Tamiami Condominium Warehouse Plaza Association, Inc. v. Markel Insurance Company et al
| Tamiami Condominium Warehouse Plaza Association, INC. |
| Markel Insurance Company and MARKEL AMERICAN INSURANCE COMPANY |
| 1:2019cv21289 |
| April 5, 2019 |
| US District Court for the Southern District of Florida |
| Jacqueline Becerra |
| Rodney Smith |
| Insurance |
| 12 U.S.C. § 0635 |
| Defendant |
Docket Report
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This docket was last retrieved on January 31, 2020. A more recent docket listing may be available from PACER.
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| Filing 30 AFFIDAVIT signed by : John Casciano. re #29 Response to Motion by MARKEL AMERICAN INSURANCE COMPANY (Lewis, William) |
| Filing 29 RESPONSE to Motion re #25 Plaintiff's MOTION to Remand to State Court In Response to Defendant's Second Amended Notice of Removal filed by MARKEL AMERICAN INSURANCE COMPANY. Replies due by 7/2/2019. (Lewis, William) |
| Filing 28 REPLY to #26 Response in Opposition to Motion by Markel Insurance Company. (Lewis, William) |
Filing 27
ORDER OF REASSIGNMENT to Judge Rodney Smith for all further proceedings, Chief Judge K. Michael Moore no longer assigned to case. Signed by Chief Judge K. Michael Moore on 6/17/2019. See attached document for full details. (yar)
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| Filing 26 RESPONSE in Opposition re #22 MOTION to Dismiss #18 Amended Complaint filed by Tamiami Condominium Warehouse Plaza Association, Inc.. Replies due by 6/19/2019. (Viera, Fred) |
| Filing 25 Plaintiff's MOTION to Remand to State Court In Response to Defendant's Second Amended Notice of Removal by Tamiami Condominium Warehouse Plaza Association, Inc.. (Viera, Fred) |
| Filing 24 Clerk's Appointment of Mediator: Mark L. Van Valkenburgh added (cco) |
| Filing 23 Request for Clerk to Appoint Mediator(Lewis, William) |
| Filing 22 MOTION to Dismiss #18 Amended Complaint by MARKEL AMERICAN INSURANCE COMPANY. Responses due by 6/12/2019 (Lewis, William) |
| Filing 21 ANSWER and Affirmative Defenses to Amended Complaint with Jury Demand by MARKEL AMERICAN INSURANCE COMPANY. (Attachments: #1 Exhibit A)(Lewis, William) |
| Filing 20 Second Amended Notice of Removal by MARKEL AMERICAN INSURANCE COMPANY. Attorney William Roderick Lewis added to party MARKEL AMERICAN INSURANCE COMPANY(pty:dft). Responses due by 6/12/2019 (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G)(Lewis, William) Modified on 5/30/2019 to correct title per chambers (ch1). |
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Filing 19
PAPERLESS ORDER. THIS CAUSE came before the Court upon a sua sponte review of the record. On April 5, 2019, Defendant Markel Insurance Company removed this action from state court on the basis of diversity jurisdiction. #1 . Thereafter, the Parties agreed that Plaintiff had named the incorrect defendant in the Complaint. Therefore, on May 16, 2019, Plaintiff filed a First Amended Complaint for the purpose of naming the proper defendant, Markel American Insurance Company. #18 . "[I]t is well settled that a federal court is obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking." Taliaferro v. United States, 677 F. App'x 536, 537 (11th Cir. 2017). Here, the allegations in the First Amended Complaint do not provide a basis for diversity jurisdiction because the Parties do not appear to be diverse. The First Amended Complaint states that Plaintiff "was and is a Florida Not for Profit Corporation" and that Defendant "was and is a licensed insurer in the State of Florida." #18 at 1-2. Accordingly, UPON CONSIDERATION of the Amended Complaint, the pertinent portions of the record, and being otherwise fully advised in the premises, Defendant is hereby ORDERED to file an amended Notice of Removal demonstrating that the requirements of 28 U.S.C. 1332 are met. In the alternative, Defendant may provide the Court briefing not to exceed five pages as to whether this Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. 1332. In doing so, Defendant shall confirm that the information in the Notice of Removal #1 demonstrating that the amount in controversy exceeds $75,000 is accurate in light of the filing of the First Amended Complaint. A renewed Notice of Removal or other briefing shall be filed on or before May 30, 2019. Signed by Chief Judge K. Michael Moore on 5/23/2019. (eso)
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| Filing 18 First AMENDED COMPLAINT against MARKEL AMERICAN INSURANCE COMPANY filed in response to Order Granting Motion for Leave, filed by Tamiami Condominium Warehouse Plaza Association, Inc..(Viera, Fred) |
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Filing 17
