Opinion
Case No. 21-cv-20767-COOKE/DAMIAN
2022-03-29
OA FOODS LLC, a Florida Limited Liability Company, Plaintiff, v. I.A.E. INDUSTRIA AGRICOLA EXPORTADORA INAEXPO, C.A., a Stock Company organized under the Laws of Ecuador, et al., Defendants.
Andrea Leslie Bos, Giancarlo Cellini, Daniel Eric Vielleville, Assouline & Berlowe, P.A., John H. Rooney, Jr., John H. Rooney, Jr., P.A., Miami, FL, Eric Nissim Assouline, Assouline & Berlowe, Dania Beach, FL, for Plaintiff. Francisco Oscar Sanchez, Jose Dario Vazquez, Greenberg Traurig, P.A., Miami, FL, Eric Hernandez, Foley & Lardner LLP, Orlando, FL, for Defendants.
Andrea Leslie Bos, Giancarlo Cellini, Daniel Eric Vielleville, Assouline & Berlowe, P.A., John H. Rooney, Jr., John H. Rooney, Jr., P.A., Miami, FL, Eric Nissim Assouline, Assouline & Berlowe, Dania Beach, FL, for Plaintiff.
Francisco Oscar Sanchez, Jose Dario Vazquez, Greenberg Traurig, P.A., Miami, FL, Eric Hernandez, Foley & Lardner LLP, Orlando, FL, for Defendants.
ORDER
MARCIA G. COOKE, United States District Judge
THIS MATTER is before the Court on Plaintiff's opposed motion to remand, ECF No. 12. The motion has been fully briefed and is ripe for adjudication. For the reasons stated below the Court will GRANT the motion to remand and REMAND this case to state court. All other motions are DENIED as moot .
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case concerns a business dispute between Plaintiff OA Foods, LLC ("OA Foods" or "Plaintiff") on the one hand, and Defendants I.A.E. Industria Agricola Exportadora INAEXPO, C.A. ("INAEXPO") and INAEXPO USA, Ltd. ("INAEXPO USA," collectively "Defendants") on the other. OA Foods is a Florida limited liability company that develops and sells food products derived from heart of palm. INAEXPO is an Ecuadorian company and the world's largest producer of heart of palms. INAEXPO also manufactures heart of palm products, and sells them in the United States through INAEXPO USA, a Florida company.
OA Foods filed their complaint in Florida state court on November 18, 2020. ECF No. 1-1. On December 1, 2020, OA Foods personally served Mr. Eduardo Becerra in Florida. OA Foods served Mr. Becerra as an agent for INAEXPO residing in Florida. See ECF Nos. 1-7 (return of service for INAEXPO); 1-12 (amended return of service for INAEXPO). After changing counsel in this matter, on February 10, 2021, current counsel for INAEXPO accepted service via email. See ECF No. 15-2 (email from current INAEXPO counsel). Defendant INAEXPO removed this action on February 24, 2021, with consent of co-defendant INAEXPO USA. ECF No. 1.
On March 22, 2021, OA Foods moved to remand. ECF No. 12. Plaintiff argues that the action should be remanded because removal did not take place within 30 days after service of process, as required by statute. Additionally, Plaintiff argues that this case does not present a federal question, and that there is no diversity jurisdiction. Defendants oppose this motion, aver that removal did take place within the statutory period, and argue that the case meets the requirements for both federal question and diversity jurisdiction. ECF No. 15. INAEXPO and INAEXPO USA oppose removal and argue that they have complied with the procedural and jurisdictional requirements of the removal statutes. The motion to remand is ripe for adjudication.
LEGAL STANDARDS
A party may move to remand based on a procedural defect or lack of subject matter jurisdiction. 28 U.S.C. § 1447(c). "On a motion to remand, the removing party shoulders the burden of establishing federal subject-matter jurisdiction." Bowling v. U.S. Bank Nat'l Ass'n , 963 F.3d 1030, 1034 (11th Cir. 2020). "[C]ourts are to narrowly construe the removal statute and federal jurisdiction." Bailey v. Janssen Pharmaceutica, Inc. , 536 F.3d 1202, 1207 (11th Cir. 2008). "Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court." City of Vestavia Hills v. Gen. Fid. Ins. Co. , 676 F.3d 1310, 1313 (11th Cir. 2012).
Even where a party argues remand is proper due to a procedural defect, this district has found that the removing party still bears the burden of showing removal was proper. Engle v. R.J. Reynolds Tobacco Co. , 122 F. Supp. 2d 1355, 1359 (S.D. Fla. 2000) ("In the event of a motion to remand on [the basis of a defect in removal procedure], the removing party bears the burden of demonstrating that removal was proper."). The Eleventh Circuit does not appear to have addressed this specific question. However, even if the remanding party bore the burden of showing a procedural defect in removal, the Court finds that OA Foods has met that burden for the reasons stated below.
ANALYSIS
The Court begins and ends its analysis with Plaintiff's procedural challenge to the removal notice. For the reasons stated below, the Court finds that OA Foods properly served INAEXPO in accordance with Florida law on December 1, 2020. Accordingly, the removal notice should have been filed within 30 days of that date. Because the notice was filed outside this 30-day window, the Court will GRANT the motion to remand and REMAND this action to state court.
