United States District Court, M.D. Florida, Fort Myers Division
JASPER CONTRACTORS, INC. A/A/O ANDREW J. CHASE AND CHERYL H. CHASE, Plaintiff,
PROGRESSIVE PROPERTY INSURANCE COMPANY, Defendant.
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on plaintiff's Motion to
Remand (Doc. #11) filed on August 9, 2019. Defendant filed a
Response (Doc. #16) on August 23, 2019. For the reasons set
forth below, the case will be remanded.
31, 2019, after service of process, defendant filed a Notice
of Removal (Doc. #1) based on the presence of a diversity of
citizenship between the parties and 28 U.S.C. §
1332.Plaintiff is an Indiana corporation with
its principal place of business in Georgia, and defendant is
a Florida corporation with its principal place of business in
Florida. (Id., ¶¶ 5, 8.) Plaintiff seeks a
remand because defendant is a citizen of the forum State of
Florida, and therefore could not remove the case under 28
U.S.C. § 1441. Plaintiff seeks costs, expenses, and fees
for the removal.
civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be
removed if any of the parties in interest properly joined and
served as defendants is a citizen of the State in which such
action is brought.” 28 U.S.C. § 1441(b)(2).
“The forum-defendant rule clearly contemplates
Plaintiff's ability to defeat Defendants' purported
right of removal in this case.” Goodwin v.
Reynolds, 757 F.3d 1216, 1221 (11th Cir. 2014). If
service of process on a forum defendant has been executed
before removal is attempted, as in this case, removal by said
forum defendant is barred. Id. Defendant argues that
removal was proper, that the forum-defendant rule is a
procedural defect and not a jurisdictional defect, and that
plaintiff has waived the right to remand by engaging in
post-removal discovery. Removal with a forum-defendant
“does not render that defect meaningless; rather, the
defect is waivable.” Pacheco de Perez v.
AT & T Co., 139 F.3d 1368, 1372 n.4 (11th Cir.
timely filed the request for a remand within 30 days of the
removal, and no substantive discovery has occurred. Under the
Court's Related Case Order and Track Two Notice, the
parties are advised: “Except as authorized by Rule
26(d) of the Federal Rules of Civil Procedure, no party may
seek discovery from any source before the case management
meeting, unless otherwise ordered by the Court.”
See Fed. R. Civ. P. 26 (d); M.D. Fla. R.
3.05(c)(2)(B).” (Doc. #8, p. 2.) Merely engaging in
initial discovery post-removal when no stay is in place does
not mean that plaintiff waived the right to timely seek a
remand. See Pacheco, at 1381 n.15 (“The
plaintiffs have consistently and insistently maintained that
this case should be remanded to state court. We conclude that
the plaintiffs' attempt to preserve the timeliness of any
possible future discovery cannot be equated with a waiver of
their right to object to removal.”). Defendant's
position is rejected.
relies on several cases outside this Court's jurisdiction
that are not binding and are also distinguishable. In
Lanier, the removal was untimely and plaintiff
sought to amend the complaint and filed a new lawsuit against
defendant in federal court in addition to proceeding with
discovery before remand was sought. Lanier v. Am. Bd. of
Endodontics, 843 F.2d 901, 905 (6th Cir. 1988). In
Johnson, plaintiff engaged in discovery and did not
seek a remand on a jurisdictional defect because counsel was
on vacation and plaintiff would have been “better
served by a more knowledgeable and diligent attorney”,
but he was not. Johnson v. Helmerich & Payne,
Inc., 892 F.2d 422, 423 n.2 (5th Cir. 1990).
Harris is distinguishable because plaintiff failed
to “promptly” object to defects in the petition
for removal. Harris v. Edward Hyman Co.,
664 F.2d 943, 944 (5th Cir. Dec. 28, 1981). In the other
Johnson case, plaintiff did not object to removal
until one year later. Johnson v. Odeco Oil & Gas
Co., 679 F.Supp. 604, 605 (E.D. La. 1987), aff'd
Johnson v. Odeco Oil & Gas Co., 864 F.2d 40 (5th
Cir. 1989). None of these cases support a conclusion other
than remand. It is clear that removal was not proper in this
case, and the case is due to be remanded.
order remanding the case may require payment of just costs
and any actual expenses, including attorney fees, incurred as
a result of the removal.” 28 U.S.C. § 1447(c).
“Absent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied.” Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005).
Defendant is the only defendant in this case, and there are
no issues of fraudulent joinder. Defendant was served with
process before removal of the case, and no non-forum
defendants were involved. The Court would entertain a request
for fees, expenses, and costs.
it is hereby
1. Plaintiff's Motion to Remand (Doc. #11) is
GRANTED. The Clerk is directed to remand the
case to the Circuit Court of the Twentieth Judicial Circuit,
in and for Collier County, Florida, and to transmit a
certified copy of this Order to the Clerk of that Court.
2. The Clerk is further directed to terminate all pending
motions and deadlines, and to close the case.
3. If plaintiff wishes to seek costs, expenses, and/or
attorney's fees for the removal of the case, such motion
with detailed billing records related to the filing of the
motion to remand must be filed within FOURTEEN (14)
DAYS of this Order.