Exclusive Group Holdings, Inc. v. National Union Fire Insurance Co. of Pittsburgh, Pennsylvania

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

EXCLUSIVE GROUP HOLDINGS,

INC.,

Plaintiff,

v. Case No: 2:22-cv-474-JES-NPM

NATIONAL UNION FIRE

INSURANCE CO. OF PITTSBURGH,

PENNSYLVANIA, BBCG CLAIMS

SERVICES, AIG CLAIMS, INC.,

and AMERICAN INTERNATIONAL

GROUP, INC.,

Defendants.

OPINION AND ORDER

This matter comes before the Court on Defendants’ Objections

to Magistrate Judge’s Order Dated July 31, 2023. (Doc. #108).

Plaintiff filed an Opposition. (Doc. #109). For the reasons set

forth below, the objections are sustained in part and overruled in

part. After de novo review, the underlying Motion for leave to

file a Third Amended Complaint (Doc. #92) is granted in part, a

modified Third Amended Complaint is allowed, and the case is

remanded to state court for further proceedings.

I.

This case was originally filed in state court and was properly

removed to federal court. After removal, plaintiff was permitted,

without objection, to file a Second Amended Complaint (SAC) (Doc.

#79) setting forth ten state-law claims. (Doc. #77.) In the SAC,

plaintiff Exclusive Group Holdings, Inc. (Exclusive or Plaintiff)

sues its insurer (National Union Fire Insurance Company of

Pittsburgh Pennsylvania (NUFIC)), and three others: AIG Claims,

Inc. (AIG Claims), BBCG Claims Services (BBCG)1, and AIG Property

Casualty, Inc (AIG) (collectively Defendants). Defendant NUFIC

issued two insurance policies to Exclusive. The three additional

defendants allegedly caused NUFIC to wrongfully deny Exclusive’s

sixteen insurance claims. AIG Claims, a third-party claims

administrator, and BBCG, a third-party adjusting firm, were

engaged by NUFIC to help evaluate Exclusive’s claims. AIG is a

large insurance underwriter, and both NUFIC and AIG Claims are

wholly owned subsidiaries of AIG. Federal jurisdiction is

premised on complete diversity of citizenship. (Doc. #79, ¶ 12.)

On March 23, 2023, Exclusive filed a motion (Doc. #92) seeking

leave to file a third amended complaint adding J.S. Held, Inc.

(J.S. Held) as an additional defendant and adding claims against

it. J.S. Held is a corporate investigation firm engaged by counsel

for NUFIC to investigate portions of the insurance claims filed by

Exclusive. As it turns out, J.S. Held is a non-diverse entity

whose presence as a party-defendant would destroy federal

diversity jurisdiction. Because of this, remand to state court

1 The Court recognizes that defendants assert BBCG is a mis-

named party (Doc. #108, p. 1 n.1), but this issue need not be

resolved here.

would be mandatory if the motion was granted. 28 U.S.C. §

1447(e)2. See also Ingram v. CSX Transp., Inc., 146 F.3d 858, 862

(11th Cir. 1998).

On July 31, 2023, the Magistrate Judge issued an Order

Granting Leave to Add Party and Remanding Case to State Court (Doc.

#103) (the Order). The Order granted leave to file the Third

Amended Complaint which added three state law claims against J.S.

Held as a named defendant. Because complete diversity of

citizenship was no longer present, the Order also remanded the

case to state court. The Order gave the parties fourteen days to

file objections, noting this was the time allowed for objections

to a non-dispositive order under Fed. R. Cv. P. 72(a). If no

objection was filed, the case would be remanded to state court

pursuant to the Order. (Doc. #103 at 14-15.)

All Defendants timely filed the following four objections to

the Magistrate Judge’s Order: (1) the Magistrate Judge had no

authority to remand the case in an order, but instead was required

to issue a report and recommendation (R&R) to the district judge

for de novo review; (2) the Magistrate Judge erred by relying

almost exclusively on the fraudulent joinder test as the applicable

standard to determine whether to grant the motion to amend; (3)

2 “If after removal the 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.” 28 U.S.C. § 1447(e).

the Magistrate Judge erred in finding that a Florida court would

conceivably allow the claims against J.S. Held to proceed; and (4)

the Magistrate Judge misapplied some of the appropriate factors in

weighing whether to grant leave to file the Third Amended

Complaint. (Doc. # 108.) Plaintiff responded that the Magistrate

Judge got it right in all respects. (Doc. # 109.)

II.

As summarized above, the Magistrate Judge issued an “Order”

which (1) allowed the filing of a Third Amended Complaint (TAC)

that would destroy the court’s subject matter jurisdiction by

adding a non-diverse defendant, and (2) remanded the case to the

state court from which it had been removed. The Magistrate Judge

then essentially stayed the Order to allow the filing of

objections. The Magistrate Judge reasoned that “[b]ecause a

motion to remand does not address the merits of the case but merely

changes the forum . . . it is a non-dispositive matter that does

not require a report and recommendation.” (Doc. #103, p. 14, n.10)

(quoting Lockhart v. Greyhound Lines, Inc., No. 2:22-CV-473-SPC-

KCD, 2023 WL 155279, at *5 n.3 (M.D. Fla. Jan. 11, 2023) (Dudek,

M.J.)).

Defendants essentially assert that, in the circumstances of

this case, a magistrate judge has no authority to remand a case to

state court by an order. Instead, defendants argue, a magistrate

judge is required to issue an R&R to a district judge who, as an

Article III judge, has the authority to remand the case to state

court after de novo review. (See Doc. #108, pp. 9-10.)

This issue goes to the legal authority of a magistrate judge:

Does a magistrate judge have the authority to issue an order (as

opposed to an R&R) which (1) grants a motion to amend a complaint

when the amendment will destroy federal diversity jurisdiction and

require remand, and (2) remands the case to state court based upon

the resulting lack of subject matter jurisdiction? This is a

question of law and is therefore subject to de novo review. United

States v. Shamsid-Deen, 61 F.4th 935, 944-45 (11th Cir. 2023).

A.

The basics are well-established. Federal courts are created

pursuant to Article III of the United States Constitution. U.S.