PAPERLESS ORDER OF REFERRAL TO MEDIATION. Trial having been set in this matter for the two week trial period beginning March 2, 2020, at 9:00 a.m. pursuant to Rule 16 of the Federal Rule of Civil Procedure and Rule 16.2 of the Local Rules of the United States District Court for the Southern District of Florida, it is hereby ORDERED AND ADJUDGED as follows: 1. All parties are required to participate in mediation. The mediation shall be completed no later than eighty (80) days before the scheduled trial date. 2. Plaintiff's counsel, or another attorney agreed upon by all counsel of record and any unrepresented parties, shall be responsible for scheduling the mediation conference. The parties are encouraged to avail themselves of the services of any mediator on the List of Certified Mediators, maintained in the office of the Clerk of this Court, but may select any other mediator. The parties shall agree upon a mediator and file a Notice of Mediator Selection within fifteen (15) days from the date of this Order. If there is no agreement, lead counsel shall file a request for the Clerk of Court to appoint a mediator in writing within fifteen (15) days from the date of this Order, and the Clerk shall designate a mediator from the List of Certified Mediators. Designation shall be made on a blind rotation basis. 3. A place, date, and time for mediation convenient to the mediator, counsel of record, and unrepresented parties shall be established. If the parties cannot agree to a place, date, and time for the mediation, they may motion the Court for an order dictating the place, date, and time. 4. The physical presence of counsel and each party or representatives of each party with full authority to enter in a full and complete compromise and settlement is mandatory. If insurance is involved, an adjuster with authority up to the policy limits or the most recent demand, whichever is lower, shall attend. 5. All discussions, representations and statements made at the mediation conference shall be confidential and privileged. 6. At least ten (10) days prior to the mediation date, all parties shall present to the mediator a brief written summary of the case identifying issues to be resolved. Copies of those summaries shall be served on all other parties. 7. The Court may impose sanctions against parties and/or counsel who do not comply with the attendance or settlement authority requirements herein, or who otherwise violate the terms of this Order. The mediator shall report non-attendance and may recommend imposition of sanctions by the Court for non-attendance. 8. The mediator shall be compensated in accordance with the standing order of the Court entered pursuant to Rule 16.2.B.6, or on such basis as may be agreed to in writing by the parties and the mediator selected by the parties. The cost of mediation shall be shared equally by the parties unless otherwise ordered by the Court. All payments shall be remitted to the mediator within 30 days of the date of the bill. Notice to the mediator of cancellation or settlement prior to the scheduled mediation conference must be given at least two (2) full business days in advance. Failure to do so will result in imposition of a fee for one hour. 9. If a full or partial settlement is reached in this case, counsel shall promptly notify the Court of the settlement in accordance with Local Rule 16.2.F, by filing a notice of settlement signed by the counsel of record within ten (10) days of the mediation conference. Thereafter, the parties shall forthwith submit an appropriate pleading concluding the case. 10. Within five (5) days following the mediation conference, the mediator shall file a Mediation Report indicating whether all required parties were present. The report shall also indicate whether the case settled (in full or in part), was continued with the consent of the parties, or whether the mediator declared an impasse. 11. If mediation is not conducted, the case may be stricken from the trial calendar, and other sanctions may be imposed. Signed by Chief Judge K. Michael Moore on 5/10/2019. (eso)
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Filing 16
