Leroy Thomas v. Generac Power Systems Incorporated

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12997
Non-Argument Calendar
____________________
LEROY THOMAS,
Plaintiff-Appellant,
versus
GENERAC POWER SYSTEMS INCORPORATED,
AARON P. JAGDFELD,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:18-cv-00495-RH-MJF
____________________
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2 Opinion of the Court 21-12997
Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Leroy Thomas, a Florida citizen, bought a $4,500 generator
from Generac Power Systems, Inc., which is based in Wisconsin.
Alleging that the generator stopped working, Mr. Thomas filed a
pro se diversity action against Generac and Aaron Jagdfeld, its pres-
ident and CEO (and also a Wisconsin citizen). See 28 U.S.C.
§ 1332(a)(1). The district court dismissed the second amended
complaint for lack of diversity jurisdiction because Mr. Thomas
failed to plausibly allege an amount in controversy exceeding
$75,000. We affirm.
I
Mr. Thomas brought four Florida state law claims—a viola-
tion of the Florida Deceptive and Unfair Trade Practices Act
(FDUTPA), Fla. Stat. § 501.211(2), fraudulent inducement, fraudu-
lent misrepresentation, and breach of contract—against Generac
and Mr. Jagdfeld. He alleged that the defendants sold him a defec-
tive $4,500 generator and failed to fix it pursuant to the machine’s
five-year warranty. According to the complaint, the generator
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21-12997 Opinion of the Court 3
stopped working after 315 hours of use. As damages for the alleg-
edly defective product, Mr. Thomas sought $1,279,000.1
As noted, the district court dismissed the complaint for lack
of diversity jurisdiction. It ruled that Mr. Thomas had adequately
pled claims for breach of contract, fraud, and a violation of the
FDUTPA, but concluded that Mr. Thomas did not plausibly allege
the requisite amount in controversy needed to establish diversity
jurisdiction. The district court found that the “most obvious meas-
ure of damages” for Mr. Thomas’ breach of contract and fraud
claims was the $4,500 purchase price for the generator and, while
“[i]ncidental damages increase[d] these amounts slightly,” Mr.
Thomas “ha[d] not alleged facts showing consequential damages
anywhere near as great as would be needed, even when combined
with” everything else, “to meet the jurisdictional amount.” Im-
portantly, the district court also found that Mr. Thomas had “no
colorable claim for punitive damages in an amount sufficient to
meet the amount-in-controversy, even when combined” with his
other damages claims.
On appeal, Mr. Thomas argues that the district court erred
in (1) dismissing his complaint for lack of jurisdiction after errone-
ously calculating his possible damages, (2) not allowing him to sub-
mit a third amended complaint, and (3) denying his Fed. R. Civ. P.
1 Mr. Thomas alleged that the generator shocked him and caused him physical
injuries, but he did not assert any personal injury claims. So we do not con-
sider any damages that might be available for such claims.
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4 Opinion of the Court 21-12997
60(b) motion for reconsideration. He has also filed a motion on
appeal to strike the supplemental appendix filed by the defendants
(the appellees here) because, he argues, it is misleading and de-
signed to improperly sway this court.
II
Federal district courts have original jurisdiction of civil ac-
tions between citizens of different states where the amount in con-
troversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1); Peebles v.
Merrill Lynch, et al., 431 F.3d 1320, 1325 (11th Cir. 2005). A plain-
tiff invoking federal jurisdiction bears the burden of alleging with
sufficient particularity a proper jurisdictional basis in his complaint.
See Morrison v. Allstate Indem. Co., 228 F.3d 1255, 1272–73 (11th
Cir. 2000) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 287 n.10 (1938)). If challenged, the party invoking
diversity jurisdiction bears the burden of demonstrating that the
jurisdictional amount is satisfied by a preponderance of the evi-
dence. See McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir.
