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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:20-cv-22677-CMA

NAKIA JENKINS, individually and on behalf 

of all others similarly situated, CLASS ACTION

Plaintiff, JURY TRIAL DEMANDED

v. 

SIMPLY HEALTHCARE PLANS, INC.,

Defendant.

__________________________________________/

PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO REMAND

Plaintiff Nakia Jenkins hereby files her Reply in support of her Motion to Remand, and 

states:

I. INTRODUCTION

On July 10, 2020, the Court directed Defendant to respond to Plaintiff’s Motion for 

Remand and address whether the Court has subject matter jurisdiction following Salcedo v. Hanna, 

936 F.3d 1162 (11th Cir. 2019). See ECF No. 14. The Court also directed Plaintiff to file a reply 

to Defendant’s response addressing the same issue. Id. Defendant’s response, rather than explain 

why there is Article III standing under Salcedo, devotes most of its space to allegations of 

Plaintiff’s “gamesmanship”.1 Mot. at pg. 2. At the end of its Response, Defendant briefly 

1 Defendant’s arguments of gamesmanship bear little mention. However, Plaintiff notes that 

Defendant fails to inform the Court—or attach as part of its email exhibit—that Plaintiff’s 

counsel Manuel Hiraldo, on July 15, 2020 at 6:25 am EST, emailed Defendant’s counsel on the 

same thread and offered to have a call to discuss Defendant’s proposal, stating, “I am available 

for a call after 1pm eastern to discuss. It is unclear to me what you are seeking to accomplish 

through this demand and why you want our client to remove references to the damages and 

injunctive relief she is seeking in the case, which do not impact the Article III analysis.”

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discusses Salcedo ̧ and, rather than show why there is Article III standing, requests the Court to 

retain jurisdiction long enough for it to do “jurisdictional discovery”. Mot. at pg. 9. 

However, Article III does not have an exception for this type of discovery. As explained 

in greater detail below, when applying Salcedo to the facts of this case, it is clear that the Court 

does not have subject matter jurisdiction. Recently, Judge Roy Altman’s addressed an almost 

identical issue in Mittenthal v. Fla. Panthers Hockey Club, Ltd., No. 20-60734-CIVALTMAN/Hunt, 2020 U.S. Dist. LEXIS 123127, at *3 (S.D. Fla. July 10, 2020) (Altman, J.). 

Judge Altman confirmed that remand is appropriate in light of Salcedo. See Mittenhal, at *18 

(“The Defendants removed this case to federal court under 28 U.S.C. § 1446. In doing so, they 

invoked this Court’s federal-question jurisdiction under 28 U.S.C. § 1331. Although the 

Defendants did not have to plead the Plaintiffs’ standing in their Notice of Removal, they must 

establish that standing now by a preponderance of the evidence. Because they have failed to do so, 

‘it appears that the district court lacks subject matter jurisdiction,’ and ‘the case shall be 

remanded.”). Mittenhal also rejected many of the arguments advanced in Defendant’s Response 

in Opposition, including a request for “jurisdictional discovery”. “The Defendants' alternative 

requests for discovery or dismissal are unavailing. Mittenthal, 2020 U.S. Dist. LEXIS 123127, at 

*24 (“To begin with, jurisdictional discovery should be conducted before removal—not after.”) 

(emphasis in the original). 

Respectfully, this Court should hold similarly and order this matter remanded to state court. 

II. ARGUMENT

In its Response, Defendant claims that it “remains an open question” “whether [Plaintiff] 

has standing under Salcedo v. Hanna.” See Response at 2. Defendant further argues that remand 

is inappropriate because (i) the notice of removal “provided the information necessary to sustain 

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federal question jurisdiction,” see Response at 6; (ii) even if Defendant was required to 

demonstrate Plaintiff’s Article III standing, federal law permits it to amend the notice of removal, 

see Response at 8; and (3) jurisdictional discovery should be permitted so that Defendant can 

determine whether the Court has subject matter jurisdiction, see Response at 9. As demonstrated 

below, all of these arguments fail. 

