Barnes v. Tidewater Transit Company, Inc. et al

Filing 21

ORDER AND OPINION dismissing defendant Roger H. Cantell without prejudice. With the removal of Cantell from the case, complete diversity between the parties exists and the Court may exercise subject matter jurisdiction over the action. The Court ther efore denies defendants Motion to Dismiss 15 . The Court also awards attorneys fees to defendants. The Court directs defendants to submit an appropriate request for attorneys fees by April 4, 2014. Any objections by plaintiff shall be filed by April 18, 2014. Signed by Judge Julie E. Carnes on 3/17/14. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
WILLIAM BARNES,
Plaintiff,
CIVIL ACTION NO.
v.

1:13-cv-00537-JEC

TIDEWATER TRANSIT COMPANY, INC.
and/or HARVEY’S FERTILIZER, and
ROGER H. CANTELL,
Defendants.
ORDER & OPINION
This matter is before the Court on defendants Tidewater Transit
Company, Inc. (“Tidewater”)1 and Roger H. Cantell’s Motion to Dismiss
[15].

The Court has reviewed the record and the arguments of the

parties

and,

for

the

reasons

set

out

below,

concludes

that

defendants’ Motion to Dismiss [15] should be DENIED.

1

In the caption of his complaint [1] and his amended complaint
[13], plaintiff lists as defendants: “Tidewater Transit Company, Inc.
And/Or Harvey’s Fertilizer And Roger H. Cantell” (emphasis added).
Other than being listed in the caption, Harvey’s Fertilizer is never
referred to again: not in the body of the original or amended
complaint. Nevertheless, defendants’ Answer [14] includes “Harvey’s
Fertilizer” in its caption.
Also, defendants’ Motion to Dismiss
Plaintiff’s Amended Complaint [16], its brief in support of that
motion [17], and its Reply Brief [19] all indicate that these
pleadings are being filed on behalf of all named defendants,
including Harvey’s Fertilizer.
Accordingly, whenever the Court
refers to defendant Tidewater, it likewise includes defendant
Harvey’s Fertilizer in that reference.

AO 72A
(Rev.8/82)

FACTUAL AND PROCEDURAL BACKGROUND
This case arises from an automobile accident between plaintiff
William

Barnes

and

defendant

suffered severe injuries.

Roger

Cantell

in

(Compl. [1] at ¶ 3.)

which

plaintiff

On July 6, 2012,

plaintiff, in his vehicle, and Cantell, in his tractor-trailer, both
turned left onto southbound Redmond Circle in Rome, Georgia. (Id. at
¶ 2.)

Cantell, a Tidewater employee at the time, was driving a

tractor-trailer owned by Tidewater.

(Answer [14] at ¶ 1.)

In the

course of making the turn onto Redmond Circle, Cantell veered from
the inside turn lane into the outside turn lane, colliding with
plaintiff’s vehicle and forcing it off of the road.
¶ 2.)

(Compl. [1] at

This collision caused severe injuries to plaintiff’s back and

legs and destroyed his automobile.
Plaintiff

filed

February 19, 2013.

suit

in

(Id. at ¶¶ 2-5.)

this

(Compl. [1].)

Court

against

defendants

on

In his original complaint,

plaintiff did not allege a basis for federal jurisdiction, but did
note the residency of each party, averring that plaintiff and
defendant Cantell are residents of Georgia, and that defendant
Tidewater is an “out-of-state corporation.”

(Id. at ¶ 1.)

Defendants moved to dismiss based on this Court’s lack of
subject matter jurisdiction, arguing that plaintiff’s complaint
provided no basis for federal jurisdiction.

2

AO 72A
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Specifically, noting

that there are two types of federal jurisdiction–-federal question
and diversity of citizenship--defendants observed that nothing in the
complaint suggested the existence of federal question jurisdiction.
(Defs.’ Br. in Support of Mot. to Dismiss [8] at 2-3.)
diversity

jurisdiction,

existence

of

the

defendants

latter,

one

noted

must

show

that

to

complete

As to

establish

the

diversity

of

citizenship (not residency) among the parties and an amount in
controversy of over $75,000.

