Diversity Jurisdiction Removal in Florida
There can be a certain allure about proceeding in federal court when an opposing party initiates its lawsuit in state court. The decision whether to remove a lawsuit, however, cannot be made without first giving careful consideration to the mechanism and process of removal. A maelstrom of potential issues—from the mundane to the occasionally esoteric—await the practitioner who seeks to remove a lawsuit from a Florida court to a federal court based upon diversity of citizenship. Federal courts in Florida and throughout the country have struggled with the competing policy values enmeshed within a litigant’s right to remove a lawsuit. A body of jurisprudence spanning hundreds of years has arisen from this device that has been simultaneously haled as a hallmark of America’s judicial system while, at times, derided as forum shopping. What follows is an exposition of the underlying procedure, the statutory mechanics, and some of the more notable issues relating to diversity jurisdiction removal with an emphasis on 11th Circuit case law.
Background of Diversity Jurisdiction Removal
The genesis of diversity jurisdiction in federal courts and, hence, diversity removal, is found in the U.S. Constitution, Art. III, §2: “The judicial Power shall extend. . . to Controversies. . . between Citizens of different States,. . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” Promulgated against a backdrop of marked interstate bickering and the recognition that a state’s judiciary may inadvertently (or deliberately) favor its own citizens over those of another state,1 the framers provided federal courts concurrent jurisdiction along with their state court counterparts over civil actions between citizens of different states. At bottom, then, diversity removal was seen as a way to avoid the potential for hometown favoritism.
Although removal to federal court is a “right,” it is a right subordinate to the boundaries of federal jurisdiction—a sharply confined territory:
The dominant note in the successive enactments of Congress relating to diversity jurisdiction is one of jealous restriction, of avoiding offense to state sensitiveness, and of relieving the federal courts of the overwhelming burden of “business that intrinsically belongs to the state courts” in order to keep them free for their distinctive federal business.2
Whether motivated by the pressures of docket control or out of deference to state sovereignty, the right of removal has come to be narrowly circumscribed, and any doubts about federal jurisdiction are going to be construed in favor of remanding the action to the state court.3 As one district judge noted in Klempner v. Northwestern Mutual Life Ins. Co., 2001 WL 1844227 (S.D. Fla. Dec. 17, 2001): “Flowing naturally from the judicial favoritism shown remand, which in turn stems from deeply embedded principles of federalism, is the idea that a defendant seeking removal bears a not insignificant burden.” In that light, a party seeking removal bears the burden of proving its entitlement to have the case heard in federal court,4 and must scrupulously comply with a number of statutory requirements, the first and foremost of which is proving the existence of federal jurisdiction. A cursory overview of diversity federal jurisdiction follows.
Removal Under 28 U.S.C. §§1441(a) and 1332
An action is only removable if it could have been originally filed in a federal court possessing jurisdiction.5 the existence of federal jurisdiction is, therefore, a critical and preliminary requirement that must be proven in order to remove a case based on diversity. Two sections of the U.S. Code form the substantive backdrop of diversity jurisdiction. Subsection (a) of 28 U.S.C. §1441 provides that:
[a]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
“Original jurisdiction,” in turn, can arise in a number of contexts, including lawsuits between diverse parties. In that regard, 28 U.S.C. §1332(a) states:
The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties;
(4) a foreign state, defined in §1603(a) of this title, as plaintiff and citizens of a State or of different States.
The three jurisdictional prerequisites for diversity removal, then, are: a civil lawsuit, an appropriate amount in controversy, and diversity of citizenship between the parties. The first requirement, the existence of a “civil action,” is not a particularly litigious issue. The remaining requirements, however, have yielded a broad patchwork of various legal rules.