Const. art. III. Article III, § 1, of the Constitution provides

that “[t]he judicial Power of the United States, shall be vested

in one supreme Court, and in such inferior Courts as the Congress

may from time to time ordain and establish.” Congress in turn

established the one Supreme Court, 28 U.S.C. §§ 1-6, and various

Courts of Appeal, 28 U.S.C. §§ 41-49, and District Courts, 28

U.S.C. §§ 81-144, composed of judges who enjoy the protections of

Article III: life tenure and pay that cannot be diminished.

Congress later authorized district courts to appoint magistrate

judges to assist Article III courts in their work. 28 U.S.C. §

631(a); see also Wellness Intern. Network, Ltd. v. Sharif, 575

U.S. 665, 677-678 (2015).

While district courts may appoint magistrate judges, Congress

has restricted the power and authority of such magistrate judges.

“Magistrate judges do not share the privileges or exercise the

authority of judges appointed under Article III of the United

States Constitution; rather, magistrate judges draw their

authority entirely from an exercise of Congressional power under

Article I of the Constitution.” Thomas v. Whitworth, 136 F.3d

756, 758 (11th Cir. 1998). “The jurisdiction and duties of federal

magistrate judges are outlined principally in [28 U.S.C. § 636].”

Id. See, e.g., 28 U.S.C. § 636(a)(1)-(5), § 636(b)(1)-(4), §

636(c)(1)-(5).

It is clear, however, that the Article III

judge must retain final decision-making

authority. See [United States v. Raddatz, 447

U.S. 667, 681–82 (1980)]. The district court

must retain “total control and jurisdiction”

of the entire process if it refers dispositive

motions to a magistrate judge for

recommendation. Thomas v. Arn, 474 U.S. 140,

153, 106 S. Ct. 466, 474, 88 L. Ed. 2d 435

(1985) (quoting Raddatz, 447 U.S. at 681, 100

S. Ct. at 2415).

Williams v. McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009).

Title 28 U.S.C. § 636(b)(1)(A) provides that a district court

judge may designate a magistrate to “hear and determine” any civil

pretrial matter pending before the court, except certain specified

motions:

Notwithstanding any provision of law to the

contrary –

(A) a judge may designate a magistrate judge

to hear and determine any pretrial matter

pending before the court, except a motion for

injunctive relief, for judgment on the

pleadings, for summary judgment, to dismiss or

quash an indictment or information made by the

defendant, to suppress evidence in a criminal

case, to dismiss or to permit maintenance of

a class action, to dismiss for failure to

state a claim upon which relief can be

granted, and to involuntarily dismiss an

action.

28 U.S.C. § 636(b)(1)(A).3 A district judge may “reconsider” such

determinations by a magistrate judge if the magistrate judge’s

order is shown to be “clearly erroneous or contrary to law.” Id.

Although the statute provides no time limit for seeking such

reconsideration, a party must file an objection to such an order

within fourteen days of receiving a copy of the order. Fed. R.

Civ. P. 72(a).

Additionally, a district court may designate a magistrate

judge to conduct hearings and submit proposed findings and

recommendations concerning a variety of motions, including those

which the magistrate judge may not “hear and determine”:

3 The original 1968 version of the Federal Magistrate Act

allowed magistrates to be assigned “such additional duties as are

not inconsistent with the Constitution and laws of the United

States,” including “assistance to a district judge in the conduct

of pretrial or discovery proceedings in civil or criminal actions.”

28 U.S.C. § 636(b)(2) (1968). This was amended in 1976 to allow

designation of a magistrate to “hear and determine any pretrial

matter pending before the court, except . . .” for eight types of

matters. See 28 U.S.C. § 636(b)(1)(A) (1976).

(B) a judge may also designate a magistrate

judge to conduct hearings, including

evidentiary hearings, and to submit to a judge

of the court proposed findings of fact and

recommendations for the disposition, by a

judge of the court, of any motion excepted in

subparagraph (A)....

28 U.S.C. § 636(b)(1)(B); see also Williams, 557 F.3d at 1291–92.

As to these types of matters, the magistrate judge must file

“proposed findings and recommendations” to which a party may file

written objections. 28 U.S.C. § 636(b)(1). A party must file an

objection within fourteen days of being served with a copy of the

R&R. Fed. R. Civ. P. 72(b)(2). If objections are filed, “[a]

judge of the court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1);

see also Fed. R. Civ. P. 72(b)(3).

By Local Rule, the district judges of the Middle District of

Florida have provided that a magistrate judge “can exercise the

maximum authority and perform any duty permitted by the

Constitution and other laws of the United States.” M.D. Fla. R.

1.02(a). In the Administrative Order required by Local Rule

1.02(b), the Chief Judge has set forth the specifics of this

authority in some detail. See In re: Authority of United States

Magistrate Judges in the Middle District of Florida, Case No. 8:20-

mc-00100-SDM, Doc. #3 (M.D. Fla.) (the Administrative Order). As

to pretrial motions in civil cases, the Administrative Order

states:

Absent a stipulation by all affected parties,

however, a magistrate judge may not appoint a

receiver, enter an injunctive order, enter an

order dismissing or permitting maintenance of

a class action or collective action, grant in

whole or in part a motion for judgment on the

pleadings or for summary judgment, enter an

order of involuntary dismissal, or enter any

other final order or judgment that would be

appealable if entered by a district judge, but

a magistrate judge may file a report and

recommendation concerning these matters.

(Id. at p. 4, ¶ (e)(1)).

B.

The Eleventh Circuit has not published a decision addressing

whether a magistrate judge may “hear and determine” by order a

motion to amend which requires a mandatory remand pursuant to 28

U.S.C. § 1447(e) if granted. The Eleventh Circuit has held,

however, that 28 U.S.C. § 636(b)(1)(A) authorizes magistrate

judges to “hear and determine” a pretrial matter which is not

identified in or analogous to the specific statutory exceptions.

United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009).

Neither a remand to state court nor an analogous matter is included

in the excepted matters identified in § 636(b)(1)(A) which cannot

be heard and decided by a magistrate judge.

The Administrative Order does not allow a magistrate judge to

“enter any other final order or judgment that would be appealable

if entered by a district judge....” Administrative Order, p. 4,

¶ (e)(1). As a result, some remand orders may be entered by a

magistrate judge (because such orders are not appealable), while

other remand orders may not be entered by a magistrate judge

(because such orders are appealable).4 The type of remand involved

in this case is not reviewable, and therefore is within the matters

authorized by the Administrative Order to be heard and determined

by a magistrate judge by order.

