Opinion
CASE NO. 20-60805-CIV-SMITH
2021-03-08
Jonathan Wayne OWOC, on behalf of himself and all others similarly situated, Plaintiff, v. LOANCARE, LLC, Defendant.
Darren R. Newhart, Newhart Legal, P.A., Loxahatchee, FL, Jack Dennis Card, Jr., Consumer Law Organization, P.A., North Palm Beach, FL, James Lawrence Kauffman, Bailey & Glasser, LLP, Jennifer Thelusma, Tycko, Zavareei, Washington, DC, Jordan Alexander Shaw, Kimberly A. Slaven, Mark S. Fistos, Ft. Lauderdale, FL, Zachary Dean Ludens, Zebersky Payne Shaw Lewenz LLP, Fort Lauderdale, FL, for Plaintiff. Erica L. Calderas, Pro Hac Vice, Steven A. Goldfarb, Pro Hac Vice, Hahn Loeser & Parks LLP, Cleveland, OH, Mary Ellen Roy Himes, Fidelity National Law Group, Fort Lauderdale, FL, for Defendant.
Darren R. Newhart, Newhart Legal, P.A., Loxahatchee, FL, Jack Dennis Card, Jr., Consumer Law Organization, P.A., North Palm Beach, FL, James Lawrence Kauffman, Bailey & Glasser, LLP, Jennifer Thelusma, Tycko, Zavareei, Washington, DC, Jordan Alexander Shaw, Kimberly A. Slaven, Mark S. Fistos, Ft. Lauderdale, FL, Zachary Dean Ludens, Zebersky Payne Shaw Lewenz LLP, Fort Lauderdale, FL, for Plaintiff.
Erica L. Calderas, Pro Hac Vice, Steven A. Goldfarb, Pro Hac Vice, Hahn Loeser & Parks LLP, Cleveland, OH, Mary Ellen Roy Himes, Fidelity National Law Group, Fort Lauderdale, FL, for Defendant.
ORDER GRANTING MOTION TO REMAND
RODNEY SMITH, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Plaintiff's Motion to Remand [DE 12], Defendant's Response in Opposition [DE 14], and Plaintiff's Reply [DE 18]. For the reasons that follow, Plaintiff's Motion to Remand is GRANTED .
I. BACKGROUND
On April 30, 2019, Plaintiff filed a Class Action Complaint [DE 1-1] against Defendant in the Seventeenth Judicial Circuit in and for Broward County, Florida. In the sole count, Plaintiff alleges that Defendant breached its contract with Plaintiff, and with those similarly situated, when Defendant charged additional fees not otherwise agreed upon in a mortgage agreement. In his Complaint, Plaintiff pleads an indeterminate amount-in-controversy — an amount exceeding $15,000 — and requests monetary compensation in the form of "compensatory damages for breach of contract, including but not limited to, forgiveness of all amounts owed" and attorneys’ fees and costs. Plaintiff estimates that Defendant serviced "tens of thousands" of potentially applicable mortgages, and Plaintiff defines his proposed class as follows:
Within the applicable statute of limitations for Class Representative's claims through the date a class is certified, all individuals with a Florida address whose mortgage loans LoanCare has serviced and to whom LoanCare or its agents or contractors charged, collected, or attempted to collect fees for making mortgage payments under those mortgages online, via direct debit or debit card, via automatic clearing house ("ACH") transitions, via automatic withdrawal, or via telephone.
(Compl. ¶¶ 46, 48.)
On June 14, 2019, Defendant filed its Answer and Affirmative Defenses. The parties proceeded in state court, litigating Defendant's Motion for Judgment on the Pleadings and engaging in discovery. While engaged in discovery, the parties exchanged three items relevant for purposes of this analysis. First, on January 31, 2020, Plaintiff provided Defendant with Plaintiff's Answer and Objection to Defendant's Interrogatory No. 17 (the "Original Interrogatory Answer No. 17") [DE 12-3], in which Plaintiff addressed his theory on damages. The Original Interrogatory No. 17 and its Answer contains the following:
[Request:] For each breach identified in response to Interrogatory No. 15, state the basis and amount of monetary damage you are seeking as a result of the breach being sure to identify whether the claimed damages are compensatory damages or special damages.
