Brito v. Harrison et al

Filing 40

ORDER granting 37 Motion to Remand to State Court; directing the Clerk to terminate all pending motions and deadlines, remand this case to the Superior Court of Laurens County, and close this case. Signed by Judge Dudley H. Bowen on 02/05/2024. (jlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA

OlSTRiCT COURT
AUGUSTA OIV.

DUBLIN DIVISION

PH3:Q3
ALIASNY BRITO,

*

CLERK.

so.DiSTTordT
Plaintiff,

*
★

V.

*

CV 322-038

★

COLBY HARRIS and GTS

*

TRANSPORTATION CORPORATION,

*
*

Defendants.

*

ORDER

Plaintiff Aliasny Brito originally brought this suit in the
Superior

Court

of

Laurens

County,

Georgia,

on

June

7,

2021.

Plaintiff asserts state law tort claims arising out of an incident
wherein Defendant Colby Harris backed his truck into the car in

which she was a passenger.

In the Complaint, Plaintiff states

that she is and was at all relevant times a resident of Georgia.

(Doc. No. 1-2, ^ 1.)
(Id.
the

Defendants are not residents of Georgia.

2, 3; Notice of Removal, Doc. No. 1,
apparent

Defendants

diversity

did

of

not remove

citizenship
the

case

4, 5.)

between

until

May 3,

the

Despite
parties.

2022,

after

Plaintiff responded to a series of Requests for Admission targeted
to

ascertain

the

amount

in

controversy.^

Therein,

Plaintiff

affirmatively admitted that she is seeking and has suffered in

^ Defendants had served the Requests for Admission on December 8,
2021.

excess of $75,000 in damages.

Within 30 days of Plaintiff's

Admissions, on May 3, 2022, Defendants removed the case on the
basis of diversity jurisdiction.

On May 19, 2022, the United States Magistrate Judge sua sponte
issued a Report and Recommendation that concluded Plaintiff's
Admissions

were

insufficient

controversy exceeds $75,000.

to

(Doc. No. 9.)

to the Report and Recommendation.
the

Report

and

establish

the

amount

in

Defendants objected

Upon review, this Court vacated

Recommendation,

jurisdiction was proper.

that

concluding

that

diversity

(Order of July 20, 2022, Doc. No. 16.)

In the Order of July 20, 2022, the Court notes that "[d]iversity

of citizenship is not contested."

(Id. at 7.)

On August 12, 2022, the United States Magistrate Judge issued
a scheduling order in the case,
lengthy periods of time.
30, 2023.
motion

to

the

resident of Georgia.

was

twice

extended for

Discovery closed in the case on November

On December 29,
remand

which

case

2023, Defendants filed the instant
because

Plaintiff

has

never

been

a

Rather, as she averred at deposition, she is

and was at all relevant times a resident of Florida.

Colby Harris is also a resident of Florida.^

Defendant

Plaintiff has failed

to respond to the motion to remand.

2 The record shows that Colby Harris died before Plaintiff filed
suit in state court.
His estate, which may be the appropriate
party in the case, has been probated in Florida.
2

Diversity jurisdiction

exists

over

a

case

in

which

the

parties' citizenship is fully diverse and the amount in controversy
exceeds $75,000.

28 U.S.C. § 1332(a).

Complete diversity does

not exist unless each defendant is a citizen of a different state

from each plaintiff.

Owen Equip. & Erection Co. v. Kroger, 437

U.S. 365, 373 (1978).

The citizenship of the parties is determined

at the time the action is filed.

Freeport-McMoRan, Inc. v. K N

Energy, Inc., 498 U.S. 426, 428 (1991).

In this case, at the time

of filing Plaintiff and Defendant Harris were both residents of
the same state - Florida.

Thus, there is no diversity jurisdiction

because there is a lack of complete diversity.
"A party removing a case to federal court based on diversity

of citizenship bears the burden of establishing the citizenship of
the parties."

Rolling Greens MHP, L.P. v. Comcast SCH Holdings,

LLC, 374 F.3d 1020, 1022 (11*^^ Cir. 2004).

In order to "reduce the

attractiveness of removal as a method for delaying litigation and

imposing costs on the plaintiff," Congress provided the district
court wide discretion to award costs and fees upon remand of a
removed case.
140

(2005)

See Martin v. Franklin Capital Corp., 546 U.S. 132,

(citing

28

U.S.C.

§

1447(c)).

The

Martin

Court

explained that "the standard for awarding fees should turn on the
reasonableness of the removal."

Id. at 141.

In this case, one could suppose that the Court could excuse

Defendants' improper removal because of the misrepresentation of
Plaintiff's citizenship in the Complaint.
3

The problem is that

Plaintiff's deposition, the one in which she revealed she was never

a resident of Georgia and was at all relevant times a resident of
the same state as Defendant Harris, was taken in February 2022

prior

to

removal.^

The

facts

of

citizenship

were

Defendants in no uncertain terms prior to removal.

known

to

As the party

with the duty to establish diversity jurisdiction. Defendants had
the responsibility to raise this issue with the Court.
Defendants
objectively

had

the

duty

reasonable

to
to

not

remove

invoke

the

this

case;

Actually,

it

Court's

was

not

diversity

jurisdiction where it did not exist in the first instance.

That

said. Plaintiff perplexingly allowed the case to remain on the
court docket for well over 18 months.

She has not explained the

false allegation of her Complaint nor her failure to mention the
lack of diversity during the pendency of this action.

Because

both parties have invoked the power of the federal judiciary and
used its resources without authority, the Court will not assess
costs and fees in the

case.

Rather, the

Court

will admonish

counsel for both sides that practice in the federal bar is a

privilege, not a right, and the expectations of this district are
far

higher

than

what

has

been

demonstrated

by

the

instant

circumstances.

3 The Court also notes that Plaintiff listed her present address
as Florida in response to Defendants' interrogatories, which were
used to establish the amount in controversy and were provided to
Defendant in December 2021.

(Doc. No. 15-1, Resp. to Interroq.

No. 1.)
4

The district court has a duty at all times to ensure it has

jurisdiction.

See 28 U.S.C. § 1447 {"If at any time before final

judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.").

Having determined

that diversity jurisdiction does not exist and that the case was

improperly removed, IT IS HEREBY ORDERED that Defendants' motion
to remand (doc. no. 37) is GRANTED.

The

Clerk is directed to

TERMINATE all pending motions and deadlines, REMAND the case to
the Superior Court of Laurens County, and CLOSE the case.

ORDER ENTERED at Augusta, Georgia this ^

—

day of February,

2024.

UNITED STATES DISTRICT JUDG