2002). On appeal, “we review for clear error any factual determi-
nations necessary to establish jurisdiction” in a diversity case. See
Dudley v. Eli Lilly & Co., 778 F.3d 909, 911 (11th Cir. 2014).
Dismissal of a case for lack of diversity jurisdiction with re-
spect to the amount in controversy is proper where the complaint
makes it clear “to a legal certainty that the claim is really for less
than the jurisdictional amount.” St. Paul Mercury, 303 U.S. at 289.
See also Leonard v. Enter. Rent a Car, 279 F.3d 967, 972 (11th Cir.
2002). This standard gives “great weight to [the] plaintiff’s
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21-12997 Opinion of the Court 5
assessment of the value of [his] case.” Mitchell v. Brown & Wil-
liamson Tobacco Corp., 294 F.3d 1309, 1314 (11th Cir. 2002) (quot-
ing Burns v. Windsor Ins. Co., 31 F.3d 1092, 1094 (11th Cir. 1994)).
Whether the allegations support the requisite amount often
depends on the damages available under state law. See A. Benja-
min Spencer, 5 Charles Alan Wright & Arthur R. Miller, Fed. Prac.
& Proc. Civ. § 1213 (4th ed. & April 2022 update). See also Duder-
wicz v. Sweetwater Sav. Ass’n, 595 F.2d 1008, 1012 (5th Cir. 1979)
(quoting Johns-Manville Sales Corp. v. Mitchell Enterprises, Inc.,
417 F.2d 129, 131 (5th Cir. 1969)). When available, punitive dam-
ages must be considered when determining the jurisdictional
amount in controversy in diversity cases. See Holley Equip. Co. v.
Credit Alliance Corp., 821 F.2d 1531, 1535 (11th Cir. 1987).2
In Barry v. Edmunds, 116 U.S. 550, 559 (1886), the Supreme
Court identified two ways for a court to conclude to a legal cer-
tainty that the jurisdictional amount has not been met. First, a
court may conclude, as a matter of law, that the jurisdictional
amount is not recoverable, such as where the nature of the action
caps the amount that is recoverable. See id. at 559–60. Second, the
court may find, as a matter of fact, that the amount of claimed
2 As a constitutional matter, the Supreme Court has held that “courts must
ensure that the measure of [punitive damages] is both reasonable and propor-
tionate to the amount of harm to the plaintiff and to the general damages re-
covered.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 426
(2003).
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6 Opinion of the Court 21-12997
damages has been projected beyond the amount of a reasonable
expectation of recovery, but such a finding must rest on facts in the
record. See id. See also 14AA Charles Alan Wright & Arthur R.
Miller, Fed. Prac. & Proc. Juris. § 3713 (4th ed. & April 2022 update)
(describing cases where courts have found that the requisite
amount-in-controversy is unavailable to a legal certainty).
III
With these background principles in mind, we turn to the
legal claims asserted by Mr. Thomas, the damages sought for those
claims, and what Florida law says about those damages.
A
For Count I, the FDUTPA claim, Mr. Thomas sought $4,500
in damages for the cost of the generator, $80,000 in “additional ac-
tual damages,” and $150,000 in “actual damages,” for a total of
$234,500. In response to the defendants’ motion to dismiss for lack
of jurisdiction, Mr. Thomas attempted to itemize the damages he
sought for each count. For his FDUTPA claim, he alleged that his
damages included $4,500 for the generator, $285 for the sales tax
paid, $135,000 for the “useful life” of the generator, $3,228 for
drinking water purchased while the generator was not working,
$3,190 for laundry costs while the generator was not working,
$2,500 for an electrician’s installation estimate that he did not use
or pay for, and an unspecified amount in punitive damages.
Under the FDUTPA, a successful plaintiff is entitled to actual
damages, Fla. Stat. § 501.211(2), which in the case of a defective
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product are the “difference in the market value of the product . . .
in the condition in which it was delivered and its market value in
the condition which it should have been delivered.” Fort Lauder-
dale Lincoln Mercury, Inc., v. Corgnati, 715 So. 2d 311, 314 (Fla.
