United States District Court, M.D. Florida, Jacksonville Division
ORDER OF REMAND
TIMOTHY J.CORRIGAN United States District Judge
initiated this action by filing a pro se complaint (Original
Complaint) (Doc. 1-1 at 8-11) in the Circuit Court of the
Fourth Judicial Circuit in and for Duval County, Florida. In
the Original Complaint, Plaintiff asserted state law
negligence claims against Defendants the City of Jacksonville
and the Jacksonville Sheriff's Office. The City of
Jacksonville filed a motion to dismiss the Original
Complaint. Id. at 35-37. The state court granted the
motion to dismiss, dismissed the Original Complaint, and
permitted Plaintiff leave to amend. Id. at 77.
Plaintiff then filed an amended complaint (Amended Complaint)
(Doc. 2) again asserting only state law negligence claims
against Defendants. The City of Jacksonville filed a motion
to dismiss Plaintiff's Amended Complaint (Motion to
Dismiss) (Doc. 3) and in response, Plaintiff filed a motion
to strike the Motion to Dismiss (Motion to Strike) (Doc. 4).
the state court ruled on the Motion to Dismiss or Motion to
Strike, Plaintiff filed a motion to amend his amended
complaint (Motion to Amend) (Doc. 7) and attached his
proposed second amended complaint (SAC) (Doc. 7-1). In the
Motion to Amend, Plaintiff seeks to amend existing claims,
add new defendants, and add new claims, including federal
claims. Based upon the newly proposed federal claims, the
City removed the case to this Court pursuant to 28 U.S.C.
§§ 1441, 1443, and 1446. See Notice of
Removal (Doc. 1). After removal, the City filed a motion to
dismiss Plaintiff's SAC. Doc.8. In addition, the City
filed a “Memorandum of Law of Plaintiff's Various
State Court Motions” (Doc. 10) asserting that the
pending state court motions were moot, and that the SAC is
the operative complaint because the City “agreed to
allow Plaintiff to proceed with his Petition to Amend
Complaint and SAC . . . by removing this action to this Court
and filing City's Motion to Dismiss Plaintiff's
SAC.” Id. at 2.
A defendant may remove a civil action filed in a state court
to the federal district court for the district in which the
action is pending if the district court would have had
jurisdiction over the suit. 28 U.S.C. § 1441(a). The
“district court must have at least one of three types
of subject matter jurisdiction: (1) jurisdiction under a
specific statutory grant; (2) federal question jurisdiction
pursuant to 28 U.S.C. § 1331; or (3) diversity
jurisdiction pursuant to 28 U.S.C. § 1332(a).”
Baltin v. Alaron Trading Corp., 128 F.3d 1466, 1469
(11th Cir. 1997).
PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299,
1304-05 (11th Cir. 2016).
must file a notice of removal within thirty days of receipt
of the initial pleading. 28 U.S.C. § 1446(b)(1). If the
case is not removable based on the initial pleading, the
defendant may file a notice of removal within thirty days of
receipt “of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained
that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3).
A party may amend a pleading once as a matter of course at
any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is permitted
and the action has not been placed on the trial calendar, may
so amend it at any time within 20 days after it is served.
Otherwise a party may amend a pleading only by leave of court
or by written consent of the adverse party.
Civ. P. 1.190(a). Additionally,
Parties may be added once as a matter of course within the
same time that pleadings can be so amended under rule
1.190(a). If amendment by leave of court or stipulation of
the parties is permitted, parties may be added in the amended
pleading without further order of court. Parties may be added
by order of court on its own initiative or on motion of any
party at any stage of the action and on such terms as are
Civ. P. 1.250(c).
case, Plaintiff did not have the right to amend as a matter
of course because Plaintiff already had exercised his right
to amend once. Plaintiff was required to receive consent from
Defendants or seek leave of the state court to file the SAC.
The City does not state in the Notice of Removal that it
previously provided consent or stipulated to the SAC, or that
the state court granted leave to amend. Rather, the City
attempts to rely on the removal notice itself as evidence of
its consent to the filing of the SAC; however, this is
insufficient. Moreover, the state court did not have the
opportunity to rule on the Motion to Amend before the City
removed the case.
the Court has found no Eleventh Circuit authority on point,
the Seventh Circuit and multiple district courts have found
that the state court must grant a motion to amend allowing
the assertion of federal claims before a defendant has
grounds to remove a case based on federal question
jurisdiction. See, e.g., Sullivan v.
Conway, 157 F.3d 1092, 1094 (7th Cir. 1998)
(“Until the state judge granted the motion to amend,
there was no basis for removal. Until then, the complaint did
not state a federal claim. It might never state a claim,
since the state judge might deny the motion. The statutory
language that we quoted speaks of a motion or other paper
that discloses that the case is or has become removable, not
that it may sometime in the future become removable if
something happens, in this case the granting of a motion by
the state judge.”); Brewer v. Hatton, No.
17-cv-02900-JSC, 2017 WL 3635824, at *2 (N.D. Cal. Aug. 24,
2017) (“Because California required Plaintiff to obtain
leave of court to file the SAC, Plaintiff had not obtained
such leave when Defendants removed the case, and he had not
previously asserted any federal claim, there was no pending
federal claim at the time of removal and this is not a case
over which this Court has subject matter
jurisdiction.”); Glass v. City of
Chattahoochee, No. 4:16cv124-WS/CAS, 2016 WL 3128370, at
*5-6 (N.D. Fla. May 6, 2016), report and recommendation
adopted, No. 4:16cv124-WS/CAS, 2016 WL 3129218 (N.D.
Fla. June 2, 2016); Barwick v. Eslinger, No.
6:12-cv-635-J-37DAB, 2012 WL 1656736, at *2 (M.D. Fla. May
10, 2012); McDonough v. UGL UNICCO, 766 F.Supp.2d
544, 547 (E.D. Pa. 2011) (“Unless and until the state
court grants Plaintiff's motion for leave to amend and
that amended complaint becomes effective, the operative
complaint in this matter-the First Amended Complaint- simply
does not state a federal claim or otherwise give rise to
federal jurisdiction.”); Jackson v. Bluecross &
Blueshield of Ga., Inc., No. 4:08-CV-49 (CDL), 2008 WL
4862686, at *3 (M.D. Ga. Nov. 10, 2008) (“Until the
superior court judge grants Plaintiff's motion to amend
her Complaint, there is no basis for removal because until
then, Plaintiff's Complaint does not state a federal
Court is persuaded by these and other similar cases. As
recognized in Donnellyv. City of Parkland,