Answer: Plaintiff objects to this interrogatory to the extent it calls for a legal conclusion. As for the remainder of the interrogatory, Plaintiff is seeking the actual damages incurred from paying Defendant's illegal and improper "Pay-to-Pay" fees, on behalf of himself and the putative class. Discovery is ongoing and Plaintiff reserves the right to supplement this Answer as further information is discovered, including but not limited to the receipt of documents in the exclusive possession, custody, and control of Defendant.
(DE 12-3.) Second, on March 16, 2020, Defendant provided plaintiff with Defendant's Supplemental Response to Plaintiff's Interrogatory No. 3. In Plaintiff's Interrogatory No. 3, Plaintiff asked Defendant to: "Identify each Surcharge, including the date, amount, and type of each Surcharge, that Defendant has charged or collected from any Florida borrower during the applicable time period." (Notice Removal ¶ 4.) In response, Defendant created a spreadsheet containing Defendant's own data that identified the fees charged by Defendant for payment services (the "Defendant Fee Data"). According to Defendant, the amount-in-controversy, based on the sum of the fees set out in Defendant's Fee Data is $5,862,647.02. (Id. ) Defendant provided the Defendant Fee Data in response to Plaintiff's Interrogatory No. 3 on March 16, 2020.
The Court notes the following from the state court record. Plaintiff originally served Plaintiff's First Set of Interrogatories to Defendant [DE 1-3 at 172] on July 29, 2019. Defendant responded to Plaintiff's interrogatory request on December 4, 2019 with, what Plaintiff described as, deficient responses. On March 6, 2020, Plaintiff filed a Motion to Compel Better Responses to Interrogatories and for Sanctions [DE 1-3 at 162]. On March 12, 2020, the state court ordered that a hearing be held on April 2, 2020 to address Plaintiff's Motion to Compel and for Sanctions [DE 1-3 at 187]. Defendant thereafter served Plaintiff with its Supplemental Response to Plaintiff's First Set of Interrogatories on March 16, 2020. [DE 1-3 at 188]. Defendant's Supplemental Response included its response to Plaintiff's Interrogatory No. 3, the request that prompted Defendant to create and produce Defendant Fee Data. Thereafter, upon Defendant's motion, the state court canceled the scheduled hearing [DE 1-3 at 192]. Based on the record, it appears that Defendant's lack of diligence in responding to discovery requests contributed to the timing of removal.
Defendant did not include a copy of Defendant Fee Data with its Notice of Removal. According to Defendant, Defendant Fee Data amounts to 14,195 pages of data. Defendant confirmed that a complete copy of Defendant Fee Data would be available upon request.
Third, on April 7, 2020, at Defendant's request, Plaintiff provided Defendant with Plaintiff's Amended Answer and Objections to Defendant's Interrogatory No. 17 (the "Amended Interrogatory Answer No. 17") [DE 12-4], in which Plaintiff again discussed his theory on damages. The Amended Interrogatory No. 17 and its Answer state:
[Request:] For each breach identified in response to Interrogatory No. 15, state the basis and amount of monetary damage You are seeking as a result of the breach being sure to identify whether the claimed damages are compensatory damages or special damages.
Answer: Plaintiff objects to this interrogatory to the extent it calls for a legal conclusion. As for the remainder of the interrogatory, Plaintiff is seeking the actual damages incurred from paying Defendant's illegal and improper "Pay-to-Pay" fees, within the applicable statute of limitations , on behalf of himself and the putative class. Discovery is ongoing, including but not limited to the receipt of documents in the exclusive possession, custody, and control of Defendant.
(DE 12-4 (emphasis added).) The only difference between Plaintiff's answers in the Original Interrogatory Answer No. 17 and the Amended Interrogatory Answer No. 17 was the inclusion of the phrase "within the applicable statute of limitations."
On April 17, 2020, Defendant removed the case to federal court, relying on 28 U.S.C. § 1446(b)(3). Plaintiff timely filed his Motion to Remand on May 12, 2020.
II. STANDARD
"Federal courts are courts of limited jurisdiction. They possess only that power authorized by the Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The Class Action Fairness Act ("CAFA") provides federal courts with original jurisdiction for class actions in which: (a) the number of plaintiffs in all proposed plaintiff classes exceeds one hundred; (b) any member of the plaintiff class is diverse from any defendant; and (c) the aggregate of the claims of individual class members exceeds $5,000,000, exclusive of interest and costs. 28 U.S.C. § 1332(d) ; Dudley v. Eli & Co. , 778 F.3d 909, 911-12 (11th Cir. 2014).
