Fonville v. Future Motion, Inc. et al
| Robert Fonville |
| Future Motion, Inc., Antares Enterprises LLC d/b/a Shoreline Ebikes and Antares Enterprises LLC doing business as Shoreline Ebikes |
| Gregory Holder |
| 8:2023cv01522 |
| July 10, 2023 |
| US District Court for the Middle District of Florida |
| Virginia M Hernandez Covington |
| Amanda Arnold Sansone |
| Personal Inj. Prod. Liability |
| 28 U.S.C. § 1332 Diversity-Notice of Removal |
| Both |
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Filing 20
ENDORSED ORDER granting plaintiff's Motion to Remand. (Doc. #11). A federal court only has diversity jurisdiction when there is complete diversity between the parties. 28 U.S.C. 1332(a). Here, Plaintiff Fonville and Defendant Antares Enterprises, LLC, are both citizens of Florida. Therefore, there is not complete diversity of citizenship. Antares Enterprises, LLC, though not timely served, is still a named party to the case. Under Florida law, "[i]f service of the initial process and initial pleading is not made on a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, must direct that service be effected within a specified time or must dismiss the action without prejudice or drop that defendant as a party." Fla. R. Civ. Pro. 1.070(j). The state court did not take action to drop Antares Enterprises, LLC, as a defendant. (Doc. # 1-2). Therefore, Antares Enterprises, LLC's citizenship is still relevant for determining whether complete diversity of citizenship exists. Additionally, the forum-defendant rule, 28 U.S.C. 1441(b)(2), which limits the categories of cases that can be removed under 1332(a), does not apply. Defendant Future Motion Inc. relies on North v. Precision Airmotive Corp., 600 F. Supp. 2d 1263 (M.D. Fla. 2009), for support that complete diversity is not required when removal occurs under 1441(b)(2), so long as non-diverse forum parties have not yet been served. (Doc. #19). However, this reliance is misplaced. As the court in Precision Airmotive Corp. makes clear, removal was appropriate in that case as there was complete diversity between the parties. Precision Airmotive Corp. at 1270 ("[I]n a completely diverse case..., a non-forum defendant that has not yet been served may remove a state court action to federal court under Section 1441(b) notwithstanding the fact that the plaintiff has already joined--but not yet served--a forum defendant."). The forum-defendant rule limits which cases where parties are completely diverse can be removed to federal court. As the parties are not completely diverse in this case, the Court does not have jurisdiction. The Clerk is directed to remand the case to the Tenth Judicial Circuit in and for Polk County, Florida and thereafter close this case. Signed by Judge Virginia M. Hernandez Covington on 8/16/2023. (JAK)
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| Filing 19 DEFENDANT'S BRIEF re 18 Order directing compliance, #1 Notice of Removal Supplemental Brief in Support of Removal filed by Future Motion, Inc.. (Holt, Michael) |
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Filing 18
ENDORSED ORDER: Defendant Future Motion Inc. is directed to file a supplemental brief listing the citizenships of Defendant Shoreline LLC's members by August 15, 2023. When removal is premised on diversity jurisdiction, there must be complete diversity of citizenship between the parties. 28 U.S.C. 1332(a); 28 U.S.C. 1441(b)(2) (presupposing that "[a] civil action [is] otherwise removable solely on the basis of the jurisdiction under section 1332(a)" before establishing the forum-defendant rule). A party removing based on diversity jurisdiction must provide information establishing that there is complete diversity between the parties. See Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) ("A party removing a case to federal court based on diversity of citizenship bears the burden of establishing the citizenship of the parties."). "[A] limited liability company is a citizen of any state of which a member of the company is a citizen." Id. Thus, "[t]o sufficiently allege the citizenships of [a limited liability company], a party must list the citizenships of all the members of the limited liability company." Id. The Notice of Removal is insufficient because it does not list the citizenships of Shoreline LLC's members. Signed by Judge Virginia M. Hernandez Covington on 8/10/2023. (JAK)
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| Filing 17 RESPONSE in Opposition re #11 First MOTION to Remand to State Court filed by Future Motion, Inc. (Holt, Michael) |
| Filing 16 NOTICE of Appearance by Eitan Goldrosen on behalf of Robert Fonville (Goldrosen, Eitan) |
| Filing 15 CERTIFICATE of interested persons and corporate disclosure statement by Robert Fonville. (Goldrosen, Eitan) |
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Filing 14
ORDER regarding motions for summary judgment. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/26/2023. (MEJ)
