Travaglio v. American Express Company et al

Filing 66

ORDER: In accordance with the limited remand of the Eleventh Circuit 56 , the Court finds that at the time the action was filed, Plaintiff-Appellant Travaglio was a citizen of Florida, Defendant-Appellee American Express Company was a citizen of New York, Defendant-Appellee American Express Travel Related Services Company, Inc. was a citizen of New York, Defendant-Appellee HealthExtras, Inc. was a citizen of Delaware and of Maryland, and Defendant-Appellee Bank of Newport was a citizen of Rhode Island. Therefore, the Court holds that at the time this action was filed, Plaintiff-Appellant Travaglio was completely diverse from every Defendant-Appellee. As instructed by the Eleventh Circuit, the Clerk is DIRECTED to mail a certified copy of t his Order on Remand, accompanied by an updated indexed district court docket sheet, to the United States Court of Appeals for the Eleventh Circuit, C/O Carol R. Lewis, Elbert Parr Tuttle Court of Appeals Building, 56 Forsyth Street, N.W., Atlanta, Georgia 30303. Signed by Judge Virginia M. Hernandez Covington on 4/11/2013. (LRM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TINA MARIE TRAVAGLIO,
Plaintiff-Appellant,
v.

Case No. 8:10-cv-1311-T-33AEP

AMERICAN EXPRESS COMPANY, ET AL.,
Defendants-Appellees.
_____________________________________/
ORDER ON REMAND
This matter comes before the Court pursuant to the
Eleventh

Circuit‟s

Limited

Remand

Order

issued

March

1,

2013. (Doc. # 56). For the reasons that follow, the Court
finds

that

although

the

Complaint

is

deficient

in

its

jurisdictional allegations, when the record is considered
in its entirety, Plaintiff-Appellant Tina Marie Travaglio
is

completely

diverse

from

Defendants-Appellees

American

Express Company, American Express Travel Related Services
Company, Inc. (together, “American Express”), HealthExtras,
Inc., and Bank of Newport.1
I.
1

Background and Procedural History

During the course of this action, HealthExtras, Inc.
has also been known as Catalyst Health Solutions, Inc.
(Doc. # 15 at 1) and is currently known as Catamaran Health
Solutions, LLC (Am. Ex. Resp. at 2). In the interest of
clarity, the entity is referred to as HealthExtras
throughout this Order.

On June 9, 2010, Travaglio filed a one count Complaint
against Defendants-Appellees. (Doc. # 1). The single count
was

titled

“Count

1

-

Deception,

Fraud,

Bad

Faith,

Conspiracy Florida Statutes 624.155(b), et al.” (Id. at 4).
American Express and Bank of Newport moved to dismiss the
Complaint

(Doc.

##

10,

25),

and

HealthExtras

moved

to

dismiss the Complaint and to quash service of process (Doc.
#

15).

Travaglio

filed

responses

in

opposition

to

the

motions. (Doc. ## 12, 29, 28).
On

February

9,

2011,

the

Court

granted

Defendants-

Appellees‟ motions with prejudice and dismissed the case.
(Doc. # 42). Travaglio filed a notice of appeal to the
Eleventh
October

Circuit
31,

jurisdictional
whether

on

November

2012,

the

questions

complete

diversity

7,

2011.

Eleventh

to

the

exists

(Doc.

Circuit

parties
in

#

the

52).

On

issued

to

ascertain

case.

American

Express and HealthExtras responded to the jurisdictional
questions on November 8, 2012. (Am. Ex. Resp.). Bank of
Newport filed a response to the jurisdictional questions on
November 14, 2012, adopting and incorporating by reference
American Express and HealthExtras‟ responses to the three

2

questions.

(Bank

Resp.).

Travaglio

failed

to

file

a

response to the questions.2
The Eleventh Circuit remanded the case to this Court
“for the limited purpose of determining the citizenship of
all parties at the time the action was filed.” (Doc. # 56
at

2).

On

March

12,

2013,

the

Court

entered

an

Order

directing Travaglio submit a response to the jurisdictional
questions on or before March 21, 2013. (Doc. # 57). The
Court

also

additional
consider
before

directed

Defendants-Appellees

information
regarding

March

21,

they

the
2013.”

would

like

jurisdictional
(Id.).