The traditional presumption in favor of removal does not apply to cases removed under CAFA. See Dart Cherokee Basin Operating Co., LLC v. Owens , 574 U.S. 81, 88, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014) ("It suffices to point out that no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.") (internal marks omitted); Dudley , 778 F.3d at 912 ("we may no longer rely on any presumption in favor of remand in deciding CAFA jurisdictional questions."). Thus, when dealing with cases arising under CAFA, its provisions should be "read broadly, with a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant. " S. Rep. No. 109-14, p. 43 (2005) (emphasis added); see Dart, 574 U.S. at 88, 135 S.Ct. 547. Nevertheless, the party seeking to remove the case to federal court bears the burden of establishing federal jurisdiction. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010).
A removing party must comply with both substantive and procedural requirements. See id. at 756. Timeliness is a procedural requirement. Id. Removal must be timely. Id. ; see 28 U.S.C. §§ 1446, 1453(b). Section 1446(b) has two primary subsections governing the timing for removal: (b)(1) and (b)(3). Section 1446(b)(1) deals with civil actions that are removable at the time the action commences. It states: "The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt of ... a copy of the initial pleading setting forth the claim for relief ...." 28 U.S.C. § 1446(b)(1). Section 1446(b)(3) deals with civil actions that were not removable, or could not have been determined to be removable, until later in the proceeding. It provides: "If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant ... of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable." 28 U.S.C. § 1446(b)(3). Under CAFA, class actions may be removed at any point during the pendency of litigation in state court, so long as removal is initiated within thirty days after the defendant is first put on notice that the case has become removable. Dudley , 778 F.3d at 913 (citing 28 U.S.C. § 1453(b) ).
In the Eleventh Circuit, under § 1446(b)(3), "a case becomes removable when three conditions are present: there must be (1) ‘an amended pleading, motion, order or other paper,’ which (2) the defendant must have received from the plaintiff ... and from which (3) the defendant can ‘first ascertain’ that federal jurisdiction exists." Lowery v. Ala. Power Co. , 483 F.3d 1184, 1213 n.63 (11th Cir. 2007) (quoting 28 U.S.C. 1446(b) ); see Pretka , 608 F.3d at 756, 760-61.
In assessing compliance with the procedural requirements for removal under § 1446(b)(3), defendants are limited by the evidence upon which they may rely. See Lowery , 483 F.3d at 1213 ; Pretka , 608 F.3d at 756. Evidence generated or compiled by sources other than the plaintiff may not be considered for removal under § 1446(b)(3). Lowery , 483 F.3d at 1213 ; Pretka , 608 F.3d at 756. A defendant must receive, not generate or compile, a document containing an "unambiguous statement that clearly establishes federal jurisdiction" and that the defendant has received it from the plaintiff or the court. Pretka , 608 F.3d at 762 (quoting Lowery , 483 F.3d at 1213 n.63 ). "[A] defendant cannot show that a previously non-removable case has become removable as a result of a document created by the defendant." Pretka , 608 F.3d at 761.
The Eleventh Circuit's holdings in Lowery and Pretka are consistent with the "bright-line rule" adopted in other circuits. The bright-line rule applies to timing disputes under § 1446(b)(3) and provides that a court — to decide the triggering date for the thirty-day removal period — may only look at the pleadings or any post litigation "other paper" provided from the plaintiff. See Sullivan v. Nat'l Gen. Ins. Online, Inc., No. 3:17-CV-1387-J-32PDB, 2018 WL 3650115 at *6–7, 2018 U.S. Dist. LEXIS 135736 at *13, 15-16 (M.D. Fla. Apr. 17, 2018). Furthermore, the triggering pleading or "other paper" must provide "specific and unambiguous notice that the case satisfies federal jurisdictional requirements." Id. at *7, 2018 U.S. Dist. LEXIS 135736 at *15 (citing Walker v. Trailer Transit, Inc. , 727 F.3d 819, 825 (7th Cir. 2013) ). Thus, the question becomes whether that triggering document, provided by plaintiff, on its face or in combination with an earlier-filed pleading, provides specific and unambiguous notice that the case satisfies federal jurisdictional requirements and is therefore removable. Id. (citing Walker , 727 F.3d at 825 ). The "bright-line" rule is based on a desire to promote judicial efficiency through avoidance of mini trials about what defendants had known or should have known based on facts it possessed when it received the pleading or other paper. Chapman v. Powermatic, Inc., 969 F.2d 160, 163 (5th Cir. 1992).