A notice of removal in a civil action shall be filed: (1) 30 days after "the receipt by the defendant, through service or otherwise, of a copy of the initial pleading;" or (2) "within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." 28 U.S.C. § 1446(b)(1). "Each defendant shall have 30 days after receipt by or service on that defendant of the initial pleadings or summons" to file their notice of removal. Id. § 1446(b)(2)(B). "If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier-served defendant did not previously initiate or consent to removal." Id. § 1446(b)(2)(C). The 30-day window is not triggered "by mere receipt of the complaint unattended by any formal service." Bailey , 536 F.3d at 1205 (quoting Murphy Bros. v. Michetti Pipe Stringing, Inc. , 526 U.S. 344, 347–48, 119 S.Ct. 1322, 143 L.Ed.2d 448 (1999) ). "Even where a defendant has actual notice of the filing of a suit, service of process is ineffective where it does not comply with the rules of service." Hunt v. Nationstar Mortg., LLC , 782 F. App'x 762, 764 (11th Cir. 2019) (citing Prewitt Enters., Inc. v. Org. of Petroleum Exporting Countries , 353 F.3d 916, 924–25 (11th Cir. 2003) ). "When evaluating the sufficiency of service of process that occurred before removal, we look to the state law governing process." Hines v. Regions Bank , 782 F. App'x 853, 854 (11th Cir. 2019) (cleaned up) (citing Usatorres v. Marina Mercante Nicaraguenses, S.A. , 768 F.2d 1285, 1286 n.1 (11th Cir. 1985) (per curiam)).
It is undisputed that Florida law governs service of process prior to removal in this action. Under Florida law, "[a]t the time of personal service of process a copy of the initial pleading shall be delivered to the party upon whom service is made." Fla. R. Civ. P. 1.070(e). A foreign corporation may be served by serving process on certain "officer[s] or business agent[s] residing in the state." Fla. Stat. § 48.081(1)(a)–(d) ; see also Ulloa v. CMI, Inc. , 133 So. 3d 914, 919 (Fla. 2013) (describing service of process under Florida law). Alternative process may be served on the agent designated by the corporation as its registered agent. Id. § 48.081(3)(a).
A return of service that is regular on its face and includes the information required by Fla. Stat. § 48.21 is sufficient to prove valid service. See Friedman v. Schiano, 777 Fed. App'x 324, 331 (11th Cir. 2019) ("return of service that is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary") (quoting Robles-Martinez v. Diaz, Reus & Targ, LLP , 88 So. 3d 177, 179 (Fla. 3d DCA 2011) ). Under § 48.21(1) the return of process shall state:
(1) the date and time that the pleading comes to hand or is received by the process server, (2) the date and time that process is served, (3) the manner of service, and (4) the name of the person served and, if the person is served in a representative capacity, the position occupied by the person.
Koster v. Sullivan , 160 So. 3d 385, 389 (Fla. 2015). A return of service may be amended if needed. See Fla. Stat. § 48.21(2).
Here, OA Foods argues that it personally served Mr. Eduardo Becerra in Florida on December 1, 2020 by presenting him a copy of the summons, complaint, exhibits, and civil cover sheet in this action. See ECF Nos. 12 at 2; 1-7 (return of service); 1-12 (amended return of service). The amended return of service states that Mr. Becerra was served with these documents as a business agent of INAEXPO within the meaning of Fla. Stat. § 48.081(1)(d), or alternatively, as a registered agent of INAEXPO within the meaning of Fla. Stat. § 48.081(3)(a). The amended return of service also states the date and time the pleading was received by the process server, the date and time process was served, the manner of service, and is signed by the process server. ECF No. 1-12 (amended return of service). Accordingly, the Court finds that the return of service is regular on its face and—barring evidence to the contrary—includes sufficient information to prove valid service under Florida law.
INAEXPO does not challenge that the amended return of service is regular on its face or that it is a valid proof of service. Similarly, INAEXPO does not dispute that Mr. Becerra is its agent in Florida within the meaning of Fla. Stat. §§ 48.081(1)(d) or (3)(a), nor does INAEXPO present any evidence to the contrary. Instead, it characterizes Mr. Becerra as "an employee of an indirect U.S. affiliate" of INAEXPO in argument, ECF No. 15 at 4, and counters that service in this action only occurred on February 10, 2021, when counsel for INAEXPO accepted service of process, id. (citing ECF No. 15-2 (email from counsel accepting service)). Additionally, INAEXPO argues that it is "a foreign defendant and service needs to occur via international letters rogatory," ECF No. 15 at 4, but again fails to explain why service on Mr. Becerra—as a business agent of INAEXPO residing in Florida—was improper as a matter of Florida law.
The Court finds that OA Foods has presented sufficient evidence that it properly served INAEXPO in accordance with Fla. R. Civ. P. 1.070(e) and Fla. Stat. § 48.081 on December 1, 2020. OA Foods has presented evidence the Mr. Becerra is INAEXPO's agent, capable of accepting service of process in Florida. INAEXPO has presented no evidence to the contrary. Because OA Foods properly served Mr. Becerra on December 1, 2020—pursuant to the Supreme Court's Murphy decision—the 30-day window for removal began on that date. And because it is undisputed that INAEXPO did not remove this action until after that 30-day window closed, the Court finds that OA Foods has shown a procedural defect warranting remand under 28 U.S.C. § 1447(c). Accordingly, the Court will remand this action.
CONCLUSION
For the foregoing reasons, the Court ORDERS and ADJUDGES as follows:
1. The motion to remand, ECF No. 12, is GRANTED . This action is REMANDED to the state court.
2. All other pending motions are DENIED as moot .
3. The Clerk shall CLOSE this case.
DONE and ORDERED in Chambers, in Miami, Florida, this 29th day of March 2022.