Yet, as defendants correctly observed,

plaintiff’s own complaint established that there was no diversity of
citizenship because the complaint stated that both the plaintiff and
defendant Cantell were “residents” of Georgia.
In

response

to

defendants’

motion

to

(Id. at 3-4.)
dismiss,

plaintiff

requested leave to amend his complaint [11], which this Court
granted, thereafter denying as moot defendants’ motion to dismiss
(Order [12].)
address

the

Unfortunately, plaintiff’s amended complaint did not
defects

of

the

original

complaint

identified

by

defendants. That is, leaving the rest of the complaint as originally
written, the plaintiff substituted a new first paragraph.

Yet, the

only new allegation in this second version of the first paragraph was
an allegation that defendant Tidewater was organized under the laws
of North Carolina and has its principal office in that state.

(Am.

Compl.

that

[13]

at

¶

1.)

Plaintiff

repeated

its

allegation

plaintiff and defendant Cantell were “residents” of Georgia.
3

AO 72A
(Rev.8/82)

(Id.)

And, as defendants had previously noted, if a defendant and plaintiff
are citizens of the same state, there is no diversity jurisdiction.
For that reason, defendants filed a second Motion to Dismiss
[15, 16], based on the same ground as the first motion to dismiss.
In

response,

plaintiff

admitted

that

there

was

not

complete

diversity, as is required, but requested that the Court permit him to
dismiss defendant Cantell–-the Georgia party who was destroying
diversity–-whose removal would restore diversity among the parties.
Plaintiff noted that dismissal of Cantell would be appropriate as he
is not an indispensable party.
however,
prejudice.

requested

that

any

(Pl.’s Resp. [18].)
dismissal

of

Cantell

Plaintiff,
be

without

(Id. at 2.)

In reply, defendants note that, in his response, plaintiff
admits that he had been aware that there was no diversity in the
case, but plaintiff nevertheless required the defendants and this
Court to expend unnecessary resources to correct plaintiff’s knowing
misstatement of federal jurisdiction.

As to dismissal of defendant

Cantell, defendants expressed no objection, except to note that any
dismissal should be with prejudice.
Defendants further requested

(Defs.’ Reply [19] at 2-3.)

that, should Cantell be dismissed, the

Court require plaintiff “to pay all reasonable attorney’s fees for
the multiple motions Defendants were forced to file.”

4

AO 72A
(Rev.8/82)

(Id. at 3.)

DISCUSSION
I.

ABSENCE OF SUBJECT MATTER JURISDICTION
A.

Standard for Dismissal Under Rule 12(b)(1) And Requirements
For Diversity Jurisdiction

Plaintiff’s Amended Complaint alleges the existence of diversity
jurisdiction.

Defendants filed a motion pursuant to FED. R. CIV. P.

12(b)(1) to dismiss this complaint, arguing that this Court did not
have diversity jurisdiction and therefore it lacked subject matter
jurisdiction.
Attacks on subject matter jurisdiction under Rule 12(b)(1) are
either facial or factual.

Garcia v. Copenhaver, Bell & Assocs.,

M.D.’s, P.A., 104 F.3d 1256, 1260-61 (11th Cir. 1997)(citing Lawrence
v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)). A facial attack
requires the Court to determine whether the plaintiff has alleged a
sufficient basis for subject matter jurisdiction.

Id. at 1261.

A

factual attack, on the other hand, challenges “the existence of
subject matter jurisdiction in fact, irrespective of the pleadings.”
Lawrence, 919 F.2d at 1529.
Here, there is no disagreement as to the citizenship of each
party named in plaintiff’s amended complaint.

Instead, defendants

have argued that plaintiff’s pleadings, on their face, do not provide
a

sufficient

basis

for

diversity

5

AO 72A
(Rev.8/82)

jurisdiction.

Accordingly,

defendants’ motion to dismiss constitutes a facial attack under Rule
12(b)(1).

