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UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 0:20-cv-60900 

AL DURRANT, individually and on behalf of all

others similarly situated, CLASS ACTION 

 Plaintiff, JURY TRIAL DEMANDED 

v. 

OFFICIAL PAYMENTS CORPORATION, a 

Delaware corporation,

 Defendant. 

__________________________________________/ 

PLAINTIFF’S MOTION TO REMAND 

 Plaintiff Al Durrant, pursuant to 28 U.S.C. §1447(c), moves to remand this case to state 

court, and in support states: 

I. INTRODUCTION

Plaintiff filed this putative class action under the Telephone Consumer Protection Act 

(“TCPA”) in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, 

Florida. In his Complaint, Plaintiff alleges that he suffered a legal injury as a result of Defendant’s 

unsolicited text messages. Compl., [ECF No. 1-2], at ¶11. 

On May 4, 2020, Defendant filed its Notice of Removal. Defendant’s Notice of Removal 

is silent with respect to Plaintiff’s Article III standing to maintain his claim in federal court – a 

component of this Court’s jurisdictional analysis for which Defendant bears the burden. In fact, 

Defendant “denies that Plaintiff has been damaged in any manner.” See Notice of Removal, [ECF 

No. 1], at ¶5. Due to Defendant’s failure to satisfy its burden on removal by demonstrating that 

this Court has jurisdiction over Plaintiff’s claims, this case should be remanded to state court. 

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II. ARGUMENT AND MEMORANDUM OF LAW

A. Defendant Fails to Meet its Burden. 

As the removing party, Defendant has the burden of proving all federal subject matter 

jurisdictional prerequisites are met, including the requirements of Article III standing. Conn. State 

Dental Ass’n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1343 (11th Cir. 2009); Black Warrior 

Riverkeeper, Inc. v. U.S. Army Corps of Engineers, 781 F.3d 1271, 1279 (11th Cir. 2015). To 

meet its burden, a removing party must prove, by a preponderance of the evidence, the facts 

supporting federal jurisdiction. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002). If 

a defendant fails to meet its burden, remand is mandatory. Univ. of South. Ala. v. American 

Tobacco Co., 168 F.3d 405, 410; Collier v. SP Plus Corp., 889 F.3d 894, 897 (7th Cir. 2018) (in 

FACTA case in which the removing defendant failed to prove the plaintiff had standing, “§ 1447(c) 

required the district court to remand this case to state court . . . . ”). 

In determining whether a defendant has met its burden, district courts should interpret the 

removal statute narrowly, and presume that a plaintiff may choose his own forum. Burns v. 

Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Additionally, “all uncertainties as to 

removal jurisdiction are to be resolved in favor of remand.” Breland Homes, LLC v. Wrigley, Civil 

Action No. 5:18-CV-1350-CLS, 2019 U.S. Dist. LEXIS 57238, at *2 (N.D. Ala. Apr. 3, 2019) 

(quoting Russell Corp. v. American Home Assurance Co., 264 F.3d 1040, 1050 (11th Cir. 2001) 

(citing Burns v. Windsor Insurance Co., 31 F.3d 1092, 1095 (11th Cir. 1994))). “Most importantly, 

the court must focus upon jurisdictional facts alleged on the date the case was removed from state 

court.” Id. (emphasis in original) (citations omitted). 

Here, Defendant failed to meet its burden and in fact appears to claim that Plaintiff lacks 

Article III standing in its Notice of Removal. See Notice of Removal, [ECF No. 1], at ¶5 

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(“Fiserv...denies that Plaintiff has been damaged in any manner.”). Defendant asks this Court to 

fill in the blanks—an option unavailable to a removing party. See Barnes v. ARYZTA, LLC, 288 

F. Supp. 3d 834, 839 (N.D. Ill. 2017) (noting that “[t]he difference between the two parties is that 

Plaintiff does not have to take a position on the standing issue while Defendant does, because 

Defendant bears the burden of establishing jurisdiction in this Court.”). 

Defendant’s tactic of simply ignoring the Article III component of subject matter 

jurisdiction has been rejected by courts facing similar issues. See, e.g., Black v. Main Street 

Acquisition Corp., No. 5:11-CV-0577 (LEK/DEP), 2013 WL 1295854, at *1 (N.D.N.Y. Mar. 27, 

2013) (remanding a case sua sponte where “no party shoulder[ed] the burden of proving 

jurisdiction”); Terrell v. Costco Wholesale Corp., No. C16-1415JLR, 2017 WL 2169805, at *1 

(W.D. Wash. May 16, 2017) (“The court need not reach [the question of subject matter 

jurisdiction] because neither party attempts to rebut the presumption that the court lacks subject 

matter jurisdiction.”); Barnes v. ARYZTA, LLC, 288 F. Supp. 3d 834, 839 (N.D. Ill. 2017), appeal 

dismissed, No. 18-1182, 2018 WL 3583218 (7th Cir. Feb. 8, 2018) (stating “[t]he Court declines 

to decide whether there is Article III standing because neither party is willing to address the issue” 

and further holding that the fact that subject matter jurisdiction remains unsettled “alone supports 

remand, as [a]ny doubt regarding jurisdiction should be resolved in favor of the states.”) (internal 

quotations omitted); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir. 2005) 

(“[w]hichever side chooses federal court must establish jurisdiction; it is not enough to file a 

pleading and leave it to the court or the adverse party to negate jurisdiction.”); Morongo Band of 

Mission Indians v. Cal. State Bd. of Equalization, 849 F.2d 1197 (9th Cir. 1988) (expressly 

declining to determine whether jurisdiction existed under § 1332 because the parties did not plead 

it); Littleton v. Berbling, 468 F.2d 389, 394 (7th Cir. 1972), rev’d sub nom. O’Shea v. Littleton, 

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414 U.S. 488, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974), and vacated sub nom. Spomer v. Littleton, 

414 U.S. 514, 94 S. Ct. 685, 38 L. Ed. 2d 694 (1974) (“the ultimate duty of pleading his case rests 

upon the party and not upon the district court to divine what is not reasonably there.”); Soto v. 

