The Old Cove Condominium of Naples, Inc. v. Underwriters at Lloyd's, London, ICAT Syndicate 4242 et al
Filing
42
OPINION and ORDER granting Plaintiff's 41 Motion to Remand to State Court. Signed by Judge John E. Steele on 10/18/2018. (FWH)
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 defendant’s Amended
Notice
of
Removal
(Doc.
#39)
filed
on
August
29,
2018
and
plaintiff’s Renewed Motion to Remand (Doc. #41) filed on October
1, 2018.
I.
Plaintiff, The Old Cove Condominium of Naples, Inc., 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 National Fire & Marine
1
The Complaint names Lloyd’s as “Underwriters at Lloyd’s,
London, ICAT Syndicate 4242.” (Doc. #2, p. 1.) Defendants state
the actual title is “Certain Underwriters at Lloyd’s, London
subscribing to policy number 09-7560098508-S-01.” (Doc. #1, p. 1.)
Insurance Company.
(Doc. #2.)
On June 5, 2018, defendants
removed the matter to this Court pursuant to 28 U.S.C. §§ 1332,
1441, 1446.
(Doc. #1.)
On June 21st, plaintiff sought to remand
the matter to state court for defendants’ failure to sufficiently
allege
diversity
jurisdiction.
(Doc.
#18.)
Defendants,
in
response, requested the ability to file an Amended Notice of
Removal
presenting
additional
allegations
in
support
exercise of diversity subject matter jurisdiction.
of
the
(Doc. #24.)
The request was granted and defendants were ordered to file an
Amended Notice of Removal within seven days.
same
time,
plaintiff’s
motion
to
remand
(Doc. #34.)
was
denied
At the
without
prejudice to refiling after defendants filed an Amended Notice of
Removal.
(Doc. #34.)
Defendants filed an Amended Notice of
Removal on August 29th and Plaintiff filed its Renewed Motion to
Remand
on
October
1st,
claiming
established diversity jurisdiction. 2
Defendants
had
still
not
(Docs. ##39, 41.)
II.
A defendant may remove an action to a United States District
Court based on diversity jurisdiction under 28 U.S.C. § 1332.
U.S.C. § 1441(a).
28
District Courts have original jurisdiction over
civil actions involving parties with diverse citizenship where the
2
See 28 U.S.C. § 1447(c) (“A motion to remand the case on
the basis of any defect other than lack of subject matter
jurisdiction must be made within 30 days after filing of the notice
of removal under section 1446(a).” (emphasis added)).
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amount in controversy exceeds $75,000.00.
28 U.S.C. § 1332.
Diversity jurisdiction requires complete diversity, i.e., that
every plaintiff is diverse from every defendant.
Palmer v. Hosp.
Auth. of Randolph Cty., 22 F.3d 1559, 1564 (11th Cir. 1994).
“[A]ll doubts about jurisdiction should be resolved in favor of
remand to state court.”
Univ. of S. Ala. v. Am. Tobacco Co., 168
F.3d 405, 411 (11th Cir. 1999).
A corporation is deemed to be a citizen of every state and
foreign state it is incorporated in, and of the state or foreign
state where it has its principal place of business.
1332(c)(1).
28 U.S.C. §
Unincorporated associations, on the other hand, “do
not themselves have any citizenship, but instead must prove the
citizenship of each of their members to meet the jurisdictional
requirements of 28 U.S.C. § 1332.”
Underwriters at Lloyd’s,
London v. Osting-Schwinn, 613 F.3d 1079, 1086 (11th Cir. 2010).
Defendant Lloyd’s is a syndicate and falls “squarely within
the class of unincorporated associations for which the pleading of
every member’s citizenship is essential to establishing diversity
jurisdiction.”
Id.
at
1088.
Defendants’
Amended
Notice
of
Removal alleges that “Lloyd’s Syndicate 4242 is comprised of twelve
(12) corporate members and Hampden Agencies MAPA 7217.”
#39, p. 4.)
(Doc.
The Amended Notice of Removal states that the twelve
corporate
members
Companies
for
are
England
“incorporated
and
Wales”
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through
and
the
provides
Registrar
each
of
of
their
principal places of business, all of which are in London.
at 4-5.)
(Id.
This sufficiently states the citizenship of the twelve
corporate members.
The thirteenth member of Lloyd’s Syndicate 4242 is Hampden
Agencies MAPA 7217, a “members’ agent pooling arrangement.”
at 5.)
(Id.
Defendants state that the MAPA is comprised of corporate
and individual members, with the corporate members incorporated in
England and Wales and the individual members being citizens of the
United Kingdom.
(Id. at 6-7).
Defendants note that the “place
of incorporation or the citizenship of each member” of the MAPA is
listed in an exhibit offered with the Amended Notice of Removal.
(Id. at 6.)
Per the exhibit, the MAPA contains more than five
hundred members, roughly ninety percent of whom are business
entities.
columns
(Doc. #39-2.)
titled
“Member
The exhibit shows a chart with four
Country,”
“Country
“Member Name,” and “Syndicate No.” (Id.)
