ANNE C. CONWAY, District Judge.
This cause comes before the Court for consideration of the following motions and responses:
For the reasons that follow, the Court denies Plaintiff's Motion to Remand and grants in part and denies in part Defendant's Motion to Dismiss Counts Two and Three and Motion to Strike Claim for Attorney Fees.
Plaintiff originally filed her Complaint in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, alleging that Defendant failed to pay the full value of her underinsured motorist claim for damages she sustained in an automobile accident. (Doc. No. 2). Plaintiff's Complaint consists of three counts: a claim for uninsured motorist benefits (Count I); a statutory bad faith claim under Florida law (Count II); and a declaratory judgment action to "determine liability and total amount of damages" (Count III). (See id.). In her Complaint, Plaintiff alleges that "[t]his is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00), exclusive of interest where applicable and costs." (Id. at ¶ 1).
It goes almost without saying that "[f]ederal courts are courts of limited jurisdiction," Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir.2003) (quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994)), and where, as here, a plaintiff seeks to invoke the Court's diversity jurisdiction, the amount in controversy must exceed $75,000, 28 U.S.C. § 1332(a). Generally, the Court accepts that the amount in controversy
When the amount in controversy is not apparent on the face of the complaint, a court will permit the use of "deduction, inference, or other extrapolation of the amount in controversy"; however, these deductions and extrapolations are not without bounds. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 753-54 (11th Cir.2010). Ultimately, when the specific factual allegations underlying jurisdiction are in doubt, the removing party must support these allegations with "evidence combined with reasonable deductions, reasonable inferences, or other reasonable extrapolations." Id. at 754. In the absence of reason, a court is left to conjure subject matter jurisdiction from thin air.
When deciding a motion to dismiss based on a failure to state a claim upon which relief can be granted, the court must accept as true the factual allegations in the complaint and draw all inferences derived from those facts in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th Cir.1994) (per curiam) (citation omitted).
According to Federal Rule of Civil Procedure 8(a)(2), to state a claim for relief, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Thus, to survive a motion to dismiss, a complaint "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). In other words, the allegations in the complaint need to be sufficient "to `raise a right to relief above the speculative level' on the assumption that all the allegations in the complaint are true." Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011) (per curiam) (citing Twombly, 127 S.Ct. at 1965). Moreover, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Iqbal, 129 S.Ct. at 1949 (citation omitted).
Federal Rule of Civil Procedure 12(f) allows a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." However, "[m]otions to strike on the grounds of insufficiency, immateriality, irrelevancy, and redundancy are not favored, often being considered `time wasters', and will usually be denied unless the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party." Italiano v. Jones Chems., Inc., 908 F.Supp. 904, 907 (M.D.Fla.1995) (citations omitted).
The Court first addresses Plaintiff's Motion to Remand because it presents a jurisdictional question. On February 10, 2015, Defendant removed this action pursuant to 28 U.S.C. §§ 1332 and 1446, asserting that this Court has diversity jurisdiction. (Doc. No. 1). Although there appears to be no dispute that the parties are diverse, Plaintiff moves to remand this case to the state court from whence it came because she claims that the amount in controversy requirement has not been satisfied. (Doc. No. 16). In addition, Plaintiff seeks attorneys' fees pursuant to 28 U.S.C. § 1447(c). (Id. at p. 1).
Quite honestly, the Court is perplexed by Plaintiff's motion to remand. The argument presented is so completely without merit that it is worthy of no extended consideration. The Court indulges Plaintiff nonetheless. In short, Plaintiff argues that because "there has been no determination of liability for damages under Count I," the value of this claim is "purely speculative" and is therefore "zero." (Doc. No. 16 at p. 4). However, using this reasoning, no underinsured motorist claim (as well as most other claims) would ever be removable to federal court. Under Plaintiff's theory, a party would need to come to federal court with some kind of pre-litigation "determination of liability." Of course, this is not what federal jurisdiction or the removal statute requires. As cited in Plaintiff's own papers, the determinative question is what amount is "in controversy;" not in what amount has there been a "determination of liability." See 28 U.S.C. §§ 1332, 1446.
Plaintiff's uninsured motorist benefits claim in Count I alone satisfies the amount in controversy requirement. (See Doc. No. 2 at pp. 2-3). On or about April 5, 2014, a car driven by an underinsured driver struck Plaintiff while she "was walking on State Road A1A" in Volusia County, Florida. (Id. at ¶¶ 4-5). As a result of the negligence of the underinsured driver, Plaintiff claims that she "suffered permanent bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings and loss of ability to earn money." (Id. at ¶ 9). Plaintiff alleges that the uninsured motorists coverage policy limits are "$100,000.00, among other coverages." (Id. at ¶ 10). To that end, Plaintiff demands "the full amount of the uninsured motorist benefits under the Policy." (Id. at p. 3). For Plaintiff to argue that the value of this claim is "zero" is nothing short of absurd.