A. Although Defendant Was Not Required to Establish Plaintiff’s Standing in its

Removal Papers, It is Defendant’s Burden to Prove it Now

Defendant argues that remand must be denied because its notice of removal included 

sufficient information to sustain federal question jurisdiction,” and it rejects the notion that it has 

“fail[ed] to allege Article III standing.” See Response at 6. 

While it is true that the “removal statute never requires a removing defendant to establish—

or even allege—the plaintiff’s standing” in the removal notice, “if a plaintiff is found to lack 

standing at any point in the case, the action must be remanded.” Mittenhal, 2020 U.S. Dist. LEXIS 

123127 at *15 (emphasis in original); see also Gonzalez v. TCR Sports Broad. Holding, LLP, 2018 

WL 4292018, at *2 (S.D. Fla. Sept. 10, 2018) (“The Court notes that it may turn out that Plaintiff 

does not have standing to bring its TCPA claims in this Court. At that time, remand may be an 

appropriate remedy.”); Lee v. Am. Nat. Ins. Co., 260 F.3d 997, 1008 (9th Cir. 2001) (“The standing 

defect renders Lee’s claim against ANTEX non-justiciable in federal court . . . .”).

Thus, while a defendant is “not required to establish the [plaintiff’s] standing in their Notice 

of Removal,” because the Plaintiff here is challenging the issue of standing through a motion to 

remand, “it is indisputably [Defendant’s] burden to prove it now.” Mittenhal, 2020 U.S. Dist. 

LEXIS 123127 at *17 (emphasis added) (citing Lujan, 504 U.S. at 561 (“The party invoking

federal jurisdiction bears the burden of establishing these elements [of standing.]”). 

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B. Plaintiff Lacks Article III Standing

Turning to the broader question of whether Plaintiff has standing to pursue her claims in 

light of Salcedo, the Mittenhal decision—which, again, specifically addressed a motion to remand 

in a case governed by Salcedo—is instructive and provides a thorough and well-reasoned basis on 

which this Court should similarly hold that Plaintiff, based on the allegations in her Complaint,

does not have standing. 

Salcedo “stands for the proposition that, unless a complaint alleges some tangible or 

intangible harm,” which is not the case here, “a TCPA plaintiff’s receipt of unwanted text messages 

is, standing alone, insufficient to confer Article III standing.” Mittenhal, 2020 U.S. Dist. LEXIS 

123127 at *18. In holding that Salcedo was dispositive and required remand to state court, the 

Mittenhal court noted that the complaint “never references any tangible harm the Plaintiffs may 

have suffered. Nowhere, for example, does the Complaint allege that the Plaintiffs’ phone carriers 

charged them for the text messages, or that they had to pay extra to store those messages.”

Mittenhal, 2020 U.S. Dist. LEXIS 123127 at *21. These allegations were critical to the standing 

analysis because “[i]n Salcedo, the Eleventh Circuit observed that the complaint’s silence on this 

question of ‘wasted time’ doomed the plaintiff’s standing arguments.” Mittenhal, 2020 U.S. Dist. 

LEXIS 123127 at *22 (citing Salcedo, 936 F.3d at 1168).

The Mittenhal decision further explained that the plaintiffs also did not allege any

intangible harms in their complaint. “The Complaint never says, for example, that reviewing the 

text messages took an inordinate amount of time. Nor do the Complaint’s averments, taken 

together, suggest that each message took the Plaintiffs at least five seconds to read ... In fact, the 

Complaint does not even allege that the Plaintiffs ever read the messages at all.” Mittenhal, 2020 

U.S. Dist. LEXIS 123127 at *22 (emphasis in original). Furthermore, the complaint did “not 

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explain how receiving the[] messages harmed the Plaintiffs. The Plaintiffs sa[id] only that they 

‘have been impacted and harmed,’ and that they have suffered a ‘legal injury.’” Mittenhal, 2020 

U.S. Dist. LEXIS 123127 at *3 (emphasis in original). 

The Mittenhal court also noted that although the “[p]laintiffs do say that they ‘have 

standing to maintain this action because they have suffered a legal injury as a result of 

[d]efendants’ violations of the TCPA ... Spokeo teaches [that] the invasion of a legally protected 

interest is not enough to establish injury in fact; the injury must also be concrete and particularized

Mittenhal, 2020 U.S. Dist. LEXIS 123127 at *21 (internal quotation marks omitted) (quoting 

Spokeo, 136 S. Ct. at 1548; citing Salcedo, 936 F.3d at 1167 (“[A]n act of Congress that creates a 

statutory right and a private right of action to sue does not automatically create standing”)). 

