Opinion
CASE NO. 21-80506-CIV-DIMITROULEAS
2022-03-01
Donald USELMANN and Debra Uselmann, his wife, Plaintiffs, v. ALLIED PROPERTY & CASUALTY INS. CO., Nationwide Property and Casualty Ins. Co., and The Standard Fire Ins. Co., Defendants.
David John Zappitell, Gabriel Fernando Zambrano, Zappitell Law Firm, P.L., Delray Beach, FL, for Plaintiffs. Adam Alexander-Speer Duke, Young Bill Fugett & Roumbos, Pensacola, FL, B. Richard Young, Brentt Earl Palmer, Young Bill Roumbos & Boles PA, Pensacola, FL, Richard Alan Weldy, Young, Bill, Roumbos, and Boles, P.A., Miami, FL, for Defendant Allied Property & Casualty Insurance Company. Adam Alexander-Speer Duke, Young Bill Fugett & Roumbos, Pensacola, FL, Richard Alan Weldy, Young, Bill, Roumbos, and Boles, P.A., Miami, FL, for Defendant Nationwide Property and Casualty Ins. Co. Benjamin Lawrence Bedard, Roberts Reynolds Bedard & Tuzzio, West Palm Beach, FL, for Defendant The Standard Fire Ins. Co.
David John Zappitell, Gabriel Fernando Zambrano, Zappitell Law Firm, P.L., Delray Beach, FL, for Plaintiffs.
Adam Alexander-Speer Duke, Young Bill Fugett & Roumbos, Pensacola, FL, B. Richard Young, Brentt Earl Palmer, Young Bill Roumbos & Boles PA, Pensacola, FL, Richard Alan Weldy, Young, Bill, Roumbos, and Boles, P.A., Miami, FL, for Defendant Allied Property & Casualty Insurance Company.
Adam Alexander-Speer Duke, Young Bill Fugett & Roumbos, Pensacola, FL, Richard Alan Weldy, Young, Bill, Roumbos, and Boles, P.A., Miami, FL, for Defendant Nationwide Property and Casualty Ins. Co.
Benjamin Lawrence Bedard, Roberts Reynolds Bedard & Tuzzio, West Palm Beach, FL, for Defendant The Standard Fire Ins. Co.
ORDER ON MOTION TO AMEND AND REMAND TO STATE COURT
WILLIAM P. DIMITROULEAS, United States District Judge THIS CAUSE is before the Court on Plaintiffs Donald Uselmann and Debra Uselmann (collectively, "Plaintiffs")’s Motion to Amend Complaint and Motion for Remand filed on February 18, 2022. See [DE 34]. The Court has carefully considered the Motion [DE 34], Defendants Allied Property & Casualty Ins. Co. ("Allied") and Standard Fire Ins. Co. ("Standard") (collectively, "Defendants")’s Responses [DE's 90, 91], and is otherwise fully advised in the premises.
Rule 15 of the Federal Rules of Civil Procedure (the "Rules") specifies that leave to amend should be freely granted when justice so requires. See Fed. R. Civ. P. 15(a)(2). "The Supreme Court has held that, in the absence of a reason like ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.,’ the leave sought should be ‘freely given.’ " McLaughlin v. Pasco Cnty. Sheriff's Office , 510 F. App'x 880, 882 (11th Cir. 2013) (quoting Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ). However, when a party's motion to amend is filed after the deadline set by the court's scheduling order, the party must show good cause why leave to amend the untimely complaint should be granted. Fed. R. Civ. P. 16(b) ; Sosa v. Airprint Sys., Inc. , 133 F.3d 1417, 1419 (11th Cir. 1998). Only if good cause is shown may we consider whether an amendment is proper under Rule 15(a). Sosa , 133 F.3d at 1419. The primary consideration in determining whether a movant has established good cause to amend is the diligence of the moving party. Aspen Specialty Ins. Co. v. Alexandra Vill. Condo. Ass'n, Inc. , No. 09-82376-CIV, 2010 WL 11596670, at *1 (S.D. Fla. July 22, 2010) (citing Kassner v. 2nd Ave. Delicatessen Inc. , 496 F.3d 229, 244 (2nd Cir. 2007) ).