4th DCA 1998). If a product has no value, the actual damages con-
sist of the purchase price. See id.A plaintiff may not recover consequential damages under
the FDUTPA. See Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133,
1140 (Fla. 3d DCA 2008) (consequential damages are not included
in actual damages under the FDUPTA). The FDUPTA’s remedies
provision, § 501.211(2), does not mention punitive damages, and
we have found no cases allowing such damages for an FDUPTA
claim. The academic commentary we have located indicates
(though summarily) that punitive damages are not recoverable un-
der the FDUPTA. See Henry P. Trawick, Jr., 10 Fla. Pleading &
Practice Forms § 79.7 (May 2022 update); Steven Fox, Litigation
Under Florida’s Deceptive and Unfair Trade Practices Act, the Flor-
ida Antitrust Act, and/or Federal Antitrust Statutes § 20.9.B.16 (Fla.
Bar 2022). Mr. Thomas has not cited any authority to the contrary.
Some of Mr. Thomas’ claimed FDUTPA damages are not
available to a legal certainty. First, Mr. Thomas cannot claim dam-
ages for the $2,500 estimate to professionally install the generator
when he concedes he never paid to have it installed. See Reilly v.
Amy’s Kitchen, Inc., 2 F. Supp. 3d 1300, 1303–04 (S.D. Fla. 2014)
(granting a motion to dismiss for lack of diversity jurisdiction
where the plaintiff’s complaint “improperly included claims related
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8 Opinion of the Court 21-12997
to the 57 products she did not purchase in calculating the amount
in controversy.”). Second, Mr. Thomas’ alleged consequential
damages for water and laundry costs while the generator was not
working are unavailable under the FDUTPA. See Butler, 985 So.
2d at 1140. Third, only the purchase price (including the taxes)
constitutes actual damages under the FDUTPA—not Mr. Thomas’
alleged $135,000 for the purchase price of the generator multiplied
by its 30-year life. See Corgnati, 715 So. 2d at 314. Fourth, as set
forth above, punitive damages are not available under the
FDUPTA. So the only compensatory damages that Mr. Thomas
can claim for his alleged FDUTPA violation are the purchase price
of the generator plus tax, which total $4,785. That sum, even with
prejudgment interest, is far below the $75,000 amount-in-contro-
versy threshold.
B
For Counts II and III, the fraud claims, Mr. Thomas alleged
the following damages. For fraudulent inducement he sought
$100,000 for pain and suffering, $200,000 for emotional and mental
stress and physical injuries, $50,000 in actual damages, $60,000 in
compensatory damages, $100,000 in consequential damages, and
$300,000 in punitive damages, for a total of $810,000. For fraudu-
lent misrepresentation, he sought $50,000 in actual damages,
$50,000 for pain and suffering, and $100,000 in consequential dam-
ages, for a total of $200,000. To bolster his claimed fraud damages,
which he addressed jointly in his opposition to the defendants’ mo-
tion to dismiss, Mr. Thomas alleged that his damages were $3,128
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21-12997 Opinion of the Court 9
for drinking water, $2,500 in lost garden profits, $72,500 in “loss
profits,” $2,730 in “compensatory damages,” $2,500 for the electri-
cian estimate, $15,000 for pain and suffering, and another $15,000
for undue emotional stress.3
Under Florida’s “flexibility theory” for fraud claims, Mr.
Thomas may recover either his out-of-pocket loss or the loss of the
benefit of his bargain for the defective generator. See In re Weeks
Landing, LLC, 439 B.R. 897, 916 (M.D. Fla. 2010) (citing Minotty v.