See, e.g., Graiser v. Visionworks of Am., Inc. , 819 F.3d 277, 283-84 (6th Cir. 2016) ; Romulus v. CVS Pharm. Inc. , 770 F.3d 67, 74-76 (1st Cir. 2014) ; Cutrone v. Mortg. Elec. Reg. Sys., Inc. , 749 F.3d 137, 143-45 (2d Cir. 2014) ; Walker v. Trailer Transit, Inc. , 727 F.3d 819, 823-24 (7th Cir. 2013) ; Mumfrey v. CVS Pharm., Inc., 719 F.3d 392, 399-400 (5th Cir. 2013) ; Kuxhausen v. BMW Fin. Servs. NA LLC , 707 F.3d 1136, 1139, 1141 (9th Cir. 2013).
III. DISCUSSION
A. Removal under 28 U.S.C. § 1446(b)(3) was Improper
On April 17, 2020, Defendant removed the case to federal court, relying on 28 U.S.C. § 1446(b)(3). Defendant claims that receipt of the Amended Interrogatory Answer No. 17 from Plaintiff, when read together with the Defendant Fee Data, was the triggering event that first provided notice the amount-in-controversy exceeded the five-million-dollar jurisdictional threshold. In its Notice of Removal, Defendant also claims that it relied on alleged verbal conversations between Defendant's counsel and Plaintiff's counsel. In further support for removal, Defendant filed a Supplement to Notice of Removal (the "Supplement") [DE 3], which includes a sworn declaration by one of Defendant's counsel (the "Declaration") and seven additional exhibits, only one of which was provided by Plaintiff.
In the Supplement, Defendants included the following: (1) Declaration of Michael J. Gleason in Support of Defendant LoanCare, LLC's Notice of Removal [DE 3]; (2) Exhibit 1: Defendant's Supplemental Response to Plaintiff's First Set of Interrogatories, excluding Defendant Fee Data [DE 3-1]; (3) Exhibit 2: Plaintiff's Amended Answers and Objections to Defendant's Interrogatories, including Amended Interrogatory Answer No. 17 [DE 3-2]; (4) Exhibit 3: Housing Data from the United States Census Bureau [DE 3-3]; (5) Exhibit 4: Article entitled "What International Buyers are Looking for in the Florida Market," published on FloridaRealtors.org [DE 3-4]; (6) Exhibit 5: Article entitled "Foreign Purchases of American Homes Plunge 36% as Chinese Buyers Flee the Market," published on CNBC's website [DE 3-5]; (7) Exhibit 6: Information about Defendant from Defendant's website [DE 3-6]; and (8) Exhibit 7: A summary of Defendant Fee Data used to show the mailing address of Defendant's clients [DE 3-7].
1. Verbal Statements are Not Considered "Other Paper"
First, Defendant may not rely on any verbal statements that may have been made by Plaintiff's counsel to justify removal under § 1446(b)(3). A verbal statement is not an "other paper" within the meaning of § 1446(b)(3), and therefore, a defendant may not rely on any verbal statements to trigger the statute's removal clock. Wood v. ADT, LLC, No. 3:15-CV-644-WKW, 2016 U.S. Dist. LEXIS 187063, at *10-12 (M.D. Ala. Sept. 30, 2016). Accordingly, the Court will not consider any of the alleged verbal statements that may have occurred between the parties’ counsel.
The Eleventh Circuit has recognized that deposition testimony qualifies as "other paper" within the meaning of 28 U.S.C. § 1446(b)(3). See Lowery, 483 F.3d at 1212 n.62 (citing S.W.S. Erectors, Inc. v. Infax, Inc. , 72 F.3d 489, 494 (5th Cir. 1996) ). The purported verbal statements at issue in this case were conversations allegedly exchanged between parties’ counsel, not deposition testimony. Moreover, the parties dispute the substance of the alleged conversations and the date and time on which the conversations purportedly occurred.