Controversy Requirement
Seldom is it the case that a plaintiff will limit himself to a specified sum of money within his complaint for damages, the common practice being to seek recovery of various types of damages, such as physical pain, mental anguish, hospitalization and medical costs, lost wages, loss of consortium, and so on. Often, the only mention of an amount of damages comes by way of a passing reference to the effect that, whatever the damages may be, they exceed the state court’s jurisdictional minimum. Even where a sum certain is at issue—say, for example, in a breach of contract action to recover an installment payment—often, additional damages for lost business opportunities, lost profits, and attorneys’ fees (where appropriate), may be included. Pinning an exact dollar figure on what the plaintiff seeks to recover may be impossible, particularly at the early stages of litigation before any discovery has taken place. Yet, the removing defendant is faced with the dilemma of having to show, by a preponderance of the evidence, facts supporting the existence of jurisdiction.6
The courts have approached this problem by analyzing the amount in controversy requirement in a fairly broad light. To begin with, a district court is not bound to the four corners of the complaint: “The mere fact that the plaintiff’s complaint is silent as to some fact necessary to establish federal jurisdiction, such as the amount in controversy, does not preclude removal of the case by defendant.”7 A district court may look to the notice of removal to make an independent evaluation of the monetary value of the claims asserted.8 In calculating the amount in controversy, the courts have considered, among other factors, affidavit testimony, the plaintiff’s initial demand letter, an offer of settlement, prayers for punitive damages and requests for attorneys’ fees found in the complaint, and even a valuation assessment made by plaintiff’s counsel during a class certification hearing in a different (but factually similar) lawsuit.9
If, however, a plaintiff prays for a precise sum of money less than the jurisdictional minimum, the removing defendant faces a heavy burden of proof. As the 11th Circuit reasoned in Burns v. Windsor Insurance Co., 31 F.3d 1092 (11th Cir. 1994), where the court confronted the “atypical” situation of a plaintiff specifically requesting $45,000 in damages: “We will assume that plaintiff’s counsel best knows the value of his client’s case and that counsel is engaging in no deception.” Therefore, in such an instance, the defendant must prove “to a legal certainty” that, in fact, plaintiff’s claim will exceed the jurisdictional minimum. Id. at 1095. When the jurisdictional amount is challenged, a defendant may engage in limited discovery for the purpose of ascertaining the amount in controversy.10
no means is federal diversity jurisdiction limited to actions for damages. An action seeking equitable relief simply requires a different calculus to determine whether the jurisdictional amount is present. In such instances, the court looks to the “value of the object of the litigation.”11 For example, in Occidental Chemical Corp. v. Bullard, 995 F.2d 1046 (11th Cir. 1993), a phosphate company that held a mineral lease on property in north Florida sued the property owner for specific performance of a purchase option contained in the lease agreement. Reversing the district court’s finding that the company failed to demonstrate an adequate amount in controversy, the 11th Circuit equated the affidavit of a real estate appraiser setting the value of the property at $98,350 to the “value of the object of the litigation,” and concluded that the jurisdictional threshold had been met. Id. at 1047.
In practice, establishing the jurisdictional threshold may very well be the easiest hurtle to overcome for diversity removal. However, the defendant must also prove diversity of citizenship between the parties.
Complete Diversity Requirement
The Constitution provides concurrent federal jurisdiction in actions between “citizens of different states.” In the case of Strawbridge v. Curtis, 7 U.S. 267 (1806), the Supreme Court interpreted this language to require what has come to be known as “complete” diversity in federal jurisdiction. Thus, for federal jurisdiction to exist, each and every defendant in an action must be a citizen of a different state from that of any named plaintiff.12 If any one defendant hales from the same state, territory, or principality as any plaintiff, diversity is destroyed, and the district court cannot acquire jurisdiction.
Determining the geographic residency of a party is relatively straightforward. For purposes of diversity jurisdiction, an individual is a resident of the state wherein he or she is domiciled.13 Domicile, in turn, consists of two factors: residence within a particular state and an intent to remain therein.14 A corporation’s residency is both the state of incorporation and the state where it has its principal place of business.15 Other business entities, such as limited partnerships and business trusts, derive their citizenship from their individual members and will be considered a citizen of every state of which one of its members is a citizen.16
One noteworthy consideration regarding residency is the effect of service of process, or lack thereof, upon a defendant. Addressing the removal of diversity actions, 28 U.S.C. §1441(b) states, “Such action[s] shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.” Seemingly, this statutory language, enacted in 1948, would have abrogated the Supreme Court’s rule in Pullman Co. v. Jenkins, 305 U.S. 534, 539-41 (1939) (holding that the presence of a local defendant, whether served or not, defeats removal jurisdiction), and limit the consideration of residency for diversity purposes to those defendants joined and served. However, the courts within this circuit and throughout the country have announced divergent rules: on the one hand, some courts have ruled that a named, but unserved defendant can defeat diversity, while others, employing a more straightforward interpretation of the removal statute, hold they cannot.17 As of yet, the 11th Circuit has not directly tackled this issue, although in passing the court once remarked that “[u]nserved resident fictitious defendants may not be ignored on removal if directed at all defendants jointly. . . . ” See Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983).
