Opinion
CASE NO. 20-61577-CIV-DIMITROULEAS
12-01-2020
DIGITAL AGE MARKETING GROUP, INC., Plaintiff, v. SENTINEL INSURANCE COMPANY LIMITED, d/b/a The Hartford, Defendant.
Brian William Smith, Smith & Vanture, LLP, West Palm Beach, FL, Lloyd Justin Heilbrunn, Law Office of Lloyd J. Heilbrunn, Juno Beach, FL, for Plaintiff. Samera Beshir, Butler Weihmuller Katz Craig LLP, Tracy Ann Jurgus, Butler Pappas, Miami, FL, Caitlin R. Tharp, Pro Hac Vice, John J. Kavanagh, Pro Hac Vice, Sarah D. Gordon, Pro Hac Vice, Steptoe & Johnson LLP, Washington, DC, for Defendant.
Brian William Smith, Smith & Vanture, LLP, West Palm Beach, FL, Lloyd Justin Heilbrunn, Law Office of Lloyd J. Heilbrunn, Juno Beach, FL, for Plaintiff.
Samera Beshir, Butler Weihmuller Katz Craig LLP, Tracy Ann Jurgus, Butler Pappas, Miami, FL, Caitlin R. Tharp, Pro Hac Vice, John J. Kavanagh, Pro Hac Vice, Sarah D. Gordon, Pro Hac Vice, Steptoe & Johnson LLP, Washington, DC, for Defendant.
ORDER DENYING MOTION TO REMAND
WILLIAM P. DIMITROULEAS, United States District Judge
THIS CAUSE is before the Court on Plaintiff Digital Age Marketing Group, Inc. ("Digital Age")’s September 8, 2020 Amended Motion for Remand [DE-21]. The Court has considered Defendant Sentinel Insurance Company Limited d/b/a The Hartford ("Sentinel")’s September 22, 2020 Response [DE-25] and Plaintiff's October 9, 2020 Reply [DE-33] and is otherwise fully advised in the premises.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is an action regarding insurance coverage for business income loss arising from local and state stay-at-home and shelter-in-place orders intended to stop or slow the spread of the novel coronavirus that causes the disease COVID-19. On May 15, 2020, Plaintiff brought this action against Sentinel in the Seventeenth Judicial Circuit, in and for Broward County, Florida arising out of the policy of insurance ("Policy") between Sentinel and Plaintiff. Plaintiff is seeking a declaratory judgment, damages for breach of contract, interest, costs and attorney's fees pursuant to Fla. Stat. § 627.428. Compl. ¶¶ 31, 33, 35, 46. Plaintiff's complaint seeks coverage under the policy for "property damage, suspension of business operations, sustained losses of business income, extended loss of business income, business income dependent properties, and incurred extra expenses." Compl. ¶ 31. Plaintiff invoked the Business Income, Extra Expense, Extended Business Income, and Civil Authority provisions of the policy in its Complaint. Compl. ¶¶ 4–8.
On August 4, 2020, Sentinel removed this case from the Circuit Court of the Seventeenth Judicial Circuit, Broward County. Sentinel's Notice of Removal stated that the parties were completely diverse and explained that the amount in controversy exceeded $75,000. See [DE 1]. Sentinel attempted to substantiate the amount with publicly available information. In its Notice of Removal, Defendant estimated that Plaintiff's lost revenue alone for the time from March 27, 2020, when Plaintiff was forced to close, to May 14, 2020, when Plaintiff's complaint was filed alleging the business remained closed, was approximately $82,290. [DE 1] ¶ 14. Defendant also notes in its Notice of Removal that in addition to business income Plaintiff alleges it sustained losses of business income from dependent properties and incurred extra expenses, [DE 1] ¶ 1, and seeks attorneys’ fees and costs, [DE 1] ¶ 10.
Defendant Sentinel calculated the $82,290 figure by taking Plaintiff's annual sales figure from an Experian report on Plaintiff and multiplied this figure, $633,000, by the percentage of the year Plaintiff's complaint alleged it was closed, 13%.
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II. STANDARD OF LAW
Under 28 U.S.C. section 1447(c), a case removed from state court should be remanded if it appears that it was removed improvidently. The removing party has the burden of demonstrating the propriety of removal. Diaz v. Sheppard , 85 F.3d 1502, 1505 (11th Cir. 1996). Courts should strictly construe the requirements of removal jurisdiction and remand all cases in which such jurisdiction is doubtful. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). (citations omitted). When the plaintiff and defendant clash on the issue of jurisdiction, uncertainties are resolved in favor of remand. See Burns v. Windsor Ins. Co. , 31 F.3d 1092, 1095 (11th Cir. 1994) (citations omitted).
III. DISCUSSION
Plaintiff moves to remand this case for failing to meet the amount in controversy requirement of this Court's diversity jurisdiction.
