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Piludu v. Corporation Target

United States District Court, M.D. Florida, Fort Myers Division

August 29, 2019

CARLEN A. PILUDU, Plaintiff,
v.
CORPORATION TARGET and SCOTT SOUSA, Defendants.

          OPINION AND ORDER [1]

          SHERI POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff Carlen A. Piludu's (“Piludu”) Motion to Remand (Doc. 12) and Defendant's Corporation Target (“Target”) Response in Opposition (Doc. 17). For the following reasons, the Court grants Piludu's motion.

         Piludu sues Target for injuries she suffered after slipping and falling in a store. (Doc. 3). This case started in state court on August 30, 2018. (Doc. 1-4). Target removed this suit nearly one year later based on diversity jurisdiction. (Doc. 1). In support of its removal, Target relies on the June 26, 2019 deposition of store manager, Defendant Scott Sousa (“Sousa”), to show Piludu fraudulently joined him to defeat this Court's jurisdiction. (Doc. 1 at 3-5). Piludu now moves to remand, arguing (a) removal was untimely, (b)Target waived its right to remove, and (c) she has pled a viable negligence claim against Sousa, which tanks Target's fraudulent joinder claim. (Doc. 12). Although the Court is not convinced by Piludu's last two arguments, her first contention - that Target's removal was untimely - carries the day.

         28 U.S.C. § 1446(b) governs the timeliness of removal. Pertinent here, a defendant may remove a case “within 30 days after receipt by the defendant through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). In relying on Taylor Newman Cabinetry, Inc. v. Classic Soft Trim, Inc., 436 Fed.Appx. 888, 893 (11th Cir. 2011), Piludu argues removal was untimely because Target delayed taking Sousa's deposition and thus violated the removal procedures under 28 U.S.C. § 1446(b). (Doc. 12 at 5-6). The Court agrees with Piludu.

         In Taylor, the Eleventh Circuit held that a notice of removal was untimely when it was filed almost six months after the case commenced but was within 30 days of the deposition of the nondiverse defendant. Taylor, 436 Fed.Appx. at 893. The defendants argued that it was during the deposition that they first learned of facts contradicting the allegations in the complaint against the nondiverse defendant. Id. at 892. But the Eleventh Circuit did not “agree that the deposition was the first time that Defendants could ascertain that the case was removable on the basis of fraudulent joinder.” Id. at 893. The Court reasoned that since the nondiverse defendant was an employee of the diverse defendant, the facts showing fraudulent joinder could have been ascertained through an affidavit by the employee instead of waiting so long to conduct a deposition. Id. Indeed, the Eleventh Circuit stated, “Defendants were not obligated to wait for the deposition before removing the case to federal court, nor were they permitted to do so insofar as this delay violated 1446(b).” Id.

         The facts of this case are even more compelling than those in Taylor because Target removed this case nearly a year after Piludu filed a complaint in state court. What is more, Target, as Sousa's employer, could have pulled the employee's record a year ago and learned that Sousa was not present at the store at the time of the alleged tort. With this information, Target could have filed an affidavit by Sousa to support its fraudulent joinder claim. It failed to do so. As the Eleventh Circuit held in Taylor, Target was not permitted to wait to depose Sousa nearly ten months after the filing of the complaint in order to remove its case to federal court. Id. Because of Target's inexcusable delay, it did not timely remove this action under 28 U.S.C. § 1446(b). See id.

         As a final matter, Piludi requests attorney's fees and costs under 28 U.S.C. § 1447(c). (Doc. 12 at 13). Under 28 U.S.C. § 1447(c), “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” The Court declines to exercise its discretion to award expenses to Piludu. Even if Target's removal was objectively unreasonable as a procedural matter, the circumstances of this case (strong substantive evidence of fraudulent joinder but procedural impropriety under 28 U.S.C. § 1446(b)(3)) do not warrant an award here.

         Accordingly, it is now

         ORDERED:

1. Plaintiff Carlen A. Piludu's Motion for Remand (Doc. 12) is GRANTED.
2. Plaintiffs request for attorney's fees and costs (Doc. 12 at 13) is DENIED.
3. The Clerk of Court is DIRECTED to transmit a certified copy of this Order to the Clerk of the Circuit Court of the Twentieth Judicial Circuit in and for Lee County, Florida. The Clerk is further DIRECTED to terminate pending motions and deadlines and close this case.

         DONE ...


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