When considering removal, it is necessary to pay particular attention to the citizenship of the defendant. A sometimes overlooked provision of 28 U.S.C. §1441(b) states: “Such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the state in which such action is brought.” The effect of this statutory language is that diversity jurisdiction removal is unavailable to an in-state defendant.18 & #x201c;[A]ctions cannot be removed based on diversity if any defendant is a citizen of the forum state.” Bouie v. American General Life and Accident Ins. Co., 199 F. Supp.2d 1259, 1262 n.4 (N.D. Fla. 2002). Thus, a Florida defendant sued in a Florida state court cannot remove a case to federal court based on diversity jurisdiction. There is, however, a split among the circuits as to whether a defendant’s residence in the forum state constitutes a substantive, jurisdictional defect, or merely a procedural (and hence, waivable) defect.19
Removal Procedure and Remand Challenge
• The Notice of Removal
We now leave the realm of federal jurisdiction, turning to the procedural aspects of diversity removal. Section 1446(a) of Title 28 states:
[d]efendants desiring to remove any civil action… shall file in the district court of the United State for the district and division within which such action is pending a notice of removal… containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
Copies of all prior state court proceedings in the lawsuit, including the complaint, deposition transcripts, and any pending motions, should accompany the removal petition at the time of filing;20 however, the Northern District of Florida provides some leeway (10 days from the date of filing the petition) for getting copies to the court.21 the removing defendant must also submit a civil cover sheet and remit a filing fee in accordance with the pertinent district’s requirements, and promptly provide written notice to all adverse parties and the clerk of the state court in which the case was pending regarding the filing of the removal notice.22 Fed. R. Civ. P. 26(d) prohibits the commencement of discovery prior to the Rule 26(f) scheduling conference. Accordingly, any discovery requests that were served contemporaneously with the state court complaint should be refiled after the scheduling conference.
Where there are multiple defendants, each one of them must join or consent in the removal notice. Since the turn of the 20th century, in the case of Chicago, Rock Island & Pacific Ry. Co. v. Martin, 178 U.S. 245 (1900), the federal courts have imposed this “unanimity rule” to require some form of positive affirmation on the part of each defendant stating that it consents to the lawsuit being removed.23 Although the failure of any one defendant to join a removal notice is grounds for remand, the court may disregard nominal parties, unknown defendants, or defendants who have been fraudulently joined.24 Proving the fraudulent joinder of a resident defendant is extraordinarily difficult, as the moving party must be able to show “[t]here is no arguably reasonable basis for predicting that state law might impose liability on the resident defendant. . . [u]nder the facts alleged.”25
Assuming the party seeking removal complies with all the attendant procedural and administrative requirements, and all codefendants properly join in the notice, removal of the case is effective as of the date the petition is filed. The state court loses jurisdiction over the case upon the filing of the notice of removal.26 thereafter, it is powerless to proceed further in the case unless and until the district court issues an order remanding the case; any actions taken by the state court in the interim are a nullity.27 Fed. R. Civ. P. 81 then provides that a defendant who has not filed a responsive pleading to the complaint 20 days from the date service was received, or five days after the filing of the removal petition, whichever is longer, must file an answer or present other defenses or objections.
Just as any answer, affirmative defense, or dispositive motion is waived if not raised within a certain deadline, so too with the removal notice. Under 28 U.S.C. §1446(b), a defendant must file the notice within 30 days “[a]fter receipt by the defendant, through service or otherwise, of a copy of the initial pleading” alleging the claim for relief or else it will be barred from removing the case.28 It is important to note that this 30-day limit is a strictly applied procedural mandate: it cannot be extended by agreement of the parties or by order of a court.29 Failure to remove a case to federal court within 30 days, therefore, constitutes a waiver of the right to remove.30
Generally, whether a lawsuit is removable on diversity grounds will be obvious from the face of the complaint, however, 28 U.S.C. §1446(b) also provides an opportunity to seek federal jurisdiction in those instances where, subsequent to the initial pleading, a defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” In such an instance, the defendant has 30 days from the receipt of the pleading, motion, etc., in which to file a removal notice.31 Thus, for example, when a husband and wife, three months after filing their complaint against a pacemaker manufacturer, sought leave to amend to include a claim for punitive damages, that motion “served as [the] trigger” to commence the running of the “30-day clock” for the defendant to seek removal.32 however, in no event can a case be removed where more than one year has elapsed since the commencement of the action.33
Lapse of time is not the only way a defendant may lose its right to remove an action. A defendant may file an answer and affirmative defenses in state court without jeopardizing the right to remove the case, but when it takes affirmative actions to submit issues for determination, the defendant thereby evidences the intent to proceed in state court and waives its right of removal.34 Filing a motion to dismiss, a counterclaim, a motion to dissolve a temporary injunction, or even engaging in discovery have been held to constitute a waiver.35 As Judge Conway of the Middle District of Florida put it, the defendant should not “dilly-dally” in state court while it decides whether it wants to proceed in federal court. See Kam Hon, Inc. v. Cigna Fire Underwriters Ins. Co., 933 F. Supp. 1060, 1063 (1996).
