that fees be awarded to Plaintiff, in the amount of $750.00, for Defendant's improvident removal. Id. Neither party has filed an objection to the Report and Recommendation and the time to do so has expired.
The Court is in agreement with the Magistrate Judge that Defendant has not met the legal certainty test with regard to the amount in controversy. Id. at 4-5. In this instance, Defendant's unsubstantiated predictions of Plaintiff's attorneys' fees are insufficient to meet the jurisdictional requirement. Id. at 5. Further, the Court is in agreement with the Magistrate Judge that Defendant's removal based primarily on "future potential" fees of $74.912.77 was not an objectively reasonable basis for removal of this complaint. Id. at 7-8. The Court finds $750.00 to be a fair and appropriate award of fees to Plaintiff. Therefore, after conducting an independent examination of the file and upon due consideration of Magistrate Judge Baker's Report and Recommendation, the Court accepts the Report and Recommendation in its entirety.
Accordingly, it is hereby ORDERED and ADJUDGED:
1. The Report and Recommendation of the Magistrate Judge (Doc. 13) is ADOPTED, CONFIRMED and APPROVED in all respects and is made a part of this Order for all purposes, including appellate review.
2. Plaintiff's Motion to Remand to State Court and for Award of Attorneys' Fees and Costs (Doc. 7) is GRANTED.
3 Plaintiff is awarded fees in the amount of $750. 00 for Defendant's improvident removal of this case. The Clerk is directed to enter a judgment in favor of Plaintiff and against Defendant in the amount of $750.00.
4. This action is REMANDED to the Circuit Court of the Eighteenth Judicial Circuit, Seminole County, Florida. The Clerk of Court is directed to mail a certified copy of this Order to the Clerk of the Eighteenth Judicial Circuit, Seminole County, Florida.
DONE AND ORDERED at Orlando, Florida on August 15, 2012.
______________________
Charlene Edwards Honeywell
United States District Judge
COPIES TO:
COUNSEL OF RECORD