TFG Life Settlements, LLC v. Centurion Insurance Services Group, LLC et al

Filing 19

ORDER granting 15 Defendants, Centurion Insurance Services Group, LLC and Centurion ISG (Europe) Limited's Motion to Dismiss for Lack of Subject Matter Jurisdiction. Centurion has up to and including December 29, 2014, to file an Amended Complaint. Should TFG not file an Amended Compliant on or before December 29, 2015, this case will be DISMISSED and closed for failure to prosecute. The TRO 5 issued on December 4, 2015, is hereby DISSOLVED based on the lack of subject matter jurisdiction at the time of the filing of the Complaint. The Emergency Motion to Dissolve the TRO 13 filed on December 9, 2015 is DENIED as moot. Signed by Judge Sheri Polster Chappell on 12/16/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
TFG LIFE SETTLEMENTS, LLC, a
Delaware limited liability company
Plaintiff,
v.

Case No: 2:15-cv-755-FtM-38CM

CENTURION INSURANCE
SERVICES GROUP, LLC and
CENTURION ISG (EUROPE)
LIMITED,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants, Centurion Insurance Services
Group, LLC (Centurion U.S.) and Centurion ISG (Europe) Limited’s (together Centurion)
Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. #15) filed on December
11, 2015. The Plaintiff, TFG Life Settlements, LLC (TFG) filed its Expedited Response in
Opposition (Doc. #17) filed on December 14, 2015. A hearing was held on the issue on
December 16, 2015, and argument was heard on the Motion.
Centurion moves the Court to dismiss the Complaint for lack of subject matter
jurisdiction. TFG brings this action pursuant to this Court’s diversity jurisdiction. The
Complaint states that the Parties are diverse as Centurion Insurance Services Group,

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LLC is an Ohio limited liability company with its principal place of business in Cincinnati,
Ohio, and Plaintiff is a Delaware Corporation with its principal place of business in Naples,
Florida. Centurion states that Centurion Insurance Services Group, LLC is registered in
Ohio but its principal place of business is Boca Raton, Florida, and that two (2) of the
LLC’s members are citizens of Delaware so there is not diversity. At the hearing, Counsel
for TFG conceded that Centurion U.S. is a citizen of Florida and as long as it is a party
the Court lacks subject matter jurisdiction. TFG asks the Court to make a finding that
Centurion U.S. is a dispensable party, dismiss Centurion U.S. from the Complaint, and
retain jurisdiction based on diversity of the remaining parties.
STANDARD OF REVIEW
The general rule under Fed. R. Civ. P. 12(h)(3) is that “[i]f the court determines at
any time that it lacks subject-matter jurisdiction, the court must dismiss the action.” Under
a Rule 12(b)(1) motion, a claim’s subject matter jurisdiction may be challenged both
facially and factually. McMaster v. United States, 177 F.3d 936, 940 (11th Cir. 1999).
According to the Eleventh Circuit, facial attacks “require the court merely to look and see
if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in his complaint are taken as true”. Id. (punctuation omitted). Factual attacks,
however, “challenge the existence of subject matter jurisdiction in fact, irrespective of the
pleadings, and matters outside the pleadings, such as testimony and affidavits, are
considered.” Id. (punctuation omitted). The Eleventh Circuit has instructed that “[i]n
response to a factual attack, a court should dismiss the complaint for lack of subject
matter jurisdiction where the federal claim is clearly immaterial or insubstantial.” Id.
(punctuation omitted).

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In factual subject matter jurisdictional attacks, this Court need not take the
allegations in the complaint as true. Odyssey Marine Exploration, Inc. v. Unidentified
Shipwrecked Vessel, 657 F.3d 1159, 1169 (11th Cir. 2011) cert. denied, 132 S. Ct. 2379
and cert. denied, 132 S. Ct. 2380 (U.S. 2012) and cert. denied. Rather, the Court may
“independently weight the facts and is not constrained to view them in the light most
favorable to the non-movant.” Id.
DISCUSSION
Centurion argues the Complaint must be dismissed because this Court lacks
diversity jurisdiction. Federal courts have diversity jurisdiction over civil actions when the
amount in controversy exceeds $75,000 and the action is between citizens of different
states. 28 U.S.C. § 1332(a). Diversity jurisdiction requires complete diversity; every
plaintiff must be diverse from every defendant. The removing party bears the burden of
demonstrating that removal is proper. Hernandez v. Ferris, 917 F. Supp. 2d 1224, 122627 (M.D. Fla. 2012) (citing Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th
Cir.2001)).
As grounds to dismiss the case, Centurion states that while Centurion Insurance
Services Group, LLC (Centurion U.S.) is an Ohio limited liability company, its principal
place of business was moved in the spring of 2015 to Boca Raton, Florida. Thus,
Centurion argues there is no diversity and the case should be dismissed. TFG argues
that pursuant to Fed. R. Civ. P. 21, Centurion U.S. may be dismissed as a dispensable
party and diversity will be maintained with Centurion Europe which is a foreign company
based in Ireland.

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Under Rule 21 the Court may dismiss a misjoined party. Rule 21 reads in pertinent
part:
Misjoinder of parties is not a ground for dismissing an action.
On motion or on its own, the court may at any time, on just
terms, add or drop a party. The court may also server any
claims against a party.
Fed R. Civ. P. R. 21 (emphasis added).
Based upon the arguments at the hearing, the Court will exercise its discretion and
decline to rule on whether or not Centurion U.S. is a dispensable party. Barber v.
America’s Whole Lender, 289 F.R.D. 364, 366-67 (M.D. Fla. 2013) (holding that district
courts enjoy broad discretion to at any time add or drop a party . . . district courts enjoy
equally broad discretion to sever parties based on misjoinder). TFG admitted in its brief
and at the hearing that Centurion U.S. destroys diversity and prevents this Court from
having subject matter jurisdiction. TFG is the master of its Complaint, if it wishes to
dismiss Centurion U.S. it has the right to do so and file an Amended Complaint as
authorized by Fed. R. Civ. P. 15(a).
Under Fed. R. Civ. P. 15(a) a party may amend their pleading as a matter of course
before being served with a responsive pleading or up to twenty-one (21) days after serving
the pleading if a responsive pleading has not been filed and the action is not yet on the
trial calendar. Fed. R. Civ. P. 15(a)(1). Otherwise, the Party must seek leave of court or
written consent of the adverse party in order to amend the pleading. Fed. R. Civ. P.
15(a)(2).
The Complaint was filed on December 3, 2015, and to date no responsive pleading
has been filed. As such, TFG would have up to and including December 24, 2015, to file
an Amended Complaint without leave of Court. TFG failed to do so. Therefore, the Court

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declines to exercise its discretion under Rule 21 but will dismiss the Complaint for lack of
subject matter jurisdiction and dissolve the TRO (Doc. #5) issued on December 4, 2015.
Accordingly, it is now
ORDERED:
(1) Defendants, Centurion Insurance Services Group, LLC and Centurion ISG
(Europe) Limited’s Motion to Dismiss for Lack of Subject Matter Jurisdiction
(Doc. #15) is GRANTED.
(2) Centurion has up to and including December 29, 2014, to file an Amended
Complaint. Should TFG not file an Amended Compliant on or before December
29, 2015, this case will be DISMISSED and closed for failure to prosecute.
(3) The TRO (Doc. #5) issued on December 4, 2015, is hereby DISSOLVED based
on the lack of subject matter jurisdiction at the time of the filing of the Complaint.
(4) The Emergency Motion to Dissolve the TRO (Doc. #13) filed on December 9,
2015 is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida this 16th day of December, 2015.

Copies: All Parties of Record

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