Baudo, 42 So.3d 824 (Fla. 4th DCA 2010)). With respect to com-
pensatory damages, Florida fraud law limits recovery to pecuniary
harm. See Food Fair, Inc. v. Anderson, 382 So.2d 150, 153 (Fla. 5th
DCA 1980) (“The injury sustained in an action for deceit [i.e., fraud]
must ordinarily be of a pecuniary nature.”).
Again, some of Mr. Thomas’ alleged compensatory damages
for the fraud claims are clearly unrecoverable to a legal certainty.
First, as noted above, Mr. Thomas cannot claim damages for a
$2,500 installation estimate that he never alleged that he accepted
and paid. Second, we conclude that, to a legal certainty, Mr.
Thomas cannot claim $72,500 in “loss profits.” Mr. Thomas al-
leged no facts whatsoever to indicate that he was running a busi-
ness or to otherwise support his “loss profits” due to the defective
generator. Although he specifically alleged lost profits from his
3 We assume that Mr. Thomas, by expressly stating in his response that he
was seeking only $15,000 for pain and suffering and only $15,000 for emotional
distress, abandoned his claim in the complaint for $300,000 in such damages.
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10 Opinion of the Court 21-12997
garden, we are left to guess as to what these other “profits” might
be. With respect to actual damages, construing “loss profits” in his
favor as actual damages, we conclude that the maximum that Mr.
Thomas can allege to a legal certainty for these types of damages is
$4,785, the purchase price of the generator plus tax, and prejudg-
ment interest.
Punitive damages can be recovered in Florida for fraud, see
First Interstate Dev. Corp. v. Ablanedo, 511 So.2d 536, 538-39 (Fla.
1987), and Mr. Thomas claimed that he sought to recover $300,000
in punitive damages from the defendants. The district court, how-
ever, ruled that Mr. Thomas had “no colorable claim for punitive
damages in an amount sufficient to meet the amount-in-contro-
versy requirement,” D.E. 54 at 4, and Mr. Thomas does not chal-
lenge that ruling on appeal. So we affirm the district court’s ruling
due to Mr. Thomas’ abandonment. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro
se litigants liberally, . . . issues not briefed on appeal by a pro se lit-
igant are deemed abandoned.”).
Mr. Thomas, therefore, is left with claimed damages of
$40,733 (plus some prejudgment interest) for his fraud claims. That
sum is comprised of the price of the generator plus tax ($4,785),
compensatory damages ($2,730), costs for water ($3,128), pain and
suffering ($15,000), and emotional distress ($15,000). That is far be-
low the $75,000 amount-in-controversy requirement, particularly
given that the cost of the generator plus tax is already being sought
in the FDUPTA claim and cannot be recovered twice.
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C
That leaves Count IV, the breach of warranty claim. Mr.
Thomas sought $22,500 in “actual damages” for the cost of the gen-
erator multiplied by the five years it was under warranty and
$12,000 in compensatory damages, for a total of $34,500. In his
opposition to the motion to dismiss, however, he only asserted
$4,500 for the generator, $285 in taxes, $750 for materials and labor
used to build the generator platform and purchase a generator reg-
ulator, $385 for a Generac service fee, and $17,760 in punitive dam-
ages.
Under Florida law, “[t]he measure of damages for breach of
warranty is the difference at the time and place of acceptance be-
tween the value of the goods accepted and the value they would
have had if they had been as warranted, unless special circum-
stances show proximate damages of a different amount.” Fla. Stat.
§ 672.714(2). “In a proper case,” a buyer may also be able to recover
certain incidental and consequential damages, such as costs associ-
ated with effecting cover, reasonable expenses caused by associated
delays, any loss associated with the needs of which the seller had
reason to know, and any injuries to person or property proximately
caused by the breach. See §§ 672.714(3), 672.715.4
4 Punitive damages are not recoverable for a Florida breach-of-warranty claim
unless the breach amounts to an independent tort. See Royal Typewriter Co.,
a Div. of Litton Bus. Sys. v. Xerographic Supplies Corp., 719 F.2d 1092, 1106
(11th Cir. 1983) (citing Bill Branch Chevrolet, Inc. v. Redmond, 378 So. 2d 319,
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12 Opinion of the Court 21-12997
Crediting Mr. Thomas’ other allegations for consequential
and incidental damages in the complaint, the amount of damages
that he sought for the breach of warranty claim is $16,485 ($4,785
for the cost of the generator plus tax and $12,000 in compensatory
damages). That, again, falls way below $75,000.