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Filing 13
ENDORSED ORDER: In light of the Court's Case Management and Scheduling Order Doc. #12, no case management hearing will be held. Additionally, in order to keep cases moving on track, the Court has found it necessary to impose some restrictions on the types and number of extensions to case management deadlines that it grants. Thus, the parties are advised that, while short extensions, especially if unopposed, will be favorably considered, the Court will not substantially move the dispositive motions deadline or the trial date. Signed by Judge Virginia M. Hernandez Covington on 7/26/2023. (MEJ)
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Filing 12
CASE MANAGEMENT AND SCHEDULING ORDER: Final Pretrial Conference set for 8/15/2024 at 09:00 AM in Tampa Courtroom 14 B before Judge Virginia M. Hernandez Covington, Jury Trial set for the September 2024 Trial Term in Tampa Courtroom 14 B before Judge Virginia M. Hernandez Covington. Conduct mediation hearing by 4/15/2024. Lead counsel to coordinate dates. Signed by Judge Virginia M. Hernandez Covington on 7/26/2023. (MEJ)
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| Filing 11 First MOTION to Remand to State Court by Robert Fonville. (Goldrosen, Eitan) |
| Filing 10 NOTICE of Lead Counsel Designation by Eitan Goldrosen on behalf of Robert Fonville. Lead Counsel: Eitan Goldrosen. (Goldrosen, Eitan) |
| Filing 9 CASE MANAGEMENT REPORT. (Holt, Michael) |
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Filing 8
ENDORSED ORDER: Counsel are directed to meet and confer, in person or by telephone, and by July 24, 2023, file a completed Case Management Report. The Court believes that six to eight months is a sufficient period of time to conduct discovery in the vast majority of cases. If the parties believe that more than eight months will be needed to complete discovery, the parties should provide the Court with a detailed explanation as to why additional time is needed and a timeline for the discovery that is planned. After the Case Management Report is filed, the Court will determine whether a Case Management Hearing is necessary before entry of a Case Management and Scheduling Order. Signed by Judge Virginia M. Hernandez Covington on 7/11/2023. (DRG)
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| Filing 7 NOTICE informing the parties that they may consent to the jurisdiction of a United States magistrate judge by filing Form AO 85 Notice, Consent, and Reference of a Civil Action to a Magistrate Judge using the event Consent to Jurisdiction of US Magistrate Judge. (Signed by Deputy Clerk). (JCG) |
| Filing 6 NOTICE of Local Rule 1.07(c), Local Rule 3.02(a)(2), and Local Rule 3.03. -Local Rule 1.07(c) requires lead counsel to promptly file a Notice of a Related Action that identifies and describes any related action pending in the Middle District or elsewhere. -Local Rule 3.02(a)(2) requires the parties in every civil proceeding, except those described in subsection (d), to file a case management report (CMR) using the uniform form at www.flmd.uscourts.gov. The CMR must be filed (1) within forty days after any defendant appears in an action originating in this court, (2) within forty days after the docketing of an action removed or transferred to this court, or (3) within seventy days after service on the United States attorney in an action against the United States, its agencies or employees. Judges may have a special CMR form for certain types of cases. These forms can be found at www.flmd.uscourts.gov under the Forms tab for each judge. -Local Rule 3.03 requires each party to file a disclosure statement. Counsel must make their disclosures using the standard court form. The Disclosure Statement form can be found at www.flmd.uscourts.gov. (Signed by Deputy Clerk). (JCG) |
| Filing 5 CERTIFICATE of interested persons and corporate disclosure statement by Future Motion, Inc. (Holt, Michael) Modified on 7/11/2023 to remove punctuation. (LD). |
| Filing 4 ANSWER and affirmative defenses to Complaint with Jury Demand by Future Motion, Inc.(Holt, Michael) Modified on 7/11/2023to remove punctuation. (LD). |
| Filing 3 NOTICE of Lead Counsel Designation by Michael R. Holt on behalf of Future Motion, Inc. Lead Counsel: Michael R. Holt. (Holt, Michael) Modified on 7/11/2023 to remove punctuation. (LD). |
| Filing 2 NEW CASE ASSIGNED to Judge Virginia M. Hernandez Covington and Magistrate Judge Amanda Arnold Sansone. New case number: 8:23-cv-1522-VMC-AAS. (AM) |
| Filing 1 COMPLAINT and NOTICE OF REMOVAL from Polk County, case number 2023-CA-002151 filed in State Court on 03/21/2023. Filing fee $402, receipt number AFLMDC-21022435 filed by Future Motion, Inc. (Attachments: #1 State Court COMPLAINT Exhibit A, #2 State Court Docket Sheet Exhibit B, #3 State Court Other Documents Exhibit C, #4 Civil Cover Sheet)(Holt, Michael) Modified on 7/11/2023 to edit docket text (BCB). |
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