Great America LLC, 2018 WL 2364916, *2-3 (N.D. Ill. 2018) (remanding case where “[n]either 

party disputes that federal jurisdiction is lacking”); Collier v. SP Plus Corp., 889 F.3d 894, 896 

(7th Cir. 2018) (in addition to other jurisdictional requirements, a “[removing defendant] must also 

show that [plaintiffs] have Article III standing . . . .”). 

 Having failed to shoulder its burden, Defendant’s removal is improper, and the case should 

be remanded to state court where Plaintiff has standing to maintain his claims. 

B. Plaintiff has Standing in State Court and the Case Should Therefore be 

Remanded. 

Where a plaintiff may lack Article III standing, remand to state court is the proper remedy. 

See, e.g., Watkins v. IC Sys., No. C-98-1625-VRW, 1998 U.S. Dist. LEXIS 10486, at *1 (N.D. 

Cal. July 10, 1998) (“On October 30, 1997, the court remanded the action to state court because 

Sicher lacked Article III standing.”). Remand is particularly appropriate here because the strictures 

of Article III standing do not apply in state court and, therefore, Plaintiff is permitted to pursue his 

claims in state court. See Dep't of Rev. v. Kuhnlein, 646 So. 2d 717, 720 (Fla. 1994) (“Accordingly, 

the doctrine of standing certainly exists in Florida, but not in the rigid sense employed in the 

federal system.”); Pirate's Treasure, Inc. v. City of Dunedin, 277 So. 3d 1124, 1128 (Fla. 2d DCA 

2019) (“conception of standing is less demanding than the conception of standing that prevails in 

the federal courts”); Brady v. P3 Grp. (LLC), 98 So. 3d 1206, 1209 (Fla. 3d DCA 2012) (“the 

doctrine of standing is not employed with the rigidity found in federal practice”); Nat'l Ass'n of 

Prof'l Allstate Agents v. Allstate Ins. Co., No. 8:01-cv-2137-T-24MSS, 2002 U.S. Dist. LEXIS 

28409, at *7 (M.D. Fla. Apr. 22, 2002) (“Instead, Florida courts have applied the concept of 

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standing more loosely than typically found in the federal system.”); Reinish v. Clark, 765 So. 2d 

197 (Fla. 1st DCA 2000) (“Florida does not adhere to the ‘rigid’ doctrine of standing used in the 

federal system.”). 

The allegations in Plaintiff’s operative Complaint are sufficient for purposes of state court 

standing. See Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 117 (Fla. 2011). (“A case or 

controversy exists if a party alleges an actual or legal injury.”) (citing Olen Properties Corp. v. 

Moss, 981 So. 2d 515 (Fla. 4th DCA 2008) (citing Linda R.S. v. Richard D., 410 U.S. 614, 617, 

93 S. Ct. 1146, 35 L. Ed. 2d 536 (1973)) (emphasis supplied); Laughlin v. Household Bank, Ltd., 

969 So. 2d 509 (Fla. 1st DCA 2007) (“[plaintiff] is not required to prove actual damages, but only 

a violation of one of the prohibited practices in the FCCPA.”); United Auto. Ins. Co. v. Diagnostics 

of S. Fla., Inc., 921 So. 2d 23, 25 (Fla. 3d DCA 2006) (finding no standing because the plaintiff 

did not have a cause of action against the defendant); Courtesy Auto Grp. v. Garcia, 778 So. 2d 

1000 (Fla. 5th DCA 2000) (same); Collins v. Gov't Emples. Ins. Co., 922 So. 2d 353 (Fla. 3d DCA 

2006) (“To have standing the plaintiff must show that a case or controversy exists between that 

plaintiff and the defendant....Therefore, the question to be answered first is whether Collins stated 

a cause of action against the defendant insurer.”). 

Thus, the case should be remanded to state court where Plaintiff can pursue his claims on 

behalf of himself and all others similarly situated. 

III. CONCLUSION

When it removed this case to federal court, Defendant had an obligation to establish this 

Court’s jurisdiction, including Plaintiff’s Article III standing. Having failed to satisfy its burden, 

the case should be remanded to state court where it was properly filed. 

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WHEREFORE, Plaintiff Al Durrant respectfully requests an order remanding his case to 

state court, and for such other relief deemed appropriate under the circumstances. 

CERTIFICATE OF GOOD FAITH CONFERRAL 

The undersigned attorney, in compliance with S.D. Local Rule 7.1(a)(3), certifies that the 

movant has conferred with counsel for Defendant regarding the relief sought herein, and that 

counsel for Defendant opposes the instant motion. 

Dated: May 5, 2020 

Respectfully submitted, 

HIRALDO P.A. 

/s/ Manuel S. Hiraldo 

Manuel S. Hiraldo, Esq. 

Florida Bar No. 030380 

401 E. Las Olas Boulevard 

Suite 1400 

Ft. Lauderdale, Florida 33301 

mhiraldo@hiraldolaw.com 

(t) 954.400.4713 

THE LAW OFFICES OF JIBRAEL S. 

HINDI 

Florida Bar No. 118259 

110 SE 6th Street 

Suite 1744 

Ft. Lauderdale, Florida 33301 

Email: jibrael@jibraellaw.com 

Telephone: 954-628-5793 

Counsel for Plaintiff and the Class

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