Although motions to remand are not included in the list of

excepted motions in § 636(b)(1)(A), and this type of remand order

is not contrary to the Administrative Order, every court of appeals

to consider the question has held that remand to state court should

be treated as a matter which may not be resolved by a magistrate

judge by order. See Davidson v. Georgia-Pac., L.L.C., 819 F.3d

758, 762–65 (5th Cir. 2016); Flam v. Flam, 788 F.3d 1043, 1045–47

(9th Cir. 2015); Williams v. Beemiller, Inc., 527 F.3d 259, 266

(2d Cir. 2008); Vogel v. U.S. Office Prods. Co., 258 F.3d 509,

4 Only remand orders issued under 28 U.S.C. § 1447(c) are

immune from review under § 1447(d). MSP Recovery Claims, Series

LLC v. Hanover Ins. Co., 995 F.3d 1289, 1294 (11th Cir. 2021); New

v. Sports & Recreation, Inc., 114 F.3d 1092, 1095-96 (11th Cir.

1997). Remands for which review is barred under § 1447(c) include

remands based on lack of subject matter jurisdiction. Powerex Corp.

v. Reliant Energy Services Inc., 551 U.S. 224 (2007); Whole Health

Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d

1317, 1319 (11th Cir. 2001). When a district court remands a case

to state court for lack of subject matter jurisdiction, it cannot

even review its own decision by entertaining a motion for

reconsideration. Shipley v. Helping Hands Therapy, 996 F.3d 1157,

1159–60 (11th Cir. 2021); Bender v. Mazda Motor Corp., 657 F.3d

1200, 1204 (11th Cir. 2011); Harris v. Blue Cross/Blue Shield of

516-17 (6th Cir. 2001); First Union Mortg. Corp. v. Smith, 229

F.3d 992, 995–96 (10th Cir. 2000); In re U.S. Healthcare, 159 F.3d

142, 145–46 (3d Cir. 1998). The undersigned agrees with the

reasoning of these cases, particularly the Fifth Circuit:

Allowing magistrate judges to enter remand

orders at a minimum approaches the

constitutional line because “a remand order is

dispositive insofar as proceedings in the

federal court are concerned” and thus is “the

functional equivalent of an order of

dismissal.” [] Treating motions to remand as

nondispositive would create a situation in

which an Article III judge might never

exercise de novo review of a case during its

entire federal lifespan. And although a remand

order is a final disposition only of the

jurisdictional question, a merits

determination is not a necessary feature of a

“dispositive” matter as the statute labels

requests for preliminary injunctions and class

certification as dispositive. 28 U.S.C. §

636(b)(1)(A).

… Additionally, an order of remand issued by

a magistrate judge “is not reviewable on

appeal or otherwise.” 28 U.S.C. § 1447(d). Yet

the statute and rule governing magistrate

judge rulings on nondispositive matters

provides for an appeal to the district court

under the “clearly erroneous or contrary to

law” standard. 28 U.S.C. § 636(b)(1)(A); Fed.

R. Civ. P. 72(a). Classifying motions to

remand as dispositive matters on which

magistrate judges may enter recommendations

but not orders of remand avoids a potential

collision between these review provisions. It

also avoids a timing problem that would result

even if the magistrate-specific review

provisions govern a magistrate judge's entry

of a remand order: absent a stay, a remand

order sends the case back to state court and

deprives the federal court of jurisdiction

that would allow for district court review. 28

U.S.C. § 1447(c) [] Dahiya v. Talmidge Int'l,

Ltd., 371 F.3d 207, 208 (5th Cir. 2004)

(concluding that district court's remand order

deprived the court of appeals of further

federal jurisdiction).[]

We therefore join the uniform view of the

courts of appeals that have considered this

question and hold that a motion to remand is

a dispositive matter on which a magistrate

judge should enter a recommendation to the

district court subject to de novo review.

Davidson, 819 F.3d at 763–65 (5th Cir. 2016) (footnote omitted).

The instant case is an example of how allowing a magistrate

judge to remand a case by order either deprives the litigants of

the decision-making and control of an Article III judge, or

requires the court to violate a statute by reviewing actions that

are unreviewable. The Magistrate Judge lessened the Article III

concerns by essentially staying his Order to provide the

opportunity to file objections. But if the Magistrate Judge’s

Order was really an order, it was effective when entered and cannot

be reviewed, even by the magistrate judge himself. See 28 U.S.C.

§ 1447(d).

Accordingly, the Court sustains Defendants’ objection, finds

that the Magistrate Judge did not have the authority to remand

this case to state court by order, and therefore had no authority

to grant a motion to amend which would require such a remand. The

Court will therefore treat the Magistrate Judge’s Order as a report

and recommendation and address the other objections where

appropriate.

III.

Defendants object that the Magistrate Judge “applied the

incorrect standards for evaluating remand under 28 U.S.C. §

1447(e).” (Doc. #108, p. 10.) Defendants argue that the

Magistrate Judge “expressly imported” the fraudulent joinder test,

which was allowed to “supplant and overrule” the applicable multi-

factor standard. (Id. at 10-11.) Defendants further argue that

the fraudulent joinder test is “highly deferential to plaintiffs,”

while the proper standard is “deferential to defendants.” (Id. at

11-12.)

The Court reviews this objection under a de novo standard for

two reasons: a de novo standard of review is required pursuant

to 28 U.S.C. § 636(b)(1), and the objection raises an issue of

law, which are reviewed de novo. Shamsid-Deen, 61 F.4th at 944-

45.

Resolution of a motion to amend a complaint is a matter within

the discretion of the court. Johnson v. Lewis, 83 F.4th 1319,

1331 (11th Cir. 2023). This discretion is generally governed by

the liberal standard set forth in Fed. R. Civ. P. 15(a)(2), which

requires a court to “freely give leave [to amend] when justice so

requires.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).

Even under this usual standard, however, a motion to amend may be

denied “(1) where there has been undue delay, bad faith, dilatory

motive, or repeated failure to cure deficiencies by amendments;

(2) where allowing amendment would cause undue prejudice to the

opposing party; or (3) where amendment would be futile.” Garcia

v. Chiquita Brands Int'l, Inc., 48 F.4th 1202, 1220 (11th Cir.

2022) (quoting Bryant at 1163).

