Opinion
Case No. 6:20-cv-873-Orl-40GJK
07-10-2020
Mhill NIKOLLAJ, Plaintiff, v. FEDERAL INSURANCE COMPANY, Defendant.
David Albert Spain, Morgan & Morgan, PA, Orlando, FL, for Plaintiff. Thomas A. Keller, Butler Weihmuller Katz Craig LLP, Tampa, FL, for Defendant.
David Albert Spain, Morgan & Morgan, PA, Orlando, FL, for Plaintiff.
Thomas A. Keller, Butler Weihmuller Katz Craig LLP, Tampa, FL, for Defendant.
ORDER
PAUL G. BYRON, UNITED STATES DISTRICT JUDGE
This cause comes before the Court on Plaintiff's Motion to Remand (Doc. 12 (the "Motion ")), filed June 11, 2020. On June 25, 2020, Defendant responded in opposition. (Doc. 14). Upon consideration, the Court will deny the Motion.
I. BACKGROUND
Plaintiff Mhill Nikollaj initiated this lawsuit on January 10, 2020, by filing a Complaint in state court. (Doc. 1-1). Plaintiff alleges that his property located in Lake Mary, Florida, sustained damages as a result of Hurricane Irma, while it was covered under a homeowners insurance policy with Defendant Federal Insurance Company ("Defendant "). (Id. ). Plaintiff asserts that Defendant breached the insurance policy by not fully paying the amount of Plaintiff's losses. (Id. ). Defendant was served with the Complaint on January 16, 2020.
On May 8, 2020, Plaintiff responded to Defendant's interrogatories and requests for production. Plaintiff specified that the amount of damages sought totaled $140,482.82. On May 21, fewer than thirty (30) days after receipt of these documents, Defendant removed the case to this Court based on diversity jurisdiction. Plaintiff filed the instant motion (Doc. 12), arguing that Defendant failed to timely file the Notice of Removal.
II. STANDARD OF REVIEW
Title 28 U.S.C. § 1441(a) authorizes a defendant to remove a civil action from state court to federal court where the controversy lies within the federal court's original jurisdiction. When a case is removed from state court, the removing party bears the burden of establishing federal subject matter jurisdiction by a preponderance of the evidence. McCormick v. Aderholt , 293 F.3d 1254, 1257 (11th Cir. 2002) (per curiam). Subject matter jurisdiction must be assessed at the time of removal. Sierminski v. Transouth Fin. Corp. , 216 F.3d 945, 949 (11th Cir. 2000). Because removal from a state court constitutes an infringement upon state sovereignty, the removal requirements must be strictly construed and "all doubts about jurisdiction should be resolved in favor of remand to state court." Univ. of S. Ala. v. Am. Tobacco Co. , 168 F.3d 405, 411 (11th Cir. 1999).
The parties agree that complete diversity exists among them and that the amount of damages sought is above the jurisdictional requirement. See 28 U.S.C. § 1332.
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III. DISCUSSION
Plaintiff argues that Defendant did not remove the case in a timely manner. Specifically, Plaintiff states that Defendant was aware that the damages in this case were well above the jurisdictional threshold on September 8, 2018—over a year before Plaintiff filed suit—because Defendant received a pre-suit public adjuster estimate in the amount of $118,091.94. (Doc. 12).
Plaintiff's argument regarding Defendant's pre-suit knowledge is not well taken. Under the plain language of the statute, an action must be removed within thirty days of receipt of the initial pleading if the initial pleading indicates that the case is removable. 28 U.S.C. § 1446(b). The statute explicitly states that "if 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." Id.
Plaintiff cites no authority indicating that if the Complaint is ambiguous but the defendant has enough pre-suit evidence to establish that the amount in controversy exceeds the jurisdictional threshold amount, the defendant is required to remove the case within thirty days of the initial pleading. In fact, just the opposite is true. Case law is clear that "the thirty-day time limit of section 1446(b) begins running upon receipt of the initial complaint only when the complaint explicitly discloses the plaintiff is seeking damages in excess of the federal jurisdictional amount." Del Rio v. Scottsdale Ins. , No. 6:05-CV-1429, 2005 WL 3093434, at *3 (M.D. Fla. Nov. 18, 2005) (collecting cases). "Defendant was clearly permitted under the case law of the Eleventh Circuit Court of Appeals to file an answer in state court, serve requests for interrogatories, and then, after receiving Plaintiff's responses, determine whether the case was removable. Such actions do not waive a defendant's right to remove by litigating in state court." Id. (citing Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP , 365 F.3d 1244, 1246 (11th Cir. 2004)). "[T]he time period to remove an action cannot depend on defendant's actual knowledge, because the statute expressly allows a defendant to rely on papers presented to it." Field v. Nat. Life. Ins. , No. 8:00-CV-989, 2001 WL 77101, at *9 (M.D. Fla. Jan. 22, 2001) (emphasis in original).
Additionally, case law is clear that "if an ‘other paper’ is to trigger the thirty-day time period of the second paragraph of § 1446(b), the defendant must receive the ‘other paper’ only after it receives the initial pleading." Village Square Condo. of Orlando, Inc. v. Nationwide Mut. Fire. Ins. , No. 6:09-CV-1711, 2009 WL 4855700, at *3 (M.D. Fla. Dec. 10, 2009). Accordingly, Plaintiff's argument that the September 8, 2018 pre-suit estimate—the "other paper in this case—triggers the thirty-day period for removal is erroneous. See McManus v. Nat'l Fire. & Marine Ins. , 380 F. Supp. 3d 1260, 1262 (M.D. Fla. 2019) ("[P]re-suit correspondence, regardless of its reliability, cannot trigger the running of the thirty-day removal clock."). Therefore, the public adjuster estimate did not start the removal clock and Defendant's Notice of Removal, filed fewer than thirty days after Defendant was served with Plaintiff's interrogatories and requests for production responses, was timely.
IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Motion to Remand (Doc. 12) is DENIED .
DONE AND ORDERED in Orlando, Florida on July 10, 2020.