United States District Court, M.D. Florida, Fort Myers Division
ORDER AND OPINION
E. Steele Senior United States District Judge
matter comes before the Court on plaintiff's Motion for
Reconsideration (Doc. #34) filed on December 16, 2019.
Plaintiff seeks reconsideration of this Court's December
10, 2019 Order and Opinion (Doc. #30) denying plaintiff's
Motion to Remand. Defendant Monsanto Company filed an
Opposition (Doc. #36) on December 30, 2019. Also before the
Court is the parties' Joint Motion to Stay All Further
Proceedings Except on Plaintiff's Motion for
Reconsideration of Remand Order (Doc. #35) filed on December
18, 2019. For the reasons that follow, the motion for
reconsideration is denied and the joint motion to stay is
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. (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.)
April 2019, Monsanto was served with the Complaint and filed
its Answer and Affirmative Defenses in state court. (Doc.
#1-2; Doc. #1-4, p. 134.) 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.)
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. (Id. ¶ 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
could have no viable claim against a corporation first formed
in 2010 for conduct occurring from 1990 to 2000, Monsanto
argued that Island Garden Center had been fraudulently joined
and that complete diversity of citizenship did exist as to
the properly joined parties. (Id. ¶¶
November 15, 2019, plaintiff filed his motion to remand,
arguing (1) Monsanto's Notice of Removal was procedurally
deficient and (2) the Court lacked subject matter
jurisdiction over this case because Island Garden Center was
properly joined as a defendant, and therefore complete
diversity of citizenship was lacking. (Doc. #11, p. 2; Doc.
#14, pp. 3-9.) On the same date, plaintiff executed an
affidavit stating he purchased Roundup and other Monsanto
products from Island Garden Center “after the year
2012.” (Doc. #14-1, p. 69.) Plaintiff also stated he
purchased Roundup and other Monsanto products for
professional use from Island Garden Center, which he had
“personal knowledge existed in the 1990s.”
December 10, 2019, the Court issued its Order and Opinion
denying plaintiff's motion to remand. (Doc. #30.) The
Court found that Monsanto's Notice of Removal was not
procedurally deficient, and that Island Garden Center had
been fraudulently joined. (Id. pp. 4-13.) In making
the latter determination, the Court found that
plaintiff's affidavit was a sham, in that it contradicted
his prior interrogatory response without explanation.
(Id. pp. 6-7.) Plaintiff now seeks reconsideration
of the December 10th Order and Opinion. (Doc. #34.)
December 18, 2019, the parties filed a joint motion to stay
the proceedings except for consideration of plaintiff's
motion for reconsideration. (Doc. #35.) The Court will begin
its analysis with plaintiff's motion and then proceed to
the request for a stay.
non-final order may be revised at any time before the entry
of a final judgment. Fed.R.Civ.P. 54(b). The decision to
grant a motion for reconsideration is within the sound
discretion of the trial court, Region 8 Forest Serv.
Timber Purchasers Council v. Alcock, 993 F.2d 800, 806
(11th Cir. 1993), and courts have delineated three major
grounds justifying reconsideration: “(1) an intervening
change in controlling law; (2) the availability of new
evidence; [and] (3) the need to correct clear error or
prevent manifest injustice, ” Sussman v. Salem,
Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.
Fla. 1994) (citation omitted). Additionally, appropriate
circumstances for reconsideration include situations in which
“the Court has obviously misapprehended a party's
position, or the facts, or mistakenly has decided an issue
not presented for determination.” United States v.
Halifax Hosp. Med. Ctr., 2013 WL 6284765, *1 (M.D. Fla.
Dec. 4, 2013).
reconsideration of a court's order “is an
extraordinary remedy and a power to be ‘used sparingly,
'” Santamaria v. Carrington Mortg. Servs.,
LLC, 2019 WL 3537150, *2 (M.D. Fla. July 10, 2019)
(citation omitted), with the burden “upon the movant to
establish the extraordinary circumstances supporting
reconsideration, ” Mannings v. Sch. Bd. of
Hillsborough Cty., Fla., 149 F.R.D. 235, 235 (M.D. Fla.
1993). The motion “must demonstrate why the court
should reconsider its past decision and set forth facts or
law of a strongly convincing nature to induce the court to
reverse its prior decision.” Santamaria, 2019
WL 3537150, *2 (citation omitted).
Whether the ...