ORDER

STEVEN D. MERRYDAY, District Judge.

Alleging a violation of the Florida Private Whistleblower's Act, the plaintiff sued (Doc. 2) in state court. The defendant removes (Doc. 1) and alleges diversity jurisdiction under 28 U.S.C. § 1332. Arguing that the defendant has failed to show that the amount in controversy exceeds $75,000, the plaintiff moves (Doc. 6) to remand.

The removing defendant bears the burden of establishing facts supporting federal jurisdiction. See Allen v. Toyota Motor Sales, U.S.A., Inc., 155 F. App'x 480, 481 (11th Cir. 2005). If the complaint seeks an unidentified amount of damages, "the defendant seeking removal based on diversity jurisdiction must prove by a preponderance of the evidence that the amount-in-controversy" exceeds $75,000. Leonard v. Enterprise Rent-A-Car, 279 F.3d 967, 972 (11th Cir. 2002). "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 v. Best Buy Co., 269 F.3d 1316, 1319-20 (11th Cir. 2001). "The Court . . . must review the amount in controversy at the time of removal to determine whether plaintiff's claim meets this jurisdictional prerequisite." Pease v. Medtronic, Inc., 6 F.Supp.2d 1354, 1356 (S.D. Fla. 1998) (Gold, J.).

In this action, the defendant asserts that the amount in controversy exceeds $75,000 because the sum of the plaintiff's estimated back-pay and estimated front-pay exceeds $75,000. The defendant's removal relies on calculating the plaintiff's back-pay not through the date of removal but through a hypothetical May 2015 trial date. However, because the amount in controversy is determined at the time of removal, the defendant must exclude post-removal back-pay when computing the amount in controversy.1 Wozniak v. Dolgencorp, LLC, 2009 WL 4015577 (M.D. Fla. Nov. 19, 2009) (Merryday, J.) ("[The defendant] estimates that a judgment for the plaintiff would include more than $75,000.00 in backpay because this case is unlikely to proceed to trial within the next year. However, the amount in controversy is determined at the time of removal not at some speculative time of judgment. As of the date of removal, the amount of the plaintiff's alleged backpay is approximately $51,507.50. Accordingly, the defendant's allegations regarding backpay add only $51,507.50 to the amount in controversy." (citations omitted)).

The defendant correctly cites several orders from district courts within the Eleventh Circuit that include (in calculating the amount in controversy) post-removal back-pay. However, the majority of orders that include post-removal back-pay justify that inclusion only by citation to other orders and not by independent justification. See, e.g., Sheehan v. Westcare Found., Inc., 2013 WL 247143 (M.D. Fla. Jan. 23, 2013); Penalver v. N. Elec., Inc., 2012 WL 1317621 (S.D. Fla. Apr. 17, 2012); Morris v. Plant Performance Servs., LLC, 2011 WL 6203497 (N.D. Fla. Dec. 13, 2011); Fusco v. Victoria's Secret Stores, LLC, 806 F.Supp.2d 1240, 1244 (M.D. Fla. 2011); Deel v. Metromedia Rest. Servs., Inc., 2006 WL 481667 (N.D. Fla. Feb. 27, 2006).

Orders that explain why the amount in controversy should include post-removal back-pay2 rely on Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 753 (11th Cir. 2010) — which permits "deduction, inference, or other extrapolation" in determining the amount in controversy — and Roe v. Michelin North America, Inc., 613 F.3d 1058, 1062 (11th Cir. 2010) — which permits "experience and common sense in determining" the amount in controversy.3 However, although Pretka and Michelin describe how a court may calculate an amount in controversy, they fail to change the timing requirement for an amount in controversy. Indeed, Pretka affirms that "[a] court's analysis of the amount-in-controversy requirement focuses on how much is in controversy at the time of removal, not later." Even if a court could "deduce, infer, or extrapolate" post-removal back-pay, that back-pay is not "in controversy" at the time of removal. C.f. Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 958 (7th Cir. 1998) (excluding from the amount in controversy attorney's fees "that have not been and may never be incurred, and are therefore not `in controversy' between the parties"); Lott & Friedland, P.A. v. Creative Compounds, LLC, 2010 WL 2044889 (S.D. Fla. Apr. 21, 2010) (Hoeveler, J.) ("[T]he subsequent generation of attorney fees[] cannot create jurisdiction that was lacking at the outset."); Rogatinsky v. Metro. Life Ins. Co., 2009 WL 3667073 (Marra, J.) (S.D. Fla. Oct. 26, 2009) ("[P]ost-removal events, such as the subsequent generation of attorney fees, will not retroactively establish subject-matter jurisdiction."); Waltemyer v. Nw. Mut. Life Ins. Co., 2007 WL 419663 (Steele, J.) (M.D. Fla. Feb. 2, 2007) (same).

Even assuming post-removal back-pay is in controversy at the time of removal, the defendant's estimation of the plaintiff's back-pay relies on trial occurring in May 2015. However, "experience and common sense" suggests that this action will resolve before trial. Abraham L. Wickelgren, The Effect of Settlement in Kaplow's Multistage Adjudication, 126 Harv. L. Rev. F. 145 (2013) ("In reality, of course, the vast majority of cases settle . . . ."). Indeed, not one of the seven actions — identified by the defendant or identified during a thorough search — that utilized post-removal back-pay for subject matter jurisdiction resulted in a trial, and six of the seven actions ended before the estimated trial date.4 In other words, assuming the occurrence of a trial in the typical Florida Whistleblower's Act action or even in the typical employment action is an assumption utterly contrary to the entire reservoir of available historical data.

Also, establishing an amount in controversy that validates the defendant's removal requires a preemptive dismissal of the effect of mitigation. "Common sense" suggests that, during the next fourteen months, the typical plaintiff will either substantially mitigate his damages or fail to fulfill his obligation to mitigate his damages. In either circumstance, the amount in controversy is substantially smaller than the amount estimated by the defendant, and the defendant's estimate only barely exceeds $75,000. Moreland v. Suntrust Bank, 2013 WL 3716400 (M.D. Fla. July 15, 2013) (Steele, J.) ("[T]he correct calculation of back pay damages includes a reduction for the income from plaintiff's new employment.").5 Finally, the defendant labels the front-pay estimate as "conservative" but offers no justification for that evaluation. See also Gavronsky v. Walgreen Co., 2010 WL 717485 (M.D. Fla. Feb. 26, 2010) (Melton, J.) (excluding front-pay from the amount in controversy).

CONCLUSION

The claim in this action is the creation of a Florida statute. The Florida plaintiff who asserts the claim chose a Florida court. Nonetheless, if the defendant reliably establishes diversity jurisdiction, the district court should adjudicate the removed action. However, if the defendant's proposed calculation of the amount in controversy depends upon speculation, stretching, straining, puffing, or the tendentious summing of all the pluses without regard to any of the minuses, the district court should rely on only the solid, reliable, and balanced numbers and, absent a sound and enduring demonstration of the requisite amount in controversy, remand the action to state court. Reliance on an inflated, contingent, or otherwise unduly aggressive computation of the amount in controversy, an unseemly and undignified exercise for a federal court, ought not oust the undoubted jurisdiction of the state to adjudicate a state law claim.

The plaintiff's motion (Doc. 6) is GRANTED. Under 28 U.S.C. § 1447(c), this case is REMANDED for failure of the removing party to invoke federal jurisdiction. The clerk is directed (1) to mail a certified copy of this order, pursuant to 28 U.S.C. § 1447(c), to the clerk of the Circuit Court for Hillsborough County, (2) to terminate any pending motion, and (3) to close the case.

ORDERED.