Under § 1332(a), federal district courts have subject matter jurisdiction over civil actions between citizens of different states and where the amount in controversy "exceeds the sum or value of $75,000, exclusive of interest and costs." 28 U.S.C. § 1332(a). Where a plaintiff has made an unspecified demand for damages in state court, a removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the [applicable] jurisdictional requirement." Pretka v. Kolter City Plaza II, Inc. , 608 F.3d 744, 752 (11th Cir. 2010) (citing Tapscott v. MS Dealer Serv. Corp., 77 F. 3d 1353, 1356-57 (11th Cir. 1996), overruled on other grounds by Cohen v. Office Depot, Inc., 204 F. 3d 1069, 1072 (11th Cir. 2000) ) (emphasis added). "[I]n order to satisfy the preponderance of the evidence standard, the removing defendant must establish the amount in controversy by the greater weight of the evidence, ... a superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other." Henderson v. Dollar Gen. Corp. , No. CIV A 07-0799-CG-M, 2009 WL 959560, at *4 (S.D. Ala. Apr. 7, 2009) (internal quotations and alterations omitted). "Estimating the amount in controversy is not nuclear science; it does not demand decimal-point precision. ... And the undertaking is not to be defeated by unrealistic assumptions that run counter to common sense." See S. Fla. Wellness, Inc. v. Allstate Ins. Co. , 745 F.3d 1312, 1317 (11th Cir. 2014) (internal citations omitted).
District courts may rely on their judicial experience and common sense to determine that a claim satisfies the amount-in-controversy requirement. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1064 (11th Cir. 2010) (reasoning that to require otherwise would permit a plaintiff to "defeat federal jurisdiction simply by drafting his pleadings in a way that did not specify an approximate value of the claims and thereafter provide the defendant with no details on the value of the claim."). If the jurisdictional amount is not facially apparent from a plaintiff's complaint, courts may also consider facts proffered in the notice of removal and may require additional evidence to support a finding that the amount in controversy is met. Williams v. Best Buy Co. , 269 F.3d 1316, 1319 (11th Cir. 2001) (adopting the approach of the Fifth and Ninth Circuit's is articulating the proper procedure for determining the amount in controversy on removal). However, "[a] conclusory allegation in the notice of removal that the jurisdictional amount is satisfied, without setting forth the underlying facts supporting such an assertion, is insufficient to meet the defendant's burden." Williams , 269 F.3d at 1319–20.
In moving to remand this case, Plaintiff argues that Defendant's allegations in its Notice of Removal are premised on an unauthenticated, hearsay report and that the evidence proffered in its Response to Plaintiff's remand should not be considered because they contain confidential trade secrets. Further, Plaintiff argues it is not clear what the Experian report's sales figure means. While Plaintiff repeatedly questions the admissibility of Defendant's evidence it does not put forth any evidence that would demonstrate that the amount in controversy is less than $75,000 or remains completely indeterminate.
According to the policy:
(4) Business income means the
(a) Net income (Net profit or loss before income tax) that would have been earned or incurred if no direct physical loss or physical damage had occurred; and
(b) Continuing normal operating expenses incurred, including payroll.
[DE-1-2, p. 86]. From the facts alleged in Plaintiff's Complaint, the Notice of Removal, and the records and affidavit submitted by Defendant it would appear that the business income for which Plaintiff seeks coverage, alone, would satisfy the jurisdictional amount in controversy requirement. The Court is unpersuaded by Plaintiff's arguments that Defendant's failure to proffer expert testimony on how Plaintiff's business records should be interpreted or how these records correlate to Plaintiff's claim renders its estimation of the amount in controversy "mere speculation."
Plaintiff's claim that the Court, in evaluating the amount in controversy, cannot consider a business record provided to Defendant by Plaintiff outlining Plaintiff's profits and losses because the record contains trade secrets protected by Florida Statute § 90.506 is equally unpersuasive. Florida Statute § 90.506 outlines an evidentiary privilege protecting trade secrets. See Fla. St. § 90.506. The purpose underlying the trade secrets privilege is "to prohibit a party to a suit from obtaining valuable information that could be used to its own advantage, relying upon the duty of a witness to answer questions truthfully." Auto Owners Ins. Co. v. Totaltape, Inc. , 135 F.R.D. 199, 203 (M.D. Fla. 1990) (quoting Freedom Newspapers, Inc. v. Egly, 507 So.2d 1180, 1184 (Fla. 2d DCA 1987) ). Here, there is little to no risk that Defendant, an insurer, will obtain some sort of competitive advantage from Plaintiff, its insured, through a document it already has. Cf Auto Owners Ins. Co. , 135 F.R.D. at 203 (finding that the Florida trade secret privilege did not protect an insurers claims manuals from discovery in a declaratory judgment action between an insured and an insurer because there was little risk of an insured obtaining a competitive advantage from reviewing the claims manuals of its insurer). Further, Plaintiff has cited to no case law that would prevent the Court form considering such a profit and loss statement, or an analogous record, in this context.
Defendant has shown, by a preponderance of the evidence, that it is more likely than not, that Plaintiff's amount in controversy, as reasonably calculated at the time of removal, exceeds $75,000. IV. CONCLUSION
Wherefore, it is ORDERED and ADJUDGED that Plaintiff's Amended Motion to Remand [DE-21] is DENIED .
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 1st day of December, 2020.