Innovative Heath & Wellness LLC, v. State Farm Mutual Auto. Ins. Co., 2008 WL 3471597 (S.D. Fla. 2008). 

The question presented was whether the defendant could submit its own affidavits to establish the amount in controversy exceeded $5 million for the purposes of establishing CAFA jurisdiction. 

The plaintiff’s complaint did not assert an amount in controversy, and asserted that it was “unsure of whether the claims in this case in the aggregate exceed $5,000,000.00.” The defendant attempted to submit its own affidavits in support of establishing the requisite amount in controversy for CAFA removal jurisdiction. 

The Court said that the defendants could not do this, stating that “the only documents upon which Defendant may rely in order to meet its burden of establishing by the preponderance of the evidence that the amount in controversy exceeds $5,000,000.00 are documents provided to it by Plaintiff.” 2008 WL 3471597, at * 4. 

The court followed the Eleventh Circuit’s holding in Lowery v. Alabama Power Co., 483 F.3d 1184, 1211-12 (11th Cir. 2007) (stating “in assessing the propriety of removal [under section 1446(b)], the court considers the document received by the defendant from the plaintiff[.]”). (Editors’ Note: see the CAFA Law Blog analysis of Lowery posted on May 15, 2007 ).

The moral of the day, thus, is that removing defendants should be wary of plaintiffs who do not allege facts sufficient enough to establish the requisite amount in controversy for CAFA jurisdiction. Remember, plaintiffs won’t say excuse me if you get remanded! For those of you that do not get the joke, pull my finger.