“Leave to amend a complaint is futile when the complaint as

amended would still be properly dismissed or be immediately subject

to summary judgment for the defendant.” Cockrell v. Sparks, 510

F.3d 1307, 1310 (11th Cir. 2007) (citation omitted). A finding

of futility is a “conclusion that as a matter of law an amended

complaint would necessarily fail.” In re Gaddy, 977 F.3d 1051,

1056 (11th Cir. 2020) (citation omitted). See also Greene v. Well

Care HMO, Inc., 778 So. 2d 1037, 1041-42 (Fla. 4th DCA 2001).

A motion to amend to add a defendant whose joinder would

destroy diversity and deprive the court of subject matter

jurisdiction is also addressed in the discretion of the court.

Ingram, 146 F.3d at 862. In such circumstances, however, non-

binding decisions5 in the Eleventh Circuit direct district courts

to “more closely scrutinize the pleading and be hesitant to allow

the new non-diverse defendant to join.” Reyes v. BJ's

Restaurants, Inc., 774 F. App’x 514, 516–17 (11th Cir. 2019)

(citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.

5 “Unpublished opinions are not controlling authority and are

persuasive only insofar as their legal analysis warrants.” Bonilla

v. Baker Concrete Const., Inc., 487 F.3d 1340, 1345 n.7 (11th Cir.

2007).

1987)). Reyes instructed that “[i]n so scrutinizing the pleading,

the district court should use its discretion in deciding whether

to allow that party to be added by balancing ‘the defendant's

interests in maintaining the federal forum with the competing

interests of not having parallel lawsuits.’” Id. at 517 (quoting

Hensgens, 833 F.2d at 1182). The equitable balance is to be guided

by four non-exclusive factors: (1) plaintiff's motive for seeking

joinder; (2) the timeliness of the request to amend; (3) whether

the plaintiff will be significantly injured if amendment is not

allowed; and (4) any other relevant equitable considerations. Id.

See also Hickerson v. Enter. Leasing Co. of Georgia, LLC, 818 F.

App’x 880, 885 (11th Cir. 2020); Dever v. Family Dollar Stores of

Georgia, LLC, 755 F. App’x 866, 869–70 (11th Cir. 2018). The

Court finds these non-published decisions persuasive.

The Court also finds that traditional principles concerning

fraudulent joinder may be considered in deciding a motion to amend

in the circumstances of this case. As relevant to this case,

fraudulent joinder requires a showing by clear and convincing

evidence that there is no possibility the plaintiff can establish

a cause of action against the non-diverse defendant. Stillwell

v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011). “If

there is even a possibility that a state court would find that the

complaint states a cause of action against any one of the resident

defendants, the federal court must find that joinder was proper

and remand the case to state court.” Stillwell, 663 F.3d at 1333

(citations omitted). As Defendants recognize, the fraudulent

joinder test can be “considered by courts as a supplement to the

Hensgens analysis.” (Doc. #108, p. 4.)

The legal standard employed by the Magistrate Judge is fully

consistent with the standard set forth above, albeit stated more

succinctly. The Magistrate Judge started with the applicable

statute, 28 U.S.C. § 1447(e); found that the decision on whether

to allow amendment was a matter within the discretion of the court;

found that in the context of the case the court was required to

scrutinize the motion more closely than under Rule 15; and, without

citing Hensgens, identified the same four factors to consider under

§ 1447(e) as set forth in Hensgens. See Doc. #103, pp. 3-4.

Defendants’ objection that the Magistrate Judge used the wrong

legal standard is therefore overruled.

IV.

Defendants’ remaining objections relate to the application of

the legal standards to the facts of this case. The Court reviews

these objections de novo. 28 U.S.C. § 636(b)(1). Application of

the legal standards to this case first requires a more detailed

examination of the record.

On June 25, 2022, Exclusive filed suit in a Florida state

court against NUFIC “and Doe Corporations 1-7.” The “identity and

location” of the Doe Corporations “could not be ascertained despite

the exercise of due diligence,” but were “believed to be related

insurance or insurance service companies who handled EXCLUSIVE’S

claims.” (Doc. #4, ¶¶ 8, 11.) The Complaint further asserted

“[o]n information and belief,” that at least some of the involved

underwriters and adjusters “are employees, agents, or

representatives of one of the Doe Corporations 1-7....” (Id. at ¶

118.) The original Complaint alleged claims against NUFIC for a

declaratory judgment, for breach of contract, and statutory bad

faith pursuant to Fla. Stat. § 624.155. (Id.) On August 5, 2022,

NUFIC properly removed the case to federal court based on diversity

jurisdiction. (Doc. #1.)

On August 25, 2022, Exclusive filed its First Amended

Complaint (Doc. #15), which removed the bad faith claim against

NUFIC and added claims of tortious interference and negligence

against new defendants BBCG, AIG Claims, and AIG. NUFIC filed an

Answer and Affirmative Defenses (Doc. #27), while the new

defendants filed motions to dismiss (Docs. #34, 47).

On October 27, 2022, the Defendants provided Exclusive with

initial disclosures identifying individuals likely to have

discoverable information, including:

Peter Pender- Office 521, Level 5, Mr. Pender-Cudlip

Cudlip, J.S. Held Standard Chartered has information

(formerly GPW+ Co Building, Dubai, UAE regarding the

Ltd.) Peter.Pender- evaluation of

Cudlip@jsheld.com Plaintiff’s alleged

+971 4 881 3199 buyers and other

counterparties in

the claimed

transactions.

Paola Tenconi, Office 521, Level 5, Ms. Tenconi has

J.S. Held Standard Chartered information

(formerly GPW+ Co Building, Dubai, UAE regarding the

Ltd.) Paola.Tenconi@jsheld.co evaluation of

m Plaintiff’s alleged

+971 4 881 3199 buyers and other

counterparties in

the claimed

transactions.

(Doc. #92-23, p. 4.)

When discussing possible deadlines to amend pleadings at a

scheduling conference on November 2, 2022, the Magistrate Judge

and Exclusive’s counsel had the following exchange:

The Court: Is there anything right now? Is there like an

entity or a claim that you’re currently, you know,

entertaining possibly adding?

Exclusive’s counsel: I don’t know. There are some new

entities that came out in the initial disclosures from

the other side, some entities based in Dubai.

(Doc. #63, p. 30.)