A common situation may arise where a complaint names several defendants, but, for whatever reason, service on those defendants is staggered over time. Does the clock begin to run on all the defendants once one of them has received service? Can a defendant who has allowed the 30-day limit to run avoid waiver by later joining in a removal petition filed by a subsequently served defendant?
Here as well, the courts have become divided into two camps. A number of district courts have followed the Fifth Circuit’s lead in applying the so-called “first served” rule.36 Under this rule, no defendant may remove a case once 30 days have run against the defendant first served with process. On the other hand, a contrary rule known as the “last served” rule, allowing any defendant 30 days to remove from the date it received service no matter when the other defendants were previously served, appears to be gaining acceptance in the courts.37
For their part, Florida’s federal courts are split. One district court in Florida has aligned itself squarely with the last served line of thought. In Collings v. E-Z Serve Convenience Stores, Inc., 936 F. Supp. 892, 894-95 (N.D. Fla. 1996), Judge Vinson reasoned that application of the first served rule constituted an inequitable denial of a litigant’s right to remove a case. Reading §1446(a) in parity with Rule 11, the district court held that each defendant must be allowed a full 30 days “[t]o investigate the appropriateness of removal.”38 To rule otherwise “[o]pens the way for the plaintiff to deliberately avoid removal by delayed service upon a defendant anticipated to seek removal.”39 the court further held that the initially served defendant who allowed the 30-day time period to run may join with a subsequently served defendant’s removal petition,40 an inequitable, but unavoidable consequence of the last served rule’s application. The Southern and Middle districts, on the other hand, have employed the first served rule.41
• Motion for Remand
The proper method for challenging the removal of a case is a motion for remand. Section 1447 of Title 28 of the U.S. Code states:
(c) A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
Thus, any procedural challenge to a removal notice is waived if not properly raised in a timely filed motion for remand.42 Lack of jurisdiction, on the other hand, is grounds for remand “at any time,” and accordingly, may be raised at any point during the litigation.43 Once the plaintiff denies the allegations of a defendant’s notice of removal, the defendant then bears the burden to come forward with evidence to prove the notice’s allegations.44 the district court may hold an evidentiary hearing in order to determine whether the case can be properly removed.45 Upon the entry of an order remanding a lawsuit, the federal court cedes jurisdiction over the case back to the state court. Thereafter, the district court has no power to retrieve the case, even if it was improperly remanded.46
In addition, a party who successfully remands a case may seek recovery of its costs and attorneys’ fees. Section 1447(c) of Title 28 states: “An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal,” a provision which, on its face, gives the district court complete discretion in determining whether such an award is appropriate.47
Conclusion
The doorway to the federal courthouse is open to any litigant who can demonstrate diversity jurisdiction. However, if close and careful attention is not given to the procedural aspects of removal, the right to proceed in federal court can be easily lost.
1 See generally , Robert N. Clinton, A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III , 132 U. Pa. L. Rev. 741, 816-818 (1984).
2 City of Indianapolis v. Chase National Bank , 314 U.S. 63, 76 (1941) (citations omitted).
3 Pacheco de Perez v. AT&T Co. , 139 F.3d 1368, 1373 (11th Cir. 1998) (removal jurisdiction is construed narrowly; any doubts regarding federal jurisdiction must be resolved in favor of remand); Kam Hon, Inc. v. Cigna Fire Underwriters Ins. Co. , 933 F. Supp. 1060, 1063 (M.D. Fla. 1996) (“The right to remove a case from a state to a federal court is purely statutory and is entirely dependent on the will of Congress.”).
4 Fowler v. Safeco Ins. Co. of America , 915 F.2d 616, 617 (11th Cir. 1990).
5 Gaines v. Fuentes , 92 U.S. 10, 14 (1875); Whitt v. Sherman Int’l Corp. , 147 F.3d 1325, 1329 (11th Cir. 1998); Ferry v. Bekum America Corp. , 185 F. Supp.2d 1285, 1287 (M.D. Fla. 2002); Cawthard v. Flagship Airlines, Inc. , 863 F. Supp. 1567, 1569 (S.D. Fla. 1994).
