Palonder v. K Mart Corporation

Full title: SARAH PALONDER, Plaintiff, v. K MART CORPORATION etc., Defendant

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Jun 6, 2011

CASE NO. 8:10-CV-2697-T-17EAJ (M.D. Fla. Jun. 6, 2011)

Opinion

CASE NO. 8:10-CV-2697-T-17EAJ.

June 6, 2011

ORDER

ELIZABETH KOVACHEVICH, District Judge

This cause is before the Court on:

Dkt. 5 Motion for Remand

Dkt. 7 Response

This case is a complaint for negligence which was filed in Pinellas County Circuit Court on 9/21/2010. The case was removed to this Court on 12/2/2010 (Dkt. 1). The basis of jurisdiction is diversity.

Plaintiff Sarah Palonder moves to remand this case to Pinellas County Circuit Court because Defendant K-Mart has not clearly and unambiguously established by a preponderance of the evidence that the amount in controversy exceeds $75,000, and because Defendant K-Mart did not remove the case within thirty days of receiving the initial pleadings as required by 28 U.S.C. Sec. 1446(b).

Defendant K Mart Corporation opposes Plaintiff's Motion.

I. Standard of Review

The burden of establishing federal jurisdiction is on the party attempting to remove the case from state court. Lowery v. Alabama Power Co., 483 F.3d 1184 (11^** Cir. 2007). Removal statutes are strictly construed, and when the parties dispute jurisdiction, uncertainties are resolved in favor of remand. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir. 1994). The removing party has the burden of proving the facts supporting federal jurisdiction by a preponderance of the evidence. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11^th Cir. 2002). Removal may be based on an initial pleading, an amended pleading, motion, order or other paper. See 28 U.S.C. 1446(b). If removal is based on a document other than an initial pleading, the document must have been supplied by the plaintiff. Lowery at 1215, n. 63 (11^th Cir. 2007).

II. Discussion

In this case, the jurisdictional amount stated in Plaintiff's complaint is not specified; Plaintiff Palonder alleges that Plaintiff's damages exceed $15,000, exclusive interest, costs and attorney's fees.

Defendant K Mart Corporation argues that Defendant K Mart Corporation was served on November 8, 2010, and therefore removal on 12/2/2010 is timely.

Defendant K Mart Corporation argues that the Motion to Remand should be denied, based on a pre-suit demand letter dated April 10, 2010, which outlines medical bills incurred by Plaintiff Palonder in the amount $86,658, and which makes a settlement demand of $350,000.00. Defendant K Mart argues that Plaintiff Palonder does not dispute the amount of medical expenses incurred as of 4/10/2010, $86,658, which is in excess of the jurisdictional amount. The settlement demand letter states that Plaintiff Palonder will incur future medical expenses

The Court has taken judicial notice of the docket of the state court case (attached to this Order), which indicates service on Defendant on 11/8/2010. After consideration, the Court finds that removal is timely, and that Defendant K Mart Corporation has established the jurisdictional amount by a preponderance of the evidence. Accordingly, it is

ORDERED that the Motion to Remand is denied. DONE AND ORDERED in Chambers, in Tampa, Florida.

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