“Our courts have consistently ruled that a party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.”
How later courts described this case
- “Our courts have consistently ruled that a party who opposes summary judgment will not be permitted to alter the position of his or her previous pleadings, admissions, affidavits, depositions or testimony in order to defeat a summary judgment.”
- “The statute authorizing removal does not say anything about removals that occur too soon. It merely requires that defendants exercise due diligence to remove cases within a specific time: thirty days.”
- “To determine whether the case should be remanded, the district court must evaluate the factual allegations in the light most favorable to the plaintiff and must resolve any uncertainties about state substantive law in favor of the plaintiff.” (citation omitted)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOSEPH FAZIO,
Plaintiff,
v. Case No: 2:19-cv-826-FtM-29NPM
MONSANTO COMPANY, ISLAND
GARDEN CENTER OF MARCO
ISLAND, INC., and SITEONE
LANDSCAPE SUPPLY, LLC,
Defendants.
ORDER AND OPINION
This matter comes before the Court on plaintiff’s Motion to
Remand and Request for Emergency Hearing On Same (Doc. #11) filed
on November 15, 2019.1 Defendant Monsanto Company filed a
Memorandum of Law in Opposition (Doc. #27) on December 2, 2019.
For the reasons stated below, the motion to remand is denied.
I.
On March 29, 2019, plaintiff Joseph Fazio initiated a civil
action in the Twentieth Judicial Circuit in and for Collier County,
Florida. (Doc. #1-1.) The three-count Complaint set forth state-
law claims against defendants Island Garden Center of Marco Island,
Inc. (“Island Garden Center”), SiteOne Landscape Supply, LLC, Soon
1 The Court previously denied the request for an emergency
hearing. (Doc. # 13.)
Come, Inc., and Monsanto Company.2 (Id.) In the Complaint,
plaintiff alleged he was diagnosed with a form of Non-Hodgkin’s
lymphoma as a result of exposure to “Roundup” herbicides produced
by Monsanto and sold by Island Garden Center and SiteOne Landscape.
(Id. pp. 10-11.)
Monsanto was served with the Complaint and a Summons on April
2, 2019. (Doc. #1-4, p. 134.) On April 22, 2019, Monsanto filed
its Answer and Affirmative Defenses in state court. (Doc. #1-2.)
On July 12, 2019, plaintiff responded to an interrogatory by
stating that to the best of his knowledge he purchased Roundup
from Island Garden Center from “1990-2000.” (Doc. #14-1, p. 60,
¶6.) On November 14, 2019, Island Garden Center’s incorporator
and president made a written declaration stating that the company
did not exist until 2010 and was created as a new corporate entity.
(Doc. #1-9, p. 279.)
On November 15, 2019, Monsanto filed a Notice of Removal (Doc.
#1) which removed the case to this Court on the basis of diversity
jurisdiction. In the Notice of Removal Monsanto recognized that
the complete diversity of citizenship required for federal
diversity jurisdiction was not present on the face of the Complaint
because one of the named defendants – Island Garden Center - was
2 Soon Come, Inc., was dismissed in April 2019 after plaintiff
filed a notice of voluntary dismissal in state court. (Doc. #1-
4, p. 134.)
a Florida citizen, as was plaintiff. (Doc. #1, ¶4.) Monsanto
asserted, however, that Island Garden Center had been fraudulently
joined in the Complaint, and that there was complete diversity of
citizenship between the properly joined parties when this
fraudulently joined party was disregarded. (Id.) The assertion
of fraudulent joinder was premised on plaintiff’s July 12, 2019
interrogatory response stating he purchased Roundup from Island
Garden Center from 1990 to 2000, and the November 14, 2019
declaration from Island Garden Center’s incorporator and president
stating that the company did not exist until 2010 and was created
as a new corporate entity. Because plaintiff can have no viable
claim against a corporation first formed in 2010 for conduct
occurring from 1990 to 2000, Monsanto argues that Island Garden
Center had been fraudulently joined and that complete diversity of
citizenship does exist as to the properly joined parties. (Doc.