6 Burns v. Windsor Insurance Co. , 31 F.3d 1092, 1094 (11th Cir. 1994).
7 Woolard v. Heyer-Schulte , 791 F. Supp. 294, 296 (S.D. Fla. 1992), citing Wright v. Continental Casualty Co. , 456 F. Supp. 1075, 1078 (M.D. Fla. 1978).
8 Lewis v. AT&T Corp. , 898 F. Supp. 907, 909 (S.D. Fla. 1995); Shear Healthcare Resources, Inc. v. TNI Inc. , 1994 WL 383936, at *2 (M.D. Fla. 1994).
9 See generally Martin v. Mentor Corp. , 142 F. Supp.2d 1346 (M.D. Fla. 2001) (proposal for settlement sent to defendant demanding $175,000 for a release of all claims provided adequate basis for the court to determine that the amount in controversy was present); Burns , 31 F.3d at 1097 (offer of settlement for $45,000 “counts for something” with respect to the jurisdictional amount); Essenson v. Coale , 848 F. Supp. 987 (M.D. Fla. 1994) (plaintiff’s offer of judgment could be used to demonstrate amount in controversy); Pease v. Medtronic, Inc. , 6 F. Supp.2d 1354, 1357 (S.D. Fla. 1998) (punitive damages and prior assessments were considered as part of jurisdictional amount); Occidental Chemical Corp. v. Bullard , 995 F.2d 1046 (11th Cir. 1993) (appraiser’s affidavit regarding property valuation demonstrated an appropriate amount in controversy existed); Morrison v. Allstate Indem. Co. , 228 F.3d 1255, 1265 (11th Cir. 2000) (“When a statute authorizes the recovery of attorney’s fees, a reasonable amount of those fees is included in the amount in controversy”); Velez v. Crown Life Insurance , 599 F.2d 471, 474 (1st Cir. 1979) (where attorney’s fees are provided by contract or statute, they are properly included in determining amount in controversy).
10 Lasusa v. Lake Michigan Trans-Lake Shortcut, Inc. , 113 F. Supp.2d 1306 (E.D. Wis. 2000) (allowing limited and expedited discovery for the purpose of ascertaining the amount in controversy); Steele v. Underwriters Adjusting Co., Inc. , 649 F. Supp. 1414 (M.D. Ala. 1986) (despite plaintiff’s statement in remand motion that the amount in controversy was not in excess of ten thousand dollars, court would allow period of discovery for the defendant to inquire about the damages plaintiff would be seeking). See also Sunrise Mills (MLP) Limited Partnership v. Adams , 688 So. 2d 464, 465 (Fla. 4th D.C.A. 1997) (noting that under federal law, “[a] party has a right to discovery for removal purposes as to the amount in controversy.”).
11 Hunt v. Washington State Apple Advertising Comm’n , 432 U.S. 333, 347-48 (1977); Bullard , 995 F.2d at 1047; Shell Oil Co. v. Altina Associates, Inc. , 866 F. Supp. 536 (M.D. Fla. 1994).
12 Wisconsin Department of Corrections v. Schacht , 524 U.S. 381, 388 (1998) (“[a] defendant cannot remove a case that contains some claims against ‘diverse’ defendants as long as there is one claim brought against a ‘nondiverse’ defendant.”); City of Indianapolis v. Chase National Bank , 314 U.S. 63, 69 (1941); Bel-Bel International Corp. v. Community Bank of Homestead , 162 F.3d 1101 (11th Cir. 1998) (diversity jurisdiction requires that the plaintiff be a citizen of a different state (or nation) from that of any of the defendants).
13 Gonzalez v. Reno , 86 F. Supp.2d 1167, 1183-84 (S.D. Fla. 2000); Las Vistas Villas, S.A. v. Petersen , 778 F. Supp. 1202, 1204 (M.D. Fla. 1991).
14 Absent the requisite intention to remain, mere residence, by itself, is insufficient to confer diversity citizenship. See Mitchell v. Mackey , 915 F. Supp. 388, 391 (M.D. Ga. 1996).
15 28 U.S.C. §1332(c)(1); Bel-Bel , 162 F.3d at 1106 (affirming district court’s finding that diversity existed; despite having a tomato farm, bank account, accountant, and attorneys in Florida, Panamanian corporation’s principal place of business was Venezuela, where all of its shareholders were located and all its corporate decisions were made).