Barnett v. Okeechobee Hosp., 283 F.3d 1232, 1237 (11th

Cir. 2002).
When considering a facial attack, the Court applies a standard
similar to that used in Rule 12(b)(6) motions.

Therefore, for the

purposes of defendants’ motion, the Court assumes all the facts in
plaintiff’s complaint are true and construes them in his favor.
McElmurray v. Consol. Gov’t of Augusta-Richmond Cnty., 501 F.3d 1244,
1251 (11th Cir. 2007).

The question, then, becomes whether the

complaint

alleges

sufficiently

jurisdiction.

a

basis

Lawrence, 919 F.2d at 1529.

for

subject

matter

In this case, it clearly

does not.
A federal court may exercise diversity jurisdiction when (1) the
amount in controversy exceeds $75,000 and (2) the suit is between
citizens of different states.

28 U.S.C. § 1332.

The second prong of

§ 1332 requires complete diversity of parties; “the presence in the
action of a single plaintiff from the same State as a single
defendant

deprives

jurisdiction

over

the
the

district
entire

court

of

action.”

original

Exxon

Mobil

diversity
Corp.

v.

Allapattah Servs., Inc., 545 U.S. 546, 553 (2005).
B.

Dismissal of a Party Under Rule 21

Although defendant Tidewater is a citizen of North Carolina,
6

AO 72A
(Rev.8/82)

because both plaintiff and defendant Cantell are citizens of Georgia,
there

is

no

diversity

amended complaint.

jurisdiction,

under

plaintiff’s

present

Albeit it took three pleadings by the defendants

before plaintiff decided to acknowledge this obvious fact, plaintiff
finally agrees that there can be no diversity jurisdiction as long as
defendant Cantell remains in the case.
But plaintiff has now pivoted and asks this Court to remedy this
problem by dismissing plaintiff Cantell, pursuant to Federal Rule of
Civil Procedure 21.

Plaintiff further requests that this dismissal

be without prejudice. (Pl.’s Resp. [18] at 2-3.) Without Cantell as
a defendant, plaintiff argues, diversity jurisdiction will reign over
this case.

(Id.)

Because “[m]isjoinder of parties is not a ground for dismissing
an action”, Rule 21 permits the court, “[o]n motion, or on its own .
. . at any time, on just terms, [to] add or drop a party.”
CIV. P. 21.

FED. R.

Courts may use this power to remove non-necessary

parties from an action in order to preserve diversity jurisdiction.
“By now, ‘it is well settled that Rule 21 invests district courts
with authority to allow a dispensable nondiverse party to be dropped
at any time, even after judgment has been rendered.’” Grupo Dataflux
v. Atlas Global Grp., L.P., 541 U.S. 567, 572-73 (2004)(quoting
Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989)).

7

AO 72A
(Rev.8/82)

See also Bennick v. Boeing Co., 427 Fed. App’x 709, 712-13 (11th Cir.
2011); Fritz v. Am. Home Shield Corp., 751 F.2d 1152, 1154 (11th Cir.
1985); Ralli-Coney, Inc. v. Gates, 528 F.2d 572, 575-76 (5th Cir.
1976); and 7 FED. PRAC. & PROC. CIV. § 1685 (3d ed.).
In order to exercise its ability to remove a non-diverse party
under Rule 21, however, the Court must first determine that the party
sought to be dismissed is not indispensable to the action under
Federal Rule of Civil Procedure 19.

Fritz, 751 F.2d at 1154; Molinos

Valle Del Cibao C. por A. v. Lama, 633 F.3d 1330, 1343-45 (11th Cir.
2011) [hereinafter “Molinos”] (discussing the requirements of Rules
21 and 19 in the context of their application to an appellate court).
Under Rule 19, there is a two-step inquiry for determining
whether a party is indispensable.

First, the Court must determine

whether the party to be dropped is required in the action.
CIV. P. 19(a); Molinos, 633 F.3d at 1344.

FED. R.

If the party is required,

but cannot be joined--as, for example, when his presence would
destroy diversity jurisdiction--then the Court must consider four
factors enumerated under the rule to determine if the action may
proceed without him.

