            Case: 14-14239    Date Filed: 11/14/2014   Page: 1 of 7


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14239
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:13-cv-23745-JAL



JORGE PORTER,

                                               Plaintiff - Appellee,

versus

METROPCS COMMUNICATIONS INC.,
METROPCS FLORIDA, LLC,

                                               Defendants - Appellants.

                       ________________________

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

                             (November 14, 2014)

Before ED CARNES, Chief Judge, and WILSON and JORDAN, Circuit Judges.

PER CURIAM:
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       MetroPCS Communications, Inc., MetroPCS Florida, LLC, and CAI

International, Inc. (collectively, MetroPCS) appeal from the district court’s order

granting Jorge Porter’s motion to remand to state court after MetroPCS removed

pursuant to the Class Action Fairness Act (CAFA). After careful consideration of

the parties’ briefs and the record, we affirm.

                                                I.

       Porter filed a putative class action in Florida state court alleging that CAI

International, Inc., an authorized MetroPCS retailer, overcharged customers in

Florida who purchased Samsung Galaxy Indulge Cellular phones by charging tax

based on the pre-rebate price. The parties do not dispute that, at the time the action

was filed in state court, the amount in controversy was below CAFA’s minimum

for creating federal jurisdiction. In response, MetroPCS moved to compel

arbitration based on the terms and conditions (T&C) of the service agreements

between MetroPCS and its customers. Porter opposed the motion. The Florida

trial court sided with Porter, but it was reversed on appeal.

       On remand, Porter filed an amended complaint.1 The amendment added two

counts.2 One alleges false advertising, and the other alleges a violation of the

Florida Unfair and Deceptive Trade Practices Act, Fla. Stat. §§ 501.201–501.23.
       1
          Porter had already once amended his complaint, but the previous complaints are not
relevant to this appeal. We will therefore refer to this second amended complaint simply as “the
complaint.”
        2
          This opinion will refer to the class that alleged overcharges as the “Tax Class” and the
class that alleged false advertising regarding the T&C as the “Contract Class.”
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Both counts were based on MetroPCS’s use of the term “no contract” in its

advertising in spite of the inclusion of the T&C in MetroPCS’s service agreements

with customers. These two additional counts seek damages, fees, and costs under

Fla. Stat. §§ 817.41(6) and 501.2105. They also seek equitable relief in the form

of a permanent injunction of MetroPCS’s use of the “no contract” advertisement

and/or “disclos[ure] in all advertisement of its products and services that

contractual terms do apply.” Porter seeks no other equitable relief pursuant to

those counts.

      MetroPCS removed the putative class action to the United States District

Court for the Southern District of Florida. MetroPCS asserted jurisdiction under

the Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109-2, 119 Stat. 4

(2005). When a state court class action defendant removes to a United States

district court, CAFA creates federal jurisdiction where the defendant establishes

that “(1) any member of the plaintiff class is a citizen of a state different from the

state of citizenship of any defendant, (2) the aggregate amount in controversy

exceeds $5 million, and (3) the proposed plaintiff class contains at least 100

members.” S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th

Cir. 2014) (citing 28 U.S.C. § 1332(d)(2), (5)–(6)). MetroPCS attempted to

establish the amount in controversy by offering evidence of its total revenue in

Florida during the class period, which included revenue from its provision of


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services to customers as well as from sales of devices and accessories. The total

revenue estimate did not offer details regarding what amounts came from each

source.

      Porter moved to remand to Florida state court, arguing that MetroPCS

overestimated the amount in controversy by including all Florida customers in its

calculation, even though they did not all meet the class definition. The district

court agreed with Porter and remanded. Specifically, the district court stated that it

was “left to speculate as to the size of the Contract Class and, ultimately, the

amount of damages that the Contract Class has put at issue.” MetroPCS petitioned

for permission to appeal the order. We granted that petition, and this appeal

followed.

                                          II.

