Upthagrove v. United Parcel Serv.

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BRETT UPTHAGROVE Plaintiffs, v. UNITED PARCEL SERVICE, INC., Defendant.

No. 8:23-cv-0612-KKM-MRM

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

April 17, 2023

ORDER

KATHRYN KIMBALL MIZELLE, UNITED STATES DISTRICT JUDGE

On March 20, 2023, Defendant United Parcel Service, Inc., (UPS) removed this Florida Civil Rights Act (FCRA) action by Plaintiff Brett Upthagrove from state court based on diversity jurisdiction. Notice of Removal (Doc. 1). Plaintiff now moves to remand, arguing that the diversity statute's amount-in-controversy requirement is not met here. Mot. to Remand (Doc. 9); see 28 U.S.C. § 1322(a) ("[T]he matter in controversy [must] exceed[] the sum or value of $75,000, exclusive of interest and costs."). Because the Court agrees, Plaintiffs motion is granted.

I. BACKGROUND

Upthagrove sues UPS for age discrimination in violation of the FCRA. Compl. ¶[ 15. He alleges that he is a former employee of UPS, that he was "subjected to ongoing disparate treatment by" UPS, and that he was eventually fired because he was "older." Id. ¶¶ 2,7,11.

Upthagrove filed suit in the Circuit Court for the Tenth Judicial Circuit in and for Polk County, Florida on February 9, 2023. Id. at 5. UPS was served on February 28, 2023, and filed a notice of removal on March 20, 2023. Notice of Removal ¶ 9. Upthagrove now moves to remand to state court because UPS "has failed to establish that the amount in controversy in this case exceeds $75,000," and therefore this Court lacks subject matter jurisdiction. Mot. to Remand at

II. LEGAL STANDARD

United States district courts have diversity jurisdiction if the parties are of diverse citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). A defendant may remove any case in which a federal district court would have had original jurisdiction. See 28 U.S.C. § 1441(b). In removal cases, "the burden is on the party who sought removal to demonstrate that federal jurisdiction exists." Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1281 (11th Cir. 2001). A court may draw reasonable deductions and inferences from the pleadings, using "judicial experience and common sense in determining whether the case stated in a complaint meets the federal jurisdictional requirements." Roe v. Michelin N.A., Inc., 613 F.3d 1058,1061-62 (11th Cir. 2010). But the Court may not engage in "speculation" or "unabashed guesswork." Lowery v. Ala. Power Co., 483 F.3d 1184, 1211 (11th Cir. 2011). Additionally, "[w]hat counts is the amount in controversy at the notice of removal." S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312,1315 (11th Cir. 2014).

"If a plaintiff makes 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 jurisdictional requirement." Roe, 613 F.3d at 1061. But where a plaintiff makes a specific allegation that damages are less than the jurisdictional threshold, "defendant must prove to a legal certainty that plaintiffs claim must exceed [$75,000]." Burns v. Windsor Ins. Co., 31 F.3d 1092,1095 (11th Cir. 1994).

III. ANALYSIS

In his complaint, Upthagrove alleges that "[t]he amount in controversy exceeds $30,000, but [is] less than $75,000." Compl. (Doc. 1-1) ¶5. In its Notice of Removal, UPS argues that "a preponderance of the evidence proves that the amount in controversy exceeds the sum of $75,000." Notice of Removal if 13. Because Upthagrove makes a specific allegation that the amount in controversy is less than $75,000, UPS must prove to a legal certainty that it is met, not by a preponderance of the evidence. But rather than meet its burden to prove that this allegation is wrong, UPS argues in response to Plaintiffs motion that "Plaintiff fails to establish-much less to a legal certainty-"that it is right. Resp. (Doc. 18) at 2. UPS incorrectly flips the burden.

Even under the lower preponderance burden, the Court is unconvinced that the amount in controversy is met in this case. UPS points to Upthagrove's claims for past and future lost wages, emotional distress, punitive damages, and attorney's fees. Id. ¶ 19.

First, UPS calculates $25,810 in total back pay from the time Upthagrove was terminated to the notice of removal. Id. ¶ 22.But Upthagrove alleges only "mitigated back pay," not full relief. Compl. ¶ 27. UPS presents no evidence that Upthagrove's mitigated back pay would be anywhere near full compensation. Even still, full compensation only gets UPS a third of the way to the $75,000 minimum.

Second, UPS "conservatively" calculates "at least a year in future lost wages," bringing its total amount in controversy allegation up to $40,890. But, as the Court has previously noted, "[b]ecause the amount in controversy is determined at the time of removal, this Court declines to consider back pay that accrued or will accrue after the date of removal." Scott v. Walmart, 528 F.Supp.3d 1267, 1275 (M.D. Fla. 2021) (Mizelle, J.) (noting a split of authority within the district on this question). The Court will not speculate as to how long potential back pay will continue to accrue up until trial, and thus will not consider this amount.

Third, UPS points to "jury verdicts in similar FCRA cases [to] illustrate that Plaintiffs alleged emotional distress damages alone satisfy" the amount in controversy requirement. Notice of Removal at 6. But the award of emotional distress damages in other cases, based on other factual records, does not support a finding of that amount of emotional distress damages in this case. UPS does "not point to any facts, testimony, or any of Plaintiff s allegations" to support any specific amount of emotional distress damages in controversy in this case, let alone damages that "alone" satisfy the amount in controversy requirement. Scott, 528 F.Supp.3d at 1277.

Fourth UPS contends that punitive damages "alone" satisfy the amount in controversy. Notice of Removal at 7-8. The FCRA allows recovery up to $100,000 for punitive damages. But, as this Court has already explained, "the nature of jury awards in the area of punitive damages" is "wholly speculative." Scott, 528 F.Supp. at 1277 (quoting Bdkum v. Pier 1 Imports (U.S.), Inc., No. 6:17-cv-1299, 2017 WL 3911560, at *3 (M.D. Fla. Sept. 7, 2017) (Dalton, J.)). And the fact that the FCRA allows maximum punitive damages of $100,000 is not enough alone to satisfy the amount in controversy requirement, because "under that logic, every FCRA case filed in state court containing a request for punitive damages would automatically meet the jurisdictional...