In the instant case, Plaintiffs have demonstrated the requisite level of diligence under Rule 16 ’s heightened standard for amendments to amend their complaint to pursue liability against the non-diverse Defendant Schumacher Auto Group, Inc., based upon the January 7, 2022 opinion issued by the Florida Fifth District Court of Appeal in Romero v. Fields Motorcars of Fla., Inc. , 333 So.3d 746 (Fla. 5th DCA 2021), which appears directly applicable to this case, the February 2, 2022 (a few weeks later) discovery production confirming the existence of insurance on the loaner vehicle, and the filing of the instant motion three (3) weeks later. A separate but related issue is whether the Court should allow Plaintiffs’ attempted joinder of a non-diverse defendant.
Under 28 U.S.C. § 1447(e), "[i]f after removal [a] plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." Thus, a district court deciding whether to permit or deny the joinder of a non-diverse party has only two options: (1) deny joinder or (2) permit the joinder and remand the case to state court. See Ingram v. CSX Transp., Inc. , 146 F.3d 858, 862 (11th Cir. 1998). In making this determination, a district court must balance competing interests—the danger of parallel federal and state proceedings and the defendant's interest in retaining the federal forum. See Hensgens v. Deere & Co. , 833 F.2d 1179, 1182 (5th Cir. 1987). The Court considers: "(1) the extent to which the purpose of the amendment is to defeat federal jurisdiction, (2) whether plaintiff has been dilatory in asking for amendment, (3) whether plaintiff will be significantly injured if amendment is not allowed, and (4) any other factors bearing on the equities." Ibis Villas at Miami Gardens Condo Ass'n, Inc. v. Aspen Specialty Ins. Co. , 799 F. Supp. 2d 1333, 1334–35 (S.D. Fla. 2011) (collecting cases). In deciding whether to permit or deny joinder, the district court must balance the defendant's interests in maintaining the federal forum with the competing interests of not having parallel lawsuits. Hensgens , 833 F.2d at 1182.
Although Hensgens was decided before the enactment of § 1447(e), the factors outlined therein continue to guide district courts in deciding whether to permit or deny joinder in removal cases.
After weighing the relevant factors, the Court finds that Plaintiffs should be granted leave to amend. First, Defendants contend that the purpose of the amendment is to defeat federal jurisdiction in this case. The Court disagrees. The primary purpose of the amendment is to add a claim against a defendant that was not cognizable under Florida law until less than two (2) months ago. Second, Defendants Allied and Standard argue that the Court should not grant Plaintiffs leave to amend the complaint to add a non-diverse defendant because Plaintiffs’ Motion was filed after the deadline to amend pleadings had lapsed and after all discovery in this matter had been completed. However, as explained supra , the Court does not find that Plaintiffs were dilatory in moving to amend; rather, the motion was filed at the earliest practicable time. Next, the Court finds that Plaintiffs has a valid and strong interest in pursuing a single case against both the current Defendants and the additional defendant in the same litigation. Defendants suggest that Plaintiffs instead institute a separate action in state court to pursue the non-diverse defendant. If the Court were to deny the motion to amend and remand, Plaintiffs would be required to pursue parallel litigation in both federal and state court, doubling the work for the parties, courts, and potential jurors. Defendants also argue that they would be prejudiced by permitting Plaintiffs leave to amend and remanding this case back to state court. The only prejudice Defendants demonstrate is their inability to proceed in a federal forum if this case is remanded back to state court. While Defendants assert that they have already expended significant resources on litigating the instant case, Defendants do not explain, for instance, why they would need to re-take numerous depositions and repeat all written discovery upon the remand of this action to state court. The Court is not persuaded that Defendants will experience prejudice by having to return to state court.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiffs’ Motion to Amend Complaint and Motion for Remand [DE 76] is hereby GRANTED ; Plaintiffs’ Second Amended Complaint [DE 76 at pp. 13-23] is deemed filed.
2. The Clerk is directed to REMAND this case to state court, CLOSE this case, and DENY all pending motions as moot.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 1st day of March, 2022.