16 Carden v. Arkoma Associates , 494 U.S. 185 (1990) (limited partnership would be considered a citizen, for diversity purposes, of each individual partner’s state of residence); Riley v. Merrill Lynch , 292 F.3d 1334 (11th Cir. June 7, 2002) (business trust was a citizen of each state in which it had a shareholder).
17 Compare New York Life Insurance Co. v. Deshotel , 142 F.3d 873 (5th Cir. 1998) (defendant cannot remove an action if the citizenship of any co-defendant, joined to the lawsuit in good faith, destroys complete diversity, regardless of service or nonservice on the co-defendant), and Howell v. Tribune Entertainment Co. , 106 F.3d 215 (7th Cir. 1997) (same), and Pecherski v. General Motors Corp. , 636 F.2d 1156 (8th Cir. 1981) (same), and Everett v. MTD Products, Inc. , 947 F. Supp. 441 (N.D. Ala. 1996) (same), and Burke v. Humana Insurance Co. , 932 F. Supp. 274 (M.D. Ala. 1996) (same), with Samples v. Conoco, Inc. , 165 F. Supp.2d 1303, 1308 (N.D. Fla. 2001) (quoting Gilberg v. Stepan Co. , 24 F. Supp.2d 325, 330 (D.N.J. 1998): “[A] plaintiff cannot defeat removal merely by naming a nondiverse defendant; that defendant also has to be ‘properly joined and served’ for removal to be barred.”), and Roberts v. Webster , 1995 WL 908688 (N.D. Ala. 1995) (because nondiverse resident had not been served, his residency would be disregarded), and Mask v. Chrysler Corp. , 825 F. Supp. 285 (N.D. Ala. 1993) (holding, in the alternative, that because nondiverse defendant was not served, it could not defeat diversity jurisdiction), aff’d without opinion , 29 F.3d 641 (11th Cir. 1994), and Republic Western Ins. Co. v. International Ins. Co. , 765 F. Supp. 628 (N.D. Cal. 1991) (a resident defendant who has not been served may be ignored in determining appropriateness of removal), and Duff v. Aetna Casualty and Surety Co. , 287 F. Supp. 138 (N.D. Okla. 1968) (same).
18 Tillman v. R.J. Reynolds Tobacco , 253 F.3d 1302, 1305 (11th Cir. 2001).
19 Compare Hurley v. Motor Coach Industries, Inc. , 222 F.3d 377, 379 (7th Cir. 2000) (procedural defect), and Korea Exchange Bank v. Trackwise Sales Corp. , 66 F.3d 46, 50 (3d Cir. 1995) (procedural), and In re Shell Oil Co. , 932 F.2d 1518, 1521-23 (5th Cir. 1991) (procedural) with Hurt v. Dow Chemical Co. , 963 F.2d 1142, 1145 (8th Cir. 1992) (jurisdictional). The 11th Circuit opined that the 1996 revision to 28 U.S.C. §1447’s language seemed to “address neatly” this disagreement by “[s]uggesting that a removal in violation of §1441(b) is subject to the 30-day time limit.” See Snapper, Inc. v. Redan , 171 F.3d 1249, 1258 (11th Cir. 1999).
20 See M.D. Fla. Loc. R. 4.02(b) (“[p]arty effecting removal shall file with the notice of removal a true and legible copy of all process, pleadings, orders, and other papers or exhibits of every kind, including depositions, then on file in the state court.”).
21 See N.D. Fla. Loc. R. 7.2(A).
22 28 U.S.C. §1446(d).
23 Russell Corp. v. American Home Assurance Co. , 264 F.3d 1040, 1044 (11th Cir. 2001); In re Ocean Marine Mutual Protection and Indemnity Ass’n, Ltd. , 3 F.3d 353, 354-355 (11th Cir. 1993); Smith v. Mail Boxes, Etc. USA, Inc. , 191 F. Supp.2d 1155, 1158 (E.D. Cal. March 19, 2002).
24 Woods v. Firestone Tire & Rubber Co. , 560 F. Supp. 588, 590 (S.D. Fla. 1983).
25 Id. at 591, citing Tedder v. F.M.C. Corp. , 590 F.2d 115, 117 (5th Cir. 1979), see also Coker v. Amoco Oil Co. , 709 F.2d 1433, 1440-41 (11th Cir. 1983); Droessler v. Wyeth-Ayerst Laboratories , 64 F. Supp.2d 1265, 1270 (S.D. Fla. 1999); Kimmons v. IMC Fertilizer, Inc. , 844 F. Supp. 738, 739 (M.D. Fla. 1994).