Although the Court declines to sua sponte award attorney's fees for defense of the motion to remand, Plaintiff's counsel is admonished that the level of practice displayed in this filing is well below the level expected of practitioners before the Court. The future filing of any frivolous motion may result in the Court awarding sanctions to Defendant in the form of attorney's fees.
In Count II, Plaintiff asserts a statutory bad faith claim against Defendant. (Doc. No. 2 at pp. 4-7). There is no dispute that this claim is premature. (Doc. No. 15 at p. 3). The only question for the Court to decide is whether this claim should be dismissed without prejudice or abated until resolution of the underlying coverage dispute. The Court recently addressed similar arguments presented by the parties here. See Smith v. First Liberty Ins. Co., No. 6:14-cv-1871-Orl-22DAB (M.D.Fla. Mar. 18, 2015), (Doc. No. 16). In Smith, the Court exercised its discretion and dismissed, rather than abated, the plaintiff's bad faith claim. (Id. at p. 3). For the same reasons outlined in the Smith Order, the Court will dismiss Plaintiff's bad faith claim in Count II. (See id. at pp. 1-3).
Count III of Plaintiff's Complaint "requests a declaration of the amount of
As it now stands, there is no current and definite controversy in Count III before the court because Plaintiff's bad faith claim may never accrue. Moreover, even if the Court made a declaration as to the amount of damages, as Plaintiff requests,
Under Florida law, a court may grant a motion to strike a demand for attorney's fees, where the plaintiff fails to plead a contractual or statutory basis or none exists. Jones Chems., Inc., 908 F.Supp. at 907; City of Winter Garden v. State ex rel. Wood, 311 So.2d 396 (Fla. 4th DCA 1975). In Count I, Plaintiff seeks attorney fees pursuant to Florida Statute § 627.428. (Doc. No. 2 at ¶ 16). Section 627.428 states:
Fla. Stat. § 627.428(1).
However, Section 627.727(8) states that "[t]he provisions of s. 627.428 do not apply to any action brought pursuant to this section against the uninsured motorist insurer unless there is a dispute over whether the policy provides coverage for an uninsured motorist proven to be liable for the accident." Id. § 627.727(8). Therefore, if there is not a dispute over whether the policy provides coverage, then Section 627.428 does not apply, and Plaintiff would not be entitled to attorney's fees. Wapnick v. State Farm Mut. Ins. Co., 134 So.3d 968 (Fla. 4th DCA 2014).
Defendant suggests that Count I does not allege that it denied coverage to Plaintiff. (Doc. No. 8 at p. 9). Moreover, Defendant argues, the civil remedy notice attached to the complaint shows that the dispute is over liability, not coverage. (Id. at pp. 9-10). In response, Plaintiff argues that this case, in fact, presents a coverage dispute and directs the Court to its allegations that (1) Defendant "is obligated to pay uninsured motorist benefits to Plaintiff" and (2) Defendant "has unjustifiably refused to honor its contractual obligations by failing to pay the full value of the uninsured motorist benefits owed to Plaintiff." (Doc. No. 15 at p. 5 (citing (Doc. No. 2 at ¶¶ 14, 15))).
The Court finds that the Complaint sufficiently articulates a basis for awarding attorney fees. While Defendant suggests that the Court must look at the exhibits as controlling, there appears to be no contradiction between the exhibits and the complaint: the Complaint alleges a coverage dispute and Defendant concedes that the civil remedy notice of insurer violation contains no mention of a coverage dispute. (See Doc. No. 8 at p. 10). Furthermore, the language Defendant quotes from the civil remedy notice is nothing more than a restating of Defendant's position. Of course, Defendant may answer the Complaint accordingly. As this case proceeds, Defendant may be correct that Plaintiff is not entitled to attorney's fees because this turns out to be a liability dispute and not a coverage dispute. However, Defendant is incorrect in suggesting that by Plaintiff re-stating Defendant's position in a civil remedy notice, Plaintiff somehow concedes that this dispute is about liability and not coverage. Nowhere in Plaintiff's Complaint does she make such an allegation. Therefore, at this time, the Court finds that a statutory basis for attorney's fees does exist and accordingly denies Defendant's motion to strike.
Therefore, based on the foregoing, it is
Fed.R.Civ.P. 11(b).