The

“to
the

submit

any

Court

to

questions

Court

on

informed

or
the

Defendants-Appellees that if no additional information was
submitted, the Court would consider the response submitted
2

Previously unbeknownst to the Court, Plaintiff's
counsel of record, William D. Kramer, Esq., has been
suspended from the practice of law by the Florida Bar. In
addition, he is not currently admitted to practice in the
Middle District of Florida.
The Court was advised of Mr.
Kramer's July 31, 2012, suspension from the practice of law
on April 11, 2013, when the Court received a copy of an
Order dated April 4, 2013, in case 9:12-mp-13-CED,
describing Mr. Kramer's suspension from the practice of law
in Florida. Among other things, that Order specified, "Mr.
Kramer shall be suspended, barred, and enjoined from the
practice of law before the United States Bankruptcy Court
for the Middle District of Florida until such time as he
has demonstrated fitness to practice before the Florida Bar
and sought readmission to the United States District Court
and the United States Bankruptcy Court for the Middle
District of Florida." (Id. at Doc. # 10).
3

to

the

Eleventh

HealthExtras

on

Circuit
November

by
8,

American
2012,

Express

and

the

and

response

submitted to the Eleventh Circuit by Bank of Newport on
November

14,

2012,

in

determining

citizenship

of

the

with

Court‟s

parties. (Id.).
Travaglio
instructions,
submit

failed
and

additional

to

the

comply

Defendants-Appellees

information.

“In

order

the
chose
to

not

provide

to
the

Plaintiff-Appellant a final opportunity to present to the
Court information regarding the jurisdictional questions,
as

well

as

providing

Defendants-Appellees

an

additional

opportunity to be heard,” the Court scheduled a hearing on
the matter for April 1, 2013. (Doc. # 62). The Court also
stated that any and all parties could appear by telephone.
(Id.).

Counsel

telephone,

for

all

but neither

Defendants-Appellees
Travaglio

nor

appeared

Travaglio‟s

by

counsel

participated in the hearing.
II.

Legal Standard
Pursuant to 28 U.S.C. § 1332, a district court has

jurisdiction over all civil actions where (1) the amount in
controversy exceeds $75,000, and (2) each defendant is a
citizen of a state different from each plaintiff. See Sweet
Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247

4

(11th Cir. 2005). “When jurisdiction is based on diversity
of citizenship, the plaintiff's complaint must specifically
allege each party's citizenship, and these allegations must
show

that

the

plaintiff

different states.”
Co.,

600

F.2d

complaint

must

and

defendant

are

citizens

of

Am. Motorists Ins. Co. v. Am. Emp. Ins.

15,

16

(5th
the

allege

Cir.

1979).

citizenship,

Ordinarily,
and

not

a
the

residence, of an individual. Molinos Valle Del Cibao, C.
por A. v. Lama, 633 F.3d 1330, 1342 n.12 (11th Cir. 2011).
However, the Eleventh Circuit has stated that “Citizenship
is

equivalent

to

„domicile‟

for

purposes

of

diversity

jurisdiction.” McCormick v. Aderholdt, 293 F.3d 1254, 125758 (11th Cir. 2002).
Furthermore, “[f]or purposes of determining diversity
of citizenship a corporation is deemed “a citizen of any
State by which it has been incorporated and of the State
where it has its principal place of business . . . .” Am.
Motorists Ins. Co., 600 F.2d at 16 n.1 (citing 28 U.S.C. §
1332(c)).
If

the

pleadings

do

not

sufficiently

plead

jurisdiction, the allegations can be amended. 28 U.S.C. §
1653 states that: “Defective allegations of jurisdiction
may

be

amended,

upon

terms,

5

in

the

trial

or

appellate

courts.”

28

U.S.C.

§

1653.

“[T]his

section

should

be

construed liberally. . . .[T]he section is to be construed
to permit an action to be brought if it is at all possible
to show that jurisdiction exists.” Toms v. Country Quality
Meats, Inc., 610 F.2d 313, 316 (5th Cir. 1980) (internal
citations omitted).
Where no motion to amend the pleadings is filed, the
Court may still examine the entire record “for the purpose
of curing a defective averment of citizenship . . . .” Sun
Printing & Publishing Assoc. v. Edwards, 194 U.S. 377, 382
(1904). See also Williams v. Best Co., Inc. 269 F.3d 1316,
1320 (11th Cir. 2001) (“Where the pleadings are inadequate,
we may review the record to find evidence that diversity
jurisdiction

exists.”);

Mallory

&

Evans

Contractors

&

Eng‟rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1305 (11th
Cir. 2011) (“Should no . . . motion [to amend] be filed,
the

parties

are

directed

to

file

.

.

.

[briefs]

addressing the issue of whether the record in this case
includes evidence of [the plaintiff‟s] citizenship and [the
defendant‟s] citizenship at the time suit was filed . . .
.”).
III. Analysis

6

In

her

Complaint,

Travaglio

alleges

that

she

is

a

citizen of the United States, “who at all times pertinent
hereto was a resident of the State of Florida.” (Doc. # 1
at ¶ 1) (emphasis added). The Complaint is silent as to
Travaglio‟s

citizenship.

