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

> District Court, M.D. Florida · December 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10114666

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** December 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10114666

## How later opinions describe it (automated extraction)

- concluding that district court's remand order deprived the court of appeals of further federal jurisdiction

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10114666. Public record. Not legal advice.