Of
Incorporation,”
For each Member Name
identified, either “United Kingdom” appears in the column titled
“Member Country,” or “England & Wales (Corporate)” or “Scotland
(Corporate)”
appears
in
Incorporation.” (Id.)
listed
in
the
the
column
titled
“Country
of
It seems the Member Names having something
column
titled
“Country
of
Incorporation”
are
incorporated entities, while those Member Names having “United
Kingdom”
listed
in
the
column
titled
“Member
Country”
individuals who are citizens of the United Kingdom.
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are
(See Doc.
#39, p. 7 (MAPA’s “corporate members are incorporated in England
and Wales and the individual members are citizens of the United
Kingdom”)).
It is not enough, however, for the defendants to simply state
where
the
MAPA’s
corporate
members
previously
noted,
corporations
can
are
have
incorporated.
multiple
As
places
of
citizenship -- the state in which it is incorporated, the foreign
state in which it is incorporated, and the state or foreign state
where
it
has
its
principal
place
of
business.
28
U.S.C.
§
1332(c)(1); see also Molinos Valle Del Cibao, C. por A. v. Lama,
633 F.3d 1330, 1346 (11th Cir. 2011) (noting that corporations are
“citizens” for diversity purposes wherever they are incorporated
and have their principal place of business, and as a result,
“corporations
defendants
may
have
be
citizens
listed
the
of
states”).
corporate
MAPA
multiple
members’
Although
place
of
incorporation, they have failed to indicate where they have their
principal place of business.
See Alliant Tax Credit Fund XVI,
Ltd. V. Thomasville Cmty. Hous., LLC, 713 F. App’x 821, 824 (11th
Cir. 2017) (“To allege the citizenship of a corporation, a party
must
identify
every
state
by
which
the
company
has
been
incorporated and the state where it has its principal place of
business.”).
Having
failed
to
offer
this
information,
the
defendant has not met its burden in establishing the Court’s
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subject matter jurisdiction over this matter. 3
Court remands the matter to state court.
Accordingly, the
See Univ. of S. Ala.,
168 F.3d at 410 (“[O]nce a federal court determines that it is
without subject matter jurisdiction, the court is powerless to
continue.”).
III.
Also before the Court is plaintiff’s request for attorney’s
fees and costs arising from “the improper removal” of this case.
(Doc. #41, p. 11.)
“An order remanding the case may require
payment of just costs and any actual expenses, including attorney
fees, incurred as a result of the removal.”
28 U.S.C. § 1447(c).
An
section
award
of
attorney’s
fees
pursuant
to
1447(c)
is
discretionary and turns on the reasonableness of the removal.
Martin v. Franklin Capital Corp., 546 U.S. 132, 139, 141 (2005).
“[A]bsent unusual circumstances, attorney’s fees should not be
3
While defendants describe the MAPA entities as “corporate
members,” the entities’ names suggest they are actually limited
companies,
limited
partnerships,
and
limited
liability
partnerships.
(See Doc. #39-2.)
This would not change the
Court’s determination regarding subject matter jurisdiction,
however, because the defendants have also not listed the
citizenship of each entities’ individual members.
See Rolling
Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020,
1022 (11th Cir. 2004) (holding that a limited liability company,
like a limited partnership, is a citizen of any state of which a
member of the company is a citizen and “[t]o sufficiently allege
the citizenship of these unincorporated business entities, a party
must list the citizenships of all the members of the limited
liability
company
and
all
the
partners
of
the
limited
partnership”).
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awarded when the removing party has an objectively reasonable basis
for removal.”
Id. at 136.
In this case, the Court concludes the award of fees is
appropriate.
After defendants’ initial Notice of Removal failed
to invoke this Court’s subject matter jurisdiction, plaintiff
filed a motion to remand, arguing defendants failed to (1) plead
both the place of incorporation and the principal place of business
for
each
of
Lloyd’s
corporate
members,
citizenship of each member of the MAPA.
Rather
than
agree
to
remand,
defendants
and
(2)
plead
the
(Doc. #18, p. 7-8.)
requested
and
were
permitted to file an Amended Notice of Removal to set forth
additional
(Doc. #24.)
allegations
in
support
of
diversity
jurisdiction.
As explained above, however, the Amended Notice of
Removal still fails to set forth the principle place of business
for each of the MAPA’s corporate members, and therefore still fails
to establish diversity jurisdiction.
Defendants having failed to
invoke this Court’s jurisdiction despite multiple opportunities to
do so, the Court finds there was not an objectively reasonable
basis for removal and plaintiff’s request for fees should be
granted.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1. Plaintiff’s Renewed Motion to Remand (Doc. #41) is GRANTED.
The request for fees and costs therein is also GRANTED. Within
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FOURTEEN (14) DAYS of this Opinion and Order, Plaintiff shall
file
an
affidavit
and
supporting
invoices
detailing
the
attorney’s fees and costs incurred as a result of removal.
Defendant may file a response within FOURTEEN (14) DAYS
thereafter.
2. The Clerk is directed to remand the case to the Circuit
Court of the Twentieth Judicial Circuit, in and for Collier
County, Florida, and to transmit a certified copy of this
Order to the Clerk of that Court.
3. The Clerk is further directed to terminate all pending
motions and deadlines, and to close the case.
DONE and ORDERED at Fort Myers, Florida, this 18th day of
October, 2018.
Copies:
Counsel of Record
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