Opinion
Case No. 1:21-22615-Civ-COOKE/O'SULLIVAN
2022-02-23
WESTLAND COMMERCE PARK, Doral West, Miami Industrial Park, Trix NV, 7744 Commerce Park, and Barr, LLC, Plaintiffs, v. ARCH SPECIALTY INSURANCE COMPANY, Defendant.
Cheryl L. Riess, Mark J. Mintz, Mintz Truppman, P.A., North Miami, FL, Craig Mitchell Greene, Kramer Green Zuckerman Greene & Buchsbaum, Hollywood, FL, for Plaintiffs. Justin Sblano, Christopher M. Ramey, Butler Pappas Weihmuller Katz Craig, Tampa, FL, for Defendant.
Cheryl L. Riess, Mark J. Mintz, Mintz Truppman, P.A., North Miami, FL, Craig Mitchell Greene, Kramer Green Zuckerman Greene & Buchsbaum, Hollywood, FL, for Plaintiffs.
Justin Sblano, Christopher M. Ramey, Butler Pappas Weihmuller Katz Craig, Tampa, FL, for Defendant.
ORDER DENYING PLAINTIFFS’ MOTION TO REMAND
MARCIA G. COOKE, United States District Judge
THIS MATTER is before the Court on the Motion to Remand filed by Plaintiffs Westland Commerce Park, Doral West, Miami Industrial Park, Trix NV, 7744 Commerce Park, and Barr, LLC (the "Motion") (ECF No. 8), filed August 16, 2021. Defendant Arch Specialty Insurance Company ("Defendant") filed its response in opposition to the Motion on August 27, 2021. ECF No. 9. Plaintiffs Westland Commerce Park, Doral West, Miami Industrial Park, Trix NV, 7744 Commerce Park and Barr, LLC ("Plaintiffs") filed their reply in support of the Motion on September 17, 2021. ECF No. 20. Thus, the Motion is ripe for adjudication. The Court having reviewed the Motion, the related briefing, and the relevant legal authorities finds, for the reasons discussed below, that the Motion should be denied.
Background
This is an action stemming from losses allegedly sustained due to Hurricane Irma. Plaintiffs claim that they hold an all-risk insurance policy with Defendant that provides building and personal property coverage as well as business income/rents and extra expense coverage for the properties identified in the Policy's schedule of locations ("the Properties"). ECF No. 1-2 at ¶ 11. According to Plaintiffs, the Properties sustained damage from Hurricane Irma on September 10, 2017 and the Plaintiffs timely notified Defendant of the losses. Id. at ¶ 15. More specifically, Plaintiffs allege that the Properties sustained damages to their roofs which led to water leaks that in turn caused damage to the interior of some of the Properties. Id. at ¶ 16. Plaintiffs further allege that Defendant initially agreed that the losses were covered under the Policy and paid an advance payment of $250,000 to Plaintiffs; however, after an outside construction consulting company and an engineering consultant inspected the Properties, Defendant determined that the losses to the bulk of the Properties were not covered under the Policy or the losses did not exceed the Policy's deductible. See id. at ¶¶ 16-21. In their Complaint, Plaintiffs assert claims for: declaratory relief pursuant to Florida Statutes Chapter 86 (Count I); breach of contract (Count II); and Fraudulent inducement (Count III).
Legal Standard
Federal courts are courts of limited jurisdiction. See, e.g., S. Fla. Equitable Fund, LLC v. City of Miami, Fla. , 770 F. Supp. 2d 1269, 1277 (S.D. Fla. 2011). As courts of limited jurisdiction, federal courts may only exercise jurisdiction pursuant to the Article III of the United States Constitution or a statutory grant of authority to adjudicate the asserted claim. Office of Thrift Supervision v. Paul , 985 F. Supp. 1465, 1470 (S.D. Fla. 1997). "[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously [e]nsure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises." Smith v. GTE Corp. , 236 F.3d 1292, 1299 (11th Cir. 2001). To act in accordance with its limited jurisdiction, a federal district court must have at least one of three types of subject matter jurisdiction in a given case: (1) jurisdiction under a specific statutory grant; (2) federal question jurisdiction pursuant to 28 U.S.C. § 1331 ; or (3) diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). Monserrate v. Target Corp. , No. 13-23703-CIV, 2014 WL 11881021, at *1 (S.D. Fla. Apr. 7, 2014) (citing Baltin v. Alaron Trading Corp. , 128 F.3d 1466, 1469 (11th Cir. 1997)) (citing Klein v. Drexel Burnham Lambert , 737 F. Supp. 319, 323 n.11 (E.D. Pa. 1990) ).
