Opinion
CASE NO. 20-CV-62676-RAR
03-24-2021
MARIA CEVALLOS VALDERRAMOS, as Personal Representative of the Estate of GIA KATELIN ALBAN, deceased, Plaintiff, v. GITI TIRE (USA) LTD., Defendant.
ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court upon United States Magistrate Judge Strauss's Report and Recommendation [ECF No. 28] ("Report"), filed on March 8, 2021. The Report recommends that the Court grant Plaintiff's Motion to Remand to State Court [ECF No. 12]. See Report at 1. The Report properly notified the parties of their right to object to Magistrate Judge Strauss's findings. Id. at 9. Defendant timely filed its Objection to the Report [ECF No. 33] ("Objection") on March 22, 2021 and Plaintiff filed a Response [ECF No. 34] on March 23, 2021. The Court being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that the Report [ECF No. 28] is AFFIRMED AND ADOPTED as explained herein.
LEGAL STANDARD
This Court reviews de novo the determination of any disputed portions of the Magistrate Judge's Report. United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). Any portions of the Report to which no specific objection is made are reviewed only for clear error. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006). A proper objection "identifie[s] specific findings set forth in the [Report] and articulate[s] a legal ground for objection." Leatherwood v. Anna's Linens Co., 384 F. App'x 853, 857 (11th Cir. 2010) (alterations and emphasis added; citations omitted).
ANALYSIS
Here, Defendant contends that Magistrate Judge Strauss erroneously ignored Plaintiff's pre-settlement conduct. Without citing any evidence, Defendant contends that Plaintiff "exhibited bad faith prior to the settlement [with the non-diverse defendants]" and that the "settlement and Plaintiff's delayed disclosure merely extended the bad faith conduct evidenced by Plaintiff's failure to actively litigate against the non-diverse defendants." Obj. at 2. Thus, Defendant argues that remand is not appropriate here because "[c]onsidering Plaintiff's conduct as a whole necessarily leads to the conclusion that Plaintiff acted in bad faith to prevent GITI Tire from removing the action." Id. at 3.
As an initial matter, Defendant's Objection appears to improperly rehash many of the same arguments and positions taken in the original papers submitted to Magistrate Judge Strauss. Defendant insists that Plaintiff's pre-settlement conduct should have been considered under the Aguayo test and the Tedford exception. Obj. at 2-3 (citing Aguayo v. AMCO Ins. Co., 59 F. Supp. 3d 1225 (D.N.M. 2014) and Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003)). But as Magistrate Judge Strauss correctly noted, application of the Aguayo test is unnecessary here where a statute—28 U.S.C. § 1446(c)(1)—clearly governs. Report at 4-5. Further, as the Report aptly explains, the Tedford exception "no longer appl[ies] and . . . [we] now apply the new [standard under] § 1446 and the bad faith exception Congress created." Report at 3 fn.1 (citation and quotation omitted). Therefore, the Court disagrees with Defendant's contention that pre-settlement conduct is relevant and finds that Magistrate Judge Strauss correctly applied § 1446(c)(1) and properly focused the inquiry on the conduct made relevant by the statute—that is, the post-settlement conduct that "prevent[ed] [Defendant] from removing the action." Report at 5 (quoting § 1446(c)(1)).
"It is improper for an objecting party to . . . submit [ ] papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a 'second bite at the apple' when they file objections to a [Report and Recommendation]." Marlite, Inc. v. Eckenrod, No. 10-CV-23641, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)).
Even if pre-settlement conduct were somehow relevant, the Court also disagrees with Defendant's assessment that Plaintiff's "conduct as a whole" necessarily amounts to bad faith. Obj. at 3. To determine the "boundary between a plaintiff's bad faith in forum 'manipulation' as opposed to a valid litigation strategy, courts have considered the extent to which the plaintiff has engaged in intentional conduct to deliberately delay for more than a year the defendant's ability to remove the case." Hajdasz v. Magic Burgers, LLC, No. 18-CV-1755, 2018 WL 7436133, at *2 (M.D. Fla. Dec. 10, 2018). For example, in Hiser v. Seay, No. 14-CV-170, 2014 WL 6885433 (W.D. Ky. Dec. 5, 2014), the court found bad faith when plaintiffs admitted "that they delayed accepting the [settlement] offers in order to retain the non-diverse parties to 'continue the litigation with all parties in the case until the one-year period passed' due to the 'likelihood of attempted removal' and a desire to keep the case in state court." Id. at *4. In another case, Comer v. Schmitt, No. 15-CV-2599, 2015 WL 5954589 (S.D. Ohio Oct. 14, 2015), the court found that plaintiffs engaged in "intentional inaction that prevented" timely removal through a "methodical delay in consummating the settlement agreement." Id. at *4. There, plaintiffs joined the diverse defendant three weeks before the one-year deadline and, despite having reached a settlement, held the non-diverse defendants in the case past the deadline to prevent removal. Id.
Here, Defendant has not presented any evidence that comes close to that relied upon in Comer and Hiser. What the evidence does show, however, is the following: Plaintiff joined both the Defendant and the non-diverse defendants in this action from day 1; Plaintiff and the non-diverse defendants settled 114 days before the 1-year removal window expired; and Plaintiff did not immediately dismiss the non-diverse defendants due to an apparent oversight. See Larue v. Volkswagen Grp. Of Am., Inc., No. 17-CV-00001, 2017 WL 2312480, at *5 (W.D. Ky. May 26, 2017) (finding that delay in dismissing non-diverse defendants was attributable to "the prolonged state court process" and could not be characterized as bad faith action).
CONCLUSION
Ultimately, the facts and circumstances here do not substantiate a finding of bad faith on the part of Plaintiff, and Defendant's Objection is therefore overruled. Accordingly, it is
ORDERED AND ADJUDGED as follows:
1. Defendant's Objection [ECF No. 33] is OVERRULED.
2. The Report [ECF No. 28] is AFFIRMED AND ADOPTED.
3. Plaintiff's Motion to Remand to State Court [ECF No. 12] is GRANTED.
4. This action is REMANDED to the Seventeenth Judicial Circuit in and for Broward County, Florida. The Clerk is instructed to CLOSE this case. Any pending motions are DENIED AS MOOT.
DONE AND ORDERED in Fort Lauderdale, Florida, this 24th day of March, 2021.
/s/ _________
RODOLFO A. RUIZ II
UNITED STATES DISTRICT JUDGE