              Case: 12-16445     Date Filed: 01/29/2013   Page: 1 of 6




                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-16445
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:12-cv-01343-JDW-EAJ



DOUGLASS MANN,
STEPHANIE MANN,
Individually and on behalf of all others
similarly situated,

                         Plaintiffs - Appellees,

versus

UNUM LIFE INSURANCE COMPANY OF AMERICA,

                         Defendant - Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (January 29, 2013)

Before BARKETT, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
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      Appellant Unum Life Insurance Company of America (Unum) appeals the

district court’s order granting the Appellees Douglass and Stephanie Mann’s

motion to remand this class action to state court. After thoroughly reviewing the

briefs and record on appeal, we affirm the district court’s order.

      This class action concerns a putative class of Florida residents who

purchased Unum’s Long Term Care Policies (LTC Policies) before their relocation

to Florida. Douglass and Stephanie Mann, the named plaintiffs, purchased their

LTC Policies in 1998, when they lived in Connecticut. In 2005, the Manns became

permanent Florida residents.

      Since 2005, several states, including Connecticut, have authorized Unum to

increase its premium rates. Florida is not one of those states. The Manns have

been paying Connecticut rates since at least 2008, despite being Florida residents.

In May 2012, the Manns filed a class action complaint against Unum in the Circuit

Court of Manatee County, contending that Unum could only charge them Florida-

approved rates. The Manns requested a declaratory judgment, damages in the

amounts charged in excess of the rates allowed by Florida law, injunctive relief to

prevent future harm, and attorneys’ fees.

      In June 2012, Unum removed this action to federal court, contending that

federal jurisdiction existed under the Class Action Fairness Act (CAFA), 28 U.S.C.

§§ 1332(d), 1441(b) and 1453(b), because: (1) the parties were minimally diverse

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under 28 U.S.C. § 1332(d)(2)(A); (2) the number of putative class members

exceeded 100, satisfying the requirements of § 1332(d)(5)(B); and (3) the amount

in controversy exceeded $5 million.

      To support the amount-in-controversy requirement, Unum submitted the

affidavit of Pamela Tait, an Assistant Vice President Pricing Actuary employed by

Unum. Tait determined that the putative class consisted of 2,194 individuals, who

from 2008 to 2012 collectively paid $2,997,911 more than what Florida law would

have allowed. This left Unum $2 million short of federal jurisdiction, so Tait

crossed the $5 million threshold with the following prognostication:


      [I]f these 2,194 policyholders were charged premium on a going-
      forward basis as if the policies were delivered and issued for delivery
      in Florida, instead of the states in which the policies were delivered
      and issued for delivery, the additional premium amount . . . would be
      $11,142,710 . . . .

      In other words, an adverse judgment would require Unum to lower its rates

for the putative class, which would cause Unum to forego $11,142,710 in future

revenue, bringing the total amount in controversy to $14,140,621. Tait’s

calculation made several assumptions about claim incidence, mortality, and lapse

rates. The Manns moved to remand the case to state court, arguing that Tait based

her calculations on improper speculation. Agreeing with the Manns, the district

court remanded the case to state court, and this appeal followed.



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      We review de novo a district court’s decision to remand a CAFA case to

state court for lack of subject matter jurisdiction. Pretka v. Kolter City Plaza II,

Inc., 608 F.3d 744, 751 (11th Cir. 2010). As always, we strictly construe removal

statutes, resolving all doubts in favor of remand. Miedema v. Maytag Corp., 450

F.3d 1322, 1328 (11th Cir. 2006).

      Unum, as the removing defendant, bears the burden of establishing by a

preponderance of the evidence that the amount in controversy exceeded $5 million.

Pretka, 608 F.3d at 752. Because the $11,142,710 amount would stem from an

injunction, we must analyze it from the plaintiff’s perspective. Federated Mut. Ins.

Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003). “The value of

injunctive or declaratory relief for amount in controversy purposes is the monetary

value of the object of the litigation that would flow to the plaintiffs if the injunction

were granted.” Leonard v. Enter. Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002).

When the value of injunctive relief is “too speculative and immeasurable,” it will

not be included in the amount in controversy. Id. (internal quotation marks

omitted) (holding that the injunctive relief in question—requiring insurers to

compensate class members for diminished value on any future damaged vehicle

claims—was too speculative). We are mindful that “[o]nly prophetic ken of a rare

order could forecast what will ensue.” Vicksburg, S. & P. Ry. Co. v. Nattin, 58

F.2d 979, 980 (5th Cir. 1932).

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      We agree with the district court that Unum’s calculation of the injunction’s

monetary value is speculative, and we find our decision in Leonard to be directly

on point. In Leonard, we held that when plaintiffs are “free to refuse to purchase

the insurance offered by the defendants,” an injunction “will not be of any

monetary value to the class members, and cannot be considered for amount in

controversy purposes.” Leonard, 279 F.3d at 973 (emphasis added). The

injunctive relief in Leonard was admittedly different from the relief sought here:

there, the plaintiffs sought an injunction preventing the defendants from selling

car-rental insurance in the future, see id., whereas in this case the equitable relief

would be a lower premium rate in the future. Yet the same rationale applies,

because in both cases, the plaintiffs “have always been free to refuse to purchase

the insurance offered by the defendants.” Id; see also Lutz v. Protective Life Ins.

Co., 328 F. Supp. 2d 1350, 1361 (S.D. Fla. 2004) (holding injunctive relief

immeasurable because “Plaintiff as well as other class members will be able to

avoid paying for this insurance, regardless of whether an injunction is granted”).

We cannot say that an injunction in this case will necessarily trigger a “flow” of

money to the plaintiffs, because even Unum concedes in its brief that the LTC

Policies are renewable each year. Leonard, 279 F.3d at 973 (holding that the value

of injunctive relief is “the monetary value of the object of the litigation that would

flow to the plaintiffs if the injunction were granted”).

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      Unum’s reliance on Pretka is unconvincing. In Pretka, we fleshed out the

standard for establishing CAFA’s amount-in-controversy requirement, holding that

“evidence combined with reasonable deductions, reasonable inferences, or other

reasonable extrapolations” did not amount to improper speculation. 608 F.3d at

754. The defendant in Pretka had included in its notice of removal a declaration

that it had “collected more than $5 million in condominium unit purchase deposits

from prospective purchasers of units.” Id. at 770 (internal quotation marks

omitted). In the present case, the future loss of revenue from yet-to-be renewed

policies is strikingly different. Moreover, we are bound by our decision in

Leonard, which forbids the inclusion of optional insurance purchases in an

amount-in-controversy calculation. Leonard, 279 F.3d at 973. In a word, such

valuation is speculative, filled to the brim with assumptions about policyholder

behavior and Florida insurance rates.

      For the forgoing reasons, we affirm the district court’s order remanding this

case to state court.

      AFFIRMED.




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