FED. R. CIV. P. 19(b); Molinos, 633 F.3d at

1344.
Plaintiff

is

suing

defendant

Tidewater

under

a

theory

of

respondeat superior for torts that its employee, defendant Cantell,

8

AO 72A
(Rev.8/82)

allegedly committed within the course of his employment.

(See Am.

Compl. [13] at ¶ 1.)2 In his argument on this point, plaintiff claims
that Cantell is not an indispensable party to the action because
there is “a preponderance of [] evidence that Defendant Cantell was
driving [Tidewater’s] vehicle as an employee of [Tidewater] with the
full consent of [Tidewater,] [and] [t]his proof can be made, if not
admitted, without the necessity of Defendant Cantell being an actual
party to the case.”

(Pl.’s Resp. [18] at 1-2.)

Translation:

defendant Tidewater can be held liable for the negligence of its
employee, defendant Cantell, whether or not Cantell is a named
defendant, under the doctrine of respondeat superior.
It’s not so clear, however, whether defendants agree with
plaintiff’s legal assessment.3

Other than expressing reticence at

2

“Defendant Tidewater Transit was the owner of the vehicle
being driven by defendant Cantell and involved in said collision.
Further, defendant Cantell was an employee of defendant Tidewater
Transit and is liable for the torts of it’s (sic) employee through
the doctrine of respondeat superior.” (Am. Compl. [13] at 2.)
3

While defendant Tidewater presumably does not disagree that
plaintiff is pursuing defendant under a respondeat superior theory,
it is not clear that defendant necessarily agrees that the doctrine
of respondeat superior will ultimately be found applicable here.
That is, in their answer to Paragraph One of the amended complaint,
defendants admit that Tidewater owned the vehicle driven by Cantell
and that the latter was an employee of Tidewater at the time of the
accident, but otherwise defendants “deny all remaining allegations
set forth in Paragraph 1 of Plaintiff’s Amended Complaint.” (Answer
[14] at 3-4, ¶ 1.) A “remaining” allegation in this paragraph is
plaintiff’s assertion that defendant Tidewater is liable for the
torts of its employee through the doctrine of respondeat superior.
9

AO 72A
(Rev.8/82)

having to expend their own resources, or at the Court having to spend
its resources, to determine if Cantell is an indispensable party,
defendants do not offer any arguments whether Cantell is required in
the action or whether dismissing him under Rule 21 would otherwise be
improper.
So, as plaintiff has declined to do the legwork to make its own
argument and as defendants understandably are reluctant to expend
more resources in order to fill in the gaps for plaintiff, the task
of trying to determine Cantell’s indispensability necessarily falls
to the Court.

The Court’s research indicates that when an employer

is sued for its employee’s torts under the theory of respondeat
superior, the employee is not a required party to that suit.

See

Hillside Orchard Farms, Inc. v. Murphy, 222 Ga. App. 106, 110 (1996)
(“Even in a case based on the principle of respondeat superior, a
master may be sued alone.”); and Fambro v. Sparks, 86 Ga. App. 726,
733 (1952)(“The action was not joint as to the first count because it
was based on a simple respondeat superior principle wherein the
servant is not a necessary party to an action against the master, and
vice versa as to an action against the servant alone.”) overruled on
other grounds, Allen Kane’s Major Dodge, Inc. v. Barnes, 243 Ga. 776,
782 (1979); see also Nottingham v. Gen. Am. Commc’ns Corp., 811 F.2d
873, 880-81 (5th Cir. 1987) cert. denied, 484 U.S. 854 (1987);
Rieser v. Dist. of Columbia, 563 F.2d 462, 469 n.39 (D.C. Cir. 1977);
10

AO 72A
(Rev.8/82)

and Lopez v. Council on Am.-Islamic Relations Action Network, Inc.,
741 F. Supp. 2d 222, 232 (D.D.C. 2010).
This is so because employers and employees are treated as a
single

tortfeasor

when

both

are

allegedly

resulting from the employee’s actions.

liable

for

damages

Thyssen Elevator Co. v.