26 Maseda v. Honda Motor Co., Ltd. , 861 F.2d 1248, n.11 (11th Cir. 1988); University Books and Videos, Inc. v. Metropolitan Dade County , 930 F. Supp. 1534, 1536 (S.D. Fla. 1996).
27 28 U.S.C. §1446(d) (filing notice of removal and serving notice to adverse parties and clerk of the court “shall effect the removal and the state court shall proceed no further unless and until the case is remanded.”); Allstate Insurance Co. v. Preston , 842 F. Supp. 1441, 1443 (S.D. Fla. 1992), Preston v. Allstate Insurance Co. , 627 So. 2d 1322 (Fla. 3d D.C.A. 1993) (in interim between filing of removal notice in federal court and filing notification in state court, both courts had concurrent jurisdiction; however, once the notice was received by the state court, the state court’s jurisdiction ended “retroactively” as of the date the notice was filed in federal court); Remova Pool Fence Co. v. Roth , 647 So. 2d 1022 (Fla. 4th D.C.A. 1994) (order awarding attorneys’ fees entered after receipt of notice of removal but before remand order was issued was void). But see Wilson v. Sandstrom , 317 So. 2d 732 (Fla. 1975) (where removal is shown to have been improper, state court’s actions subsequent to the filing of notice are not void); Hunneywell v. Palm Beach County , 786 So. 2d 4 (Fla. 4th D.C.A. 2001) (same).
28 Until 1999, there was some confusion surrounding the “through service or otherwise” verbiage in the statute. The courts were split as to whether official service of process was required in order to begin the 30-day time period running, or whether, as the 11th Circuit held, delivery of a “courtesy copy” of a complaint could trigger the statute. Compare Michetti Pipe Stringing, Inc. v. Murphy Bros, Inc. , 125 F.3d 1396, 1398-99 (11th Cir. 1997), and Tech Hills II Associates v. Phoenix Home Life Mut. Ins. Co. , 5 F.3d 963 (6th Cir. 1993), and Walters v. Grow Group, Inc. , 907 F. Supp. 1030 (S.D. Tex. 1995), and Shoemaker v. GAF Corp. , 814 F. Supp. 495 (W.D. Va. 1993), with Bullard v. American Airlines, Inc. , 929 F. Supp. 1284 (W.D. Mo. 1996) (holding that only true service of process could trigger the removal statute), and Apache Nitrogen Products, Inc. v. Harbor Ins. Co. , 145 F.R.D. 674 (D. Ariz. 1993) (same), and Thomason v. Republic Ins. Co. , 630 F. Supp. 331 (E.D. Cal. 1986) (same). The issue was resolved when the Supreme Court reversed the Michetti court’s decision in favor of a bright-line (and better reasoned) rule: “[a] named defendant’s time to remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, ‘through service or otherwise,’ after and apart from service of the summons, but not by mere receipt of the complaint unattended by formal service.” Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 355 (1999).
29 Torres v. AIG Claim Services, Inc. , 957 F. Supp. 1271, 1273 (S.D. Fla. 1997), citing Liebig v. DeJoy , 814 F. Supp. 1074, 1076 (M.D. Fla. 1993); Dutton v. Moody , 104 F. Supp. 838 (S.D.N.Y. 1952) (interpreting prior version of statute, holding that 20-day time period could not be altered).
30 Collings v. E-Z Serve Convenience Stores, Inc. , 936 F. Supp. 892 (N.D. Fla. 1996).
31 28 U.S.C. §1446(b).
32 Pease , 6 F. Supp.2d at 1358.
33 28 U.S.C. §1446(b).
34 Scholz v. RDV Sports, Inc. , 821 F. Supp. 1469, 1471 (M.D. Fla. 1993) (defendant’s filing of motions to dismiss manifested “an intent to proceed in state court”); Miami Herald Publishing Co. v. Ferre , 606 F. Supp. 122, 124 (S.D. Fla. 1984).
