Opinion
CASE NO. 22-20847-CIV-ALTONAGA/Torres
2022-05-13
MEDICAL AND EXECUTIVE OFFICES OF AVENTURA, LLC, Plaintiff, v. GREAT LAKES INSURANCE SE, Defendant.
Rafael Isaac Katz, Katz & Katz, P.A., Ft. Lauderdale, FL, for Plaintiff. Brian William Fernandez, Baker Donelson Bearman, Caldwell & Berkowtiz, PC, Fort Lauderdale, FL, David Brian Levin, Baker Donelson Bearman, Caldwell & Berkowtiz, PC, Ft. Lauderdale, FL, for Defendant.
Rafael Isaac Katz, Katz & Katz, P.A., Ft. Lauderdale, FL, for Plaintiff.
Brian William Fernandez, Baker Donelson Bearman, Caldwell & Berkowtiz, PC, Fort Lauderdale, FL, David Brian Levin, Baker Donelson Bearman, Caldwell & Berkowtiz, PC, Ft. Lauderdale, FL, for Defendant.
ORDER
CECILIA M. ALTONAGA, CHIEF UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court on Plaintiff, Medical and Executive Offices of Aventura, LLC's Amended Motion for Remand [ECF No. 16 ], filed on April 20, 2022. Defendant, Great Lakes Insurance SE, filed a Response [ECF No. 18 ], and Plaintiff filed a Reply [ECF No. 19 ]. For the following reasons, the Motion is denied.
Background. Defendant removed this property insurance dispute asserting diversity jurisdiction exists under 28 U.S.C. section 1332. (See Notice of Removal [ECF No. 1] 1 ). The parties agree they have diverse citizenship and the amount in controversy exceeds $75,000.00. (See Mot. 1–2; Resp. 1). Nevertheless, Plaintiff moves for a remand, arguing the Notice of Removal was untimely. (See Mot. 2).
These are the relevant dates. In February 2021, Plaintiff sent Defendant an estimate of the damages incurred at Plaintiff's property, which amounted to $879,733.40; and Defendant confirmed receipt of the estimate. (See Mot. 3). In July 2021, Plaintiff submitted to the Florida Department of Financial Services a Notice of Intent to Initiate Litigation ("NOI"). (See Mot., Ex. A, NOI [ECF No. 16] 14 ). The NOI contained a damages estimate of $904,733.00. (See id. ). In August 2021, Defendant sent Plaintiff an email (see id. , Ex. B [ECF No. 16] 15–16 ) acknowledging receipt of the NOI and denying coverage.
The Court uses the pagination generated by the electronic CM/ECF database, which appears in the headers of all court filings.
On November 11, 2021, Plaintiff filed its Complaint [ECF No. 1-2 ], which references the NOI but does not specifically allege the amount in controversy exceeds $75,000. (See Compl. ¶ 15). Plaintiff served Defendant with the Complaint two weeks later. (See Mot. 6). On February 18, 2022, Defendant responded to Plaintiff's first request for production of documents by producing a set of documents that included Plaintiff's NOI. (See id. 4; Resp. 3 n.1). On February 28, 2022, Plaintiff provided Defendant a settlement demand requesting over $75,000, exclusive of costs and interests. (See Mot. 4; Resp. 3). On March 21, 2022, Defendant filed the Notice of Removal.
Standards. Defendants seeking removal bear the burden of establishing removal jurisdiction. See Scimone v. Carnival Corp. , 720 F.3d 876, 882 (11th Cir. 2013). Courts "strictly construe the right to remove and apply a general presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand." Id. (alteration adopted; quotation marks and citation omitted).
The deadline for removal is set forth in 28 U.S.C. section 1446(b). See Lowery v. Ala. Power Co. , 483 F.3d 1184, 1212 (11th Cir. 2007). Under section 1446(b)(1), a defendant must file a notice of removal "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)(1) (alteration added). This subparagraph "deals with civil actions that are removable at the time of commencement." Pretka v. Kolter City Plaza II, Inc. , 608 F.3d 744, 757 (11th Cir. 2010).
If it is not facially apparent that an initial pleading is removable, section 1446(b)(3) controls:
[I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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 first be ascertained that the case is one which is or has become removable.
28 U.S.C. § 1446(b)(3) (alteration added). This subparagraph "deals with civil actions that were not removable, or could not have been determined to be removable, until ‘an amended pleading, motion, order or other paper ’ establishes their removability." Pretka , 608 F.3d at 757 (emphasis added). "Courts have held that responses to request[s] for admissions, settlement offers, and other correspondence between parties can be ‘other paper’ under 28 U.S.C. [section] 1446(b)." Wilson v. Target Corp. , No. 10-80451-Civ, 2010 WL 3632794, at *2 (S.D. Fla. Sept. 14, 2010) (alterations added; citing Lowery , 483 F.3d at 1212 n.62 ; other citations omitted).