Drayton-Bryan Co., 106 F. Supp. 2d 1342, 1352-53 (S.D. Ga. 2000)
(citing St. Paul Fire & Marine Ins. Co. v. MAG Mut. Ins. Co., 209 Ga.
App. 184, 186 (1993)).

Here, plaintiff alleges injuries arising

solely from Cantell’s actions committed within the course of his
employment with Tidewater, whose liability is based entirely upon the
theory of respondeat superior.
[13] at ¶ 1.)

(Compl. [1] at ¶¶ 2-7; Am. Compl.

Cantell is therefore not an indispensable party to the

action under Rule 19.
Accordingly, Cantell could be dismissed pursuant to Rule 21, in
order to preserve diversity jurisdiction.

See Murphy v. Newport

Waterfront Landing, Inc., 806 F. Supp. 322 (D.R.I. 1992); see also
Bennick, 427 Fed. App’x at 712-13 (upholding the decision to drop a
party under Rule 21 because, “had the district court not dropped [the
defendant], it would have been obligated to dismiss the entire action
for lack of subject matter jurisdiction because [the plaintiff] had
not

established

that

he

and

[the

defendant]

were

citizens

of

different states.”); Ralli-Coney, Inc., 528 F.2d at 575 (“Finally, we
hold that the trial court acted within the bounds of sound discretion
11

AO 72A
(Rev.8/82)

and within his (sic) authority under Rule 21 F.R.C.P. in dismissing
the

broker,

Staple

Cotton

Cooperative

Association

to

preserve

diversity jurisdiction.”)(footnote omitted); and Anderson v. Moorer,
372 F.2d 747, 750 n.4 (5th Cir. 1967)(finding that refusal to drop a
party under Rule 21 because the district court erroneously found the
party to be indispensable to the action constituted an abuse of
discretion).
But plaintiff’s request that the dismissal of Cantell be without
prejudice has drawn fire from defendants, who oppose this request,
and thus the Court now turns to that issue.
II.

WHETHER DISMISSAL OF CANTELL SHOULD BE WITHOUT PREJUDICE
Defendants oppose plaintiff’s request that any dismissal of

defendant Cantell be without prejudice.
dismissal should be with prejudice.

Defendants argue that the

(Defs.’ Reply [19] at 2-3.)

They argue that “if Mr. Cantell is truly a non-indispensable party,
as Plaintiff claims, there should be no issue dismissing Mr. Cantell
WITH PREJUDICE, in order to tie up any potential loose ends and avoid
any inconsistent results.”

(Id.)

Defendants cite no case authority

to help guide the Court in deciding whether to so condition the
dismissal.

For his part, plaintiff’s response does not explain what

purpose a dismissal without prejudice would serve, nor did plaintiff
request an opportunity to file a surreply to explain his position.
So, the Court will have to go it alone on this question.
12

AO 72A
(Rev.8/82)

Rule

21 allows the Court to dismiss a party “on just terms.”
CIV. P. 21.
of sense.

See FED. R.

As a practical matter, defendants’ argument makes a lot
If plaintiffs lose in their trial against the corporate

defendant, Tidewater, they will get a second bite at the apple in a
subsequent proceeding against Tidewater’s employee, Cantell.

A

second trial would then be unnecessarily complicated with questions
of collateral estoppel and the like.4

Such a result constitutes an

inefficient use of limited judicial resources and would potentially
require defendant Cantell to provide testimony both as a witness in
the action against his employer and as a party in the second action
in state court.
On the other hand, plaintiff could have brought this federal
case against defendant Tidewater, alone.

As noted, there would

clearly be diversity jurisdiction in that scenario.

