United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
matter comes before the Court without a hearing on the Motion
to Remand (13) filed by Defendant State Farm Mutual
Automobile Insurance Company (henceforth, “State
Farm”), and the response in opposition (Doc. 17) filed
by the Plaintiff, Terence Rea (“Rea”).
to the allegations of the Complaint (Doc. 2), in August 2015
Rea and Defendant Aleyssa Marie Arroyo Marrero
(“Marrero”) were involved in an automobile
accident, which was caused by negligence on Marrero's
part. (Doc. 2 at 2). Rea is a Florida resident, State Farm is
a resident of Illinois, and the parties agree that Marrero is
a Florida resident.
suffered significant injuries due to the accident and, among
other things, was forced to undergo spinal surgery. (Doc. 1-6
at 2). Pre-suit medical bills provided by Rea's counsel
to State Farm exceed $100, 000. (Doc. 1-7). At the time of
the accident, Marrero had only $10, 000 per person in
liability coverage, but Rea had $100, 000 in
uninsured/underinsured motorist coverage through State Farm.
(Doc. 1-6 at 1). After settling with Marrero,  Rea made a policy
limits demand to State Farm.
filed the instant suit in state court on March 21, 2018,
asserting three claims: negligence against Marrero (Count I);
breach of contract against State Farm (Count II); and an
(unripe) statutory bad faith claim against State Farm (Count
III). State Farm removed the case to this Court on the basis
of diversity jurisdiction on April 26, 2018. (Doc. 1 at 2).
Rea argues that removal was improper for several reasons,
including that diversity jurisdiction does not exist in this
case and because State Farm failed to obtain Marrero's
approval before removing it.
action filed in state court of which a district court
possesses original jurisdiction may be removed to federal
court. 28 U.S.C. § 1441(a). District courts possess
original jurisdiction over cases, inter alia, in
which the matter in controversy exceeds the value of $75, 000
and the parties are citizens of different states. 28 U.S.C.
§ 1332(a)(1). Rea argues that diversity jurisdiction
does not exist because (1) State Farm has failed to
demonstrate that the matter in controversy here has a value
exceeding $75, 000 and (2) both he and Marrero are citizens
of Florida. He also argues that State Farm violated the
unanimity rule, which requires that in cases involving
multiple defendants, all defendants must consent to removal.
Chicago, R.I. & P. Ry. Co. v. Martin, 178 U.S.
245, 247-48, 20 S.Ct. 854, 44 L.Ed. 1055 (1900).
first argument is easily disposed of. Where, as here, a
plaintiff has not claimed a specific amount of damages,
removal is proper if it is facially apparent from the
complaint that the amount in controversy exceeds the
jurisdictional minimum. Williams v. Best Buy Co.,
269 F.3d 1316, 1319 (11th Cir. 2001). If the jurisdictional
amount is not apparent from the complaint, the court should
look to the notice of removal and require evidence relevant
to the amount in controversy at the time the case was
removed. Id. State Farm points out in its Notice of
Removal that, prior to filing suit, Rea made a policy limits
claim supported by medical bills (which State Farm attached
to the notice) exceeding $100, 000 resulting from the
accident - with more such bills still to come. Rea has not
cited any evidence suggesting that his $100, 000 presuit
claim was overblown. Accordingly, the Court finds it more
likely than not that the jurisdictional minimum has been met
the second argument, when a plaintiff names a non-diverse
defendant solely to defeat 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. Washington Nat.
Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006). In such
a case, the plaintiff is said to have effectuated a
“fraudulent joinder, ” and a federal court may
appropriately assert its removal diversity jurisdiction over
the case. Id. (citing Crowe v. Coleman, 113
F.3d 1536, 1538 (11th Cir. 1997). A defendant seeking to
prove that a co-defendant was fraudulently joined must
demonstrate by clear and convincing evidence either that: (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.
(citing Parks v. New York Times Co., 308 F.2d 474,
478 (5th Cir.1962). The United States Court of Appeals for
the Eleventh Circuit has acknowledged that, under some
circumstances, application of an affirmative defense (such as
a release) can support a finding of fraudulent joinder in a
removed case. Florence v. Crescent Res., LLC, 484
F.3d 1293, 1298 n. 3 (11th Cir. 2007) (citing
Henderson, 454 F.3d at 1283-84 (11th Cir.2006)).
argues that despite the settlement, Marrero is still a party
to this pending litigation and therefore her citizenship must
be considered in determining whether the parties are diverse.
(Doc. 13 at 8-9). Rea relies on a decision from this division
- Spaulding v. State Farm Mutual Automobile Insurance
Co., No. 6:12-cv-1550-ACC-TBS, at *1 (M.D. Fla., Jan.
25, 2013) - holding that a settling defendant only becomes a
nominal defendant after there has been a stipulated dismissal
or entry of judgment with respect to the claims against that
Spaulding is not on point. As in this case, it
involved two defendants - State Farm and an individual, Glen
Carter (“Carter”). It had been litigated in state
court for nearly a year before Carter filed a notice of
acceptance of a settlement offer from the plaintiff.
Id. at *2. Shortly thereafter, thinking Carter was
now just a nominal defendant, State Farm removed the case
without obtaining his consent. Id. The plaintiff
argued, inter alia, that this violated the rule of
unanimity, and Judge Conway agreed, noting that while the
proposal for settlement reflected that the plaintiff would
file a voluntary dismissal with prejudice as to Carter, that
filing had not yet occurred, and Carter was therefore not a
nominal defendant. Id. at *4-*5. In the instant
case, however, the settlement was finalized long before suit
was filed, so Marrero was nothing more than a nominal
defendant from the outset. Accordingly, the Court finds that
the parties are diverse. In addition, as the opinion in
Spaulding implies, removing parties need not obtain
consent from nominal defendants. Tri-Cities Newspapers,
Inc. v. Tri-Cities Printing Pressmen & Assistants'
Local 349, Int'l Printing Pressmen & Assistants'
Union of N. Am., 427 F.2d 325, 327 (5th Cir.
consideration of the foregoing, it is hereby
that the Motion to Remand (Doc. ...