Daniels et al v. Daniels

Filing 15

ORDER denying as moot 5 motion to dismiss in light of 2 Second Amended Complaint; denying 12 Motion to Remand to State Court. Signed by Judge John E. Steele on 3/25/2014. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RHETT DANIELS and ELIZABETH
TREZZA,
Plaintiffs,
v.

Case No: 2:14-cv-31-FtM-29DNF

JAMES JOSEPH DANIELS, JR.,
Defendant.
ORDER
This matter comes before the Court on plaintiff's Motion to
Remand (Doc. #12) filed on February 19, 2014.

Defendant filed a

Memorandum of Law in Opposition (Doc. #14) on February 26, 2014.
On or about April 7, 2013, plaintiffs filed suit in the Lee
County Circuit Court naming James Joseph Daniels, Jr. (defendant)
and William England.

(Doc. #12, ¶ 1; Doc. #14, p. 1.)1

On or

about July 19, 2013, plaintiffs amended the complaint to add James
Joseph Daniels, Sr. as a third defendant.

On or about July 31,

2013, defendant filed a Motion to Dismiss (Doc. #5) the Amended
Complaint.

In November and December 2013, the co-defendants James

Joseph Daniels, Sr. and William England were dismissed leaving
defendant James Joseph Daniels, Jr. only.

1

On or about December

The Notice of Removal (Doc. #1) appears to contain a
typographical error in paragraph 1 regarding the filing date of
the initial Complaint.

23, 2013, upon the dismissal of William England, defendant states
that the case became removable.

(Doc. #1, ¶¶ 4-7.)

On January

21, 2014, defendant James Joseph Daniels, Sr. filed his Notice of
Removal (Doc. #1) after dismissal of his co-defendants.
Plaintiff seeks remand, arguing that defendant waived his
right of removal because of his substantial defensive actions taken
in state court prior to removal, specifically, defendant’s on or
about December 26, 2013, filing of Objections to Subpoenas.

The

Court finds that filing Objections to discovery within days of
removal and prior to the Notice of Removal being filed in federal
court did not waive defendant’s right to remove the case.

The

Notices of Production (Doc. #12, pp. 7, 10) clearly provide that
the subpoenas would be issued if no objections were received within
15 days from service if by mail.

Participation in state court

that is not substantial or dictated by the rules will not cause a
waiver of the right of removal.

Yusefzadeh v. Nelson, Mullins,

Riley & Scarborough, LLP, 365 F.3d 1244, 1246 (11th Cir. 2004).
See also Cruz v. Lowe’s Home Ctrs., Inc., 8:09-cv-1030-T-30MAP,
2009 WL 2180489, *3 n.3 (M.D. Fla. July 21, 2009)(collecting
cases).

Defendant had a deadline to preserve objections and it

was the only action that took place in the narrow window before
the Notice of Removal was filed.
denied.

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The motion to remand will be

The Court notes that plaintiffs were directed to respond to
the Motion to Dismiss I and IV of Plaintiff’s Amended Complaint
(Doc. #5) and no response was filed.

The Court notes, however,

that the motion was directed to the Amended Complaint and the
Second Amended Complaint (Doc. #2) is now the operative pleading
in this case.

Therefore, the motion to dismiss will be denied as

moot.
Accordingly, it is hereby
ORDERED:
1. Plaintiff's Motion to Remand (Doc. #12) is DENIED.
2. Defendant’s

Motion

to

Dismiss

Counts

I

and

IV

of

Plaintiff’s Amended Complaint (Doc. #5) is DENIED as moot
in light of the operative Second Amended Complaint (Doc.
#2).
DONE and ORDERED at Fort Myers, Florida, this
of March, 2014.

Copies:
Counsel of Record

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25th

day