On November 30, 2022, Exclusive served a document subpoena on

J.S. Held. On December 14, 2022, J.S. Held acknowledged receipt

and explained its specific role:

GPW (Middle East) Limited, an entity acquired by J.S.

Held in April 2022, was engaged by [Hastings], who NUFIC

and AIG Claims, Inc. engaged to provide legal advice

regarding the existence and scope of coverage for the 16

insurance claims (the "Claims") that Plaintiff submitted

under two trade credit insurance policies issued by

NUFIC (the "NUFIC Policies") to Plaintiff. GPW's

activities, which consisted of conducting an

investigation into Plaintiff’s alleged buyers in the

wholesale telecommunications industry (the “Buyers”)

that Plaintiff named in the Claims, were directed by

NUFIC’s Outside Counsel for purposes of identifying and

providing information to NUFIC’s Outside Counsel, NUFIC,

and AIG Claims, Inc. and to assist NUFIC’s Outside

Counsel in providing legal advice to NUFIC and AIG

Claims, Inc. (who at all times acted as NUFIC’s

authorized third-party claims administrator). In this

capacity, and under the direction of NUFIC’s Outside

Counsel, GPW researched, investigated, obtained and

otherwise collected information regarding the Buyers and

other counterparties involved in Plaintiff’s alleged

transactions with the Buyers that formed the underlying

basis for its Claims. As part of its investigation, GPW

provided NUFIC’s Outside Counsel with its mental

impressions regarding the information it collected and

communicated to NUFIC’s Outside Counsel, NUFIC, and AIG

Claims, Inc. regarding its investigation and the

findings derived therefrom.

(Doc. #92-25, p. 2.)

On January 6, 2023, plaintiff filed a Second Amended Complaint

(Doc. #79.) This mooted the pending motions to dismiss. (Doc.

#80.) NUFIC filed an Answer and Affirmative Defenses (Doc. #83)

and a Motion to Strike Allegations of, and Request for Extra-

Contractual Consequential Damages (Doc. #84), and the other

defendants filed motions to dismiss (Docs. ## 85, 86). The

documents subpoenaed from J.S. Held were produced on January 30,

2023. (Doc. #103, p. 6.)

On March 1, 2023, Exclusive filed an Unopposed Motion for

Leave to File a Third Amended Complaint and Add a Party. (Doc.

#89.) Among other things, Exclusive sought to add J.S. Held as a

defendant and asserted that its joinder was “not [previously]

possible until the production of documents by J.S. Held on January

30, 2023 in response to a subpoena served by [Exclusive] on J.S.

Held on November 30, 2022.” (Doc. #89 at ¶ 10.) The Magistrate

Judge, recognizing that Exclusive never mentioned J.S. Held’s

citizenship, denied Exclusive’s motion without prejudice for

“fail[ure] to show that J.S. Held would not destroy diversity....”

(Doc. #91, pp. 1-2.) Exclusive was afforded the opportunity to

“renew its motion within fourteen days of th[e] order.” (Id. at p.

2.)

The parties conferred and realized J.S. Held was a non-diverse

entity. (See Doc. #92-26.) On March 23, 2023, Exclusive re-filed

a motion for leave to file a TAC, seeking to add J.S. Held as a

defendant and remand the case to state court because J.S. Held’s

presence as a defendant would destroy diversity jurisdiction.

(Doc. #92.) This time, defendants opposed the motion. (Doc.

#93.) The Magistrate Judge’s Order (deemed to be a R&R) granting

the motion is now before the Court on Defendants’ objections.

Defendants assert that the Magistrate Judge made several

errors in his application of the factors set forth in Hensgens.

(Doc. #108, pp. 4, 12-20.) The Court applies the Hensgens standard

de novo, addressing the specific objections where appropriate.

(1) Purpose of Amendment

The first factor to consider is Plaintiff’s motive for seeking

the amendment to add J.S. Held as a defendant. Hensgens, 833 F.2d

at 1182. Defendants asserted before the magistrate judge “that

the purpose of Plaintiff’s Motion is to eliminate federal

jurisdiction” (Doc. #93, p.2), and continues to take that position

here. (Doc. #108, p. 5) (“[T]he Remand Order misapplies the

Hensgens factors relating to Plaintiff’s motives....”).

The original Complaint filed in state court made specific

reference to Doe Corporations whose identity had not been

determined. This Complaint was removed to federal court on August

5, 2022. Exclusive learned of J.S. Held and its role through

post-removal discovery in federal court. Exclusive first learned

of J.S. Held’s existence on or about October 27, 2022, and did not

meaningfully know its specific involvement until subpoenaed

documents were produced on January 30, 2023. (Docs. #92, p. 12;

Doc. #108, p. 23.)

The record clearly establishes that Exclusive sought to add

J.S. Held as a defendant before realizing it was a non-diverse

entity. Exclusive’s first motion to file a TAC (Doc. #89) did not

recognize any potential jurisdictional issues and it was

unopposed. It was not until the Magistrate Judge questioned J.S.

Held’s citizenship that the parties conferred and realized federal

jurisdiction was implicated by the motion. The Court finds that

plaintiff’s motive in adding J.S. Held was to proceed against one

of the recently identified Doe Corporations, not to destroy federal

diversity jurisdiction. Thus, the Court agrees with the finding

of the Magistrate Judge that the purpose for the amendment was not

concerned with avoiding federal jurisdiction. (Doc. #103, pp. 4-

5.) Defendants’ objection is therefore overruled, and this factor

weighs in favor of amendment and remand.

(2) Timeliness of Amendment/Dilatory Tactics

The second factor to consider is the timelines of the

amendment and any dilatory tactics by Plaintiff in its efforts to

add J.S. Held as a defendant. Hensgens, 833 F.2d at 1182.

Defendants accuse Plaintiff of engaging in “dilatory tactics” to

destroy federal jurisdiction. (Doc. #108, p. 22.)

“A plaintiff is dilatory in adding a non-diverse party when

the plaintiff waits an unreasonable amount of time before asking

for an amendment, despite having been able to ascertain the party’s

role in the suit all along.” Hickerson, 818 F. App'x at 886. The

evidence establishes that Exclusive was not dilatory.

The timeline indicates that no unreasonable amount of time

elapsed before Exclusive moved to amend to add J.S. Held:

•

October 27, 2022: Exclusive learned of J.S. Held’s existence.

•

November 2, 2022: Exclusive alerted the Court and Defendants

of its possible desire to join J.S. Held.

