The Magnolia Center, Inc. v. General Insurance Company of America et al

Filing 28

ORDER granting 3 Motion to dismiss; denying 17 Motion to Remand to State Court. Count II is dismissed without prejudice. The Clerk of Court shall terminate Brown & Brown, Inc. as a defendant. Signed by Judge Elizabeth A. Kovachevich on 9/9/2011. (JM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
THE MAGNOLIA CENTER, INC.,
Plaintiff,
v.

CASE NO. 8:11-CV-1057-T-17AEP

GENERAL INSURANCE COMPANY
OF AMERICA, et al.,

Defendants.
__________________________/

ORDER

This cause is before the Court on:

Dkt. 3 Motion to Dismiss
Dkt. 6 Notice of Filing - Motion to Dismiss
Dkt. 8 Notice of Filing - Stipulation
Dkt. 14 Response
Dkt. 17 Motion to Remand
Dkt. 23 Response
Dkt. 24 Reply

The Amended Complaint (Dkt. 2) includes Count I, Breach of Contract, as to
General Insurance Company of America, and Count II, Agent Negligence, as to Brown
& Brown, Inc.

Defendant General Insurance Company of America (“GI”) moves to dismiss for
fraudulent joinder. Defendant GI argues that the cause of action in Count II cannot
accrue until the cause of action in Count I is final.

Case No. 8:11-CV-1507-T-17AEP
Plaintiff The Magnolia Center, Inc. opposes GI’s Motion to Dismiss, and has
moved to remand this case to Hillsborough County Circuit Court.

Any civil case filed in state court may be removed to federal court if the case
could have originally been brought in federal court. See 28 U.S.C. § 1441(b).
Additionally, a case may be removed by a defendant if the amount in controversy
exceeds $75,000.00 and the action is among parties that are completely diverse, that is
when none of the defendants is a citizen of the same state as any of the plaintiffs. See
28 U.S.C. § 1332(c)(1). Any party may remand a removed case back to state court “at
any time it appears the district court lack subject matter jurisdiction....” 28 U.S.C. §
1447(c). Defects in subject matter jurisdiction include a lack of diversity of citizenship
among the adverse parties. Amundson & Assoc. Art Studio, Ltd. v. Natl. Council on
Compensation Ins., Inc., 977 F.Supp. 1116 (D. Kan.1997). When a defendant is
improperly joined into an action, and that joinder improperly defeats diversity, the joinder
is fraudulent and the case will not be remanded. See Triggs v. John Crump Toyota, Inc.,
154 F.3d 1284, 1287 (11th Cir.1998). Fraudulent joinder does not focus, nor depend,
upon proof of fraud or lack of candor, but rather: (1) whether any cause of action is
stated against the resident defendant; and, if so; (2) whether a cause of action is
against the resident defendant in fact exists. Katz v. Costa Armatori, S.P.A., 718
F.Supp. 1508, 1513 (S.D. Fla.1989).

Under Florida law, an insured’s cause of action against an agent for negligence
does not accrue until the proceedings against the insurer are final. Blumberg v. USAA
Casualty Ins. Co., 790 So.2d 1061 (Fla. 2001). Count II is premature, and will be
dismissed without prejudice. Looney v. Protective Life Ins. Co., 2007 WL 2669190
(M.D. Fla. 2007). After consideration, the Court grants Defendant’s Motion to Dismiss
without prejudice, and denies Plaintiff’s Motion to Remand. Accordingly, it is

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Case No. 8:11-CV-1507-T-17AEP
ORDERED that the Motion to Dismiss is granted, and Count II is dismissed
without prejudice. The Clerk of Court shall terminate Brown & Brown, Inc. as a
defendant. The Motion to Remand is denied.

DONE AND ORDERED in Chambers, in Tampa, Florida on this
9th day of September, 2011.

Copies to:
All parties and counsel of record

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