      We review an order granting a motion to remand for lack of jurisdiction de

novo. Lowery v. Ala. Power Co., 483 F.3d 1184, 1193 (11th Cir. 2007). We

affirm the district court, but we do so on grounds different from the reasoning

contained in the district court’s order. See Am. United Life Ins. Co. v. Martinez,

480 F.3d 1043, 1059 (11th Cir. 2007).

      When considering whether a defendant has established the requisite amount

in controversy for removal under CAFA, a district court looks to “the notice of

removal and accompanying documents.” Lowery, 483 F.3d at 1214. This


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includes, of course, the complaint. See id. at 1213. “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

jurisdictional requirement.” Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752

(11th Cir. 2010) (internal quotation marks omitted). The defendant can take into

account damages and any equitable relief the plaintiff seeks, as long as the estimate

is not overly speculative. See Leonard v. Enter. Rent a Car, 279 F.3d 967, 973

(11th Cir. 2007). Here, in estimating the amount placed in controversy, MetroPCS

cited its total Florida revenue during the class period. MetroPCS justifies that

method by asserting that the complaint alleges fraudulent inducement and that,

under Florida law, rescission of contract is a form of relief available to plaintiffs

who, like Porter, allege fraudulent inducement. See Perlman v. Prudential Ins. Co.

of Am., Inc., 686 So. 2d 1378 (Fla. Dist. Ct. App. 1997) (permitting rescission of

an insurance contract, restitution, and punitive damages where the plaintiff alleged

fraudulent inducement). 3




       3
         It should be noted, however, that the court limited restitution to the premiums paid by
the plaintiff less the actuarial value of the provision of insurance. See Perlman, 686 So. 2d at
1380–81. MetroPCS does not attempt to estimate the value of the services provided to the class
and thereby arrive at a more precise measure of the amount placed in controversy by a
hypothetical plea for rescission. Perhaps MetroPCS finds such an exercise to be impossible, but
our precedent demands that we not engage in the speculation required by acceptance of such a
calculation. See Lowery, 483 F.3d at 1220. Nonetheless, we need not so much as reach this
question, as rescission was not sought.
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      Assuming that rescission is available to Porter, MetroPCS has failed to

establish the minimum amount in controversy. MetroPCS’s revenue includes not

just that realized from the service agreements that may be rescinded as a result of

this litigation, but also the revenue it receives from the sale of cell phones, other

devices, and accessories without any corresponding commitment to MetroPCS.

There is no reason to believe that any of that revenue would have to be returned to

customers should the class action succeed on the merits. Without any breakdown

of MetroPCS’s revenue, the district court would have to engage in hopeless

speculation in assessing what amount may be subject to rescission; this it cannot

do. See Lowery, 483 F.3d at 1220.

      The remaining amounts (or non-amounts) MetroPCS cites in its notice of

removal are insufficient to establish the amount in controversy requirement

contained in CAFA. MetroPCS notes that Porter’s demand for attorney’s fees,

costs, and punitive damages must be included in the calculation of the amount in

controversy. MetroPCS then informs us that attorney’s fees and costs can equal

thirty percent of the recovery. Worse still, punitive damages can add up to nine

times compensatory damages. We do not doubt that this is the case. Unfortunately

for MetroPCS, those multiples do us no good without a base amount to multiply.

Any concrete amount we derive from them would be hopelessly speculative. See

id.


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      The notice of removal then cites the “substantial” costs of complying with

the equitable relief Porter seeks. We are certain that the costs of compliance would

be substantial. Like the fees, costs, and punitive damages, though, MetroPCS fails

to put any concrete number on these compliance costs. Using them to calculate the

amount in controversy would again require us to engage in unguided speculation.

This we cannot do. See id.

      As it stands, the estimates put forth by MetroPCS in its notice of removal to

which we can give credit provide us with an approximate amount in controversy of

$5,285.00, which comes entirely from the Tax Class. Because MetroPCS failed to

establish the minimum amount in controversy, the district court was correct to

grant Porter’s motion to remand.

      AFFIRMED.




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