•

November 30, 2022: Exclusive subpoenaed J.S. Held.

•

December 14, 2022: J.S. Held acknowledged the subpoena and

outlined its role in the events.

•

January 30, 2023: J.S. Held responded to subpoena by producing

documents.

•

March 1, 2023: Exclusive moved to amend pleadings and add

J.S. Held as a defendant.

Thus, Exclusive notified all parties it was contemplating adding

J.S. Held six days after first learning of its existence. Twenty-

eight days later, it subpoenaed documents from J.S. Held. Sixty-

one days later, J.S. Held responded to the subpoena. Thirty days

later, Exclusive filed its first motion to amend to add J.S. Held

as a defendant. The Court finds that Exclusive acted with

reasonable speed and diligence; the most sizable delay came not

from Exclusive, but from J.S. Held in complying with the subpoena.

An additional “dilatory tactic” identified by Defendants is

that Exclusive filed its motion to amend on the last day of the

court-mandated deadline for such amendments. (See Doc. #108, pp.

22-23.) Complying with the schedule set forth in a court order

simply cannot be considered dilatory. See e.g., S. Waste Sys., LLC

v. City of Coral Springs, Fla., No. 06-61448-CIV, 2008 WL 11333808,

at *2 (S.D. Fla. Apr. 1, 2008) (rejecting defendant’s argument

that a dilatory motive was evident because the motion was filed on

the last day of deadline). This is particularly so here, where

defendants initially proposed a longer (May 1, 2023) deadline for

Exclusive to amend the pleadings than that adopted by the

Magistrate Judge (March 1, 2023). (See Doc. #63, p. 29.)

Additionally, Defendants filed motions to extend various deadlines

exception (Doc. #29), both sides consented to extensions of time

requested by an opposing party. (Docs. ## 50, 75, 81, 87.)

The Court finds that Exclusive has not utilized dilatory

tactics, and its motion was timely. Thus, the Court agrees with

the Magistrate Judge that plaintiff was not dilatory in seeking

the amendment. (Doc. #103, pp. 5-6.) Therefore, Defendants’

objection is overruled, and this factor weighs in favor of

amendment and remand.

(3) Injury to Plaintiff

The third factor to consider under Hensgens is whether

plaintiff will be significantly injured if the amendment is not

allowed. Hensgens, 833 F.2d at 1182. The Magistrate Judge found

Plaintiff would be significantly injured if the motion was not

granted. Defendants assert this was error.

Exclusive seeks to bring three alternative claims against

J.S. Held: (1) Count V alleges a claim of tortious interference

with Exclusive’s relationship with NUFIC which caused NUFIC to

wrongfully deny the insurance claims (Doc. #92-1, ¶ 284); (2) Count

IX alleges a claim of negligence, asserting that J.S. Held

“negligently interfered with Exclusive Group’s ability to obtain

payment for the Claims” (Id. at ¶ 383); and (3) Count XIII alleges

of that J.S. Held “aided and abetted AIG and AIG CLAIMS in

tortiously interfering with Exclusive Group’s ability to obtain

payment for the Claims.” (Id. at ¶ 484). Thus, Exclusive claims

that J.S. Held either tortiously interfered with its contractual

relationship with NUFIC, or negligently did so, or aided and

abetted the other non-NUFIC defendants in doing so.

(a) Parallel Litigation

The Magistrate Judge found that denying the amendment would

require Plaintiff to maintain parallel litigation in state court.

This would impose substantial and inappropriate burdens on

Exclusive considering the similarity and overlap of the claims and

the resulting unnecessary expense, waste of limited judicial

resources, and risk of inconsistent outcomes. (Doc. #103, pp. 6-

7.)

Parallel litigation in state court does not necessarily

amount to a significant injury — even if it results in duplicative

efforts on plaintiffs’ part. Hickerson, 818 F. App’x at 886. For

example, the Eleventh Circuit in a different context identified

nine non-exclusive factors to consider in determining “whether to

abstain from exercising jurisdiction over state-law claims in the

face of parallel litigation in the state courts.” Ameritas

Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1331 (11th Cir.

2005). Here, all the claims are interrelated state-law claims.

In this case, forcing Plaintiff to bear the extra cost and time to

litigate interrelated and overlapping claims in two different

forums places a significant burden on Plaintiff. It also

adversely impacts the public’s interest in conserving scarce

judicial resources and avoiding potentially inconsistent rulings.

After de novo review, the Court agrees with the Magistrate Judge

that denying the motion would result in parallel litigation which

would significantly injure Plaintiff.

(b) No Fraudulent Joinder

The Magistrate Judge also found that under Florida law both

the tortious interference claim and the aiding and abetting

tortious interference claim against J.S. Held were “possible,”

thus defeating the fraudulent joinder argument. (Doc. #103, pp.

9-14.) The Magistrate Judge did not address the negligence claim.

Defendants argue at some length that Plaintiff will not suffer

significant injury because Florida law precludes all the claims

Exclusive asserts against J.S Held. (Doc. #108, pp. 12-20.)

Defendants assert that the Magistrate Judge failed to consider the

propriety of Plaintiff’s claims under applicable Florida insurance

law, that such claims are prohibited under Florida insurance law,

and that it would therefore be futile to allow such an amendment.

(Id.) Defendants state that “Florida courts have consistently

rejected attempts by plaintiffs to evade this statutory framework

[Fla. Stat. § 624.155] by masquerading their bad faith claims under

alternative common law tort labels.” (Id. at 14.)6 In a footnote,

6 Along the same lines, Defendants assert that: “[t]he Remand

Order is contrary to the letter and spirit of Florida’s statutory

insurance framework, because it allows Plaintiff to add improper

third-party tort claims against J.S. Held.” (Doc. #108, p. 3);

Defendants cite five cases in support of this proposition. (Id.

at 14-15, n.9.)

After a de novo review, the Court agrees with the Magistrate

Judge that the fraudulent joinder standard has not been satisfied

in this case. The tortious interference and aiding and abetting

claims clearly satisfy the Florida pleading standard7, so it is

more than possible that a Florida state court would conclude

Plaintiff stated causes of action.