PAPERLESS ORDER SCHEDULING TRIAL IN MIAMI. This case is now set for trial commencing the two week trial period of March 2, 2020, at 9 a.m. in Courtroom 13-1, (thirteenth floor) United States Courthouse, 400 North Miami Avenue, Miami, Florida. All parties are directed to report to the calendar call on February 27, 2020, at 2 p.m., at which time all matters relating to the scheduled trial date may be brought to the attention of the Court. A final pretrial conference as provided for by Rule 16, Fed. R. Civ. P., and Rule 16.1(C), S.D. Fla. L.R., is scheduled for February 18, 2020, at 11 a.m. A bilateral pretrial stipulation and all other pretrial preparations shall be completed NO LATER THAN FIVE DAYS PRIOR TO THE PRETRIAL CONFERENCE. All motions to amend the pleadings or to join additional parties must be filed by the later of forty-five (45) days after the date of entry of this Order, or forty-five (45) days after the first responsive pleading by the last responding defendant. Any and all pretrial motions, including motions for summary judgment, Daubert motions, and motions in limine must be filed no later than eighty (80) days prior to the trial date. Responses to summary judgment motions must be filed no later than fourteen (14) days after service of the motion, and replies in support of the motion must be filed no later than seven (7) days after service of the response, with both deadlines computed as specified in Rule 6, Fed. R. Civ. P. Each party is limited to one Daubert motion. If all evidentiary issues cannot be addressed in a 20-page memorandum, the parties must file for leave to exceed the page limit. Each party is also limited to one motion in limine (other than Daubert motions). If all evidentiary issues cannot be addressed in a 20-page memorandum, the parties must file for leave to exceed the page limit. Rule 26(a)(2) expert disclosures shall be completed one hundred thirty (130) days prior to the date of trial. All discovery, including expert discovery, shall be completed one hundred (100) days prior to the date of trial. The failure to engage in discovery pending settlement negotiations shall not be grounds for continuance of the trial date. All exhibits must be pre-marked, and a typewritten exhibit list setting forth the number and description of each exhibit must be submitted at the time of trial. Plaintiff's exhibits shall be marked numerically with the letter "P" as a prefix. Defendant's exhibits shall be marked numerically with the letter "D" as a prefix. For a jury trial, counsel shall prepare and submit proposed jury instructions to the Court. The Parties shall submit their proposed jury instructions and verdict form jointly, although they do not need to agree on each proposed instruction. Where the parties do not agree on a proposed instruction, that instruction shall be set forth in bold type. Instructions proposed only by a plaintiff should be underlined. Instructions proposed only by a defendant should be italicized. Every instruction must be supported by citation to authority. The parties should use the Eleventh Circuit Pattern Jury Instructions for Civil Cases as a guide, including the directions to counsel contained therein. The parties shall jointly file their proposed jury instructions via CM/ECF, and shall also submit their proposed jury instructions to the Court via e-mail at moore@flsd.uscourts.gov in WordPerfect or Word format. For a non-jury trial, the parties shall prepare and submit to the Court proposed findings of fact and conclusions of law fully supported by the evidence, which counsel expects the trial to develop, and fully supported by citations to law. The proposed jury instructions or the proposed findings of fact and conclusions of law shall be submitted to the Court no later than five (5) business days prior to the scheduled trial date. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court. THE FILING BY COUNSEL OF A "NOTICE OF UNAVAILABILITY" BY MOTION OR OTHERWISE IS NOT PROVIDED FOR UNDER THE LOCAL RULES AND SHALL NOT BE PRESUMED TO ALTER OR MODIFY THE COURT'S SCHEDULING ORDER. Signed by Chief Judge K. Michael Moore on 5/10/2019. (eso)
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Filing 15
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Response to Show Cause Order #13 and the Parties' Joint Scheduling Report #14 . On April 9, 2019, Defendant filed a Motion to Dismiss. #6 . Plaintiff did not respond. In light of Plaintiff's failure to respond to the Motion to Dismiss, the Court ordered Plaintiff to show cause on or before May 9, 2019 why Defendant's Motion to Dismiss should not be granted by default. 8 . On May 8, 2019, Plaintiff filed a Response. #13 . Therein, Plaintiff states that it did not respond to the Motion to Dismiss due to a clerical error in its calendaring system. #13 at 1. Plaintiff also explains that Defendant has moved to dismiss the case because Plaintiff "admittedly named the wrong party as a Defendant in this case, whereas the named Defendant is the parent company of the subsidiary Markel American Insurance Company who is the insurer and the real party in interest." Id. Further, Plaintiff informs the Court that the Parties have conferred and agreed that Plaintiff may amend the Complaint to name the correct defendant. #13 at 2. Similarly, in the Joint Scheduling Report, the Parties state that they "have agreed to submit a joint motion to correct the [case] caption through interlineation" to identify the correct defendant, after which time Defendant will file a Second Amended Notice of Removal to address the new defendant's citizenship. #14 at 1. Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, a party may amend its pleading "once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1). "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Here, Defendant consents to Plaintiff's filing of an Amended Complaint. Accordingly, UPON CONSIDERATION of the Response to Show Cause Order, the Joint Scheduling Report, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Plaintiff shall file its Amended Complaint on the docket on or before May 17, 2019. It is further ORDERED AND ADJUDGED that in light of the Amended Complaint, the Motion to Dismiss #6 and the Motion to Remand #12 are hereby DENIED AS MOOT. Signed by Chief Judge K. Michael Moore on 5/10/2019. (eso)
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| Filing 14 Joint SCHEDULING REPORT - Rule 26(f) by Markel Insurance Company (Attachments: #1 Text of Proposed Order Joint Proposed Scheduling Order)(Lewis, William) |
| Filing 13 RESPONSE TO ORDER TO SHOW CAUSE re 8 Order to Show Cause,,,, by Tamiami Condominium Warehouse Plaza Association, Inc.. (Viera, Fred) |
| Filing 12 Plaintiff's MOTION to Remand to State Court by Tamiami Condominium Warehouse Plaza Association, Inc.. (Viera, Fred) |
| Filing 11 NOTICE by Markel Insurance Company re 10 Order on Motion to Amend/Correct,, (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F) (Lewis, William) |
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Filing 10
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Motion for Leave to File an Amended Notice of Removal. #9 . Therein, Defendant states that it inadvertently attached the incorrect government record pertaining to Plaintiff's citizenship and requests leave to file an Amended Notice of Removal attaching the correct document. UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion #9 is GRANTED IN PART. The Parties shall file an Amended Notice of Removal on or before May 8, 2019. Signed by Chief Judge K. Michael Moore on 5/3/2019. (eso)
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| Filing 9 MOTION to Amend/Correct #1 Notice of Removal (State Court Complaint), by Markel Insurance Company. Responses due by 5/16/2019 (Attachments: #1 Exhibit 1, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit F)(Lewis, William) |
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Filing 8
PAPERLESS ORDER. THIS CAUSE came before the Court upon a sua sponte review of the record. On April 9, 2019, Defendant filed a Motion to Dismiss. #6 . Local Rule 7.1.C provides, in relevant part: "each party opposing a motion shall serve an opposing memorandum of law no later than fourteen (14) days after service of the motion. Failure to do so may be deemed sufficient cause for granting the motion by default." To date, Plaintiff has not filed a response. In light of Plaintiff's failure to file a response, Plaintiff is ORDERED TO SHOW CAUSE on or before May 9, 2019, why Defendant's Motion to Dismiss #6 should not be granted by default. In doing so, Plaintiff should respond to each of the arguments that Defendant raised in the Motion to Dismiss. Plaintiff is hereby on notice that failure to respond by this deadline may result in granting the Motion by default or in dismissal of the case for failure to prosecute and obey Court orders. See Fed. R. Civ. P. 41(b); Lewis v. Fla. Dept of Corr., 739 F. App'x 585, 586 (11th Cir. 2018). Signed by Chief Judge K. Michael Moore on 5/2/2019. (eso)
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Filing 7
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Motion to Dismiss #5 and Defendant's Amended Motion to Dismiss #6 . UPON CONSIDERATION of the Amended Motion to Dismiss #6 , the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Defendant's Motion to Dismiss #5 is STRICKEN. The Clerk of the Court is INSTRUCTED to STRIKE Defendant's Motion to Dismiss #5 . Signed by Chief Judge K. Michael Moore on 4/10/2019. (eso)
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| Filing 6 Amended MOTION to Amend/Correct #5 Defendant's MOTION to Dismiss #1 Notice of Removal (State Court Complaint), by Markel Insurance Company. Responses due by 4/23/2019 (Attachments: #1 Exhibit A, #2 Exhibit B)(Lewis, William) Modified text per chambers/ Motion filed is a Motion to Dismiss not Amend on 4/11/2019 (mno). |
| Filing 5 (STRICKEN PER DE#7)Defendant's MOTION to Dismiss #1 Notice of Removal (State Court Complaint), by Markel Insurance Company. Responses due by 4/23/2019 (Attachments: #1 Exhibit A, #2 Exhibit B)(Lewis, William)Text Modified on 4/10/2019 (cqs). |
