Green v. FCA Corporation

Filing 16

ORDER denying 9 Motion to Remand to State Court. The "revival exception" applies, and Defendant has satisfied the burden for removal. Signed by Judge Elizabeth A. Kovachevich on 4/17/2015. (rjm)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
EDITH WALLACE GREEN,
Individually,
Plaintiff,
v.

Case No. 8:14-CV-3089-T-17EAJ

FCA CORPORATION, a Texas
corporation,
Defendant.
_____________________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff’s, EDITH WALLACE
GREEN, Motion to Remand, (Doc. 9), filed January 9, 2015, and Defendant’s, FCA
CORPORATION, Response in Opposition, (Doc. 10), filed January 21, 2015. For the
reasons that follow below, Plaintiff’s motion is DENIED.
BACKGROUND
On July 17, 2013, Plaintiff sued Defendant for equitable accounting in connection
with approximately $2,393,000 Plaintiff invested from March 15, 2005, through July 29,
2008. (Doc. 9-1). Plaintiff later amended her complaint to include additional factual
allegations, but the amended complaint remained the single action for equitable
accounting. (Doc. 1). On December 4, 2014, Plaintiff, through agreement of the parties
and with permission of the state court, filed her Second Amended Complaint. (Doc. 9).
In her Second Amended Complaint, Plaintiff added five additional counts: 1) Breach of
Florida Securities and Investor Protection Act (“FSIPA”); 2) Breach of Florida Adult
Protective Services Act (“FAPSA”); 3) Fraud; and 4) Breach of Fiduciary Duty. (Doc. 2).

On December 11, 2014, Defendant removed the Second Amended Complaint pursuant
to 28 U.S.C. § 1441(a), commonly referred to as diversity jurisdiction. (Doc. 1). On
January 9, 2015, Plaintiff moved to remand to state court, (Doc. 9), which Defendant
opposed on January 21, 2015. (Doc. 10).
DISCUSSION
Plaintiff’s motion must be denied because the Second Amended Complaint
substantially changed the character of litigation so as to revive Defendant’s option for
removal. “The ‘revival exception’ allows a defendant who fails to exercise his removal
rights on the first available basis to newly assert the right to remove based on the
occurrence of certain later events. This narrow exception is limited to two types of cases:
(1) where the plaintiff deliberately misleads a defendant about the true nature of the case
until the thirty-day period expires; or (2) where an amended complaint ‘fundamentally
alters' the nature of the case to such an extent that it creates ‘an essentially new lawsuit.’”
Clayton v. EMC Mortg. Corp., 2010 WL 1817341 (M.D. Fla. 2010) (citing Doe v. Florida
Intern. University Bd. of Trustees, 464 F.Supp.2d 1259, 1261 (S.D. Fla. 2006) (internal
citations omitted)). Long has been the law that defendants are not necessarily precluded
from later removing a matter when a plaintiff files an entirely new and different cause of
action. See Clegg v. Bristol-Myers Squibb & Co., 285 B.R. 23, 30 (M.D. Fla. 2002) (citing
Wilson v. Intercollegiate (Big Ten) Conference Athletic Association, 668 F.2d 962 (7th Cir.
1982)); see also Cliett v. Scott, 233 F.2d 269, 271 (5th Cir. 1956).
Here, Plaintiff’s Second Amended Complaint alleges new, previously unpleaded:
1) causes of action; 2) alternative theories of recovery; 3) tortuous conduct of individuals
and employees; 4) damages requests; and 5) jury demand, (Doc. 2); the Second

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Amended Complaint transformed what was a bench trial for an equitable accounting into
a potential jury trial for multiple, alternative theories of recovery with the possibility of
punitive damages. In short, Plaintiff has changed the nature of the relief sought, and the
manner in which she might obtain that relief. Plaintiff and Defendant do not dispute the
original complaint was removable. (Doc. 9 at 5–7; Doc. 13 at 3). Plaintiff does not dispute
Defendant removed this matter 30 days from the filing of the Second Amended Complaint.
(Doc. 9). This Court finds the revival exception appropriate under these circumstances,
and that Defendant has satisfied its burden for removal.
Accordingly, it is ORDERED that Plaintiff’s Motion, (Doc. 9), is DENIED.
DONE and ORDERED in Chambers, in Tampa, Florida, this 17th day of April,
2015.

Copies to:

All Counsel and Parties of Record

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