35 In re Weaver , 610 F.2d 335 (5th Cir. 1980) (motion to dissolve injunction constituted waiver); Kam Hon, Inc. v. Cigna Fire Underwriters Ins. Co. , 933 F. Supp. 1060, 1061–63 (M.D. Fla. 1996) (court could sua sponte remand a case where, prior to removal notice, insurance company filed a motion to dismiss/motion to strike in state court); Paris v. Affleck , 431 F. Supp. 878, 880 (M.D. Fla. 1977) (filing counterclaim waived defendant’s right of removal); Briggs v. Miami Window Corp. , 158 F. Supp. 229 (M.D. Ga. 1956) (removal waived by filing non-compulsory crossclaim in state court). But see Pearse , 6 F. Supp.2d at 1359 (defendant did not waive removal by filing motion to dismiss within 20 days of service where the existence of federal amount in controversy did not become apparent until after the 20-day deadline to respond to the complaint when the plaintiff filed an amended complaint seeking punitive damages; “This court will not permit plaintiff to use the Florida Rules of Civil Procedure as a sword”)
36 See Getty Oil, Div. of Texaco v. Ins. Co. of North Am. , 841 F.2d 1254, 1263 (5th Cir.1988); Brown v. Demco, Inc. , 792 F.2d 478, 481-82 (5th Cir. 1986); Auchinleck v. Town of LaGrange , 167 F. Supp.2d 1066, 1069-1070 (E.D. Wis. 2001); Jeffcoat v. American General Life & Acc. Ins. Co. , 2001 WL 611196, at *2 (M.D. Ala. 2001); Biggs Corp. v. Wilen , 97 F. Supp.2d 1040, 1045 (D. Nev. 2000); Quinones v. Minority Bus Line Corp ., 1999 WL 225540, at *2 (S.D.N.Y. Apr. 19, 1999); Mermelstein v. Maki , 830 F. Supp. 180, 183 (S.D.N.Y. 1993).
37 See , e.g. , Marano Enterprises of Kansas v. Z-Teca Restaurants, L.P. , 254 F.3d 753, 757 (8th Cir. 2001); Brierly v. Alusuisse Flexible Packaging, Inc. , 184 F.3d 527, 532-33 (6th Cir. 1999); Smith v. Mail Boxes, Etc., USA, Inc. , 191 F. Supp.2d 1155, 1161 (E.D. Ca. March 19, 2002); Orlick v. J.D. Carton & Son, Inc. , 144 F. Supp.2d 337, 342 (D.N.J. 2001); Griffith v. American Home Products, Corp ., 85 F. Supp.2d 995, 1000-01 (E.D.Wash. 2000).
38 Collings , 936 F. Supp. at 895.
39 Id. at 894.
40 Id. at 895.
41 Droessler , 64 F. Supp.2d at 1269; Faulk v. Superior Indus. Int’l, Inc. , 851 F. Supp. 457, 458 (M.D. Fla. 1994) (noting that the first served rule is “consistent with the trend to limit removal jurisdiction and with the axiom that removal statutes are to be strictly construed.”).
42 Vasquez v. City of San Diego , 2002 WL 1277229, at *9 (9th Cir. June 11, 2002); Wilson v. General Motors Corp. , 888 F.2d 779, 781 n.1 (11th Cir. 1989).
43 Wisconsin Department of Corrections v. Schacht , 524 U.S. 381, 392 (1998).
44 O’Connor v. Kawasaki Motors Corp., U.S.A. , 699 F. Supp. 1538, 1541 (S.D. Fla. 1988), citing Wright v. Continental Casualty Co. , 456 F. Supp. 1075, 1078 (M.D. Fla. 1978).
45 Wright , 456 F. Supp. at 1078 (“[a] hearing may be necessary to determine if the allegations of the petition for removal are true.”).
46 28 U.S.C. §1446(d); Stanley v. Kelly , 758 F. Supp. 1487, 1488 (S.D. Fla. 1991), citing Seedman v. United States District Court for the Central District of California , 837 F.2d 413, 414 (9th Cir. 1988).
47 See Imco USA, Inc. v. Title Ins. Co. of Minnesota , 729 F. Supp. 1322, 1324 (M.D. Fla. 1990) (denying attorneys’ fees and costs where removal was done in “bona fide good faith”).
Matt Lucas is an attorney with the law firm of Bricklemyer Smolker & Bolves, P.A., Tampa, where he practices primarily in the areas of commercial and real estate litigation. He received his J.D. from the University of Florida Levin College of Law and a B.S. in economics from Florida State University. The author thanks Christopher Codling, who provided research assistance in the preparation of this article.
This column is submitted on behalf of the Trial Lawyers Section, Dominic M. Caparello, chair, and Thomas P. Barber, editor.