#1, ¶¶ 16-17.)
On November 15, 2019, plaintiff executed an Affidavit (Doc.
#14-1, p. 69) which stated that he had purchased Roundup and other
Monsanto products from Island Garden Center “after the year 2012”.
II.
In his motion to remand, plaintiff argues (1) Monsanto’s
Notice of Removal is procedurally deficient because (a) Island
Garden Center did not give its consent to removal, and (b) the
Notice of Removal was untimely filed, and (2) the Court lacks
subject matter jurisdiction over this case because Island Garden
Center was properly joined as a defendant, and therefore complete
diversity of citizenship is lacking. (Doc. #11, p. 2; Doc. #14,
pp. 3-9.) The Court addresses the fraudulent joinder issue first,
then the procedural aspects of the dispute.3
A.
“A defendant may remove a civil action filed in a state court
to the federal district court for the district in which the action
is pending if the district court would have had jurisdiction over
the suit.” PTA-FLA, Inc. v. ZTE USA, Inc., 844 F.3d 1299, 1304-
05 (11th Cir. 2016) (citing 28 U.S.C. § 1441(a)). District courts
have original, diversity-based jurisdiction over a civil action
when (1) the amount in controversy “exceeds the sum or value of
$75,000” and (2) each plaintiff is a citizen of a different state
from each defendant. 28 U.S.C. § 1332(a). “[T]he burden is on
the party who sought removal to demonstrate that federal
3 The Court is aware Monsanto has filed a motion to stay the
proceedings, including the Court’s consideration of plaintiff’s
motion to remand, pending a ruling by the Judicial Panel on
Multidistrict Litigation (“JPML”) on whether this case should be
transferred. (Doc. #15). While the JPML has issued a conditional
transfer order on this matter, such an order “does not affect or
suspend orders and pretrial proceedings in any pending federal
district court action and does not limit the pretrial jurisdiction
of that court.” Judicial Panel on Multidistrict Litigation Rule
2.1(d). Given the ripeness of this matter and plaintiff’s serious
health condition, the Court sees no reason to delay ruling on the
motion to remand. See Shallcross v. Bausch & Lomb Inc., 2007 WL
141280 (M.D. Fla. Jan. 16, 2007) (ruling on motion to remand
despite party’s motion to stay pending a decision by the JPML).
jurisdiction exists.” Friedman v. N.Y. Life Ins. Co., 410 F.3d
1350, 1353 (11th Cir. 2005) (citation omitted). A removed case
must be remanded to state court “[i]f at any time before final
judgment it appears that the district court lacks subject matter
jurisdiction.” 28 U.S.C. § 1447(c). A removal case based on
diversity jurisdiction must be remanded to state court if the
parties are not completely diverse. Henderson v. Wash. Nat’l Ins.
Co., 454 F.3d 1278, 1281 (11th Cir. 2006).
B.
The fundamental issue in this case is whether Island Garden
Center was properly joined as a defendant. Monsanto asserts that
Island Garden Center was fraudulently joined, while plaintiff
asserts it was properly joined. Fraudulent joinder occurs when a
plaintiff names a non-diverse defendant solely in order to defeat
federal diversity jurisdiction. Id. at 1281. A defendant seeking
to prove that a co-defendant was fraudulently joined must
demonstrate by clear and convincing evidence that “(1) there is no
possibility the plaintiff can establish a cause of action against
the resident defendant; or (2) the plaintiff has fraudulently pled
jurisdictional facts to bring the resident defendant into state
court.” Id. (citation omitted). “[I]f there is a possibility
that a state court would find that the complaint states a cause of
action against any of the resident defendants, the federal court
must find that the joinder was proper and remand the case to the
state court.” Tillman v. R.J. Reynolds Tobacco, 340 F.3d 1277,
1279 (11th Cir. 2003). The determination of fraudulent joinder
is made on the basis of plaintiff’s pleadings at the time of
removal, supplemented by any affidavits and deposition transcripts
submitted by the parties. Legg v. Wyeth, 428 F.3d 1317, 1322
(11th Cir. 2005) (citation omitted). The proceeding appropriate
for resolving a claim of fraudulent joinder is similar to that
used for ruling on a motion for summary judgment under Federal
Rule of Civil Procedure 56(b), in which the district court must
resolve all questions of fact in favor of the plaintiff. Id. at
1322-23 (citations omitted); see also Stillwell v. Allstate Ins.
