Scala v. Walmart Stores, Inc.

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION JOHN SCALA, Plaintiff, v. Case No.: 2:25-cv-87-SPC-KCD WALMART STORES, INC., Defendant. / ORDER Before the Court is Defendant Walmart Stores, Inc.’s Notice of Removal (Doc. 1). For the reasons outlined below, Walmart must supplement the Notice.

A defendant may remove a civil action from state court if the federal court has original jurisdiction. See 28 U.S.C. § 1441(a). “The existence of federal jurisdiction is tested at the time of removal.” Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294-95 (11th Cir. 2008); 28 U.S.C. § 1447(c).

And “a removing defendant bears the burden of proving proper federal jurisdiction.” Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir. 2002).

Defendant removed this premises-liability action by invoking diversity jurisdiction. Plaintiff alleges that a metal advertising sign fell onto his shoulder. (Doc. 1 at 14; Doc. 3). Federal courts have diversity jurisdiction over civil actions where there is complete diversity of citizenship between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. See 28 U.S.C. § 1332(a). The parties here are diverse. But the Court is not so sure about the amount in controversy.

To establish the amount in controversy, Walmart relies on a demand letter sent by Plaintiff. In the letter, Plaintiff demands the policy limits of $300,000. (Doc. 1 at 28). But a demand letter does not automatically establish the amount in controversy. See Lamb v. State Farm Fire Mut. Auto. Ins. Co., No. 3:10-CV-615-J-32JRK, 2010 WL 6790539, at *2 (M.D. Fla. Nov. 5, 2010) (“Lamb’s pre-suit demand that State Farm pay the limit of her policy did not clearly establish that the amount in controversy exceeded $75,000.”). Afterall, “settlement offers (particularly presuit) reflect a fair amount of puffing and posturing.” Gagnon v. Petsmart, Inc., No. 2:20-CV-676-FTM-38-MRM, 2020 WL 13356800, at *1 (M.D. Fla. Sept. 2, 2020). And even a closer look at the demand letter is unavailing.

The demand letter indicates Plaintiff has incurred medical bills totaling $7,356. (Doc. 1 at 21). Of course, this is well below the $75,000 threshold.

Otherwise, the letter itemizes future medicals totaling $61,163, loss of household services totaling $15,325.54, and $300,000 for pain and suffering. (Doc. 1 at 22-28). But such damages are speculative at best. And the vast difference between these self-serving damages and Plaintiff’s accrued medical bills is suggestive of puffery. Cf Guerrero v. Sisco, No. 2:23-CV-1201-SPC- KCD, 2024 WL 493464, at *1 (M.D. Fla. Jan. 8, 2024).

Although the demand letter does note that shoulder surgery has been recommended, the estimated cost of the surgery is $23,996 (Doc. 1 at 22), which does not push the amount in controversy beyond the jurisdictional threshold.

Besides, there is no indication the surgery is scheduled or that Plaintiff intends to undergo the surgery. See Pennington v. Covidien LP, No. 8:19-CV-273-T- 33AAS, 2019 WL 479478, at *1 (M.D. Fla. Feb. 7, 2019) (noting that although plaintiff stated he must undergo a $110,000 surgery, the surgery had yet to occur, and plaintiff had not indicated the surgery had been scheduled).

Without more, the Court is not satisfied that Walmart has shown by a preponderance of the evidence that the amount in controversy exceeds $75,000.

Accordingly, it is now ORDERED: On or before February 20, 2025, Walmart must SUPPLEMNT its Notice of Removal consistent with this Order. Failure to do so will result in remand without further notice.

DONE and ORDERED in Fort Myers, Florida on February 6, 2025.

UNITED STATES DISTRICT JUDGE Copies: All Parties of Record