UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 22-cv-23151-BLOOM/Otazo-Reyes

STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES

Plaintiff,

v. 

ACE AMERICAN INSURANCE CO., 

Defendant.

______________________________/ 

ORDER REMANDING CASE

THIS CAUSE is before the Court upon a sua sponte review of Defendant’s Notice of 

Removal, ECF No. [1] (“Notice”). The Court has also reviewed Plaintiff’s Complaint 

(“Complaint”), ECF No. [1-1] at 8-14, which was removed from the Eleventh Judicial Circuit in 

and for Miami-Dade County, Florida to this Court. For the reasons set forth below, the Court finds 

that Defendant has failed to establish the existence of subject matter jurisdiction in this case.

“Federal courts are courts of limited jurisdiction. They possess only that power authorized 

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian 

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). “It is to be presumed 

that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests 

upon the party asserting jurisdiction.” Id. (citing Turner v. Bank of N. Am., 4 U.S. (4 Dall.) 8, 11 

(1799) and McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 182-183 (1936)). A “district 

court may act sua sponte to address the issue of subject matter jurisdiction at any time.” Herskowitz 

v. Reid, 187 F. App’x 911, 912-13 (11th Cir. 2006). This is because federal courts are “‘empowered 

to hear only those cases within the judicial power of the United States as defined by Article III of 

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the Constitution,’ and which have been entrusted to them by a jurisdictional grant authorized by 

Congress.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409 (11th Cir. 1999) (quoting Taylor 

v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994)). Accordingly, “once a federal court determines 

that it is without subject matter jurisdiction, the court is powerless to continue.” Id. at 410.

In the Notice, Defendant asserts that this Court has diversity jurisdiction over Plaintiff’s 

claims pursuant to 28 U.S.C. § 1332. ECF No. [1]. “A removing defendant bears the burden of 

proving proper federal jurisdiction.” Coffey v. Nationstar Mortg., LLC, 994 F. Supp. 2d 1281, 1283 

(S.D. Fla. 2014). District courts have diversity jurisdiction over cases in which the parties are 

completely diverse and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). “Where, 

as here, the plaintiff has not pled a specific amount of damages, the removing defendant must 

prove by a preponderance of the evidence that the amount in controversy exceeds the jurisdiction 

requirement.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010) (citing 

Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001)); see also 28 U.S.C. 

§ 1332(a).

“To determine whether this standard is met, a court first examines whether it is facially 

apparent from the complaint that the amount in controversy exceeds the jurisdictional 

requirement.” Miedema v. Maytag Corp., 450 F.3d 1322, 1330 (11th Cir. 2006) (citation omitted), 

abrogated on other grounds by Dudley v. Eli Lilly & Co., 778 F.3d 909 (11th Cir. 2014). “If the 

jurisdictional amount is not facially apparent from the complaint, the court should look to the 

notice of removal and may require evidence relevant to the amount in controversy at the time the 

case was removed.” Id. (citation omitted). Even so, “a removing defendant is not required to prove 

the amount in controversy beyond all doubt or to banish all uncertainty about it.” Pretka, 608 F.3d 

at 754 (citations omitted). “Where, as in this case, the complaint alleges an unspecified amount of 

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damages, ‘the district court is not bound by the plaintiff’s representations regarding its claim,’ and 

may review the record for evidence relevant to the amount in controversy.” DO Rests., Inc. v. 

Aspen Specialty Ins. Co., 984 F. Supp. 2d 1342, 1344 (S.D. Fla. 2013) (citing Roe v. Michelin N. 

Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010)). Moreover, “defendants may submit a wide range 

of evidence in order to satisfy the jurisdictional requirements of removal,” including “affidavits, 

declarations, or other documentation.” Pretka, 608 F.3d at 755. The Court may also use its judicial 

experience and make reasonable inferences and deductions to determine the amount in 

controversy. See Roe, 613 F.3d at 1061-62; Pretka, 608 F.3d at 754 (discussing the difference 

between reasonable deductions and inferences with “conjecture, speculation, or star gazing”); 

E.S.Y., Inc. v. Scottsdale Ins. Co., 217 F. Supp. 3d 1356, 1360 (S.D. Fla. 2015). “However, courts 

must be mindful that removal statutes are construed narrowly and that uncertainties are resolved 

in favor of remand.” Chiu v. Terminix Co. Int’l, L.P., No. 8:16-cv-306-T-24 JSS, 2016 WL 

1445089, at *1 (M.D. Fla. Apr. 13, 2016) (citing Burns v. Windsor, 31 F.3d 1092, 1095 (11th Cir. 