Co., 663 F.3d 1329, 1333 (11th Cir. 2011) (“To determine whether
the case should be remanded, the district court must evaluate the
factual allegations in the light most favorable to the plaintiff
and must resolve any uncertainties about state substantive law in
favor of the plaintiff.” (citation omitted)).
At the outset, the Court finds that plaintiff’s November 15,
2019 Affidavit should not be considered as part of the fraudulent
joinder analysis because the Affidavit is a sham. “When a party
has given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact, that party cannot
thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear
testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc.,
736 F.2d 656, 657 (11th Cir. 1984).4 Plaintiff’s assertion in the
Affidavit that he purchased Roundup from Island Garden Center after
2012 contradicts his prior interrogatory answer, which was made
under oath, that he purchased Roundup from 1990 to 2000. The
contradiction is without any explanation, and the date of the
Affidavit suggests it was drafted in response to the motion to
remand. While the Eleventh Circuit has cautioned that the sham
affidavit rule should be applied “sparingly” because of the harsh
effect it may have on a party’s case, Allen v. Bd. of Pub. Educ.
for Bibb Cty., 495 F.3d 1306, 1316 (11th Cir. 2007), the Court
finds it appropriate in this circumstance.5
4 Courts within this circuit have applied the sham affidavit
rule to fraudulent joinder analyses. See, e.g., Oliva v. NBTY,
Inc., 2011 WL 13103994, *4 (S.D. Fla. Sept. 12, 2011); TKI, Inc.
v. Nichols Research Corp., 191 F. Supp. 2d 1307, 1314 (M.D. Ala.
Mar. 12, 2002).
5 The Court finds the Affidavit would be considered a sham
under Florida law as well. See DeCosmo v. Fisher, 683 So. 2d 659,
660 (Fla. 5th DCA 1996) (“Our courts have consistently ruled that
a party who opposes summary judgment will not be permitted to alter
the position of his or her previous pleadings, admissions,
affidavits, depositions or testimony in order to defeat a summary
judgment.”). To the extent plaintiff suggests his interrogatory
response should not be taken as conclusive, despite being verified,
(Doc. #14, p. 8), the Court disagrees. Plaintiff was asked when
he purchased Roundup from Island Garden Center and while plaintiff
prefaced his answer with the phrase “[t]o the best of my
knowledge,” he supplied a date range of “1990-2000.” The Court
finds the question was unambiguous and plaintiff’s clear answer
contradicts his new assertion that he purchased Roundup from Island
Garden Center at least twelve years later. Plaintiff’s “[t]o the
best of my knowledge” caveat does not redeem the Affidavit without
an explanation.
The Court also rejects plaintiff’s argument that “there is an
issue of fact as to when Island Garden Center of Marco Island was
formed and whether any assets or liabilities were transferred when
the new articles of incorporation were formed in 2010.” (Doc.
#14, p. 8.) There is no evidence to support this assertion, as
plaintiff is merely speculating Island Garden Center may have
acquired a similarly named business previously located at the same
address.6 For factual issues to be considered “genuine,” they
must have a real basis in the record, and unsupported factual
allegations are legally insufficient to defeat a summary judgment
motion. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)
(citation omitted). Furthermore, plaintiff’s assertion
contradicts the declaration provided by Island Garden Center’s
president, in which he stated:
I incorporated Island Garden Center as a new corporate
entity. Island Garden Center was not created through a
merger, acquisition, or any other kind of agreement with
any other company, corporation, or business entity.