Furthermore,

the

Complaint

does

not allege sufficient facts to establish the citizenship of
any of the four Defendants-Appellees. (See id.).
A.

Citizenship of Travaglio

In Travaglio‟s Response to Bank of Newport‟s Motion to
Dismiss, Travaglio states that her “primary residence was
and

still

is,

Florida,

although

plaintiff

maintained

a

temporary secondary residence in Ohio.” (Doc. # 29 at 2).
As stated above, “Citizenship is equivalent to „domicile‟
for

purposes

of

diversity

jurisdiction.”

McCormick

v.

Aderholt, 293 F.3d 1254, 1257-58 (11th Cir. 2002) (citing
Hendry
1972)).

v.

Masonite

Corp.,

455

“A person's domicile is

F.2d

955,

955

the place of

(5th

Cir.

his true,

fixed, and permanent home and principal establishment, and
to which he has the intention of returning whenever he is
absent therefrom.” Id. (internal citations and quotations
omitted).

The

Court

finds

it

is

appropriate

to

read

Travaglio‟s statement that her “primary residence” was and
still is Florida, as Travaglio‟s claim that her “primary

7

home”

was

and

primary home

still

is

Florida.

and permanent domicile

Because

Travagalio‟s

is in the state of

Florida, she is also a citizen of the state of Florida.
Therefore,

for

jurisdiction,

purposes

the

Court

of

finds

determining
that

the

diversity

record

evidence

shows that Travaglio was a citizen of Florida at the time
this action was filed.
B. Defendants-Appellees’ Citizenships
Defendants-Appellees
facts

proving

responses

their

to

the

have

presented

respective
Eleventh

the

Court

with

in

their

citizenships

Circuit‟s

jurisdictional

questions and during testimony at the hearing before this
Court

on

April

Appellee‟s
record

1,

admission

evidence.

In

2013.

Accordingly,

regarding
American

its

each

Defendant-

citizenship

Express

and

is

now

HealthExtra‟s

response to the jurisdictional questions, they state that
both

of

citizens

the
of

American
New

York

Express
(Am.

Ex.

Defendants-Appellees
Resp.

at

10),

and

are
that

HealthExtras is a citizen of Maryland and Delaware (Id. at
11-12).

In

its

response

to

the

Eleventh

Circuit‟s

jurisdictional questions, Bank of Newport states that it is
a citizen of Rhode Island. (Bank Resp. at 7). Each of the

8

Defendants-Appellees confirmed the facts concerning their
citizenships at this Court‟s April 1, 2013, hearing.
1.
In
American

The American Express Defendants-Appellees

their

response

Express

and

to

the

jurisdictional

HealthExtras

point

questions,

out

that

the

Complaint alleges that American Express Company is a New
York Corporation, and although the Complaint is silent as
to

the

location

of

American

Express

Company‟s

principal

office, the office is, in fact, located in New York, New
York.

(Am.

Ex.

Resp.

at

10).

They

also

claim

that

the

location of the principal office is a fact that is not
subject to reasonable dispute because it is both:
(1) generally known within the trial court‟s
territorial
jurisdiction
and
(2)
can
be
accurately and readily determined from sources
whose accuracy cannot reasonably be questioned.
The Corporation Annual Report readily available
on the website of the Florida Secretary of State
shows its principal office at 200 Vesey Street,
New York, NY. The identical information is
readily available on the website of the New York
Department of State Division of Corporations.
This same information is also available on the
10-K Annual Report filing on the website of the
U.S. Securities and Exchange Commission.
(Id. at 10-11). As American Express and HealthExtras point
out, Federal Rule of Evidence 201 allows judicial notice of
a

fact

if

it

is

either

(1)

generally

known

within

the

territorial jurisdiction of the trial court or (2) capable

9

of accurate and ready determination by resort to sources
whose

accuracy

cannot

reasonably

be

questioned.

Fed.

R.

Evid. 201.
Similarly, while the Complaint does not allege either
the state of incorporation or the location of the principal
place

of

Services

business

for

Company,

American

Inc.,

that

Express

entity

Travel

stipulates

Related
in

its

response to the jurisdictional questions “that it is a New
York corporation with its principal office at 200 Vesey
Street, New York, NY.” (Am. Ex. Resp. at at 13). American
Express and HealthExtras‟ response to the jurisdictional
questions also states that such information “is a fact that
is generally known within the territorial jurisdiction of
the Middle District of Florida which can be [] accurately
and readily determined from the websites of the Florida
Secretary

of

State

and

New

[York]

Department

of

State

Division of Corporations, whose accuracy cannot reasonably
be questioned.” (Id.).
Furthermore, with American Express and HealthExtras‟
response

to

the

jurisdictional

questions

and

American

Express‟ statements at the April 1, 2013, hearing now on
record,

judicial

citizenship.

