United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
B. SMITH, UNITED STATES MAGISTRATE JUDGE.
the Court is Defendant's response to the Court's
Order to Show Cause why this case should not be remanded for
lack of subject matter jurisdiction (Docs.13, 20). For the
reasons set forth herein, it is respectfully
recommended that the case be remanded.
3, 2019, Defendant invoked the Court's diversity
jurisdiction to remove this state court insurance dispute
(Doc. 1). Plaintiff filed its Amended Complaint on June 7,
2019 (Doc. 11). The Complaint and Amended Complaint both
identify Plaintiff as Sabal Palms
Condominium Association, with Plaintiff alleging:
“Plaintiff resides in Brevard County, Florida, and is
otherwise sui juris.” (Doc. 10, ¶ 3). In its
Notice of Removal, Defendant represented that;
“Plaintiff is a Florida Not For Profit Corporation
conducting business in the State of Florida with its
principal place of business located at 7100 W. Commercial
Boulevard, Suite 106, Lauderhill, FL 33319.” (Doc. 1 at
6). As evidence of this representation, Defendant attached a
printout from the Florida Department of State Division of
Corporations for the entity “Sabal
Palm Condominium Association,
Inc.” at the Lauderhill address (Doc.
1-6). The Insurance Policy in question identifies the named
insured as “Sabal Palm Condominium Association,
Inc.” with a mailing address of Cape Canaveral, Florida
(Doc. 9-1, p. 3). Due to these discrepancies, I concluded
that Defendant had made an inadequate showing of diversity
and issued an Order to Show Cause on June 10, 2019 (Doc. 13).
21, 2019, Defendant filed an Unopposed Motion for Enlargement
of Time to Answer or Otherwise Respond to Amended Complaint
(Doc. 16). It asked for a brief extension “in order to
allow the jurisdictional issue [to] be clarified.”
(Id., at 3). Interpreting this as a motion for
extension of time in which to file a response to the Order to
Show Cause, I granted the motion and gave Defendant until
July 5, 2019 in which to respond to the show cause Order
(Doc. 17). The Order granting the extension cautioned that
“Failure to timely respond and establish
jurisdiction may result in dismissal of the action, without
further notice.” (Id., emphasis
original). On July 5, 2019, Defendant filed its Response to
the show cause Order (Doc. 20) and its Answer and Affirmative
Defenses (Doc. 21).
to federal court is governed by 28 U.S.C. § 1441(a),
which states in part that “[e]xcept as otherwise
expressly provided by Act of Congress, any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction may be removed by
the defendant or the defendants to the district court of the
United States for the district and division embracing the
place where such action is pending.” Removal statutes
are strictly construed against removal. Shamrock Oil
& Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct.
868, 85 L.Ed. 1214 (1941); Burns v. Windsor Ins.
Co., 31 F.3d 1092, 1095 (11th Cir. 1994)
(“[R]emoval statutes are construed narrowly; when the
parties dispute jurisdiction, uncertainties are resolved in
favor of remand.”). See also Univ. of S. Ala. v.
Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)
(“[A]ll doubts about jurisdiction should be resolved in
favor of remand to state court.”).
district court has original jurisdiction over cases in which
the parties are of diverse citizenship and “the matter
in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs.” 28 U.S.C. §
1332(a). Federal jurisdiction pursuant to 28 U.S.C. §
1332 exists only when there is complete diversity between the
plaintiffs and the defendants and the amount in controversy
requirement is met. See Owen Equip. and Recreation Co. v.
Kroger, 437 U.S. 365, 98 S.Ct. 2396, 57 L.Ed.2d 274
diversity purposes, a corporation is a citizen of (1) its
state of incorporation; and (2) the state where it has its
principal place of business. 28 U.S.C. § 1332(c)(1).
Although a company may conduct business in multiple places,
the Supreme Court has determined that "principal place
of business" for a corporation is its nerve center:
"the place where a corporation's officers direct,
control, and coordinate the corporation's
activities." Hertz Corp. v. Friend, 559 U.S.
77, 130 S.Ct. 1181, 1192- 93, 175 L.Ed.2d 1029 (2010)
(establishing "nerve center" test as uniform
approach for determining corporate citizenship).
limited liability company is “a citizen of any state of
which a member of the company is a citizen.”
Rolling Greens MHP, L.P. v. Comcast SCH Holdings
L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004).
“[U]nincorporated associations do not themselves have
any citizenship, but instead must prove the citizenship of
each of their members to meet the jurisdictional requirements
of 28 U.S.C. § 1332.” Underwriters at
Lloyd's, London v. Osting-Schwinn, 613 F.3d 1079,
1086 (11th Cir. 2010).
advised Defendant that its showing as to the citizenship of
the parties was deficient because Lauderhill is not in
Brevard County, the name on the Policy and the name on the
complaints differ, and it was not clear if the corporate
entity Sabal Palm Condominium Association, Inc. is the same
entity as the Plaintiff, or if the Plaintiff is even an
incorporated entity (Doc. 13). Defendant asked for and
received additional time to address these matters. Now, it
says in response:
Defendant is a Delaware corporation with a statutory home
office in Delaware and a principal place of business in New
York. Additionally, Plaintiff, by its own admission states:
“Plaintiff resides in Brevard County, Florida”
in both its original complaint and in its Amended
Complaint [ECF Nos. 1-1 and 11 at ¶3]. Further,
the property at the heart of the instant action is located at
8150 Rosalind Avenue, Cape Canaveral, FL 32920
(“Property”). Said Property by which Plaintiff
asserts it maintains an insurable interest in is located in
Brevard County. The allegations in Plaintiff's Amended
Complaint mirror this fact, which Defendant insured under
policy number AAHS1000012799 [ECF No. 10 at ¶¶4-5].
Should this Court find Plaintiff's entity, as a party, at
issue based on the discrepancy between the entity listed on
the Policy and the name Plaintiff brings suit under,
Defendant respectfully requests this Court to allow for
further discovery to shed light on the complete details of
Plaintiff's entity. Nonetheless, it is clear that there
is subject matter jurisdiction based on diversity among the
parties based on the undisputed amount in controversy,
Plaintiff's own admissions and representations in Court
filings and to this Honorable Court that it is an entity
residing in Brevard County, Florida and its property alleged
damaged for which suit is based on is located in Brevard
County, Florida. From the date of this Court's Show Cause
Order, June 10, 2019, through today, Plaintiff has not filed
any document with this Court, disputed any fact in this
Response, or provided to undersigned counsel any information
that would impede or destroy diversity jurisdiction, despite
our requests for same. Based on the undisputed information in
our possession, diversity jurisdiction exists.
(Doc. 20 at 3-4; emphasis original).
party invoking federal jurisdiction, the burden is on
Defendant to establish diversity as of the date of removal.
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744,
751 (11th Cir. 2010). Defendant's burden is to prove by a
preponderance of that evidence that federal jurisdiction
exists through the presentation of facts establishing its
right to remove. Williams v. Best Buy Company, Inc.,
269 F.3d 1316, 1319 (11th Cir. 2001). When the defendant
fails to do so, the case must be remanded. W
illiams, 269 F.3d at 1321. Defendant's response
fails to provide any evidence or, indeed, any new information
sufficient to establish the ...