Then, following

a verdict in that case, plaintiff could have initiated a state action
against defendant Cantell. The inefficiencies would be the same, but

4

As to collateral estoppel against plaintiff in a separate suit
against Cantell following a judgment for defendant Tidewater in the
federal proceeding, if an employer defends an action and does not
assert defenses that would be unavailable to the employee, then the
suit against the employer operates as collateral estoppel with
respect to a subsequent suit against the employee. Hodo v. Basa, 214
Ga. App. 895, 896 (1994); Garrett v. Life Ins. Co. of Georgia, 221
Ga. App. 315, 318 (1996)(limiting the doctrine relied upon by the
Hodo court to cases involving collateral estoppel).
See also
Sorrells Constr. Co., Inc. v. Chandler Armentrout & Roebuck, P.C.,
214 Ga. App. 193, 193-94 (1994) (explaining the doctrines of res
judicata and collateral estoppel).
13

AO 72A
(Rev.8/82)

there

would

be

no

question

that

plaintiff

could

so

proceed.

Accordingly, the fact that plaintiff incorrectly added Cantell as a
defendant here, thereby destroying diversity jurisdiction, does not
necessarily suggest that a dismissal of Cantell should be with
prejudice.
Moreover, Eleventh Circuit precedent is clear that dismissal
with prejudice “‘is a drastic remedy to be used only in those cases
where a lesser sanction would not better serve the interests of
justice.’”

Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir.

1977)(quoting Brown v. Thompson, 430 F.2d 1214, 1216 (5th Cir.
1970)(discussing dismissals pursuant to Rule 41)); see also Boazman
v. Econ. Lab., Inc., 537 F.2d 210, 212 (5th Cir. 1976)(stating that
dismissal with prejudice under Rule 41(b) is not warranted where
lesser sanctions would suffice).
What most chagrins this Court is not the question whether a
dismissal of Cantell will be with or without prejudice, but instead
it is

the added expense and inconvenience that plaintiff has caused

by insisting for so long in proceeding against Cantell when it was so
obvious

that

jurisdiction.

the

latter

But

that

destroyed

concern

can

federal
be

subject

addressed

by

matter
imposing

sanctions against plaintiff’s counsel: a matter to which the Court
next turns.

As to the type of dismissal of Cantell, the Court

dismisses defendant Cantell WITHOUT PREJUDICE.
14

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III. AWARD OF ATTORNEY’S FEES TO DEFENDANTS
Defendants have requested that the Court require plaintiff to
pay its attorney’s fees, should the Court accede to plaintiff’s
request that he be allowed to dismiss defendant Cantell.

As the

Court has allowed the dismissal of defendant Cantell, defendants’
request for attorney’s fees must be decided.

The Court agrees with

defendants that the imposition of attorney’s fees is warranted.
Rule 11 empowers the Court to impose sanctions against “[a]n
attorney

or

a

party

[who

files]

a

pleading

that:

(1)

has

no

reasonable legal basis; (2) has no reasonable factual basis; or (3)
is filed for an improper purpose” in order to “discourage dilatory or
abusive tactics and help to streamline the litigation process by
lessening frivolous claims or defenses.”

Thomas v. Evans, 880 F.2d

1235, 1239 (11th Cir. 1989); FED. R. CIV. P. 11(b).

The decision to

impose sanctions “lies within the district court’s sound exercise of
discretion” and may be made of the Court’s own accord or upon the
motion of a party, provided that the Court first gives notice and an
opportunity

to

respond

to

the

party

on

which

it

will

impose

sanctions. Baker v. Alderman, 158 F.3d 516, 525-26 (11th Cir. 1998);
Rolleston v. Eldridge, 848 F.2d 163, 165 (11th Cir. 1988); Donaldson
v. Clark, 819 F.2d 1551, 1557-58 (11th Cir. 1987).
Defendants seek attorney’s fees pursuant to Federal Rule of
Civil Procedure 11(c)(3) “for the multiple motions Defendants were
15

AO 72A
(Rev.8/82)

forced to file to correct Plaintiff’s improperly filed Complaint and
Amended Complaint.”
11(c)(3).

(Defs.’ Reply [19] at 3); FED. R. CIV. P.

Rule 8(a) requires a plaintiff to establish jurisdiction

by setting forth the factual basis for the claim.
Defenders

of

Wildlife,

504

U.S.

555,

561

See Lujan v.

(1992).

