Keen v. Bovie Medical Corporation

Filing 37

ORDER denying 35 Motion for reconsideration. Signed by Judge Susan C Bucklew on 7/10/12. (JD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

LEONARD KEEN,
Plaintiff,
v.

Case No. 8:12-cv-305-T-24 EAJ

BOVIE MEDICAL CORPORATION,
Defendant.
_______________________________/
ORDER
This cause comes before the Court on Defendant’s Motion for Reconsideration. (Doc.
No. 35). The motion relates to the Court’s July 3, 2012 order granting Plaintiff leave to amend
the complaint. (Doc. No. 33). Plaintiff opposes Defendant’s motion. (Doc. No. 36). As
explained below, Defendant’s motion is denied.
I. Background
Plaintiff filed suit against Defendant and alleged that this Court has diversity subject
matter jurisdiction. (Doc. No. 1). Specifically, Plaintiff alleged that he is a citizen of Florida and
that Defendant is a Delaware corporation with its principal place of business in New York. (Doc.
No. 1).
On March 16, 2012, the Court granted Defendant’s motion to extend time to respond to
the complaint until April 20, 2012. (Doc. No. 9). Defendant did not timely file a response to the
complaint. On April 27, 2012, Defendant filed an answer, affirmative defenses, and
counterclaims. (Doc. No. 14). In one of its counterclaims, Defendant made the bare allegation
that this Court lacks diversity jurisdiction. (Doc. No. 14). The Court disregarded Defendant’s

allegation of lack of subject matter jurisdiction given that: (1) Plaintiff alleged that complete
diversity existed in his complaint, and (2) Defendant failed to explain why complete diversity
did not exist. The proper procedure for Defendant to have followed would have been to move to
dismiss the complaint for lack of subject matter jurisdiction and explain why jurisdiction did not
exist.
Thereafter, Plaintiff moved to dismiss several of Defendant’s counterclaims. On June 11,
2012, in response to Plaintiff’s motion, Defendant finally explained why it believed that
complete diversity was lacking. (Doc. No. 28). Specifically, Defendant stated that its principal
place of business is in Florida, and as such, complete diversity does not exist. (Doc. No. 28). In
response, on June 12, 2012, the Court issued an order directing the parties to brief the issue of
whether this Court had jurisdiction. (Doc. No. 29).
Prior to Defendant’s response to Plaintiff’s motion to dismiss Defendant’s counterclaims
(in which Defendant finally explained why it believed that this Court lacked subject matter
jurisdiction), Plaintiff filed an unopposed motion to extend the deadline to amend the complaint
until June 18, 2012, which the Court granted. (Doc. No. 26, 27). On June 15, 2012, Plaintiff
filed his motion to amend the complaint to add a party and to add an ERISA claim. (Doc. No.
30). Defendant’s response to the motion was due on July 2, 2012. When Defendant failed to
timely file a response to the motion to amend, the Court deemed the motion to be unopposed and
granted it. (Doc. No. 33). Thereafter, Plaintiff filed his amended complaint, which contains an
ERISA claim. (Doc. No. 34).
II. Motion for Reconsideration
Defendant moves this Court to reconsider its order allowing Plaintiff to amend his

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complaint. In its motion, Defendant argues that its failure to respond to the motion to amend was
due to a miscalculation of the response date. Furthermore, Defendant argues that had it
responded and the Court considered its response, the Court would conclude that Plaintiff’s
proposed ERISA claim was deficient, that amendment would be futile, and that the Court lacked
subject matter jurisdiction.
There are three major grounds justifying reconsideration: (1) an intervening change in
controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or to
prevent manifest injustice. See Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694
(M.D. Fla. 1994)(citations omitted). The Court notes that reconsideration of a previous order is
an extraordinary remedy to be employed sparingly. See id. (citations omitted). Upon review,
the Court finds that reconsideration is not warranted.
The Court has already allowed amendment, and the amended complaint contains an
ERISA claim that provides the Court with federal question jurisdiction. See McGlathery v.
Corizon, Inc., 2012 WL 1080789, at *1 n.* (M.D. Ala. Mar. 30, 2012)(stating that while there
was a question regarding whether there was diversity jurisdiction under the original complaint,
the amended complaint provided the court with federal question jurisdiction); Cotton v.
Massachusetts Mutual Life Ins. Co., 402 F.3d 1267, 1280 n.13 (11th Cir. 2005)(stating that
because the amended complaint contained ERISA claims, the court had subject matter
jurisdiction even though jurisdiction may have been lacking under the original complaint). As
such, jurisdiction is not lacking. Furthermore, to the extent that Defendant believes that the
ERISA claim is deficient, it may file a motion to dismiss.
The Court allowed amendment in this case because the Court deemed the motion to
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amend to be unopposed due to Defendant’s failure to file a timely response. This is not the first
time that Defendant has failed to timely file a document, as Defendant failed to file its response
to the complaint by April 20, 2012, as directed by the Court. Furthermore, had Defendant filed a
motion to dismiss for lack of subject matter jurisdiction on April 20, 2012 in response to the
complaint, perhaps the posture of this case would be different. The Court will not reward
Defendant’s failure to timely respond to the motion to amend or Defendant’s delay in raising the
jurisdictional issue by reconsidering its prior ruling allowing amendment.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Defendant’s Motion for
Reconsideration (Doc. No. 35) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 10th day of July, 2012.

Copies to:
Counsel of Record

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