Furthermore, “allegations that the ‘Plaintiffs have standing,’ that they ‘suffered a legal injury,’ and 

that they ‘were harmed by the acts of Defendants’ are a far cry from the ‘concrete and 

particularized’ averments the Supreme Court required in Spokeo.” Mittenhal, 2020 U.S. Dist. 

LEXIS 123127 at *21. Based on these allegations, the court concluded that the “Plaintiffs are right 

that Salcedo controls the decision” and requires remand to state court. Id. at *12.

Turning to the instant case, Plaintiff’s Complaint is materially identical to the complaint in 

Mittenhal. Here, Plaintiff alleges, in pertinent part, that Defendant’s unsolicited text messages 

caused her “injuries, including invasion of [] privacy, aggravation, annoyance, intrusion on 

seclusion, trespass, and conversion,” Complaint at ¶ 3, that “Plaintiff has standing to maintain this 

action because she suffered a legal injury as a result of Defendant’s violations of the TCPA,” 

Complaint at ¶ 10, and that “Plaintiff and the other members of the putative Class were harmed 

and are each entitled to a minimum of $500.00 in damages for each violation,” Complaint at ¶ 51. 

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Just like the complaint in Mittenhal, the Plaintiff’s Complaint does not allege how 

receiving the text messages harmed Plaintiff; does not allege that Plaintiff’s phone carriers charged 

her for the messages or that she had to pay extra to store those messages; does not allege that 

reviewing the text messages took an inordinate amount of time or that each message took the at 

least five seconds to read; and does not allege that Plaintiff ever read the messages at all. Although 

the Complaint does allege harm stemming invasion of privacy, aggravation, annoyance, intrusion 

on seclusion, trespass, and conversion, Salcedo held that those tort-like harms are insufficient to 

confer Article III standing. See Salcedo, 936 F.3d at 1171-72 (finding plaintiff’s allegations of 

intangible harm arising from invasion of privacy, nuisance, intrusion upon seclusion, trespass, and 

conversion “do not state a concrete harm that meets the injury-in-fact requirement of Article III.”).

Thus, because Plaintiff’s Complaint alleges neither a tangible nor intangible injury-in-fact

sufficient for the demands of Article III, and because Defendant has failed to introduce any 

admissible evidence to substantiate its standing contentions, Salcedo commands that Plaintiff lacks 

Article III standing to purse her TCPA claims in federal court. See Mittenhal at *22-23 (granting 

motion to remand “[b]ecause the Plaintiffs have alleged neither a tangible nor an intangible injury 

in fact—and given that the Defendants have failed to adduce a single admissible piece of evidence 

to substantiate their standing contentions—the Court finds that the Plaintiffs lack standing to 

pursue their TCPA claims in federal court.”). 

C. Remand—Not Jurisdictional Discovery—is the Appropriate Remedy

Rather than argue that Plaintiff’s complaint survives Salcedo’s Article III analysis, 

Defendant asks the Court to retain jurisdiction long enough for it to conduct discovery to show 

Plaintiff does have standing. However, Article III does not contain a carve out for “jurisdictional 

discovery” and the appropriate course is to remand this matter. 

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Mirroring the arguments advanced by Defendant in this case, the defendants in Mittenhal 

similarly requested that the court deny remand and allow jurisdictional discovery. See id. at *23-

26. Rejecting these arguments, the court held that remand was the only appropriate remedy, 

explaining: 

But, when—as here—a plaintiff lacks standing, “a court is not free to opine in an 

advisory capacity about the merits of a plaintiff’s claims.” Warth, 422 U.S. at 498; 

see also Ruhrgas AG, 526 U.S. at 583; Steel Co., 523 U.S. at 94–95. And, when the 

Court lacks jurisdiction over a removed case, the case must be remanded. See 

McGee v. Solicitor Gen. of Richmond Cty., Ga., 727 F.3d 1322, 1326 (11th Cir. 

