United States District Court, M.D. Florida, Fort Myers Division
CARLEN A. PILUDU, Plaintiff,
CORPORATION TARGET and SCOTT SOUSA, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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.
it is now
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.