1994)).

The Court first reviews the allegations in the Complaint—the operative pleading—to

determine whether the amount in controversy is satisfied. Plaintiff’s Complaint asserts claims for 

breach of an insurance contract under which Plaintiff is an additional insured party and for 

equitable subrogation. ECF No. [1-1] at 12-14. Plaintiff claims that under the policy Defendant 

had a duty to defend and indemnify Plaintiff against any claims made against it, including 

specifically the lawsuit brought by Silvio Maurer, (“Maurer”), and that Defendant wrongfully 

failed and refused to defend Plaintiff in that suit. Id. at 12; see also Silvio Maurer v. DBI Services 

LLC et al, Case No. 2022-000593 CA 01, (“Maurer Suit”). Significantly, in the first paragraph of 

the Complaint, Plaintiff alleges only that: “[t]his is an action for money damages in excess of 

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Fifteen Thousand Dollars ($15,000.00).” ECF No. [1-1] at 8, ¶ 1. As such, it is not facially apparent 

from the Complaint that the amount in controversy is satisfied.

Because Plaintiff does not plead a specific amount of damages, the Court next looks at the 

Notice to determine whether the amount in controversy is satisfied, mindful that it is Defendant’s 

burden to establish subject matter jurisdiction. Defendant contends that the amount in controversy 

is satisfied because “Plaintiff seeks to recover from Defendant monetary damages well over 

$75,000.00 for defense and indemnity coverage of a personal injury lawsuit allegedly causing 

severe, permanent damages.” ECF No. [1] at 4. The Complaint, and Notice however, do not specify 

the extent of the legal fees incurred in defending the Maurer Suit nor the amount of any possible 

award in the Maurer Suit. 

Defendant asserts further that the amount in controversy is satisfied because “the subject 

insurance contract provides coverage limits of $2 Million for each occurrence, with an umbrella 

liability policy providing $25 Million for each occurrence.” Id. Where “there is no controversy 

involving the face value of the policy... it would make no sense to consider the policy’s face value 

to be the amount in controversy.” Friedman v. New York Life Ins. Co, 410 F.3d 1350 (11th Cir. 

2005). When addressing controversies over life insurance policies, the Eleventh Circuit has held 

that the face value of the policy can satisfy the amount in controversy requirement for diversity 

jurisdiction. See Guardian Life Ins. Co. of Am. v. Muniz, 101 F.3d 93 (11th Cir. 1996); Anderson 

v. Wilco Life Ins. Co., 943 F.3d 917, 926 (11th Cir. 2019). Here though, the insurance policy is 

neither a life insurance policy nor is there a controversy involving the policy’s face value and so 

the face value of the policy cannot be construed as the amount in controversy.

The Court notes that while Defendant’s ultimate liability may very well exceed $75,000.00, 

it may very well not. “A conclusory allegation in the notice of removal that the jurisdictional 

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amount is satisfied, without setting forth the underlying facts supporting such an assertion, is 

insufficient to meet the defendant’s burden.” Williams, 269 F.3d at 1319-1320; see also Burns, 31 

F.3d at 1097 (finding defendant failed to satisfy burden of proof regarding amount in controversy 

where defendant offered only conclusory allegations); Gaitor v. Peninsular & Occidental S.S. Co., 

287 F.2d 252, 254-55 (5th Cir. 1961)1 (stating that removing defendant must make “an affirmative 

showing . . . of all the requisite factors of diversity jurisdiction” and that “the amount in controversy 

being open was ground for remand.”). 

As such, the Court finds that Defendant’s Notice is facially deficient in that it fails to 

demonstrate that the $75,000.00 amount-in-controversy requirement has been satisfied. The Court, 

therefore, concludes that diversity jurisdiction is lacking, rendering it without subject matter 

jurisdiction to preside over Plaintiff’s claims.

Accordingly, it is ORDERED AND ADJUDGED that this case is REMANDED to the 

Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. The Clerk 

of Court is directed to CLOSE this case. 

DONE AND ORDERED in Chambers at Miami, Florida, on September 30, 2022. 

_________________________________ 

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record 

1

 The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down 

prior to close of business on September 30, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th 

Cir. 1981) (en banc). 

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