(c) Futility of Amendment

Defendants also argue that the Magistrate Judge improperly

let only the fraudulent joinder test drive the outcome in the

propriety of Plaintiff’s claims under applicable Florida insurance

law” which “would not allow Plaintiff’s unbundled insurance bad

faith ‘tort’ claims against adjusters, administrators,

investigators or other third parties retained to assist the insurer

to proceed past the pleading stage.” (Id. at 4); “Plaintiff’s

purported claims against J.S. Held are nothing more than run-of-

the-mill insurance bad faith claims” which are being improperly

directed “at the third parties that assisted its insurer’s

investigation.” (Id. at 9); “Plaintiff’s causes of action against

J.S. Held, while dressed up with tort labels, are nothing more

than an unbundled cause of action for statutory insurance bad

faith. See Fla. Stat. § 624.155.” (Id. at 12); the allegations

against J.S. Held “precisely fit within the contours of a Florida

statutory insurance bad faith claim and Unfair Claims Settlement

Practices Act. See Fla. Stat. § 624.155(1)(a)1; Fla. Stat. §

626.9541(i).” (Id. at 14); and “the proper inquiry is whether an

insured can circumvent Florida’s established statutory insurance

framework by asserting what are, in effect, insurance bad faith

claims against third parties that participated in the claims

handling process, before that insured has established the

insurer’s breach by failing to pay a covered claim.” (Id. at 5.)

7 See footnote 9.

Order. (Doc. #108, pp. 4, 12.) The Court agrees that the

Magistrate Judge’s analysis ended too soon. The futility of a

proposed amendment is a relevant factor, so it is necessary to

determine whether adding such claims would be futile. As

discussed earlier, a futility determination utilizes a

significantly different legal standard than required to determine

fraudulent joinder. Leave to amend a complaint is futile when the

complaint as amended would still be properly dismissed. Cockrell,

510 F.3d at 1310. Futility requires a conclusion that as a matter

of law an amended complaint would necessarily fail. In re Gaddy,

977 F.3d at 1056. For the reasons discussed below, after de novo

review the Court finds that, except for the negligence claim,

Defendants have not shown that the J.S. Held claims would be

properly dismissed, either by a federal8 or a Florida9 court.

8 “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim for

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quotation omitted). To be considered plausible,

the allegations in the complaint must “raise a right to relief

above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007).

9 “Florida is a fact-pleading jurisdiction, not a notice-

pleading jurisdiction.” Graulau Maldonado v. Orange Cnty. Pub.

Library Sys., 273 So. 3d 278, 279 (Fla 5th DCA 2019) (citation

omitted). “To survive a motion to dismiss, a complaint must allege

a prima facie case. In evaluating a motion to dismiss, the court

confines its consideration to the four corners of the complaint

and must accept all well-pleaded allegations as true.” Alvarez v.

E & A Produce Corp., 708 So. 2d 997, 999 (Fla. 3d DCA 1998).

“Whether a prima facie case has been pled depends on the

sufficiency of the plaintiff's allegations of fact, excluding the

Therefore, amendment to add these two claims is not precluded as

futile.

Defendants’ principal argument describes all of Exclusive’s

claims against J.S. Held as an improper “unbundled” statutory bad

faith claim against an insurer pursuant to Fla. Stat. § 624.155.

The Court is not convinced.

In Florida,

. . . a claim for bad faith pursuant to section

624.155(1)(b)1 is founded upon the obligation

of the insurer to pay when all conditions

under the policy would require an insurer

exercising good faith and fair dealing towards

its insured to pay. This obligation on the

part of an insurer requires the insurer to

timely evaluate and pay benefits owed on the

insurance policy. We hasten to point out that

the denial of payment does not mean an insurer

is guilty of bad faith as a matter of law. The

insurer has a right to deny claims that it in

good faith believes are not owed on a policy.

Even when it is later determined by a court or

arbitration that the insurer's denial was

mistaken, there is no cause of action if the

denial was in good faith. Good-faith or bad-

faith decisions depend upon various attendant

circumstances and usually are issues of fact

to be determined by a fact-finder.

Suzmar, LLC v. First Nat'l Bank of S. Miami, So. 3d , 2023

WL 5597394, *1 (Fla. 3d DCA Aug. 30, 2023). “Those allegations are

then reviewed in light of the applicable substantive law to

determine the existence of a cause of action.” Age of Empire, Inc.

v. Ocean Two Condo. Ass'n, Inc., 367 So. 3d 1278, 1279–80 (Fla. 3d

DCA 2023) (citation omitted). “A motion to dismiss tests the legal

sufficiency of the complaint and does not determine factual issues.

[] To state a cause of action, a complaint must allege sufficient

ultimate facts to show that the pleader is entitled to relief.” TR

Inv'r, LLC v. Manatee Cnty., 355 So. 3d 1004, 1010 (Fla. 2d DCA

Vest v. Travelers Ins. Co., 753 So. 2d 1270, 1275 (Fla. 2000).

“[T]he duty of good faith involves diligence and care in the

investigation and evaluation of the claim against the insured,

negligence is relevant to the question of good faith.” Boston Old

Colony Ins. Co. v. Gutierrez, 386 So. 2d 783, 785 (Fla. 1980).

Before asserting a bad faith claim under § 624.155, plaintiff must

establish a prior determination of the existence of liability and

the extent of the insured's damages. Blanchard v. State Farm Mut.

Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991); Vest, 753 So.

2d at 1276 (“We continue to hold in accord with Blanchard that

bringing a cause of action in court for violation of section

624.155(1)(b)1 is premature until there is a determination of

liability and extent of damages owed on the first-party insurance

contract.”) First-party bad faith claims are not considered to

be willful torts but are “purely a creature of statute that did

not previously exist at common law.” Citizens Prop. Ins. Corp.

v. Perdido Sun Condo. Ass'n, Inc., 164 So. 3d 663, 667 (Fla. 2015).

The claims against J.S. Held are not claims against an

“insurer” within the meaning of Fla. Stat. § 624.155. None of the

cases cited by Defendants in their footnote discussed “unbundled”

bad faith claims or held that Fla. Stat. § 624.155 provided some

sort of immunity to a third party whose wrongful conduct enabled

an insurer to engage in its bad faith conduct.

(i) Tortious Interference by J.S. Held

The Florida Supreme Court has recognized a cause of action

for tortious interference with a business relationship. Stone v.

