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Fazio v. Monsanto Co.

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

December 31, 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 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 granted.

         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.[1] (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.)

         In 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.)

         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. (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.[2] (Id. ¶¶ 16-17.)

         On 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.” (Id.)

         On 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.)

         On December 18, 2019, the parties filed a joint motion to stay the proceedings except for consideration of plaintiff's motion for reconsideration.[3] (Doc. #35.) The Court will begin its analysis with plaintiff's motion and then proceed to the request for a stay.

         II.

         A. Legal Standards

         A 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).

         However, 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).

         B. Whether the ...


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