2. Documentary Evidence Not Provided by Plaintiff
Second, a case becomes removable when a plaintiff provides a defendant with an amended pleading, motion, order or other paper from which the defendant can first ascertain that federal jurisdiction exists. Lowery, 483 F.3d at 1213 n.63. Defendant may not rely on documentary evidence unless the documentary evidence was provided by Plaintiff. See 28 U.S.C § 1446(b)(3) ; Pretka , 608 F.3d at 761 ; Lowery , 483 F.3d at 1213.
Upon review, the Court finds that Defendant incorrectly relied on documents that were not provided by Plaintiff to justify removal under § 1446(b)(3). Most significantly, Defendant incorrectly relied on the Defendant Fee Data, which was not produced by Plaintiff. Rather, this was a document created by Defendant, using information that had been within Defendant's possession. Therefore, reliance on the Defendant Fee Data to justify removal under § 1446(b)(3) is improper because the Defendant Fee Data was not provided by Plaintiff.
Defendant attempts to validate its reliance on the Defendant Fee Data by suggesting that the Defendant Fee Data should be read together with or "incorporated by reference" into the Amended Interrogatory Answer No. 17. This argument fails. Incorporation by reference requires that the collateral document be sufficiently described or referred to in the incorporating document so that the intent of the parties may be ascertained. See Glob. Quest, LLC v. Horizon Yachts, Inc. , 849 F.3d 1022, 1033 (11th Cir. 2017) (discussing incorporation by reference of a collateral document into a contract). The Amended Interrogatory Answer No. 17 does not expressly incorporate the Defendant Fee Data. In fact, the Amended Interrogatory Answer No. 17 does not reference the Defendant Fee Data. Without a reference to the Defendant Fee Data, the Court cannot find that Plaintiff intended that the Defendant Fee Data be incorporated into the Amended Interrogatory Answer No. 17.
Based on the documents provided, it appears the Defendant Fee Data did not impact Plaintiff's theory on damages. Plaintiff's theory on damages is the subject of both the Original Interrogatory Answer No. 17 and the Amended Interrogatory Answer No. 17. The substance of Plaintiff's theory on damages remained materially unchanged after disclosure of the Defendant Fee Data.
Established case law is clear, in that the "other paper" received from a plaintiff must, on its face or in combination with other qualifying documents provided by the plaintiff, clearly and unambiguously establish federal jurisdiction. Defendant cannot rely on a document it created to show that a previously non-removable case has become removable. See Pretka , 608 F.3d at 761. Defendant's claim that the Amended Interrogatory Answer No. 17 must be read together with the Defendant Fee Data to establish federal jurisdiction underscores Defendant's improper reliance on its own document. The Court will not consider Defendant Fee Data when assessing the propriety of removal under § 1446(b)(3). Likewise, with the exception of Exhibit 2, the Court will not consider the items contained within the Supplement. The majority of the documents in the Supplement are articles or statistical data compiled by sources other than Plaintiff. This type of documentary evidence is precisely what the Eleventh Circuit rejected in Lowery . See Lowery , 483 F.3d at 1213 (rejecting evidence submitted by the defendants in a supplemental filing because the evidence was "not received from the plaintiff, but rather gathered from outside sources."). Accordingly, the Court will not consider these items.
3. Documentary Evidence Provided by Plaintiff
After discounting the non-qualifying items, the Court turns to consider the qualifying documentary evidence provided by Plaintiff. These items include the Complaint and discovery responses, specifically the Original Interrogatory Answer No. 17 and the Amended Interrogatory Answer No. 17. If the Amended Interrogatory Answer No. 17, on its face or in combination with the other documents provided by Plaintiff, unambiguously establishes that the amount-in-controversy exceeds five-million-dollars, then removal would be proper under § 1446(b)(3).
First, the Complaint does not clearly establish that the amount-in-controversy exceeds the jurisdictional threshold. Plaintiff pleads an indeterminate amount-in-controversy and requests monetary compensation in the form of "compensatory damages for breach of contract, including but not limited to, forgiveness of all amounts owed" and attorneys’ fees and costs. Based on Plaintiff's proposed class, Plaintiff alleged that the number of estimated class members could amount to "tens of thousands." As such, the Complaint itself does not contain a clear unambiguous statement that would be sufficient to establish Plaintiff's claims exceed the jurisdictional threshold.
