United States District Court, M.D. Florida, Tampa Division
ROHAN B. GOLDSON & SUZETTE HOLNESS, individually and as Personal Representatives for the Estate of Davie Goldson, Plaintiffs,
KB HOME and KB HOME TAMPA, LLC, Defendants.
C. BUCKLEW United States District Judge.
cause comes before the Court on Plaintiffs' Motion for
Rule 60(b) Relief and Motion for Second Remand. (Doc. No.
13). Defendants oppose this motion. (Doc. No. 14). As
explained below, the Court construes Plaintiffs' motion
as a motion to extend the deadline for filing the second
amended complaint and for remand. As such, the Court grants
bought a house from Defendants and took possession of it on
or about June 23, 2006 along with their daughter, Davie.
Defendants were responsible for constructing the house and
making it waterproof and liveable. However, according to
Plaintiffs, Defendants negligently constructed the house and
failed to prevent water from penetrating and otherwise
leaking into the house. Eventually, the house had extensive
mold infestation and was rendered unliveable. As a result of
the mold and her immunosuppressed system due to prior cancer
treatment, Davie suffered substantial medical problems and
died on June 9, 2015.
23, 2016, Plaintiffs filed suit against Defendant KB Home
Tampa, LLC in state court. On January 13, 2017, Plaintiffs
served Defendant KB Home Tampa, LLC. (Doc. No. 1-1).
Plaintiffs amended their complaint to add Defendant KB Home,
and on February 10, 2017, Defendants first removed this case
to this Court, and the case number assigned was
8:17-cv-340-T-24 AEP. Removal was based on diversity subject
matter jurisdiction. Defendants filed a motion to dismiss,
and after the Court's ruling, two claims remained: breach
of contract (Count I) and wrongful death (Count IV). (Doc.
Plaintiffs moved to amend the complaint again to add the
contractor, a non-diverse defendant, and this Court granted
that motion on March 28, 2017 and remanded the case. (Doc.
No. 11). In the remand order, this Court stated that
Plaintiffs were directed to file a second amended complaint
in state court by Friday, April 7, 2017. (Doc. No. 11).
Plaintiffs did not timely file the authorized second amended
complaint. On Tuesday April 11, 2017, Defendants again
removed the case to this Court, which was assigned the
instant case number. Thereafter, Plaintiffs filed the instant
Motion for Rule 60(b) Relief and for Remand
instant motion, Plaintiffs acknowledge that they failed to
timely file the second amended complaint, but they allege
that it was a result of excusable neglect due to
Plaintiffs' counsel's new assistant-in-training
failing to calendar the due date. As such, Plaintiffs seek
relief under Federal Rule of Civil Procedure 60(b), which
provides: “On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding for . . . mistake,
inadvertence, surprise, or excusable neglect.” The
Court, however, construes this motion as a motion to extend
the deadline for filing the second amended complaint, which
Plaintiffs attempted to file in state court on April 12, 2017
(the day after this case was removed).
Court finds that the short period of delay resulted from
excusable neglect, and as such, extending the period for
filing the second amended complaint is warranted. As
previously noted in this Court's March 28, 2017 order,
Plaintiffs are attempting to obtain discovery regarding the
identity of the other subcontractors that were involved in
the construction defects at issue. Once Plaintiffs obtain
that information, Plaintiffs intend to file another motion to
amend to add those subcontractors, who are likely Florida
residents. As a result, diversity will likely be destroyed
once Plaintiffs discover all of the people involved in the
construction defects at issue.
argue that an October 18, 2013 letter from Plaintiffs'
counsel shows that they never intended to pursue claims
against any other parties. That letter provides the
I understand that the materials at fault may have been
purchased from other suppliers by your company. However, the
law is clear that you are the final end seller of the home to
my clients. Therefore, KB Homes is responsible.
(Doc. No. 14-1). The Court is not persuaded by
Defendants' interpretation of the letter. The Court reads
the letter as stating that even if other suppliers are also
at fault, Defendants can be held fully responsible because
they sold the house to Plaintiffs.
a wrongful death case, and Plaintiffs are attempting to join
all of the parties that may be responsible for the
construction defects at issue. The Court concludes that
excusable neglect caused the delay in filing the second
amended complaint, and the Court hereby extends the deadline
for filing it. The Court will direct the Clerk to file the
second amended complaint attached to Plaintiffs' motion.
As such, diversity is destroyed, and the Court grants
Plaintiffs' motion to remand this case back to state