D
“Generally, [under Florida law,] a defendant may not be re-
quired to pay twice for the same element of damages.” Schoeff v.
R.J. Reynolds Tobacco Co., 232 So. 3d 294, 302 (Fla. 2017). Added
together, the non-duplicative damages totals for each claim add up
to $49,913 ($4,785 for the cost of the generator plus tax + $12,000
in compensatory damages + $3,128 for water + $15,000 for pain
and suffering + $15,000 for emotional distress). That amount is
well below the requisite $75,000, and the district court properly dis-
missed the second amended complaint for lack of subject-matter
jurisdiction.
IV
After his second amended complaint was dismissed, Mr.
Thomas sought leave to amend again and also challenged the
321 (Fla. 2d DCA 1980)). Mr. Thomas never sought punitive damages for his
breach of warranty claim in his complaint. Although he argued that he wanted
to recover punitive damages in his response to the motion to dismiss, a plain-
tiff cannot amend his complaint through such a response. See Dorman v. Ar-
onofsky, 36 F.4th 1306, 1317 (11th Cir. 2022). So we do not consider punitive
damages in the calculus.
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21-12997 Opinion of the Court 13
district court’s order under Rule 60(b). The district court denied
the motions and we review both of those denials for abuse of dis-
cretion. See Henson v. Columbus Bank & Trust Co., 770 F.2d
1566, 1574 (11th Cir. 1985); Willard v. Fairfield S. Co., Inc., 472 F.3d
817, 821 (11th Cir. 2006).
A district court should give a plaintiff at least one oppor-
tunity to amend his complaint, but it is not required to do so if
“there has been . . . repeated failure to cure deficiencies by amend-
ments previously allowed” or “amendment would be futile.” Bry-
ant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001). Mr. Thomas
was given more than one opportunity to amend, see D.E. 48 at 2
n.2 (noting that he filed an initial complaint, a proposed first
amended complaint, a proposed second amended complaint, and a
second amended complaint), and he still failed to plausibly allege
the requisite amount in controversy. His proposed third amended
complaint, moreover, did not appear to solve the jurisdictional
problem. Under these circumstances, the district court did not
abuse its discretion in denying Mr. Thomas leave to file another
amended complaint.
We also affirm the district court’s denial of Mr. Thomas’
Rule 60(b) motion. Under Rule 60(b), a court may relieve a party
from a final judgment or order for “mistake, inadvertence, surprise,
or excusable neglect,” or based on “newly discovered evidence
that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b).” Fed. R. Civ. P.
60(b)(1), (2). Mr. Thomas has not raised any newly discovered
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14 Opinion of the Court 21-12997
evidence, nor has he pointed specifically to any mistake, inadvert-
ence, surprise, or excusable neglect on the part of the district court.
He merely disagrees with the district court’s assessment of his al-
leged damages. The district court did not abuse its discretion in
denying his Rule 60(b) motion.5
V
Mr. Thomas’ alleged damages failed to meet the jurisdic-
tional minimum to proceed in federal court under diversity juris-
diction. He was not entitled to amend his complaint again, and no
newly discovered evidence warranted granting his Rule 60(b) mo-
tion.
AFFIRMED.
5 Finally, we deny Mr. Thomas’ pending motion to strike the defendants’ sup-
plemental appendix because he provides no legal arguments to support it. “A
motion must state with particularity . . . the legal argument necessary to sup-
port it.” Fed. R. App. P. 27(a)(2)(A).