United States District Court, M.D. Florida, Fort Myers Division
CHARLES N SCHWARTZ, JAMES R VOLKERT and GEORGE W GILES, Petitioners,
DEX MEDIA, INC., Respondent.
OPINION AND ORDER 
POLSTER CHAPPLL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Dex Media,
Inc.'s Motion to Sever (Doc. 17), Plaintiffs Charles
Schwartz, James Volkert, and George Giles' Memorandum in
Opposition (Doc. 26), and Dex's Reply (Doc. 35). This
matter is ripe for review.
discrimination and retaliation action began in Florida state
court. (Doc. 1-2). Dex removed the action to the Northern
District of Florida based on original subject matter
jurisdiction. (Doc. 1). That court then transferred the suit
here. (Doc. 12). Plaintiffs' suit contains three claims.
(Doc. 1-2). First, Giles sues for disability discrimination
under the Florida Civil Rights Act and the Americans with
Disabilities Act. (Doc. 1-2 at 6-7). Second, Giles, Schwartz,
and Volkert sue for age discrimination under the Florida
Civil Rights Act and seek injunctive relief under the Age
Discrimination in Employment Act. (Doc. 1-2 at 8-9). Third,
Giles and Schwartz sue for retaliation. (Doc. 1-2 at 9-10).
Dex now seeks to sever Giles' claims from Volkert's
and Schwartz's claims. Plaintiffs oppose. For the
following reasons, the Court grants Dex's Motion.
addressing the merits, the Court must resolve the
parties' disagreement on whether Florida or federal
procedural rules apply. (Docs. 26; 35). Generally, the
Federal Rules of Civil Procedure “apply to a civil
action after it is removed from state court.”
Fed.R.Civ.P. 81(c)(1). Yet Plaintiffs argue that Florida
joinder rules apply. (Doc. 26 at 2-8). To support their
argument, Plaintiffs rely on an Eastern District of Kentucky
case that discusses, without deciding, applying state or
federal joinder rules after removal in the fraudulent
misjoinder context. See Asher v. Minnesota
Mining and Mfg. Co., CIV.A. 04CV522KKC, 2005 WL 1593941,
at *6 (E.D. Ky. June 30, 2005). In Asher, the court
noted the “majority of courts that have adopted the
fraudulent misjoinder doctrine have determined that the issue
of whether claims have been misjoined should be evaluated
under state procedural law rather than federal law.”
Asher, 2005 WL 1593941, at *6. The court highlighted
the potential tension between state and federal court joinder
rules in a diversity action. See Id. at *6. This
possible tension is best explained through an example: if a
diversity defeating party's claims were properly joined
under state rules but fraudulently misjoined under federal
rules, a conflict may arise if a federal court severs those
claims after removal to create jurisdiction where
jurisdiction did not exist before severance. According to the
courts quoted in Asher, this outcome may frustrate
the general rule that the Federal Rules of Civil Procedure
may not extend or limit jurisdiction. See Id. at *6;
see also Fed. R. Civ. P. 82 (“These rules do
not extend or limit the jurisdiction of the district courts
or the venue of actions in those courts.”).
that logic is inapplicable here. Unlike Asher, the
relevant issue here is whether the federal or Florida rules
of civil procedure apply to a motion to sever where original
subject matter jurisdiction exists. (Doc. 1). Continued
joinder or severance of Giles' claims will not end this
Court's jurisdiction, and the potential conflict
highlighted in Asher does not exist. Even if this
Court faced a similar dilemma as the Asher court,
the Eleventh Circuit applied federal procedural rules in its
fraudulent misjoinder opinion. See Tapscott
v. MS Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.
1996), overruled on other grounds by Cohen v.
Off. Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).
Therefore, the Court will apply federal rules.
Court now turns to Dex's Motion to Sever. A district
court “may sever any claim against any party.”