Discussion. The request for remand presents two issues. The first is whether the Complaint was initially removable on its face because it referenced the previous NOI, even though the Complaint did not explicitly allege an amount in controversy and the NOI was not attached. If the answer is "yes," section 1446(b)(1) applies, and Defendant untimely removed the case. The second question is if the Complaint was not initially removable on its face, and section 1446(b)(3) applies instead, whether pre-suit communications constitute "other paper" under that section. If they do, then Defendant untimely removed this case. The Court examines each in turn.
To apply the earlier 30-day period prescribed under section 1446(b)(1), the initial pleading must be removable "on its face[.]" Chabad Lubavitch of Pembroke Pines, Inc. v. GeoVera Specialty Ins. Co. , No. 21-cv-61420, 2021 WL 5155718, at *1 (S.D. Fla. Nov. 5, 2021) (alteration added). In other words, the complaint must "affirmatively reveal that the plaintiff is seeking damages in excess of $75,000." Musser v. Walmart Stores E., L.P. , No. 1:16-cv-62231, 2017 WL 1337477, at *2 (S.D. Fla. Apr. 12, 2017) (footnote call number omitted; citing Jade E. Towers Devs. v. Nationwide Mut. Ins. Co. , 936 F. Supp. 890, 892 (N.D. Fla. 1996) ).
Plaintiff contends the Complaint was initially removable on its face, section 1446(b)(1) applies, and the March 21, 2022 Notice of Removal was filed outside the 30-day period following service of the Complaint in November 2021. (See Mot. 6). Yet, the Complaint merely states the "amount in controversy exceeds $30,000" (Compl. ¶ 1), leaving open the question of whether the amount in controversy exceeds $75,000. While Plaintiff insists the Complaint's reference to the previous NOI renders the pleading facially removable, that reference did not state the amount in controversy, and Plaintiff did not attach the NOI to the Complaint. (See id. ¶ 15). As a matter of common sense, an inference from a document cannot be "facially apparent" if it relies upon an extrapolation from an external document. Thus, section 1446(b)(1) does not apply because the Complaint does not "affirmatively reveal that [P]laintiff is seeking damages in excess of $75,000." Musser , 2017 WL 1337477, at *2 (alteration added; citation and footnote call number omitted).
In the event section 1446(b)(3) applies, the 30-day period "starts to run from the receipt of an amended pleading, motion, order, or ‘other paper’ from which the defendant can first ascertain that the case is removable." Id. (quoting 28 U.S.C. § 1446(b)(3) ). The question here is whether the Court can consider pre-suit communications as "other paper" that trigger the 30-day removal period.
While neither the Eleventh Circuit nor the Supreme Court has decided whether pre-suit communications can be considered in determining when the 30-day removal period begins, most circuit courts and the district courts within this Circuit follow a bright-line rule that rejects the consideration of such documents. See, e.g. , Sullivan v. Nat'l Gen. Ins. Online, Inc. , No. 3:17-cv-1387, 2018 WL 3650115, at *6 (M.D. Fla. Apr. 17, 2018) (collecting circuit court cases), report and recommendation adopted , No. 3:17-cv-1387, Order [ECF No. 38] at 1, filed May 8, 2018 (M.D. Fla. 2018); id. at *8 (collecting Middle District of Florida cases); Chabad Lubavitch , 2021 WL 5155718, at *2–3 ; Musser , 2017 WL 1337477, at *2 ; Lambertson v. Go Fit, LLC , 918 F. Supp. 2d 1283, 1285–86 (S.D. Fla. 2013) ; Wilson , 2010 WL 3632794, at *2 (S.D. Fla. Sept. 14, 2010). The Court agrees with the weight of authority: "[d]ocuments are ‘other paper’ under section 1446(b)(3) only if the defendant receives them after receiving the initial pleading." Chabad Lubavitch , 2021 WL 5155718, at *3 (emphasis in original; alteration added; citations omitted). Here's why.
To start, the consideration of pre-suit documents is plainly incompatible with the language of section 1446(b)(3). Under that section, "a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3) (alteration added). Under the statute's plain language, if a defendant receives an "other paper" more than 30 days before the case is filed, then the defendant would necessarily miss the removal deadline, as the case would not be filed until after the 30-day removal period. Cf. Chabad Lubavitch , 2021 WL 5155718, at *3 ("[A]s a matter of statutory construction, documents a defendant receives prior to the commencement of a suit are not ‘other paper’ under section 1446(b)(3) because there is no case in which to trigger a limitation on removal." (alteration added; citation omitted)).
Moreover, the ejusdem generis canon of statutory interpretation militates against the consideration of pre-suit communications as "other paper." Travelers Prop. Cas. Co. of Am. v. Eastman Kodak Co. , 8-16-cv-00465, 2016 WL 11491579, at *2 n.1 (M.D. Fla. Aug. 1, 2016) ; see also generally Ali v. Fed. Bureau of Prisons , 552 U.S. 214, 223–225, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (discussing the ejusdem generis canon). "The ejusdem generis canon applies when a drafter has tacked on a catchall phrase at the end of an enumeration of specifics[.]" Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts § 32 (2012) (alteration added). Under this canon, "general words [that] follow an enumeration of two or more things ... apply only to ... things of the same general kind or class specifically mentioned[.]" Id. (alterations added; boldface omitted).
