United States District Court, M.D. Florida, Orlando Division
G. BYRON UNITED STATES DISTRICT JUDGE.
cause comes before the Court without oral argument on the
1. Plaintiff's Motion for Remand and Memorandum of Law
(Doc. 8), filed September 26, 2017;
2. Defendant First Recovery Group, LLC's Response to
Plaintiff's Motion for Remand (Doc. 14), filed October
3. Defendant First Recovery Group, LLC's Motion to
Dismiss (Doc. 3), filed September 5, 2017;
4. Plaintiff's Response to Defendant's Motion to
Dismiss (Doc. 27), filed November 6, 2017; and
5. Defendant's Reply in Support of Its Motion to Dismiss
(Doc. 35), filed November 27, 2017.
parties have completed their briefing and the Court is
otherwise fully advised on the premises. For the following
reasons, Plaintiff's Motion for Remand is due to be
denied, and Defendant's Motion to Dismiss is due to be
granted in part.
present lawsuit relates to an earlier medical malpractice
action brought by VEV (“Plaintiff”), a minor, by
and through Victoria Vestal and Emmanel Vestal, VEV's
parents. On February 22, 2013, VEV was injured in an
automobile accident. (Doc. 2, ¶ 8). The complaint
alleges that VEV's healthcare providers were negligent,
resulting in severe injuries. (Id. ¶ 9).
Plaintiff then filed a medical malpractice suit. (Id.
¶ 12). Defendant, Armando Payas
(“Payas”), was appointed guardian ad litem to VEV
and was a named defendant in the malpractice case.
(Id. ¶ 7). Plaintiff alleges Payas is an
attorney licensed in Florida, and maintains a regular office
in Florida. (Id. ¶¶ 5-6).
February 7, 2017, Defendant First Recovery Group, LLC
(“FRG”) advised Plaintiff it was asserting a $14,
089.79 subrogation lien in connection with the suit.
(Id. ¶ 11). In reliance of FRG's
representation, Plaintiff settled the medical malpractice
lawsuit; the settlement was approved by a court on May 12,
2017. (Id. ¶¶ 12, 14). Subsequently, on
July 18, 2017, FRG advised Plaintiff that it was actually
asserting a $144, 861.95 subrogation lien. (Id.
suit followed. On July 26, 2017, Plaintiff filed a state
court complaint seeking a declaratory judgment that FRG is
only entitled to recover $14, 089.79 for Medicaid claims paid
on VEV's behalf. (Id. ¶ 19). On August 29,
2017, FRG removed to this Court on the basis of diversity
jurisdiction. (Doc. 1). In the Notice of Removal, FRG
asserted that Payas is not a proper defendant, and that the
parties are completely diverse if Payas is properly
disregarded. (Id. ¶ 11).
Plaintiff's Motion for Remand
now moves to remand to state court, arguing that removal was
improper for two reasons: (1) the parties are not completely
diverse, and (2) Plaintiff failed to obtain consent from all
Defendants to remove. (Id. ¶¶ 18, 37).
Plaintiff contends that Payas is a proper defendant in this
suit, thus complete diversity of citizenship is absent.
(Id. ¶¶ 20, 22, 32, 35). Moreover, because
Payas was a proper defendant, FRG was required to obtain
Payas' consent as a pre-requisite to removal.
(Id. ¶¶ 37-39).
counters that Plaintiff fraudulently joined Payas to defeat
diversity jurisdiction. (Doc. 14, ¶ 6). Defendant avers
that no “bona fide controversy” exists between
VEV and Payas, VEV's guardian ad litem, thus barring
Payas from being joined as a defendant. (Id.).
28 U.S.C. § 1441(a) authorizes a defendant to remove a
civil action from state court to federal court where the
controversy lies within the federal court's original
jurisdiction. When a case is removed from state court, the
removing party bears the burden of establishing federal
subject matter jurisdiction by a preponderance of the
evidence. McCormick v. Aderholt, 293 F.3d 1254, 1257
(11th Cir. 2002) (per curiam).
removal from state court constitutes an infringement upon
state sovereignty, the procedural requirements for removal
must be strictly construed, and all doubts about the
propriety of removal must be resolved in favor of remand.
Russell Corp. v. Am. Home Assurance Co., 264 F.3d
1040, 1049-50 (11th Cir. 2001).
invokes this Court's diversity jurisdiction pursuant to
28 U.S.C. § 1332. Section 1332 confers jurisdiction to
the district courts over “all civil actions where the
matter in controversy exceeds the sum or value of $75, 000 .
. . and is between citizens of different States.” 28
U.S.C. § 1332(a)(1). Diversity jurisdiction requires
that all plaintiffs be diverse from all defendants. U. of
S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 412 (11th Cir.
the fraudulent joinder doctrine, a facially non-diverse
action “may nevertheless be removable if the joinder of
the non-diverse party . . . were fraudulent.”
Triggs v. John Crump Toyota, Inc., 154 F.3d, 1284,
1287 (11th Cir. 1998). “In a removal case alleging
fraudulent joinder, the removing party has the burden of
proving that 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.” Pacheco de Perez v. AT & T
Co., 139 F.3d 1368, 1380 (11th Cir. 1998). Fraudulent
joinder determinations depend upon the plaintiff's
pleadings. Id. District courts must view factual
allegations in the light most favorable to the plaintiff and
uncertainties are to be resolved in the plaintiff's
argues there is no possibility that Plaintiff can establish a
cause of action against the non-diverse defendant, Payas,
therefore his joinder was fraudulent. A “plaintiff need
not have a winning case against the allegedly fraudulent
defendant; he need only have a possibility of
stating a valid cause of action in order for the joinder to
be legitimate.” Triggs, 154 F.3d at 1287. A
review of the Complaint fails to disclose any facially
colorable claims against Payas. (Doc. 2). The paragraphs
mentioning Payas set forth his background information
(see Doc. 2, ¶¶ 5-7, 13) and indicate that
his and Plaintiff's interests are aligned. There is no
indication that Plaintiff is pursuing any claims, or a
judgment, against Payas. The Court is therefore satisfied
that “there is no possibility” of Plaintiff
establishing a cause of action against Payas, rendering his
joinder fraudulent. See Pacheco de Perez, 139 F.3d
all defendants must consent to remove an action to federal
court. However, “[a] fraudulently joined defendant need
not consent to removal.” Restivo v. Bank of Am.
Corp., 618 F. App'x 537, 540 n.5 (11th Cir. 2015).
Such a requirement would be nonsensical. Accordingly,
Defendant's removal was proper, and Plaintiff's
Motion to Remand is denied.
Defendant's Motion to Dismiss
Subject Matter Jurisdiction-Statutory ...