TESORERO

v.

INDEPENDENT SPECIALTY INSURANCE COMPANY

This case stems from an alleged breach of a homeowner’s insurance policy contract. (Doc. 1-1 (the “Complaint”)). About a year ago, a hurricane allegedly resulted in Plaintiff suffering a covered loss to his “property located at 2331 Hidden Lake Street, Kissimmee, Florida 34741” (the “Property”). Prior to filing suit, on February 24, 2023, a pre-

II. STANDARD OF REVIEW

28 U.S.C. § 1441(a) allows a defendant to remove a civil action from state court to federal district court where the basis for the underlying claim is federal question jurisdiction or diversity jurisdiction. Hawkinson v. State Farm Mut. Auto. Ins. Co., 325 F. Supp. 3d 1293, 1296 (M.D. Fla. 2018). Diversity jurisdiction requires complete diversity of citizenship between the parties and an amount in controversy in excess of $75,000. 28 U.S.C. § 1332(a). If the plaintiff does not plead a specific amount of damages, the removing defendant bears the burden of establishing that the jurisdictional threshold is met by a preponderance of the evidence. Lowery v. Ala. Power Co., 483 F. 3d 1184, 1208–09 (11th Cir. 2007); McCormick v. Aderholt, 293 F. 3d 1254, 1257 (11th Cir. 2002) (per curiam). Pursuant to 28 U.S.C. § 1446(b)(1), the removing defendant must file its 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.” 28 U.S.C. § 1446(b)(1). However, “if the case stated by the initial pleading is not removable,” then the removing defendant may file its notice of removal within 30 days of its receipt, “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. § 1446(b)(3). Because removal from a state court constitutes an infringement upon state sovereignty, the district court must construe the removal requirements strictly, 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).

III. DISCUSSION

Notably, the parties do not dispute that Plaintiff’s responses to Defendant’s Request for Admissions demonstrate the existence of diversity jurisdiction.² Instead, Plaintiff’s sole argument is that the case should be remanded because removal was untimely. (See Doc. 9, pp. 5–6). Specifically, Plaintiff contends that “[t]here is no doubt that Defendant was aware” that the amount in controversy exceeded $75,000 prior to the lawsuit being filed upon receipt of the Notice & Estimate and SPOL. (See id. at p. 6).3 Accordingly, Plaintiff argues that the 30- day time period for removal began the day the suit was served, and since more than 30 days had passed, removal was improper under 28 U.S.C. 1446(b)(3). (Id.

at pp. 5–6).

2118878, at *2 (S.D. Fla. May 21, 2014) (quoting Chapman v. Powermatic, Inc., 969 F. 2d 160, 164 (5th Cir. 1992)) (noting that the Fifth Circuit explained “[b]y its plain terms the statute requires 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”); Vill. Square Condo. of

Orlando, Inc. v. Nationwide Mut. Fire Ins. Co., No. 609-CV-1711-ORL31DAB, 2009 WL 4855700, at *1 (M.D. Fla. Dec. 10, 2009); Thompson v. Columbia Sussex Corp., No. 16-CV-435-FTM-29CM, 2016 WL 6134868, at *1–2 (M.D. Fla. Oct. 21, 2016) (“What [d]efendant knew or should have known prior to receiving the Complaint is irrelevant in determining whether removal was timely . . . .”). Accordingly, this Court will follow suit—for information contained in an

“other paper” to start the 30-day removal clock under § 1446(b)(3), a defendant must receive the “other paper” after service of the initial pleading.⁴ In other words, information in a document received before a case is filed cannot serve as “other paper” that triggers the 30-day removal period. Such a rule barring presuit documents from triggering the 30-day removal period prevents defendants from being “forced to ‘guess as to an action’s removability, thus encouraging premature, and often unwarranted, removal requests.’” Lambertson v. Go Fit, LLC, 918 F. Supp. 2d 1283, 1286 (S.D. Fla. 2013) (quotation omitted). Here, Defendant undisputedly received the Notice & Estimate, along with the SPOL, before Plaintiff filed suit. (Docs. 9, 14). As other courts have pointed out, the fact that Defendant was provided “a pre-suit written damages estimate does not matter. What matters, rather, is when Defendant could first have intelligently ascertained that this case was removable after receipt of Plaintiff's complaint.” MIR, 2014 WL 2118878, at *2. Accordingly, in the case at bar, persuasive precedent makes clear that Defendant’s first opportunity to ascertain

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs Motion for Remand (Doc. 9) is DENIED. DONE AND ORDERED in Orlando, Florida on August 15, 2023.

/ [...] / s

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties