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Fazio v. Monsanto Co.

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

December 10, 2019

JOSEPH FAZIO, Plaintiff,
v.
MONSANTO COMPANY, ISLAND GARDEN CENTER OF MARCO ISLAND, INC., and SITEONE LANDSCAPE SUPPLY, LLC, Defendants.

          ORDER AND OPINION

          JOHN E. STEELE SENIOR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on plaintiff's Motion to Remand and Request for Emergency Hearing On Same (Doc. #11) filed on November 15, 2019.[1] Defendant Monsanto Company filed a Memorandum of Law in Opposition (Doc. #27) on December 2, 2019. For the reasons stated below, the motion to remand is denied.

         I.

         On March 29, 2019, plaintiff Joseph Fazio initiated a civil action in the Twentieth Judicial Circuit in and for Collier County, Florida. (Doc. #1-1.) The three-count Complaint set forth state-law claims against defendants Island Garden Center of Marco Island, Inc. (“Island Garden Center”), SiteOne Landscape Supply, LLC, Soon Come, Inc., and Monsanto Company.[2] (Id.) In the Complaint, plaintiff alleged he was diagnosed with a form of Non-Hodgkin's lymphoma as a result of exposure to “Roundup” herbicides produced by Monsanto and sold by Island Garden Center and SiteOne Landscape. (Id. pp. 10-11.)

         Monsanto was served with the Complaint and a Summons on April 2, 2019. (Doc. #1-4, p. 134.) On April 22, 2019, Monsanto filed its Answer and Affirmative Defenses in state court. (Doc. #1-2.) On July 12, 2019, plaintiff responded to an interrogatory by stating that to the best of his knowledge he purchased Roundup from Island Garden Center from “1990-2000.” (Doc. #14-1, p. 60, ¶6.) On November 14, 2019, Island Garden Center's incorporator and president made a written declaration stating that the company did not exist until 2010 and was created as a new corporate entity. (Doc. #1-9, p. 279.)

         On November 15, 2019, Monsanto filed a Notice of Removal (Doc. #1) which removed the case to this Court on the basis of diversity jurisdiction. In the Notice of Removal Monsanto recognized that the complete diversity of citizenship required for federal diversity jurisdiction was not present on the face of the Complaint because one of the named defendants - Island Garden Center - was a Florida citizen, as was plaintiff. (Doc. #1, ¶4.) Monsanto asserted, however, that Island Garden Center had been fraudulently joined in the Complaint, and that there was complete diversity of citizenship between the properly joined parties when this fraudulently joined party was disregarded. (Id.) The assertion of fraudulent joinder was premised on plaintiff's July 12, 2019 interrogatory response stating he purchased Roundup from Island Garden Center from 1990 to 2000, and the November 14, 2019 declaration from Island Garden Center's incorporator and president stating that the company did not exist until 2010 and was created as a new corporate entity. Because plaintiff can have no viable claim against a corporation first formed in 2010 for conduct occurring from 1990 to 2000, Monsanto argues that Island Garden Center had been fraudulently joined and that complete diversity of citizenship does exist as to the properly joined parties. (Doc. #1, ¶¶ 16-17.)

         On November 15, 2019, plaintiff executed an Affidavit (Doc. #14-1, p. 69) which stated that he had purchased Roundup and other Monsanto products from Island Garden Center “after the year 2012”.

         II.

         In his motion to remand, plaintiff argues (1) Monsanto's Notice of Removal is procedurally deficient because (a) Island Garden Center did not give its consent to removal, and (b) the Notice of Removal was untimely filed, and (2) the Court lacks subject matter jurisdiction over this case because Island Garden Center was properly joined as a defendant, and therefore complete diversity of citizenship is lacking. (Doc. #11, p. 2; Doc. #14, pp. 3-9.) The Court addresses the fraudulent joinder issue first, then the procedural aspects of the dispute.[3]

         A.

         “A defendant may remove a civil action filed in a state court to the federal district court for the district in which the action is pending if the district court would have had jurisdiction over the suit.” PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1304-05 (11th Cir. 2016) (citing 28 U.S.C. § 1441(a)). District courts have original, diversity-based jurisdiction over a civil action when (1) the amount in controversy “exceeds the sum or value of $75, 000” and (2) each plaintiff is a citizen of a different state from each defendant. 28 U.S.C. § 1332(a). “[T]he burden is on the party who sought removal to demonstrate that federal jurisdiction exists.” Friedman v. N.Y. Life Ins. Co., 410 F.3d 1350, 1353 (11th Cir. 2005) (citation omitted). A removed case must be remanded to state court “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). A removal case based on diversity jurisdiction must be remanded to state court if the parties are not completely diverse. Henderson v. Wash. Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006).

         B.

         The fundamental issue in this case is whether Island Garden Center was properly joined as a defendant. Monsanto asserts that Island Garden Center was fraudulently joined, while plaintiff asserts it was properly joined. Fraudulent joinder occurs when a plaintiff names a non-diverse defendant solely in order to defeat federal diversity jurisdiction. Id. at 1281. A defendant seeking to prove that a co-defendant was fraudulently joined must demonstrate by clear and convincing evidence that “(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court.” Id. (citation omitted). “[I]f there is a possibility that a state court would find that the complaint states a cause of action against any of the resident defendants, the federal court must find that the joinder was proper and remand the case to the state court.” Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277, 1279 (11th Cir. 2003). The determination of fraudulent joinder is made on the basis of plaintiff's pleadings at the time of removal, supplemented by any affidavits and deposition transcripts submitted by the parties. Legg v. Wyeth, 428 F.3d 1317, 1322 (11th Cir. 2005) (citation omitted). The proceeding appropriate for resolving a claim of fraudulent joinder is similar to that used for ruling on a motion for summary judgment under Federal Rule of Civil Procedure 56(b), in which the district court must resolve all questions of fact in favor of the plaintiff. Id. at 1322-23 (citations omitted); see also Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1333 (11th Cir. 2011) (“To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff.” (citation omitted)).

         At the outset, the Court finds that plaintiff's November 15, 2019 Affidavit should not be considered as part of the fraudulent joinder analysis because the Affidavit is a sham. “When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984).[4] Plaintiff's assertion in the Affidavit that he purchased Roundup from Island Garden Center after 2012 contradicts his prior interrogatory answer, which was made under oath, that he purchased Roundup from 1990 to 2000. The contradiction is without any explanation, and the date of the Affidavit suggests it was drafted in response to the motion to remand. While the Eleventh Circuit has cautioned that the sham ...


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