United States District Court, M.D. Florida, Tampa Division
WILLIAM F. JUNG UNITED STATES DISTRICT JUDGE.
reviewing the motion, the response (Dkt. 13) and the record,
the Court grants Plaintiff’s motion to remand (Dkt. 6).
2006, Ambulatory Services Corp (“ASC”) executed a
$1, 800, 000 promissory note payable to Albert Wilson and a
$500, 000 promissory note to Wilson’s daughter, which
Wilson inherited. Dkt. 1-1 ¶¶ 6, 7, 12, 20. ASC
alleges that Wilson misrepresented these notes in two
different chapter 13 bankruptcy proceedings in California.
Id. ¶¶ 8–11, 15–19. Wilson
donated these notes to OK Program (“OKP”) in
March of 2019. Dkt. 13 at 3. In May of 2019, OKP notified ASC
that it was the new holder on these notes. Id. In
June of 2019, ASC sued Wilson and OKP in Florida state court
alleging that Wilson’s misconduct in the bankruptcy
proceedings makes the notes unenforceable and they should be
judicially canceled. Dkt. 1-1 ¶¶ 35–42. In
Count II, ASC requested declaratory relief as to the rights
and liabilities under both promissory notes. Dkt. 1-1
¶¶ 43– 50. In Count I, ASC alleges Wilson
breached the confidentiality and nondisclosure agreement
(“CNDA”). Dkt. 1-1 ¶¶ 25–34. ASC
further alleged the CNDA dealt with these notes and that it
contains a venue selection clause. Dkt. 1-1 ¶ 4. OKP
alleges that as it did not sign this agreement it is not
bound by it and that even if Wilson violated the agreement it
does not impact the enforceability of these notes by OKP.
Dkt. 13 at 10.
timely removed the case to federal court. Dkt. 1. OKP alleges
that ASC fraudulently joined Wilson to defeat
diversity. Dkt. 1 ¶¶ 12–18.
Specifically, as OKP is the current holder it is the only
party eligible to enforce the note and therefore the only
potential defendant. Dkt. 13 at 8–9. There were also
issues in serving Wilson, who was deemed served by the Court.
Dkt. 17. Wilson later filed an appearance and moved to quash
service of process and dismiss the complaint. Dkts. 21, 25.
Wilson did not directly respond to the motion to remand and
instead in his motion to dismiss “raises defenses as to
service of process, personal jurisdiction, failure to state a
claim, and venue.” Dkt. 25 at 4.
there is a pending motion to dismiss, this Court must rule
first on the motion to remand to determine whether it lacks
jurisdiction. See Univ. of S. Ala. v. Am. Tobacco
Co., 168 F.3d 405, 411 (11th Cir. 1999) (“[A]
federal court must remand for lack of subject matter
jurisdiction notwithstanding the presence of other motions
pending before the court.”) (citations omitted);
see also Morrison v. Allstate Indem. Co., 228 F.3d
1255, 1275 n.22 (11th Cir. 2000). The court’s diversity
jurisdiction is determined at the time of the filing of the
complaint or, if removed, at the time of removal.
PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1306
(11th Cir. 2016).
removing party bears the burden of establishing
jurisdiction.” Diaz v. Sheppard, 85 F.3d 1502,
1505 (11th Cir. 1996). Within this context, “[t]he
removal statute should be construed narrowly with doubt
construed against removal.” Id. Federal courts
are courts of limited subject matter jurisdiction.
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377
misjoinder occurs when a plaintiff purposefully attempts to
defeat removal by joining together claims against two or more
defendants where the presence of one would defeat removal and
where there is no sufficient factual nexus among the claims
to satisfy permissive joinder.” Squeaky Gate, Inc.
v. Ohio Sec. Ins. Co., No. 8:18-CV-2382-T-02SPF, 2018 WL
5839870, at *1 (M.D. Fla. Nov. 8, 2018) (citations omitted).
Under the permissive joinder rule, claims are properly joined
only if they “aris[e] out of the same transaction,
occurrence, or series of transactions or occurrences”
and share a common “question of law or fact.”
underlying questions of fact and law as to the relevance of
the CNDA, the alleged fraud on the bankruptcy court, and how
those impact the validity of the promissory notes are the
same for both defendants. OKP acknowledges it is not a holder
in due course because it received these promissory notes as
donations from Wilson. Dkt. 13 at 10. Further, ASC alleges
that the close relationship and improper transfer between
Wilson and OKP could impact their claims and defenses
regarding the promissory notes’ enforceability. Dkt.
1-1 ¶¶ 21–23. The allegations of
Wilson’s fraud against the bankruptcy court and any
impact that has on these notes requires that Wilson be a
party to this lawsuit. The underlying actions, concerning the
CNDA and the alleged fraud on the bankruptcy court, are the
same for both defendants, meaning the claims arise out of the
same transactions and there is a sufficient factual nexus.
OKP’s allegation that as the holder it is the only
party able to enforce the note is supported by the case law
OKP cited, that does not alleviate ASC’s claims. ASC
alleges that Wilson’s actions regarding the notes and
his improper transfer to OKP impact the enforceability by
OKP. For the Court to resolve those claims necessarily
involves Wilson. OKP’s reliance on Dasma
Investment, is misplaced. Dasma Inv., LLC v. Realty
Assoc. Fund III, L.P., 459 F.Supp.2d 1294 (S.D. Fla.
Oct. 30, 2006). In Dasma Investments, the plaintiff
was seeking to enforce a promissory note against a diverse
defendant and a non-diverse defendant. The court determined
the non-diverse defendant did not break diversity because the
plaintiff could not establish possession of the original
promissory note to be able to enforce the note. Id.
at 1300–03. After the case was removed, the plaintiff
sought to add twenty-seven tenants of the warehouse it was
trying to foreclose on, in order to obtain rent payments from
them. The court did not allow the amendment as those tenants
were added after the case was removed for the sole purpose of
defeating diversity. Id. at 1299–300. However,
Dasma Investments differs significantly from the
facts here where Wilson was named in the original complaint
and ASC has claims against him that are directly related to
the issues at hand. As such, OKP has not met its burden as
the removing party to establish jurisdiction and the Court
lacks subject matter jurisdiction.
Plaintiff’s motion to remand (Dkt. 6) is granted. This
case is remanded due to lack of federal subject matter
jurisdiction. The Court declines to award fees to movant
pursuant to 28 U.S.C. § 1447. The Clerk is directed to
remand this case to the Twelfth Judicial Circuit Court in and
for Sarasota County, Florida, and after effecting remand, to
close this case.
 It is undisputed that both Wilson and
ASC are citizens of California. Dkt. ...