Further,

a

plaintiff’s improper assertion of jurisdiction can subject him to
Rule 11 sanctions.

See, e.g., Lowery v. Alabama Power Co., 483 F.3d

1184, 1216 (11th Cir. 2007)( a plaintiff’s assertion of jurisdiction
is subject to Rule 11 sanctions).
Here, plaintiff’s original complaint obviously lacked a basis
for asserting diversity jurisdiction, as the complaint, itself, noted
that the plaintiff and defendant Cantell were both Georgia citizens.
Filing a motion to dismiss, defendants promptly brought that defect
to plaintiff’s attention.

Instead of admitting this error and

attempting then to dismiss defendant Cantell, plaintiff filed an
amended complaint that did nothing to correct plaintiff’s original
error.

That is, plaintiff reasserted that it was proceeding against

defendant Cantell and repeated the complained-about assertion: that
Cantell was a citizen of the same state as plaintiff.

Indeed, it is

not at all clear what plaintiff thought it was accomplishing by this
amended complaint.

Defendants were then forced again to incur

expenses by filing a second Motion to Dismiss [15].
Plaintiff’s only explanation for including Cantell in this
16

AO 72A
(Rev.8/82)

action is that he “was in error in assuming that those motions [to
dismiss]

would

circumstances.”

not

be

filed

[by

defendants]

(Pl.’s Resp. [18] at 3.)

under

these

The Court does not

understand what plaintiff means by this explanation.

Both the

parties and the Court have a duty to ensure that the Court has
jurisdiction over any action that is filed.

See FED. R. CIV. P. 11

and Univ. of S. Alabama v. Am. Tobacco Co., 168 F.3d 405, 410 (11th
Cir. 1999)(“A necessary corollary to the concept that a federal court
is powerless to act without jurisdiction is the equally unremarkable
principle that a court should inquire into whether it has subject
matter

jurisdiction

proceedings.

at

the

earliest

possible

stage

in

the

Indeed, it is well settled that a federal court is

obligated to inquire into subject matter jurisdiction sua sponte
whenever it may be lacking.”).
Indeed, no verdict obtained by plaintiffs would have been
enforceable were it later determined that the Court lacked subject
matter jurisdiction.

Likewise, a verdict for defendants would have

been equally assailable by plaintiff on this ground. In short, there
could be no good reason to proceed, for even a minute, in a case in
which no verdict issued by the Court could later be sustained.
Accordingly, an award of attorney’s fees is appropriate to
sanction plaintiff’s Rule 11 violation, to deter future parties from
heedlessly pleading jurisdiction in the hopes that the Court will
17

AO 72A
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exercise its discretion to remedy any errors, and to make the
defendants whole.

See Lowery, 483 F.3d at 1216 (describing a

“paradigmatic case”).

The Court therefore awards attorney’s fees to

defendants, which fees shall be paid by plaintiff’s counsel, not the
plaintiff.
Defendants shall submit a memorandum, setting out the attorney’s
fees

it

reasonably

incurred

in

filing

all

pleadings

in

this,

beginning with defendants’ original motion to dismiss, but excluding
defendants’ Answers.
2014.

Should

This submission shall be filed by APRIL 4,

plaintiff

have

any

viable

objections

to

the

reasonableness of the amount of fees requested, he shall file
objections by APRIL 18, 2014.

Thereafter, the Court will issue an

order formally awarding the fees.
CONCLUSION
For the foregoing reasons, the Court DISMISSES defendant Roger
H. Cantell WITHOUT PREJUDICE.

With the removal of Cantell from the

case, complete diversity between the parties exists and the Court may
exercise subject matter jurisdiction over the action.
therefore DENIES defendants’ Motion to Dismiss [15].
awards attorney’s fees to defendants.

The Court

The Court also

The Court directs defendants

to submit an appropriate request for attorney’s fees by APRIL 4,
2014.

Any objections by plaintiff shall be filed by APRIL 18, 2014.

18

AO 72A
(Rev.8/82)

SO ORDERED, this 17th day of March, 2014.

/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE

19

AO 72A
(Rev.8/82)