Barton v. Hurricane Associates, LLC et al

Filing 24

ORDER granting 5 Motion to Remand to State Court. Signed by Judge Roy B. Dalton, Jr. on 10/20/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
RONNIE BARTON,
Plaintiff,
v.

Case No. 6:16-cv-1410-Orl-37KRS

HURRICANE ASSOCIATES, LLC; and
NATIONAL FREIGHT, INC.,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Plaintiff’s Motion to Remand (Doc. 5), filed August 11, 2016;

2.

Defendants’ Response and Incorporated Memorandum of Law in
Opposition to Plaintiff’s Motion for Remand (Doc. 6), filed August 15, 2016;
and

3.

Codefendant Hurricane Associates, LLC’s Response to Order to Show
Cause Dated August 17, 2016 (Doc. 11), filed August 26, 2016.
BACKGROUND

Contending that she suffered permanent injury and damages in a slip and fall
accident (“Accident”) while she was an invitee at real property owned by Hurricane
Associates, LLC (“HAL”), Ronnie Barton (“Plaintiff”) initiated an action against HAL and
National Freight, Inc. (“NFI”) in the Ninth Judicial Circuit in and for Orange County, Florida
(“State Court”)—case number 16-003836-CA (“State Action”). (See Doc. 2.) HAL and
NFI (“Defendants”) received service of process in the State Action on May 16, 2016.
(Doc. 1, ¶ 2; Doc. 5, p. 1.)

According to Plaintiff’s Complaint in the State Action (“State Complaint”), her
damages—including “a significant injury to his leg” and resulting pain and suffering,
mental anguish, and loss of capacity for the enjoyment of life”—exceed $15,000.00.
(Doc. 2, ¶¶ 4, 8, 13.) In relation to discovery requests from Defendants concerning the
amount-in-controversy (“AIC”), on July 1, 2016, Plaintiff’s counsel sent an e-mail to
Defendant’s counsel (“July E-Mail”), which advised that it “will be no secret that we
believe our claim has a value in excess of $75,000, since the medical bills have exceeded
that amount.” (Doc. 5-1.) Consistent with the July E-Mail, on July 7, 2016, Plaintiff
produced discovery to Defendants on July 7 and July 17 (“Discovery”), which confirmed
that AIC in the State Action exceeds $75,000.00. (See Doc. 1, ¶¶ 4, 5; see also Docs. 1-4,
1-5.)
On August 8, 2016, Defendants removed the State Action to this Court pursuant
to 28 U.S.C. §§ 1332(a), 1441(a), and 1446. (Doc. 1 (“Notice”).) Arguing that Defendants
Notice was untimely, Plaintiff moved to remand. (See Doc. 5 (“Remand Motion”).)
Defendants responded in opposition to the Remand Motion (Doc. 6 (“First Response”))
and to an Order to Show Cause (Doc. 7). (Doc. 11 (“Second Response”).) The matter is
now ripe for adjudication.
STANDARDS
This Court may exercise diversity jurisdiction in actions where the AIC “exceeds
the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens
of different States.@ See 28 U.S.C. § 1332(a)(1) (2015). If a state court action could have
been initiated in federal court based on diversity jurisdiction, then the defendant may
remove to federal court. See 28 U.S.C. §§ 1441(a), 1446(c) (2015). Based on the

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removing documents, the defendant must establish by a preponderance of the evidence
that the parties are diverse and the AIC is met. See 28 U.S.C. ' 1446(c)(2)(B); see also
Devore v. Howmedics Osteonics Corp., 658 F.Supp.2d 1372, 1379 (M.D. Fla. 2009). If
the defendant fails to do so, then the Court must remand. See Leonard v. Enter. Rent-ACar, 279 F.3d 967, 972 (11th Cir. 2002).
Within thirty days of removal, a plaintiff may move to remand based on any
procedural defects in the removal—including untimeliness. See 28 U.S.C. ' 1447(c);
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 756 (11th Cir. 2010). The deadline to
remove an action from state court is “30 days after receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon
which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). “[I]f the case stated
by the initial pleading is not removable,” then the deadline to remove is 30 days after the
defendant receives “an amended pleading, motion, order or other paper from which it may
be ascertained that the case is one which is or has become removable.” 28 U.S.C.
§ 1446(b)(3). Such deadlines “must be strictly applied.” See Bankston v. Ill. Nat’l Ins. Co.,
43 F. Supp. 2d 1380, 1381 (M.D. Fla. 2006); see also Burns v. Windsor Ins., Co.,
31 F.3d 1092, 1094 (11th Cir. 1994).
DISCUSSION
According to Defendants, this Court should not remand because: (1) the July
E-Mail was inadequate to trigger the 30-day clock to file the Notice (Doc. 6);
(2) Defendants did not have sufficient notice of the AIC until its receipt of the Discovery
(see id.); and (3) none of HAL’s individual members are citizens of Florida (see Doc. 11).
Upon review of the record and based on a strict application of the removal requirements,

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the Court agrees with Plaintiff that the Notice was filed more than a week after the
deadline set forth in 28 U.S.C. § 1446(b)(1). Specifically, viewed in context, the July
E-Mail was an “other paper from which” Defendant could have ascertained that the case
was one which had “become removable.” 28 U.S.C. § 1446(b)(3). Accordingly, this action
is due to be remanded to the State Court. 1
CONCLUSION
It is hereby ORDERED AND ADJUDGED that:
(1)

Plaintiff’s Motion to Remand to State Court and Supporting Memorandum
of Law (Doc. 5) is GRANTED.

(2)

The Clerk is DIRECTED to remand this action to the Circuit Court of the
Ninth Judicial Circuit in and for Orange County, Florida, terminate all
pending motions, and close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on October 20, 2016.

Copies:

1

Because it appears that Defendant’s arguments for removal were made in good
faith—particularly its arguments concerning damages related to the Bad Faith Statute—
the Court declines to order that Defendant pay Plaintiff’s attorney fees in accordance with
28 U.S.C. § 1447(c).

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Counsel of Record
Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida

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