Wall, 734 So. 2d 1038, 1044 (Fla. 1999) (citations omitted). “Four

elements are required to establish tortious interference with a

contractual or business relationship: (1) the existence of a

business relationship or contract; (2) knowledge of the business

relationship or contract on the part of the defendant; (3) an

intentional and unjustified interference with the business

relationship or procurement of the contract's breach; and (4)

damage to the plaintiff as a result of the interference.” Howard

v. Murray, 184 So. 3d 1155, 1166 (Fla. 1st DCA 2015) (citations

omitted).

Count V alleges a claim of tortious interference with

Exclusive’s relationship with NUFIC which caused NUFIC to

wrongfully deny the insurance claims. (Doc. #92-1, ¶ 284.) Count

V alleges all four elements of a tortious interference claim.

(Id. at ¶¶ 273-275, 285.) These allegations are sufficient to

satisfy the Florida pleading standard.

Contrary to Defendants’ arguments, Florida courts have

recognized that, in insurance cases, “[a]n agent is individually

liable to a third person for the agent's tortious conduct.” Liberty

Surplus Ins. Corp. v. First Indem. Ins. Servs., Inc., 31 So. 3d

852, 856 (Fla. 4th DCA 2010) (citation omitted). Florida law

attaches liability to an insurer’s agent not “based upon the

existence of any contractual relationship between the agent and a

principal but upon the common law obligation that every person

must so reasonably act or use that which he or she controls as not

to harm another.” Sussman v. First Fin. Title Co. of Fla., 793 So.

2d 1066, 1069 (Fla. 4th DCA 2001). “An agent or broker also has

a duty of reasonable care [to a customer] in rendering advice on

insurance matters.” Wachovia Ins. Servs., Inc. v. Toomey, 994 So.

2d 980, 990 n.4 (Fla. 2008) (quoting 5 Florida Torts § 150.24

(2007)). Ultimately, “[a]n intermediary may be liable to an insured

on both tort and contract theories.” Douglas R. Richmond,

Insurance Agent and Broker Liability, 40 Tort Trial & Ins. Prac.

L.J. 1, 10 (2004).

(ii) Aiding and Abetting

Count XIII of the TAC alleges that J.S. Held “aided and

abetted AIG and AIG CLAIMS in tortiously interfering with Exclusive

Group’s ability to obtain payment for the Claims.” (Doc. #92-1,

¶ 484).

Generally, to state a claim for aiding and abetting a tort

plaintiff must allege: “(1) an underlying violation on the part of

the primary wrongdoer; (2) knowledge of the underlying violation

by the alleged aider and abetter; and (3) the rendering of

substantial assistance in committing the wrongdoing by the alleged

aider and abettor.” Taubenfeld v. Lasko, 324 So. 3d 529, 543–44

(Fla. 4th DCA 2021) (citing Lawrence v. Bank of Am., N.A., 455 F.

App’x 904, 906 (11th Cir. 2012) (applying Florida law)). Thus, a

cause of action for aiding and abetting tortious interference

requires a plaintiff to allege: 1) the existence of the underlying

tortious interference on the part of a primary wrongdoer; 2)

knowledge of the tortious interference by the alleged aider and

abettor; and 3) the aider and abettor's substantial assistance or

encouragement of the wrongdoing. Logan v. Morgan, Lewis & Bockius

LLP, 350 So. 3d 404, 410 (Fla. 2d DCA 2022). The allegations in

Count XIII of the TAC (Doc. #92-1, ¶¶ 471, 473-474, 475, 480) are

sufficient to satisfy the Florida pleading standard.

(iii) Negligence Claim

Count IX alleges a claim of negligence, asserting that J.S.

Held “negligently interfered with Exclusive Group’s ability to

obtain payment for the Claims” (Id. at ¶ 383). The Magistrate

Judge’s Order did not discuss the negligence claim. As noted

above, tortious interference requires an intentional and

unjustified interference with the business relationship or

procurement of the contract's breach. Howard, 184 So. 3d at 1166.

Florida does not recognize a claim for negligent tortious

interference with a contract or business relationship. Florida

Power & Light Co. v. Fleitas, 488 So. 2d 148, 151-52 (Fla. 3d DCA

1986). Since this count does not state a claim upon which relief

may be granted, Count IX of the TAC will be stricken.

(4) Equitable Factors

Finally, a district court must balance the equities which may

be involved in the case. Hensgens, 833 F.2d at 1182. Both sides

essentially argue that they have a “right” to proceed in the forum

of their choice, with Plaintiff choosing the state forum and

Defendants choosing the federal forum. Neither is wrong. It has

long been the law that “absent fraudulent joinder, plaintiff has

the right to select the forum, to elect whether to sue joint

tortfeasors and to prosecute his own suit in his own way to a final

determination.” Parks v. The New York Times Co., 308 F.2d 474, 478

(5th Cir. 1962).10 On the other hand, the federal removal statute

specifically gives a defendant the ability to remove a case to

federal court under certain circumstances. 28 U.S.C. § 1441.

Given the Court’s prior findings that Plaintiff was not dilatory

and has alleged two causes of action which satisfy the Florida

pleading standards, the Court concludes that the equitable factor

favors Plaintiff.

After analyzing all four of the Hensgens factors de novo, the

Court concludes, with the exception of Count XIII, the motion for

leave to file a Third Amended Complaint should be granted and the

case remanded to state court.

10 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir. 1981) (en banc) the Eleventh Circuit adopted as binding

precedent all the decisions of the former Fifth Circuit handed

down prior to the close of business on September 30, 1981.

Accordingly, it is now

ORDERED :

1. Defendants’ Objections to Magistrate Judge’s Order (Doc.

#108) is SUSTAINED IN PART AND OVERRULED IN PART.

2. Plaintiff’s Motion to Amend (Doc. #92) is GRANTED IN PART

AND DENIED IN PART. Count IX of the Third Amended

Complaint (Doc. #92-1) is stricken for failure to state a

claim upon which relief may be granted. The Third Amended

Complaint, as thus modified, shall be deemed filed on the

date of this Opinion and Order, and becomes the operative

pleading in this case.

case is remanded to the Collier County Twentieth

Judicial Circuit Court and the Clerk of the Court shall

transmit a certified copy of this Order to the Clerk of

that Court. The Clerk shall terminate all pending motions

and close the file.

DONE and ORDERED at Fort Myers, Florida, this 12th day

of December 2023.

if Afr

aff le fy DE, Ah Zook

J9GHN E. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record