Section 1446(b)(3) enumerates the types of documents that trigger the 30-day removal period. This list includes three specific types of items, "amended pleading[s], motion[s], [and] order[s,]" followed by a general or catch-all item, "other paper[s.]" 28 U.S.C. § 1446(b)(3) (alterations added). Such "a list of specific items separated by commas and followed by a general or collective term" presents a textbook ejusdem generis scenario. Ali , 552 U.S. at 225, 128 S.Ct. 831. Under the canon, the word "similar" is implied "after the word other." Reading Law: The Interpretation of Legal Texts § 32 (emphasis omitted). The specific types of items in section 1446(b)(3) are documents that necessarily are created after a plaintiff files suit. Thus, applying the ejusdem generis canon, it is implied that the general term "other paper" is narrowed to encompass only documents that a defendant receives after a plaintiff files an action, foreclosing the inclusion of pre-suit communications.
Finally, a bright-line rule against the consideration of pre-suit communications promotes judicial efficiency by avoiding the inquiry of what defendants knew or should have known regarding the amount in controversy and discouraging evasive or ambiguous statements by plaintiffs regarding the same. See Sullivan , 2018 WL 3650115, at *7.
Before concluding, the Court addresses Plaintiff's citations to two decisions that considered pre-suit notice in determining the removal period. (See Mot. 6–7 (citing Restoration USA, LLC v. Integon Nat'l Ins. Co. , No. 20-cv-80025, 2020 WL 6343329 (S.D. Fla. June 2, 2020) ; Shawah v. The Standard Fire Ins. Co. , No. 21-cv-82074, Order Remanding Case [ECF No. 6 ], filed Dec. 28, 2021 (S.D. Fla. 2022))). In Restoration USA, LLC , the court noted that while the Eleventh Circuit and the Supreme Court have not taken positions as to whether pre-suit notice of the amount in controversy should affect the removal period, "appellate courts in other circuits ... have each adopted some form of a bright-line rule prohibiting pre-suit notice from affecting timeliness of removal." 2020 WL 6343329, at *2 (alteration added; citation omitted). Nonetheless, the court decided against applying the bright-line rule and instead found it appropriate to "measure the 30-day removal period from the date that [the complaint] was filed in state court" because it was clear the defendant had pre-suit notice that the amount in controversy exceeded $75,000. Id. at *3.
In Shawah , the court engaged in a similar analysis, this time citing Roe v. Michelin North America, Inc. , 613 F.3d 1058, 1061–62 (11th Cir. 2010), for the proposition that a court may rely on "reasonable deductions, reasonable inferences, or other reasonable extrapolations from the pleadings" to determine whether "it is facially apparent that a case is removable." Shawah , No. 21-cv-82074, Order Remanding Case at 2 (quotation marks omitted; citing Roe , 613 F.3d at 1061–62 ); see id. at 4.
A statutory analysis of 28 U.S.C. section 1446(b) does not support the consideration of pre-suit communications in determining the removal period. The Court sees no benefit in applying an amorphous rule that would allow the consideration of some pre-suit communications, which would necessarily require burdensome, subjective inquiries into defendants’ states of minds. See Chapman v. Powermatic, Inc. , 969 F.2d 160, 163 (5th Cir. 1992) ("We adopt this rule because we conclude that it promotes certainty and judicial efficiency by not requiring courts to inquire into what a particular defendant may or may not subjectively know.").
Lastly, the Court does not read Roe , 613 F.3d 1058, as supporting the consideration of pre-suit notice in determining the removal period. There, the Eleventh Circuit held that "courts may use their judicial experience and common sense in determining whether the case stated in a complaint meets federal jurisdictional requirements." Id. at 1062 (footnote call number omitted). Applying this principle, the court in Roe determined the initial pleading was removable even though it did not allege the amount in controversy because the plaintiff brought a costly wrongful death claim. See id. at 1065–66. The Court thus reads Roe as holding that inferences regarding the amount in controversy can be drawn from the types of claims asserted — the decision says nothing about considering pre-suit notice in determining the removal period.
In short, pre-suit communications may "support removal," but they "do[ ] not trigger the running of the thirty-day period under [s]ection 1446(b)." Jade E. Towers Devs. , 936 F. Supp. at 892 (alterations added).
Conclusion. To recap, the Complaint was not initially removable on its face, and pre-suit communications are not the "other paper" that would start the 30-day removal period. After the suit was filed, Defendant first received an "other paper" on February 28, 2022, when Plaintiff provided Defendant a settlement demand requesting over $75,000 (see Mot. 4; Resp. 3); consequently, the March 21, 2022 Notice of Removal was timely.
To the extent Plaintiff argues Defendant received an "other paper" on February 18, 2022, when Defendant sent Plaintiff the NOI, the March 21, 2022 Notice of Removal would still be timely under Federal Rule of Civil Procedure 6(a)(1)(c). (See Resp. 3 n.1).
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion for Remand [ECF No. 16 ] is DENIED .
DONE AND ORDERED in Miami, Florida, this 13th day of May, 2022.