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Ostrowski v. American Tire Distributors, Inc.

United States District Court, M.D. Florida, Orlando Division

May 16, 2017

ALBERT J. OSTROWSKI, Plaintiff,
v.
AMERICAN TIRE DISTRIBUTORS, INC., HERCULES TIRE HOLDINGS, LLC and COASTAL TIRES, INC., Defendants.

          ORDER

          GERGORY A. PRESNELL UNETED STATES DISTRICT JUDGE.

          This matter comes before the Court on the Motion to Remand (Doc. 6) filed by the Plaintiff, Albert J. Ostrowski; the Response in Opposition (Doc. 10) filed by Defendants, American Tire Distributors, Inc. and Hercules Tire Holdings, LLC (together “ATD”); and Ostrowski's Reply (Doc. 16) thereto.

         I. Background

         Ostrowski filed the instant case in state court on February 16, 2017, alleging that he suffered injuries as a result of an accident caused by tread separation on a Hercules H-402 tire. (Doc. 2.) Ostrowski claims that the tire was defective and that the Defendants are liable under the theory of strict products liability. (Id.) ATD removed the case to this Court on April 4, 2017, on diversity grounds. (Doc. 1.) Ostrowski now seeks remand, arguing that ATD's removal was untimely, that the parties lack complete diversity, and that ATD failed to demonstrate that the amount controversy exceeds $75, 000.00. In response, ATD argues that its Florida-resident co-defendant, Coastal Tires Inc. (“Coastal”), was fraudulently joined, that its notice of removal was timely under 28 U.S.C. § 1446(b)(3), and that the face of the Complaint (Doc. 2) shows that the amount-in-controversy requirement has clearly been met.

         II. Remand Standard

         In order to invoke a federal court's diversity jurisdiction, a plaintiff must show that the amount in controversy exceeds $75, 000.00, 28 U.S.C. § 1332(a), and all parties to the action must be completely diverse. Palmer v. Hosp. Auth. Randolph Cty., 22 F.3d 1559, 1564 (11th Cir. 1994). Removal statutes are to be construed narrowly, with any uncertainties to be resolved in favor of remand. Syngenta Crop. Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002); Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). The party seeking removal bears the burden of establishing federal jurisdiction. Harris Corp. v. Kollsman, Inc., 97 F.Supp.2d 1148, 1151 (M.D. Fla. 2000). Generally, “jurisdictional facts are assessed on the basis of the plaintiff's complaint as of the time of removal.” Burns, 31 F.3d at 1097 n. 13. However, post-removal evidence may be considered if it is relevant to the time of the removal. Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000).

         III. Analysis

         A. The Amount-in-Controversy Requirement Has Been Met.

         When jurisdiction is based on a claim for indeterminate damages, the party invoking federal jurisdiction must prove by a preponderance of the evidence that the claim on which it is basing jurisdiction meets the jurisdictional minimum. Roe v. Michelin N. Am., Inc., 613 F.3d 1058, 1061 (11th Cir. 2010). The Court may use its “judicial experience and common sense” to deduce, infer, or extrapolate whether the case meets jurisdictional requirements. Id. at 1062; Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010).

         Here, Ostrowski has not pleaded a specific amount of damages and has only stated that his action is one for damages that exceed $15, 000.00, the jurisdictional threshold for Florida circuit courts. Fla. Stat. §§ 26.012(2)(a), 34.01(1)(c). Therefore, his claim is for indeterminate damages, and it is ATD's burden to show that the amount-in-controversy requirement is met by a preponderance of the evidence. See Pretka, 608 F.3d at 748 (“As for the amount in controversy . . . the complaint is indeterminate. It states that the case ‘is an action for monetary damages in excess of $15, 000.00, exclusive of interest, costs and attorney's fees.'”). To carry its burden, ATD relies on the face of the Complaint (Doc. 2).

         In the Complaint (Doc. 2), Ostrowski alleges that he has sustained personal and bodily injuries that are permanent in nature. His alleged injuries include aggravation of pre-exiting conditions, pain and suffering, disability, permanent scarring and disfigurement, impairment of working ability, inconvenience, mental anguish, and loss of enjoyment of life. He also alleges that he has incurred medical expenses in the care and treatment of these injuries, and that his injuries will require future treatment. (Doc. 2 ¶¶ 43-162.) Clearly, it can reasonably be inferred from the face of the Complaint (Doc. 2) that the amount in controversy exceeds $75, 000.00.

         B. There Is Complete Diversity.

         Ostrowski argues that the parties are not completely diverse because both he and Coastal are Florida residents. ATD does not dispute the residency of Coastal, but instead argues that Coastal was fraudulently joined to defeat complete diversity.

         If a plaintiff names a non-diverse defendant for the sole purpose of defeating federal diversity jurisdiction, “the district court must ignore the presence of the non-diverse defendant and deny any motion to remand the matter back to state court.” Henderson v. Wash. Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). To show that a co-defendant was fraudulently joined, the removing defendant must demonstrate either “(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.” Id. (citation omitted). Further, the Court's determination of “whether a resident defendant has been fraudulently joined must be based upon the plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties.” Shannon v. Albertelli Firm, P.C., 610 Fed. App'x 866, 871 (11th Cir. 2015) (emphasis in original) (citing Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005)). And, “[w]hen the defendant submits ...


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