Fed.R.Civ.P. 21. The district court “has broad
discretion when deciding whether to sever claims under Rule
21 and may consider factors such as judicial economy, case
management, prejudice to parties, and fundamental
fairness.” Potts v. B & R, LLC,
8:13-CV-2896-T-27TGW, 2014 WL 1612364, at *3 (M.D. Fla. Apr.
under Rule 20, parties may join if “(A) they assert any
right to relief jointly, severally, or in the alternative
with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B)
any question of law or fact common to all plaintiffs will
arise in the action.” Fed.R.Civ.P. 20(a)(1). A party
must meet both joinder prongs. Fleming v. Home Depot
U.S.A., Inc., 96-6560-CIV, 1998 WL 1674544, at *1 (S.D.
Fla. July 8, 1998). Under the first prong, “[t]o arise
from the same transaction, occurrence, or series of
transactions or occurrences, claims must be ‘logically
related.'” Edwards-Bennett v. H. Lee Moffitt
Cancer and Research Inst., Inc., 8:13-CV-00853-T-27,
2013 WL 3197041, at *1 (M.D. Fla. June 21, 2013) (citation
omitted). Courts must take a broad realistic approach to the
logical relationship test, but claims must still share
operative facts. See Rhodes v. Target
Corp., 313 F.R.D. 656, 659 (M.D. Fla. 2016).
with the first prong, the Court must determine if Giles'
claims arise “out of the same transaction, occurrence,
or series of transactions or occurrences” as
Volkert's or Schwartz's claims. While Giles'
claims share some of the same legal theories of age
discrimination and retaliation as the other Plaintiffs, his
claims arise out of a unique set of facts. (Doc. 1-2). He
alone underwent neck surgery, failed to meet his specific job
performance goals, was placed on a performance improvement
plan, and was “wrongfully terminated” after
failing to meet his sales numbers. (Doc. 1-2 at 7-11).
Volkert and Schwartz have no similar allegations. Further,
unlike Giles, Volkert and Schwartz held management positions,
were demoted, and were “constructively
terminated” months after Giles. (Doc. 1-2 at 7-11). The
factual scenarios are too different, and the similarities too
slim. The similarities are limited to Dex's employment of
the Plaintiffs, Dex's Vice President mistreatment of the
Plaintiffs, and Plaintiffs' alleged age discrimination.
(Doc. 1-2 at 7-11). At bottom, Volkert and Schwartz's
claims do not share operative facts with Giles' claims.
So the first prong for permissive joinder under Rule 20 is
not met. Because Giles' claims do not meet the first
prong of the analysis, the Court need not address the second.
Giles' claims were properly joined under Rule 20, the
Court would still sever the claims. See
Rhodes, 313 F.R.D. at 659 (noting that a court still
has discretion to sever claims if the permissive joinder
requirements are met). As stated, a court can consider
“factors such as judicial economy, case management,
prejudice to parties, and fundamental fairness” under
Rule 21. Potts, 2014 WL 1612364, at *3. Here, the
differing facts underlying Plaintiffs' claims may cause
unnecessary prejudice and unfairness to Dex at trial. A jury
considering the claims would need to consider a multitude of
issues associated with only Giles. Indeed, Giles' neck
surgery, placement on a performance plan, and later
termination for failure to meet his sales numbers do not
affect the other Plaintiffs and may cause jury confusion.
were not enough, Dex submitted an affidavit from Dex's
Vice President that showed Volkert was Giles' direct
supervisor and began Giles' termination. (Doc. 17-1). Dex
argues that Volkert's testimony on Giles' discharge
may be tainted by Volkert's stake in supporting his claim
against Dex. (Doc. 17 at 10-11). While this potential bias in
testimony is alone insufficient, it coupled with the
likelihood of jury confusion and needless prejudice
necessitates severing Giles' claims. And Plaintiffs have
identified no potential prejudice that would result if the
claims were severed. Thus, the Court will sever Giles'
claims from Volkert's and Schwartz's claims.