Rymer v. The Travelers Idemnity Company et al

Filing 13

ORDER discharging Order to Show Cause. Signed by Judge Roy B. Dalton, Jr. on 9/14/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
DENNIS G. RYMER,
Plaintiff,
v.

Case No. 5:16-cv-534-Orl-37PRL

THE TRAVELERS INDEMNITY
COMPANY; and NANCY G.
KORNBLUH,
Defendants.
ORDER
This cause is before the Court on the following:
1.

The Court’s Order to Show Cause (Doc. 7), filed August 25, 2016;

2.

Defendant’s Response to Order to Show Cause (Doc. 9), filed
September 1, 2016.

Upon consideration, the Court finds that the Order to Show Cause is due to be
discharged.
Plaintiff originally filed this action in the Circuit Court of the Fifth Judicial Circuit in
and for Lake County, Florida seeking damages for Defendants’ failure to pay benefits
under Florida’s workers’ compensation statutes. (See Doc. 2.) On August 19, 2016,
Defendant Nancy G. Kornbluh (“Kornbluh”) removed this action to this Court on the basis
of diversity jurisdiction. (Doc. 1 (“Notice of Removal”).) Following removal, Plaintiff
served Defendant Travelers Indemnity Company (“Travelers”). (See Doc. 1-3, p. 4.) On
August 23, 2016, Travelers consented to Kornbluh’s Notice of Removal. (Doc. 4.)
In her Notice of Removal, Kornbluh represents that Plaintiff fraudulently joined her

as a defendant and, therefore, the Court should ignore her citizenship, which is the same
as Plaintiff’s, in exercising diversity jurisdiction over this action. (Doc. 1, ¶ 14.) On
preliminary review of the Notice of Removal and Complaint, the Court ordered Kornbluh
to show cause why she, as a fraudulently joined defendant, is permitted to remove this
matter by providing legal authority in support of her position. (Doc. 7 (“Show Cause
Order”).)
Kornbluh responded to the Show Cause Order but did not provide the authority
requested by the Court. (See Doc. 9.) Instead, Kornbluh directs the Court to the argument
and authority presented in her co-defendant Travelers’ motion to dismiss (Doc. 8.
(“Motion to Dismiss”)). (Id. ¶ 4.) However, before reaching any substantive issues, the
Court must first determine whether Kornbluh properly removed the instant action.
Removal jurisdiction exists where the Court would have had original jurisdiction
over the action. 28 U.S.C. § 1441(a). In diversity cases, district courts have original
jurisdiction over cases in which the parties are completely diverse and the amount in
controversy exceeds $75,000. 28 U.S.C. § 1332(a). The removing defendant bears the
burden of proving that federal jurisdiction exists. Williams v. Best Buy Co., Inc., 269 F.3d
1316, 1319 (11th Cir. 2001).
Removal by a fraudulently joined defendant “does not render the removal
procedurally defective.” Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 931 (S.D. Ill. 2006).
In Bova, a non-diverse defendant alleged that the plaintiff had fraudulently joined it as a
party. Id. at 930. When the fraudulently joined defendant removed the case, the plaintiff
argued that a fraudulently joined defendant could not effect removal. Id. at 930. The court
disagreed and held that a fraudulently joined defendant could remove despite that

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defendant “also [being] a diversity-defeating party claiming to be fraudulently joined.”
Id. at 931; see also Moreno Energy v. Marathon Oil Co., 884 F. Supp. 2d 577, 585
(S.D. Tex. 2012) (citing Bova but ultimately remanding for other reasons). Relying on a
strict textual reading of the removal statute, the Bova court recognized that a fraudulently
joined defendant is nonetheless “a party defendant in [the] case and therefore has a right
to remove based on [a plaintiff’s] claims against” her. 446 F. Supp. 2d at 931; see also
28 U.S.C. § 1446(a). In the absence of briefing from Kornbluh, the Court has conducted
its own inquiry. In light of persuasive case law addressing this very issue, the Court is
satisfied that Kornbluh properly removed this action.
Nonetheless, the Court also notes that Plaintiff served both Defendants after the
time permitted by Florida Rules of Civil Procedure. See Fla. Stats. § 1.070(j). While this
defect in service does not require the Court to remand the action, see 28 U.S.C. § 1448;
see also Gott v. Am. Standard, Inc. No. 03-20772-CIV, 2003 WL 25763224 (S.D. Fla.
June 25, 2003), Plaintiff is advised that he must effect proper service on Defendants
pursuant to Federal Rule of Civil Procedure 4(m).
Accordingly, it is hereby ORDERED AND ADJUDGED that the Court’s Order to
Show Cause (Doc. 7) is DISCHARGED.
DONE AND ORDERED in Chambers in Orlando, Florida, on September 14, 2016.

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Copies:
Counsel of Record

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