Taylor et al v. Georgia-Pacific, LLC et al
ORDER granting 36 Motion to Remand; denying as moot 38 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing. Signed by Judge Marcia G. Cooke on 6/24/2015. (tm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 15-22280-civ-COOKE/TORRES
ROY L. TAYLOR and
SUZANNE TAYLOR, his wife,
IMPERIAL INDUSTRIES, INC.,
individually and as parent company to
PREMIX-MARBLETITE MFG. CO.,
and as successor to ADOBE BRICK
AND SUPPLY, PREMIX-MARBLETITE
MFG. CO., individually and as subsidiary
of IMPERIAL INDUSTRIES, INC., and
UNION CARBIDE CORPORATION,
ORDER GRANTING PLAINTIFFS’
EMERGENCY MOTION TO REMAND
This is a products liability case that was commenced on August 26, 2014 in
the Circuit Court in and for Miami-Dade County, Florida. The Circuit Court placed
this action on an expedited trial schedule pursuant to Section 415.1115, Florida
Statutes, based upon Plaintiff Roy L. Taylor’s advanced age and the fact that he
suffers from pleural mesothelioma, a terminal illness. Defendants Georgia-Pacific,
LLC (“Georgia-Pacific”) and Union Carbide Corporation (“Union Carbide”)
removed the case to this Court on June 16, 2015 after receiving information that the
non-diverse Defendants Premix-Marbletite Mfg. Co. (“Premix”) and Imperial
Industries, Inc. (“Imperial”) had settled with Plaintiffs. Plaintiffs then filed an
Emergency Motion to Remand on June 19, 2015. (ECF No. 36). Defendants
Georgia-Pacific and Union Carbide each responded. (ECF Nos. 39, 40). For the
reasons that follow, Plaintiffs’ Emergency Motion to Remand is granted.
Prior to its removal to this Court, this case was set for an expedited jury trial
commencing on August 3, 2015 due to Plaintiff Roy L. Taylor’s advanced age and
ailing health. All fact discovery has been completed, and only expert witness
depositions remain to be taken.
Defendants Premix and Imperial are Florida corporations with their principal
place of business in Florida. Plaintiffs are also citizens of Florida for diversity
On June 10, 2015, counsel for Defendants Premix and Imperial sent counsel
for Georgia-Pacific an e-mail stating that Premix and Imperial had settled Plaintiffs’
claims against them. The next day, Plaintiffs’ counsel also stated that Plaintiffs had
settled with Premix, therefore Premix’s counsel would not be in attendance at that
day’s deposition. However, neither Premix nor Imperial have been dismissed from
this action. On June 16, 2015, Defendants Georgia-Pacific and Union Carbide
removed this case to this Court.
“Diversity jurisdiction exists where the suit is between citizens of different
states and the amount in controversy exceeds the statutorily prescribed amount.”
Williams v. Best Buy Co., Inc., 269 F.3d 1316, 1319 (11th Cir. 2001) (citing 28 U.S.C. §
1332(a)). “[T]he burden of proving jurisdiction lies with the removing defendant.”
Williams, 269 F.3d at 1319. “Federal courts are courts of limited jurisdiction, and
there is a presumption against the exercise of federal jurisdiction, such that all
uncertainties as to removal jurisdiction are to be resolved in favor of remand.” Russell
Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001). “[R]emoval
statutes are construed narrowly.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th
The disputed issue at hand is whether removal was proper given that the nondiverse Defendants have not yet been dismissed from this action. Defendants
Georgia-Pacific and Union Carbide take the position that dismissal is not required,
only a settlement. Plaintiffs take the position that dismissal is required.
The only Eleventh Circuit case that the parties have cited to which sheds light
on the issue suggests that dismissal is required. In Maseda v. Honda Motor Co., Ltd.,
861 F.2d 1248 (11th Cir. 1988), the plaintiffs sued a non-diverse defendant and other
diverse defendants. The non-diverse defendant brought a cross-claim for indemnity
against a diverse defendant. Subsequently, the plaintiffs voluntarily dismissed their
claims against the cross-claimant, which permitted the remaining defendants to
remove the case to federal district court. The issue before the Eleventh Circuit was,
inter alia, whether the district court had subject matter jurisdiction to rule on the
cross-claim. In answering the question in the affirmative, the Eleventh Circuit stated,
“While it is true that a nondiverse defendant must be formally dismissed from the
case to permit a subsequent removal, this in effect requires only that the plaintiff
dismiss all his claims asserted against the nondiverse defendant and does not prevent
the federal court from exercising ancillary jurisdiction over a third-party claim
against a defendant or a cross-claim between defendants.” Id. at 1252.
Other cases similarly hold that formal dismissal of nondiverse defendants is
necessary prior to removal. See, e.g., Noyes v. Universal Underwriters Ins. Co., 3
F.Supp.3d 1356, 1363 (M.D. Fla. 2014) (“[T]he case did not become completely
diverse until the Court entered an order dismissing LoNigro with prejudice.”); Clark
v. BHP Copper, Inc., No. C10-1058 TEH, 2010 WL 1266392, at *2 (N.D. Cal. Mar.
30, 2010) (“settlement with a non-diverse party does not establish diversity
jurisdiction unless and until that party is dismissed from the action”).
Defendants argue that Maseda’s statement regarding the need to have formal
dismissal of nondiverse defendants prior to removal is merely dicta. While that
statement may not have risen to the level of a holding of the Eleventh Circuit, its
unequivocal nature signals this Circuit’s inclination to require formal dismissal.
Moreover, “there is a presumption against the exercise of federal jurisdiction, such
that all uncertainties as to removal jurisdiction are to be resolved in favor of
remand.” Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1050 (11th Cir. 2001).
Given that the settlement between Plaintiffs and the nondiverse Defendants has yet
to be finalized, and that the nondiverse Defendants have not been dismissed from
this case, removal jurisdiction is uncertain and remand is warranted. Nevertheless,
since there is no clear, binding precedence in this area of law in this Circuit,
Plaintiffs’ request for attorneys’ fees is denied.
Accordingly, it is ORDERED and ADJUDGED that
Plaintiffs’ Emergency Motion to Remand (ECF No. 36) is
This matter is remanded to the Circuit Court of the Eleventh Judicial
Circuit in and for Miami-Dade County, Florida.
Plaintiffs’ request for attorneys’ fees is DENIED.
The Clerk of Court is directed to CLOSE this case.
All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in chambers, at Miami, Florida, this 24th day of
Copies furnished to:
Edwin G. Torres, U.S. Magistrate Judge
Counsel of record
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