The Old Cove Condominium of Naples, Inc. v. Underwriters at Lloyd's, London, ICAT Syndicate 4242 et al
Filing
34
OPINION AND ORDER denying without prejudice 18 plaintiff's Motion to Remand; granting 24 defendants' Motion for Leave to File Amended Notice of Removal. Defendants shall file an Amended Notice of Removal within seven days of this O pinion and Order. Failure to file an Amended Notice of Removal within this time will result in the matter being remanded to state court without further notice. See Opinion and Order for details. Signed by Judge John E. Steele on 8/22/2018. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THE OLD COVE CONDOMINIUM OF
NAPLES, INC.,
Plaintiff,
v.
Case No:
2:18-cv-384-FtM-29MRM
UNDERWRITERS
AT
LLOYD’S,
LONDON, ICAT SYNDICATE 4242
and NATIONAL FIRE & MARINE
INSURANCE COMPANY,
Defendants.
OPINION AND ORDER
This matter comes before the Court on plaintiff's Motion to
Remand (Doc. #18) filed on June 21, 2018.
Defendants filed an
Opposition to plaintiff’s Motion to Remand and Motion for Leave to
file Amended Notice of Removal (Doc. #24) on July 5, 2018.
I.
Plaintiff, The Old Cove Condominium of Naples, Inc. (“The Old
Cove”) filed a two-count complaint in the Circuit Court of the
Twentieth Judicial Circuit in and for Collier County, Florida
against
defendants
Certain
Underwriters
at
Lloyd’s,
London
Subscribing to Policy Number 09-7560098508-S-01 1 (“Lloyd’s”) and
1
The Complaint names Lloyd’s as “Underwriters at Lloyd’s,
London, Icat Syndicate 4242” which defendants state is incorrect
and defendants are actually titled as “Certain Underwriters at
Lloyd’s, London subscribing to policy number 09-7560098508-S-01.”
(Doc. #1, p. 1.)
National Fire & Marine Insurance Company (“National Fire”).
#2.)
(Doc.
On June 5, 2018, defendants removed the matter to this Court
pursuant to 28 U.S.C. §§ 1332, 1441, 1446.
(Doc. #1.)
On June
21, 2018, plaintiff moved to remand the matter asserting that
defendants
did
not
adequately
jurisdiction. (Doc. #18.)
have
established
plead
complete
diversity
In Response, defendants assert they
diversity
jurisdiction
and,
alternatively,
request leave to amend the Notice of Removal. (Doc. #24, pp. 910.)
II.
Generally, a matter may only be removed to federal court
within thirty days of service of the complaint. 2
1446(b)(1).
28 U.S.C. §
During this thirty-day period, the notice of removal
may be freely amended. Cohen v. Herick, No. 8:14-cv-2969-T-35TGW,
2015 WL 12820463, at *2 (M.D. Fla. Jan. 9, 2015) (citing Diebel v.
S.B. Trucking Co., 262 F. Supp. 2d 1319, 1331 n.52 (M.D. Fla.
2003)).
After
the
thirty-day
period,
however,
there
are
limitations on amendments to the notice of removal.
Section
1653
provides
that
“[d]efective
allegations
of
jurisdiction may be amended, upon terms, in the trial or appellate
courts.” 28 U.S.C. § 1653.
Pursuant to this provision, amendments
after the thirty-day period are only allowed to cure procedural
2
There are exceptions to this general rule, none of which
are applicable here. 28 U.S.C. § 1446(b)(3).
- 2 -
defects.
Dye v. Sexton, 695 F. App’x 482, 485 (11th Cir. 2017)
(citing In re Bethesda Mem’l Hisp., Inc., 123 F.3d 1407, 1409-10
(11th Cir. 1997)).
Amendment is not permitted to set forth a new
basis for the Court’s jurisdiction. ARCO Envtl. Remediation, LLC
v. Dep’t of Health and Envtl. Quality of Mont., 213 F.3d 1108,
1117 (9th Cir. 2000);
Ala. Mun. Workers Comp. Fund, Inc. v. P.R.
Diamond Prods., 234 F. Supp. 3d 1165, 1169 (N.D. Ala. 2017).
The
Eleventh Circuit has held that the “failure to establish a party’s
citizenship
at
the
procedural,
rather
time
than
of
filing
the
jurisdictional,
removal
notice
defect,”
Corp.
is
a
Mgmt.
Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th
Cir. 2009) (citation omitted), because it “does not go to the
question of whether the case originally could have been brought in
federal district court,” id. (quoting In re Allstate Ins. Co., 8
F.3d 219, 221 (5th Cir. 1993)).
Here, defendants’ motion to amend the notice of removal was
not filed until after the thirty-day period had expired.
#1-2, pp. 57-62; Doc. #24.)
(Doc.
Defendants seek to set forth more
allegations regarding citizenship and the proportionate risk each
name is responsible for in its Amended Notice of Removal.
The
Court finds that defendant does not seek to assert a new basis of
federal jurisdiction and will allow defendant to file an Amended
Notice of Removal to set forth the basis for diversity jurisdiction
in more detail.
Accordingly, defendants’ Motion to Amend the
- 3 -
Notice of Removal (Doc. #24) is granted, and plaintiff’s Motion to
Remand (Doc. #18) is denied without prejudice to refiling if
needed.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Plaintiff's Motion to Remand (Doc. #18) denied without
prejudice to refiling after defendants file an Amended Notice of
Removal, if necessary.
2.
Defendants’ Motion for Leave to file Amended Notice of
Removal (Doc. #24) is granted. Defendants shall file an Amended
Notice of Removal within seven (7) days of this Opinion and Order.
Failure to file an Amended Notice of Removal within this time will
result in the matter being remanded to state court without further
notice.
DONE and ORDERED at Fort Myers, Florida, this __22nd__ day of
August, 2018.
Copies:
Counsel of Record
- 4 -
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