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Filing 4
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE JACQUELINE BECERRA. PURSUANT to 28 U.S.C. 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, the above-captioned Cause is referred to United States Magistrate Judge Jacqueline Becerra to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. Any motion affecting deadlines set by the Court's Scheduling Order is excluded from this referral, unless specifically referred by separate Order. It is FURTHER ORDERED that the parties shall comply with Magistrate Judge Jacqueline Becerra's discovery procedures. Signed by Chief Judge K. Michael Moore on 4/9/2019. (eso)
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Filing 3
PAPERLESS PRETRIAL ORDER. THIS ORDER has been entered upon the filing of a Notice of Removal. Counsel for the removing party is hereby ORDERED to forward a copy of this Order to all other parties. It is further ORDERED that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shall hold a scheduling conference within twenty (20) days of the date of this Order. Within ten (10) days of the scheduling conference, counsel shall file a Joint Scheduling Report. The report shall indicate the proposed month and year for the trial and the estimated number of days required for trial. The scheduling conference may be held via telephone. At the conference, the parties shall comply with the following agenda that the Court adopts from S.D. Fla. L.R. 16.1: (1) Documents (S.D. Fla. L.R. 16.1.B.1 and 2) The parties shall determine the procedure for exchanging a copy of, or a description by category and location of, all documents and other evidence that is reasonably available and that a party expects to offer, or may offer, if the need arises. Fed. R. Civ. P. 26(a)(1)(B). (A) Documents include computations of the nature and extent of any category of damages claimed by the disclosing party unless the computations are privileged or otherwise protected from disclosure. Fed. R. Civ. P. 26(a)(1)(C). (B) Documents include insurance agreements which may be at issue with the satisfaction of the judgment. Fed. R. Civ. P. 26(a)(1)(D). (2) List of Witnesses - The parties shall exchange the name, address, and telephone number of each individual known to have knowledge of the facts supporting the material allegations of the pleading filed by the party. Fed. R. Civ. P. 26(a)(1)(A). The parties have a continuing obligation to disclose this information. (3) Discussions and Deadlines (S.D. Fla. L.R. 16.1.B.2) - The parties shall discuss the nature and basis of their claims and defenses and the possibility of a prompt settlement or resolution of the case. Failure to comply with this Order or to exchange the information listed above may result in sanctions and/or the exclusion of documents or witnesses at the time of trial. S.D. Fla. L.R. 16.1.I. Failure of counsel to file a joint scheduling report may result in remand or dismissal, default, and the imposition of other sanctions including attorney's fees and costs. The filing of a motion to dismiss, or other motion, does not toll the time for filing a joint scheduling report. Counsel for the non-removing party must file a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction within thirty (30) days after the filing of the Notice of Removal. The parties are hereby on notice that this Court requires all filings to be formatted in 12 point Times New Roman font and double spaced, including any footnotes, with one-inch margins on all sides. Failure to follow these formatting guidelines may result in the filing being stricken, any opposing filing being granted by default, and the imposition of other sanctions, including attorney's fees and costs. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court. Telephonic appearances are not permitted for any purpose. Upon reaching a settlement in this matter the parties are instructed to notify the Court by telephone and to file a Notice of Settlement within twenty-four (24) hours. Signed by Chief Judge K. Michael Moore on 4/9/2019. (eso)
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| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Jacqueline Becerra is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. (mc) |
| Filing 1 NOTICE OF REMOVAL (STATE COURT COMPLAINT - Complaint) Filing fee $ 400.00 receipt number 113C-11535718, filed by Markel Insurance Company. (Attachments: #1 Civil Cover Sheet, #2 Exhibit A, #3 Exhibit B, #4 Exhibit C, #5 Exhibit D, #6 Exhibit E, #7 Exhibit Composite F)(Lewis, William) |
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