See

notice

is

Molinos

Valle,

10

unnecessary
633

F.3d

to

determine
at

1342-43

(finding

that

a

defendant‟s

admissions

and

the

record

evidence cured the plaintiff‟s pleading defect); McCurdy v.
Greyhound Corp., 346 F.2d 224, 226 (3d Cir. 1965) (“Because
it

was

clear

that

jurisdiction

in

fact

existed,

we

permitted counsel to stipulate as authorized by 28 U.S.C. §
1653.”).
Examining

the

entire

record

–

including

American

Express and HealthExtras‟ response to the jurisdictional
questions and American Express‟ testimony at the April 1,
2013, hearing before this Court
American

Express

Company

and

–

the Court finds

American

Express

that

Travel

Related Services Company, Inc. were citizens of New York at
the

time

this

action

was

filed

and

that

they

are,

therefore, diverse from Travaglio.
2. Defendant-Appellee HealthExtras
Even

without

its

responses

to

the

jurisdictional

questions or its admissions at the April 1, 2013, hearing,
the record contains sufficient evidence to determine the
citizenship of HealthExtras at the time this action was
filed.

The Motion to Dismiss Complaint and Quash Service

of Process filed by HealthExtras states that HealthExtras –
known at that time as Catalyst Health Solutions, Inc. – “is
a

Delaware

corporation

with

11

its

principal

office

in

Rockville, Maryland.” (Doc. # 15 at ¶ 16). These claims of
HealthExtras‟ citizenship were confirmed by its response to
the jurisdictional questions (Am. Ex. Resp. at 11) and by
HealthExtras‟
Accordingly,

testimony
the

Court

at

the

finds

April
that

1,

2013,

hearing.

HealthExtras

was

a

citizen of Delaware and of Maryland at the time this suit
was filed and, therefore, it is diverse from Travaglio.
3.
Bank
operating

of

Defendant-Appellee Bank of Newport
Newport

officer

filed

and

the

corporate

Affidavit

of

secretary,

its

chief

Sandra

E.

Pattie, with this Court on October 14, 2010. (Doc. # 25-2).
Pattie states, “The Bank is incorporated and domiciled in
Rhode Island only. The Bank‟s only locations / branches are
in Rhode Island. The Bank has never maintained an office in
the State of Florida.” (Pattie Aff. Doc. # 25-2 at ¶ 5-7)
(internal formatting omitted).
Bank of Newport also states in its response to the
Eleventh Circuit‟s jurisdictional questions that “it is a
Rhode Island citizen. It is a corporation organized under
the

laws

business

of
in

Rhode
Rhode

Island
Island.”

with
(Bank

its

principal

Resp.

at

7).

place

of

Bank

of

Newport reaffirmed the facts concerning its citizenship at
the April 1, 2013, hearing before this Court. Therefore,

12

the Court finds that Bank of Newport was a citizen of Rhode
Island at the time this suit was filed and, therefore, it
is diverse from Travaglio.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
In accordance with the limited remand of the Eleventh
Circuit, the Court finds that at the time the action was
filed,

Plaintiff-Appellant

Travaglio

was

a

citizen

of

Florida, Defendant-Appellee American Express Company was a
citizen of New York,

Defendant-Appellee

American Express

Travel Related Services Company, Inc. was a citizen of New
York, Defendant-Appellee HealthExtras, Inc. was a citizen
of Delaware and of Maryland, and Defendant-Appellee Bank of
Newport was a citizen of Rhode Island. Therefore, the Court
holds that at the time this action was filed, PlaintiffAppellant

Travaglio

was

completely

diverse

from

every

Defendant-Appellee.
As instructed by the Eleventh Circuit, the Clerk is
DIRECTED to mail a certified copy of this Order on Remand,
accompanied
sheet,

to

by
the

an

updated

United

indexed

States

Court

district
of

court

Appeals

docket

for

the

Eleventh Circuit, C/O Carol R. Lewis, Elbert Parr Tuttle

13

Court

of

Appeals

Building,

56

Forsyth

Street,

N.W.,

Atlanta, Georgia 30303.
DONE and ORDERED in Chambers, in Tampa, Florida, this
11th day of April, 2013.

Copies:

All Counsel of Record
United States Court of Appeals
for the Eleventh Circuit
C/O Carol R. Lewis
Elbert Parr Tuttle Court of Appeals Building
56 Forsyth Street, N.W.
Atlanta, Georgia 30303

14