For a court to have diversity jurisdiction pursuant to 28 U.S.C. § 1332(a), no defendant may be a citizen of the same state as any plaintiff and the amount in controversy must exceed $75,000. 28 U.S.C. § 1332. There is a presumption that a case lies outside this limited jurisdiction and the burden of proving otherwise rests on the party asserting jurisdiction. Id. (citing Williams v. Best Buy Co. Inc. , 269 F.3d 1316, 1319 (11th Cir. 2001) ). Additionally, removal statutes are construed narrowly and "[a]ll doubts about jurisdiction should be resolved in favor of remand to state court." Id. (quoting Univ. of S. Ala. v. Am. Tobacco Co. , 168 F.3d 405, 411 (11th Cir. 1999) ). Thus, "[i]n deciding a motion to remand where the plaintiff and defendant disagree on issues of jurisdiction, uncertainties are resolved in favor of remand." Id.
A defendant seeking removal must timely file a notice of removal, which includes a "short and plain statement of the grounds for removal[.]" 28 U.S.C. § 1446(a). "If an action's initial pleadings provide the grounds for removal, the defendant's notice of removal must be filed within 30 days after the defendant's receipt of the initial pleading setting forth the claim." § 1446(b)(1). Perez v. Scottsdale Ins. Co. , No. 19-CV-22346, 2020 WL 596971, at *1 (S.D. Fla. Feb. 7, 2020). "If the initial pleadings do not provide grounds for removal, the thirty-day removal clock begins ticking upon defendant's receipt 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.’ " Id. (quoting 28 U.S.C. § 1446(b)(3) ). "The definition of ‘other paper’ is broad and may include any formal or informal communication received by a defendant." Id. (quoting Wilson v. Target Corp. , No. 10-80451, 2010 WL 3632794, at *2 (S.D. Fla. Sept. 14, 2010) ) (citing Yarnevic v. Brink's, Inc. , 102 F.3d 753, 755 (4th Cir. 1996) ).
Analysis
Plaintiffs initially filed this action in the Eleventh Judicial Circuit in and for Miami-Dade County on March 17, 2021. ECF No. 1-2 at p. 1. Defendant removed this case to federal court on July 22, 2021 based upon diversity jurisdiction. ECF No. 1. More specifically, Defendant's Notice of Removal alleges that is a foreign corporation, organized and existing under the laws of the State of Missouri with its principal place of business located in the State of New Jersey, and Plaintiffs are limited liability companies with their members domiciled in Miami-Dade County, Florida. ECF No. 1 at ¶¶ 15-16.
In their Motion, Plaintiffs contend that remand is appropriate because Defendant removed this action four months after the thirty-day deadline to remove expired. Further, according to Plaintiffs, a review of the Complaint and the exhibits attached thereto should have alerted Defendant to the grounds for removal within thirty days of service of the Complaint and its exhibits. In opposition to the Motion, Defendant argues that removal was not untimely because it did not know the identities of every member of the six limited liability companies which comprise the Plaintiffs until it received limited discovery from Plaintiffs on June 25, 2021.
The dispute here boils down to whether 28 U.S.C. § 1446(b)(1) requires a defendant to investigate jurisdictional facts within thirty-days of receiving a complaint when it gives the defendant some "clue" about removability, but insufficient information to file a notice. In short, as discussed below, the Court finds that the answer to this question is no. As the Middle District of Florida recently recognized, the Eleventh Circuit has not resolved this question. Healthcare Billing Sys., LLC v. Athens-Clarke Med. Enterprises, LLC , No. 620CV1167ORL31LRH, 2020 WL 5201387, at *1 (M.D. Fla. Sept. 1, 2020) (citing Pretka v. Kolter City Plaza II, Inc. , 608 F.3d 744, 767 n. 23 (11th Cir. 2010)) (stating "[w]e need not decide, and do not purport to decide, whether a defendant has a duty to investigate the necessary jurisdictional facts within the first thirty days of receiving an indeterminate complaint."). Nonetheless, several other circuits have declined to read an investigation requirement into § 1446(b)(1) ; instead, those Circuits find the test to be whether a defendant can intelligently ascertain removability from the "four corners" of the complaint in determining if the thirty-day deadline is triggered. See, e.g., Whitaker v. Am. Telecasting, Inc. , 261 F.3d 196, 205-06 (2d Cir. 2001) ; Lovern v. GMC , 121 F.3d 160, 162 (4th Cir. 1997) ; Chapman v. Powermatic, Inc. , 969 F.2d 160, 163 (5th Cir. 1992) ; Harris v. Bankers Life & Cas. Co. , 425 F.3d 689, 694 (9th Cir. 2005). Moreover, although the Eleventh Circuit has held that courts may consider information beyond the pleadings available to defendants, it has not held that defendants are required to seek such information within 30 days of service. See Pretka , 608 F.3d at 764-68. Furthermore, the Court finds that imposing such a duty would undermine removal and diversity jurisdiction jurisprudence.