Island Garden Center is not a successor to any company,
corporation, or business entity.
(Doc. #1-9, p. 279.) Accordingly, there is no “issue of fact” as
plaintiff suggests. See Legg, 428 F.3d at 1322-23 (recognizing
that the district court must resolve all questions of fact in favor
6 The records indicate the following business entities had
the same principal address: “Island Garden Center, Inc.,”
incorporated in 2001; “Island Garden Center, LLC,” incorporated in
2006; and defendant “Island Garden Center of Marco Island, Inc.,”
incorporated in 2010. (Doc. #14-1, pp. 66-68.)
of the plaintiff in resolving a claim of fraudulent joinder, but
noting “there must be some question of fact before the district
court can resolve that fact in the plaintiff’s favor”).
Having considered the parties’ arguments, the Court finds
Monsanto has met its burden of demonstrating fraudulent joinder.
The evidence in the record clearly demonstrates Island Garden
Center was not incorporated until 2010 and could not be held liable
for sales of Roundup that took place before then. Accordingly,
the Court finds plaintiff does not have a viable cause of action
against Island Garden Center and therefore its citizenship should
not be considered. As there is no dispute the remaining
requirements of 28 U.S.C. § 1332(a) are met, the Court finds it
has subject matter jurisdiction over this matter.
C.
Plaintiff also argues there was a procedural defect in the
Notice of Removal because Island Garden Center failed to consent
to the removal, as required by 28 U.S.C. § 1446(b)(2)(A). This
requirement, known as the “unanimity rule,” must be “strictly
interpreted and enforced because of the significant federalism
concerns arising in the context of federal removal jurisdiction.”
Stone v. Bank of N.Y. Mellon, N.A., 609 Fed. App’x 979, 981 (11th
Cir. 2015) (citations omitted). Failure to abide by the unanimity
rule “requires a remand of the case back to state court.” Griffin
v. Lowe’s Companies, Inc., 2018 WL 2676580, *1 (M.D. Fla. June 5,
2018). However, because Monsanto has shown fraudulent joinder,
there was no need for Island Garden Center to consent to removal.
See Bio-Oxford Importacao LTDA. v. Bio-Oxford USA, Inc., 2016 WL
6427827, *2 (S.D. Fla. Jan. 19, 2016) (“[T]he unanimity rule . .
. does not apply when the non-diverse defendant is fraudulently
joined for the purpose of preventing removal.” (citation
omitted)).
Plaintiff also asserts that the Notice of Removal was
untimely. To remove an action, the defendant must file a notice
of removal within thirty days of the receipt of the initial
pleading if the complaint is removable on its face. 28 U.S.C. §
1446(b)(1). It is undisputed that Monsanto did not file a notice
of removal within this thirty-day period (the action was removed
on November 15, 2019, and Monsanto was served in April 2019).
(Doc. #1-4, p. 134.) But the case was not removable at the time
it was filed because it included a Florida plaintiff and two
Florida defendants (Soon Come, Inc. and Island Garden Center).
Additionally, nothing on the face of the Complaint suggests any
defendant had been fraudulently joined. Therefore, this thirty-
day period did not apply.
Section 1446 provides that if the case stated by an initial
pleading is not removable, a notice of removal may be filed within
thirty days after receipt by the defendant “of a copy of an amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3). Monsanto asserts the removal was timely
because it occurred within thirty days of its receipt of an “other
paper” under section 1446(b)(3). (Doc. #27, pp. 13-17.) The
“other paper” Monsanto refers to is the November 14, 2019
declaration by the president of Island Garden Center. (Id.)
Monsanto removed the case to this Court within one day of the date
of the declaration. (Doc. #1.) Plaintiff responds that the
thirty days began with his July 12, 2019 interrogatory answer.