2013) (“Typically, where standing is lacking, a court must dismiss the plaintiff's 

claim without prejudice. This is not so, however, in the removal context.”).

Id. at *23-24. 

As to Defendant’s request for jurisdictional discovery, Judge Altman explained that “[t]o 

begin with, jurisdictional discovery should be conducted before removal—not after.” Mittenhal at 

*24; see also Torreyes v. Godiva Chocolatier, Inc., 424 F. Supp. 3d 1276, 1283 (S.D. Fla. 2019)

(remanding case in part because “the Defendant has provided no evidence to substantiate its 

[jurisdictional] allegation,” and because it had “conducted no discovery on that question”); Gomez 

v. First Liberty Ins. Corp., 2019 WL 6123612, at *3 (S.D. Fla. Nov. 19, 2019) (same). Indeed, as 

the Eleventh Circuit has made clear: 

[T]he defendant, by removing the action, has represented to the court that the case 

belongs before it. Having made this representation, the defendant is no less subject 

to Rule 11 than a plaintiff who files a claim originally. Thus, a defendant that files 

a notice of removal prior to receiving clear evidence that the action satisfies the 

jurisdictional requirements, and then later faces a motion to remand, is in the same 

position as a plaintiff in an original action facing a motion to dismiss. The court 

should not reserve ruling on a motion to remand in order to allow the defendant to 

discover the potential factual basis of jurisdiction. Such fishing expeditions would 

clog the federal judicial machinery, frustrating the limited nature of federal 

jurisdiction by encouraging defendants to remove, at best, prematurely, and at 

worst, in cases in which they will never be able to establish jurisdiction. 

Mittenhal at *24-25 (citing Lowery v. Ala. Power Co., 483 F.3d 1184, 1216-17 (11th Cir. 2007)). 

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Judge Altman further noted that district courts should “not clog the federal judicial 

machinery and frustrate[] the limited nature of federal jurisdiction to allow [] Defendants to 

(attempt to) establish a standing claim which the Plaintiffs themselves have now disavowed.” 

Mittenhal at *25. Pursuant to the above-referenced authorities, the Court should deny Defendant’s 

request for jurisdictional discovery and remand this case.

III. CONCLUSION

Defendant removed this case to federal court under 28 U.S.C. § 1446. In doing so, it

invoked this Court’s federal-question jurisdiction under 28 U.S.C. § 1331. Although the Defendant

did not have to plead Plaintiff’s standing in the Notice of Removal, it must establish that standing

now by a preponderance of the evidence. Because Defendant has failed to do so, this Court lacks

subject matter jurisdiction, and the case must therefore be remanded to the state court from which

it came.

WHEREFORE, Plaintiff Nakia Jenkins respectfully requests an order remanding this case 

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

Dated: July 22, 2020

Respectfully submitted, 

Aaron M. Ahlzadeh_

Aaron M. Ahlzadeh, Esq.

Florida Bar No. 111329

aaron@edelsberglaw.com

Scott Edelsberg, Esq.

Florida Bar No. 100537

scott@edelsberglaw.com

EDELSBERG LAW, P.A.

20900 NE 30th Ave., Suite 417

Aventura, FL 33180

Telephone (office): 786-289-9471

Telephone (direct): 305-975-3320

Fax: 786-623-0915

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HIRALDO P.A. 

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 

IJH LAW 

Ignacio J. Hiraldo, Esq.

Florida Bar No. 0056031 

1200 Brickell Ave Suite 1950

Miami, FL 33131

Email: ijhiraldo@ijhlaw.com 

Telephone: 786-496-4469

EISENBAND LAW, P.A.

Michael Eisenband, Esq.

Florida Bar No. 94235

515 E. Las Olas Boulevard, Suite 120

Ft. Lauderdale, Florida 33301

Email: MEisenband@Eisenbandlaw.com

Telephone: 954-533-4092

SHAMIS & GENTILE, P.A.

Andrew J. Shamis, Esq.

Florida Bar No. 101754

ashamis@shamisgentile.com

Garrett O. Berg, Esq.

Florida Bar No. 1000427

gberg@shamisgentile.com

14 NE 1st Avenue, Suite 705

Miami, FL 33132

Telephone: 305-479-2299

Counsel for Plaintiff and the Class

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