To be clear, 28 U.S.C. § 1446(b) states, "[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." 28 U.S.C.A. § 1446(b). A case is removable under the first paragraph of Section 1446(b) when the initial pleading "enables the defendant to ‘intelligently ascertain’ removability from the face of such pleading, so that in its petition for removal, [the] defendant can make a short and plain statement of the grounds for removal as required [by] 28 U.S.C. § 1446(a)." Photo-Tech, Inc. v. Pfizer, Inc. , No. 8:10-CV-856-T-27EAJ, 2010 WL 11508157, at *1–2 (M.D. Fla. Aug. 24, 2010) (quoting Whitaker v. American Telecasting, Inc. , 261 F.3d 196, 205-206 (2d Cir. 2001) ). Meaning that a case is removable under the first paragraph of 1446(b) where a pleading provides " ‘the necessary facts to support [the] removal petition.’ " Id. (quoting Whitaker , 261 F.3d at 206 ).
Meanwhile, under Eleventh Circuit diversity jurisdiction precedent, "[t]o sufficiently allege the citizenships of [limited liability companies], a party must list the citizenships of all the members of the limited liability company[.]" Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C. , 374 F.3d 1020, 1022 (11th Cir. 2004). This rule is applicable to complaints and notices of removal. See, e.g. , 4539 Pinetree LLC v. Certain Underwriters at Lloyd's London , No. 21-CV-21010, 2021 WL 1022770, at *2 (S.D. Fla. Mar. 17, 2021) (dismissing notice of removal on the ground that the defendant failed to properly plead the plaintiff's citizenship where the notice failed to identify the members of the limited liability company and their respective states of citizenship); Gallo v. BJ's Wholesale Club, Inc. , No. 20-22907-CIV, 2020 WL 9848413, at *1 (S.D. Fla. July 15, 2020) (dismissing notice of removal and stating "[t]o sufficiently allege the citizenships of these unincorporated business entities, a party must list the citizenships of all the members of the limited liability company.... [Defendant Shark Ninja] provides no information regarding the citizenships of its Co-Defendants, a corporation and two limited liability companies. Before the Court may assess whether there is in fact diversity jurisdiction, Defendant must submit details regarding (1) the place of incorporation and principal place of business of BJ's Wholesale, Inc.; and (2) the citizenships of each of the members of Nutribullet, LLC and Capital Brands, LLC."). A defendant removing under the first paragraph of § 1446(b), however, cannot list the citizenships of all the members of the plaintiff limited liability company where the complaint and its exhibits fail to provide such information. This is critical.
Here, neither Plaintiffs’ Complaint nor the exhibits to the Complaint directly state that Plaintiffs are limited liability companies. Even the caption of the Complaint, fails to identify the Plaintiffs’ corporate form. Further, the Complaint and its exhibits do not identify the members of the Plaintiffs’ limited liability companies or their citizenships. It is telling that Plaintiffs concede that their Complaint does not "specifically address [the] citizenship of every party[.]" ECF No. 20 at p. 3. The Court reviewed the hundreds of pages of exhibits to the Complaint, and it was unable to determine the Plaintiffs’ corporate identities from those documents. The Court also notes that Plaintiffs did not provide a pin cite reference to any of the Complaint's exhibits to support their argument, which is further indication that no such direct reference exists in the Complaint and its exhibits.
Moreover, the Court finds that it would be patently unfair to impose a duty to investigate jurisdictional facts on a removing party – especially here where the Complaint and the exhibits fail to even allege that the plaintiffs are limited liability companies and fail to identify the members of those limited liability companies and their citizenships. The Court finds unavailing Plaintiffs’ suggestion that "the exhibits to the Complaint, including Arch's own insurance policy issued to and listing each Plaintiff, certainly placed the Defendant on fair notice as to who the parties were, putting them in a position to ascertain citizenship via public records, a simple telephone call to Plaintiffs’ counsel, a website such as SunBiz.org, or even an internal claim file review of applications for insurance." Id. Without clear direction from the Eleventh Circuit, the Court is unwilling to impose such a burden on removing defendants. To hold otherwise, would potentially open such parties up to boundless jurisdictional investigations and would encourage gamesmanship as plaintiffs would be encouraged to "artfully" plead in order to mask their identities for thirty days so as to evade removal to this Court based upon diversity jurisdiction. This the Court cannot countenance. See Pretka , 608 F.3d at 767 (cautioning that "[a] diverse plaintiff could defeat federal jurisdiction simply by drafting his pleadings in a way that did not specify an approximate value of the claims and thereafter provide the defendant with no details on the value of the claim. That would subject the defendant's right to remove to the caprice of the plaintiff, which the Supreme Court has said in another context that we should not do.").
For the reasons discussed above, it is hereby ORDERED and ADJUDGED that Plaintiffs’ Motion to Remand (ECF No. 8) is DENIED .
DONE and ORDERED in Chambers at Miami, Florida this 23rd day of February 2022.