(Doc. #14, p. 5.) The Court finds that neither party’s argument
is correct.
Monsanto’s argument fails because the declaration does not
qualify as “other paper” under § 1446(b)(3). The Eleventh Circuit
has stated that to remove a case under section 1446(b)(3), “there
must be (1) ‘an amended pleading, motion, order or other paper,’
which (2) the defendant must have received from the plaintiff (or
from the court, if the document is an order), and from which (3)
the defendant can ‘first ascertain’ that federal jurisdiction
exists. Lowery v. Ala. Power Co., 483 F.3d 1184, 1213 n.63 (11th
Cir. 2007) (emphasis provided). Because the declaration Monsanto
relies upon was not provided by plaintiff, it cannot constitute
“other paper” under section 1446(b)(3). See Chicoine v. Wellmark
Inc., 2018 WL 1710545, *2 (N.D. Ala. Apr. 9, 2018) (“When a case
is removed pursuant to § 1446(b)(3), a defendant must
‘unambiguously establish federal jurisdiction’ from ‘other paper’
received ‘from the plaintiff’ (or the court, if the document is an
order).”); Houston v. Mid-West Nat’l Life Ins. Co. of Tenn., 2013
WL 12157563, *2 (M.D. Fla. Feb. 11, 2013) (stating that removals
pursuant to section 1446(b)(3) “may only be based on documents
received from the plaintiff or the court”); Sallee v. Ford Motor
Co., 2014 WL 1492874, *5 (M.D. Ala. Apr. 16, 2014) (“Here, the
Bridgestone Defendants received the Fitzgerald Affidavit from the
former president of Woodmere, one of the non-diverse defendants.
This affidavit was not received from Plaintiffs and, thus, violates
Lowery’s ‘receipt from the plaintiff’ rule. Because Defendants
did not receive the affidavit from Plaintiffs, it cannot be
considered ‘other paper,’ and, therefore, the Fitzgerald Affidavit
does not satisfy the requirements of § 1446(b)(3). Removal based
on the affidavit was not proper.” (citation omitted)).
But plaintiff’s position that the thirty-day period began on
July 12, 2019 is also not correct. Although the interrogatory
answer was an “other paper” which was received from plaintiff, it
did not provide information which allowed Monsanto to “first
ascertain” that federal jurisdiction exists within the meaning of
Lowery. Plaintiff simply gave a ten-year purchase range in the
interrogatory response, which does not suggest or allow the
ascertainment of federal jurisdiction. Therefore, this time
period has not begun. See King v. United Way of Cent. Carolinas,
Inc., 2009 WL 2426303, *3 (W.D. N.C. Aug. 5, 2009) (“Although it
is without question that a defendant may be deemed to have waived
his right to remove an action under § 1446 by failing to act within
thirty days from service of the complaint, the fact that this time
period had not yet begun to run does not prohibit the defendant
from exercising his right to remove.”); Crittenden v. TX Newco,
LLC, 2006 WL 8440302, *3 (W.D. Ark. Aug. 17, 2006) (“The 30 day
time period in § 1446(b) merely requires defendants exercise due
diligence to remove cases within a specific time and does not
render class of cases unremovable by virtue of fact that time limit
is not yet running.”); Robinson v. Quality Ins. Co., 633 F. Supp.
572, 576 (S.D. Ala. 1986) (“The statute authorizing removal does
not say anything about removals that occur too soon. It merely
requires that defendants exercise due diligence to remove cases
within a specific time: thirty days.”).
Accordingly, it is hereby
ORDERED:
1. Plaintiff’s Motion to Remand and Request for Emergency
Hearing On Same (Doc. #11) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this 10th day
of December, 2019.
if ——
hu >» Loot
ade E. STEELE
SHNIOR UNITED STATES DISTRICT JUDGE
Copies:
Counsel of Record