United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S MOTION TO
G. COOKE UNITED STATES DISTRICT JUDGE
case arises from a breach of contract claim in which
Plaintiff Advanced Construction and Renovation, Inc.
(“Plaintiff”) alleges it was a third party
beneficiary of an insurance policy that was issued by
Defendant Mt. Hawley Insurance Company (“Mt.
Hawley” or “Defendant”) to Argov Gavish
Properties, LLC. Plaintiff contends Mt. Hawley breached the
policy by failing to pay Plaintiff for the total loss it
sustained on a property damage claim. Mt. Hawley removed this
case from state court, asserting federal diversity
jurisdiction under 28 U.S.C. § 1332. Plaintiff
challenges Defendant's removal, arguing there is no
diversity of citizenship and that Defendant waived its right
to remove to federal court.
is Plaintiffs Motion to Remand to State Court. (ECF No. 7).
Defendant has filed its Response to Plaintiffs Motion (ECF
No. 10), and Plaintiff has filed its Reply to Defendant's
Response (ECF No. 11). I have reviewed the parties'
arguments, the record, and the relevant legal authorities.
For the reasons that follow, I deny Plaintiffs Motion to
Hawley issued a property and casualty insurance policy to
Argov Gavish Properties, LLC for the period of October 7,
2014 to October 7, 2015. ECF No. 5-1 at 12, ¶ 3. During
this period, Plaintiff occupied the first floor of Argov
Gavish Properties, LLC's property as a licensed
contractor and as a kitchen and bath distributor.
Id. at 12, ¶ 6.
about August 18, 2015, the first floor of Argov Gavish
Properties, LLC's property-Plaintiff's
premises-sustained damage due to an air conditioning leak.
Id. at 12, ¶ 9. As a result, Plaintiff filed an
insurance claim with Defendant and Defendant began adjusting
the loss. Id. at 12, ¶ 10. On or about June 21,
2016, Plaintiff learned that Rami Argov and/or Argov Gavish
Properties, LLC released the insurance claim filed by
Plaintiff. Id. at 12, ¶ 12. Plaintiff
subsequently commenced this action against Mt. Hawley on
April 20, 2017, in the Circuit Court of the Seventeenth
Judicial Circuit for Broward County, Florida. Id. at
10-14. Plaintiff asserts Defendant was aware Plaintiff was a
third party beneficiary of the Policy, and therefore breached
the policy by failing to pay Plaintiff the total loss it
sustained. Id. at 13, ¶¶ 15-16. Defendant
timely filed its answer and affirmative defenses on May 22,
2017. Id. at 93-96.
filed its corrected Notice of Removal to this Court on May
31, 2017. ECF No. 5. Defendant asserts this Court has
jurisdiction over this case because it is a matter in which
the amount in controversy exceeds $75, 000 and is between
citizens of different States. Id. ¶ 7.
Defendant establishes that the total amount in controversy
exceeds $75, 000. Id. ¶ 11. Defendant further
contends that Defendant is a citizen of Illinois while
Plaintiff is a citizen of Florida, thus showing complete
diversity. Id. ¶¶ 14-16.
subsequently filed its Motion to Remand to State Court (ECF
No. 7). Plaintiff concedes that Defendant has met its burden
that the amount in controversy exceeds the jurisdictional
requirement. Id. ¶ 2. However, Plaintiff
contends that Defendant failed to establish diversity of
citizenship, (Id. ¶ 3), and nevertheless waived
its right to removal by including a demand for jury trial
within its answer and affirmative defenses, (Id. at
burden of establishing federal jurisdiction falls on the
party who is attempting to invoke the jurisdiction of the
federal court. See McNutt v. General Motors Acceptance
Corp., 298 U.S. 178, 189 (1936). Courts should strictly
construe the requirements of 28 U.S.C. § 1441 (removal
jurisdiction) and remand all cases in which such jurisdiction
is doubtful. See Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941). Moreover, removal
statutes are construed narrowly, and when the plaintiff and
defendant clash on the issue of jurisdiction, uncertainties
are resolved in favor of remand. See Burns v. Windsor
Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).
moves for remand on the basis that Defendant has not met its
burden of proving diversity of citizenship. Even if Defendant
has adequately shown diversity, Plaintiff maintains Defendant
nevertheless waived its right of removal when it demanded a
jury trial in its answer and affirmative defenses filed in
state court prior to removal.
Diversity of Citizenship
contends Defendant failed to meet its burden of proving by a
preponderance of the evidence diversity of citizenship as