Next, the Court considers the Original Interrogatory Answer No. 17. Responses to interrogatories are considered "other paper" for purposes of removal under § 1446(b)(3). See Lowery, 483 F.3d at 1213 n.62 (citing Akin v. Ashland Chem. Co. , 156 F.3d 1030, 1036 (10th Cir. 1998) ). Defendant received the Original Interrogatory Answer No. 17 from Plaintiff on January 31, 2020. However, the Original Interrogatory Answer No. 17 does not expressly include a dollar figure, nor does it unambiguously establish that the amount-in-controversy exceeds the jurisdictional threshold.
Finally, the Court considers the Amended Interrogatory Answer No. 17. The Amended Interrogatory Answer No. 17 does not, on its face or in combination with any other qualifying documents, unambiguously establish that the amount-in-controversy exceeds the jurisdictional threshold. The Amended Interrogatory Answer No. 17 does not mention a dollar figure with respect to Plaintiff's damages. Contrary to Defendant's assertion, the Amended Interrogatory Answer No. 17 does not expressly incorporate or reference the Defendant Fee Data. Upon review, the only documentary item purportedly showing that the amount-in-controversy exceeds the five-million-dollar jurisdictional threshold is the Defendant Fee Data. This fact further underscores Defendant's improper reliance on the Defendant Fee Data and the impropriety of removal under § 1446(b)(3). Therefore, the Court finds that removal under § 1446(b)(3) was improper.
B. Even if Amended Interrogatory Answer No. 17 Provided Notice of Federal Jurisdiction, Removal would be Untimely.
Even if the Court were to accept Defendant's position, in that Plaintiff's theory on damages in the Amended Interrogatory Answer No. 17 provided notice of federal jurisdiction, Defendant's removal would still be improper. Section 1446(b)(3) states that the document received from the plaintiff must be one from which the defendant could "first ascertain" that federal jurisdiction exists. 28 U.S.C. § 1446(b)(3). Here, Defendant already had in its possession the very information it claims to have received for the first time in the Amended Interrogatory Answer No. 17. The Original Interrogatory Answer No. 17 and the Amended Interrogatory Answer No. 17 are materially identical, with the only difference being that the Amended Interrogatory Answer No. 17 includes the phrase "within the applicable statute of limitations." Without even addressing whether Plaintiff's theory on damages has remained consistent since it filed the Complaint, Defendant had knowledge of Plaintiff's theory on damages since no later than January 31, 2020. Defendant cannot base the timing of removal on information allegedly obtained for the first time when it legally possessed that information at an earlier date. As correctly stated by Plaintiff, the only thing that materially changed between the service of the Original Interrogatory Answer No. 17 and the Amended Interrogatory Answer No. 17 was Defendant's production of the Defendant Fee Data — information that Plaintiff had sought through a discovery request almost eight months prior. Again, Defendant cannot rely on a document created by itself to show that a previously nonremovable case has become removable. See Pretka , 608 F.3d at 761.
See, e.g., Justice v. Provident Life & Accident Ins. Co., No. CA 10-0624-KD-C, 2011 WL 560415, at *29-30 (S.D. Ala. 2011) (R&R), adopted 2011 WL 814591 (S.D. Ala. 2011) (finding that defendant "had the very information it contends it lacked or at least could have intelligently determined [the] same, at the time the complaint was filed, and therefore it should have removed this case within (30) days of filling the complaint ...."); Holloway v. Morrow , No. CA 07-0839-WS-M, 2008 WL 401305, at *11 n.4 (S.D. Ala. 2008) ("[A] defendant cannot piggyback the § 1446(b) 30 day period on receipt of discovery responses containing information that it already possessed."); Mendez v. Cent. Garden & Pet Co. , 307 F. Supp. 2d 1215, 1217 (M.D. Ala. 2003) ("The defendant ‘cannot base the timing of its notice of removal on information allegedly obtained for the first time in a deposition when it legally possessed that information at an earlier date.’ ") (quoting Clingan v. Celtic Life Ins. Co., 244 F. Supp. 2d 1298, 1303 (M.D. Ala. 2003) );
Accordingly, it is
ORDERED that:
1. Plaintiff's Motion to Remand [DE 12] is GRANTED .
2. This matter is REMANDED to the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida.
3. All pending motions nots otherwise ruled on are DENIED as moot .
4. This case is CLOSED .
DONE AND ORDERED in Fort Lauderdale, Florida this 8th day of March, 2021.