Opinion
Case No. 8:12-cv-2874-T-30EAJ
01-17-2013
RODNEY KEOGH, as Personal Representative of the Estate of SHIRLEY H. RADLOFF, Deceased, Plaintiff, v. CLARKE ENVIRONMENTAL MOSQUITO MANAGEMENT, INC. and JOSHUA PAUL MATTA, Defendants.
ORDER
THIS CAUSE comes before the Court upon Plaintiff's Motion to Remand (Dkt. 9) and Defendant Clarke Environmental Mosquito Management, Inc.'s Response in Opposition (Dkt. 10). The Court, having reviewed the motion, response, notice of removal, complaint, and being otherwise advised in the premises, concludes that Plaintiff's motion should be denied.
BACKGROUND
In this wrongful-death action, Plaintiff alleges that, on May 5, 2012, a vehicle operated in the course and scope of Defendant Joshua Paul Matta's employment with Defendant Clarke Environmental Mosquito Management, Inc. ("Clarke") struck and killed the decedent, Shirley H. Radloff, who was 62 years old. The complaint, which was originally filed in the state circuit court in and for Polk County, Florida, seeks damages for the estate's funeral expenses, and, on behalf of Robert E. Radloff, the surviving spouse, who is 86 years old, loss of services and loss of companionship, protection, and mental pain and suffering under Florida's wrongful-death statute, Fla. Stat. § 768.21.
On November 27, 2012, Defendant Clarke was served with the complaint. On December 20, 2012, Defendant Clarke timely removed the action to this Court on the basis of diversity jurisdiction.
On January 8, 2013, Plaintiff filed a motion to remand. Plaintiff's sole argument for remand is that Defendant Clarke did not meet its burden of establishing that the amount in controversy exceeds $75,000.
On January 10, 2013, Defendant Clarke filed its response in opposition. Notably, the response attaches a post-suit demand letter sent from Plaintiff to Defendant Clarke's insurer, which is highly relevant on the issue of Plaintiff's damages. Specifically, the letter states, in pertinent part, that Robert E. Radloff, the surviving spouse, depended on the deceased for support and, as a result of her death, would require placement in an assisted living facility. The letter also states that Mr. Radloff is "very healthy and can be expected to live a long life" and that his life "dramatically changed" as a result of Defendants' negligence. (Dkt. 10-1). Finally, the letter makes a demand for the policy limit to settle all of Plaintiff's claims. The response indicates that the policy limit is $1,000,000.
DISCUSSION
Where the alleged basis for federal jurisdiction is diversity under 28 U.S.C. § 1332, as it is in this case, the removing defendant has the burden of demonstrating that there is (1) complete diversity of citizenship and (2) an amount-in-controversy greater than $75,000. See 28 U.S.C. § 1332(a). The parties do not dispute whether complete diversity of citizenship exists. When, as here, damages are not specified in the state court complaint, the defendant seeking removal must prove by a preponderance of the evidence that "the amount in controversy more likely than not exceeds ... the jurisdictional requirement." Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010) (citation omitted). A removing defendant is not required "to prove the amount in controversy beyond all doubt or to banish all uncertainty about it." Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010).
In determining the amount in controversy, the court should look first to the complaint. Id. If the amount is unavailable from the complaint alone, as it is in this case, the court can look to the notice of removal and other "evidence relevant to the amount in controversy at the time the case was removed," including evidence submitted in response to a motion to remand. Id. In Pretka, the Eleventh Circuit held that a party seeking to remove a case to federal court pursuant to the first paragraph of § 1446(b), i.e., within the first thirty days after service, is not restricted in the types of evidence it may use to satisfy the jurisdictional requirements for removal. Id. at 770-71. This evidence may include the removing defendant's own affidavit, declaration, or other documentation. Id. at 755. Moreover, 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, 613 F.3d at 1062-63.
Applying the guidelines set forth in Roe and Pretka, the Court concludes that Defendant Clarke met its burden in establishing by a preponderance of the evidence that the amount in controversy more likely than not exceeds $75,000. Although the damages sought in the complaint are less than clear, the complaint establishes that this is a wrongful-death action in which Plaintiff is seeking funeral expenses, and, on behalf of the surviving spouse, loss of services and loss of companionship, protection, and mental pain and suffering under Florida's wrongful-death statute, Fla. Stat. § 768.21. The post-suit demand letter, which the Court may consider as evidence of the amount in controversy, see Saberton v. Sears Roebuck and Co., 392 F. Supp. 2d 1358, 1360 (M.D. Fla. 2005), Martin v. Mentor Corp., 142 F. Supp. 2d 1346, 1349 (M.D. Fla. 2001), establishes that Mr. Radloff is healthy, is expected to live a long life, and must now live in an assisted living facility due to his wife's death. Most importantly, the post-suit demand letter makes a settlement demand for the policy limit, which amounts to $1,000,000, and is highly relevant on the issue of Plaintiff's damages.
In conclusion, applying common sense, the Court can reasonably deduce from the evidence that the jurisdictional amount is satisfied in this case. Indeed, this case is allegedly an emotional one in which a husband's beloved wife, who was also his companion and caretaker, was struck and killed by a vehicle due to the driver's negligence. Although the Court makes no determination on the merits of Plaintiff's claims, the Court could foresee a jury, upon consideration of the alleged facts, awarding more than $75,000 to Plaintiff for pain and suffering damages alone.
It is therefore ORDERED AND ADJUDGED that:
1. Plaintiff's Motion to Remand (Dkt. 9) is DENIED.
DONE and ORDERED in Tampa, Florida on January 17, 2013.
/s/ _________
JAMES S. MOODY, JR.
UNITED STATES DISTRICT JUDGE Copies furnished to:
Counsel/Parties of Record S:\Even\2012\12-cv-2874.remand9.frm