# T&G Corporation v. United Casualty & Surety Insurance Company

> District Court, S.D. Florida · February 9, 2021

URL: https://www.frixlaw.com/law-library/cases/10118705

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** February 9, 2021
- **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/10118705

## How later opinions describe it (automated extraction)

- explaining that the new defendant “need not be indispensable . . . in order for a district court to permit joinder and remand the action to state court” (emphasis added)
- concluding that the “balancing of these competing interests is not served by a rigid distinction of whether the proposed added party is an indispensable or permissive party”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 20-61589-CIV-ALTMAN/Hunt
T&G CORPORATION,

Plaintiff,
v.

UNITED CASUALTY & SURETY
INSURANCE COMPANY,

Defendant.
________________________________/
ORDER

The Plaintiff, a general contractor, sued the Defendant, its subcontractor’s surety, in state
court after the subcontractor defaulted and the surety (allegedly) failed to fulfil its obligations under
the contract. Because the two parties—Plaintiff and Defendant—are diverse, and given that the case
involves hundreds of thousands of dollars, the surety removed the action to this Court. The Plaintiff
now wants to join the subcontractor as a second defendant. The problem, of course, is that the
subcontractor is—like the Plaintiff—a citizen of Florida. Since there’s no federal question here, the
subcontractor’s appearance would force the Court to remand the case to state court.
Federal courts admittedly review these kinds of requests with suspicion. Often, the plaintiffs
have no legitimate reason—other than remand—to add the non-diverse defendants. Here, though,
the Plaintiff did have a good reason for leaving the subcontractor out of the original complaint. When
the Plaintiff first sued the Defendant in state court, all indications were that the subcontractor would
enter bankruptcy. The Plaintiff thus justifiably feared that the bankruptcy court’s ensuing stay would
preclude its claims against the subcontractor. Since then, however, the subcontractor (who didn’t end
up declaring bankruptcy) demanded payment from the Plaintiff—a demand it’s been unwilling to set
aside. Some portion of that demand includes the very same payment the Defendant is here seeking to
“offset” against the Plaintiff’s potential damages. The Plaintiff also owes the subcontractor money on
another project. That wouldn’t matter much except that the governing subcontracts contain “cross-
default” provisions, which appear to allow the Plaintiff to “stack” the balance from one project on
top of the other. This is important because, without this “stacking,” the Plaintiff would be subject to
a stringent damages cap that could sharply curtail its recovery in this case.
If this all sounds a bit confusing, that’s because it is. This case straddles the muddled

intersection between several complex contractual provisions signed by three different parties—all of
whom should be permitted to resolve their outstanding issues in one case, rather than in two separate
cases. Unfortunately for the Defendant, that means this case cannot proceed in federal court. As this
summation makes plain, the Plaintiff’s motion for leave to amend its complaint, to add a non-diverse
defendant, and to remand is GRANTED.
BACKGROUND
The Plaintiff, T&G Corporation, d/b/a T&G Constructors (“T&G”), entered into a contract
with the School Board of Broward County to renovate the Morrow Elementary School building in
Broward County, Florida (the “Morrow Project”). See Compl. [ECF No. 1-3] ¶ 5. T&G subcontracted
the electrical work on the project to Celeiro Electrical Contractor LLC (“Celeiro”). Id. ¶ 6. The
Morrow Subcontract required Celeiro to obtain two bonds from the Defendant, United Casualty &
Surety Company. Id. ¶ 7. Those bonds, which named T&G as obligee and beneficiary, required the

Defendant (1) to “pay in full for all losses, damages, expenses, costs, and attorney’s fees, including all
appellate proceedings, that [T&G] sustains because of a default by [Celeiro] under the Subcontract,”
and (2) to “pay in full all claimants . . . and to indemnify [T&G] for all damages attorney’s fees and
costs it incurred, or will incur.” Id. ¶¶ 7, 12, 23. We refer to these obligations, respectively, as the
“Performance Bond” and the “Payment Bond”—together, simply, “the Bonds.”
In July of 2020, T&G filed this Complaint against the Defendant in state court, alleging that
the Defendant failed to fulfill its obligations under the Bonds after Celeiro defaulted on the Morrow
Subcontract. Id. ¶¶ 13–14, 16, 24. Relying on this Court’s diversity jurisdiction, the Defendant removed
the case on August 5, 2020, see Notice of Removal [ECF No. 1] ¶ 5. Once in federal court, the
Defendant answered with counterclaims of its own, alleging that (1) T&G owed the Defendant for
claims the Defendant had paid out under the Payment Bond, see Answer and Counterclaim [ECF No.

6] ¶¶ 7–8, and that (2) as subrogee to Celeiro’s contractual rights, the Defendant was entitled to certain
offsets and attorneys’ fees under the Morrow Subcontract, see id. ¶¶ 9–18.
A few days after the Court entered a Scheduling Order [ECF No. 12], T&G moved to amend
the Complaint to add Celeiro as a defendant. See Motion for Leave to Amend to Add Non-Diverse
Defendant and Remand (“Motion”) [ECF No. 14]. Because Celeiro, like T&G, is a citizen of Florida,
the proposed amendment would strip the Court of subject-matter jurisdiction and compel a remand
to state court. See id. ¶¶ 1, 8.
In support of the Motion, T&G says that it didn’t name Celeiro in the original Complaint
because, at the time, it believed that Celeiro would enter bankruptcy—just as Celeiro’s principal,
Roberto Celeiro Albar, had done. Id. ¶ 2. Moreover, according to T&G, after Mr. Albar’s bankruptcy,
Celeiro began demanding payment for work it had completed on the Morrow Project. Id. ¶ 3. This, in
turn, is the very same money the Defendant is now seeking to offset as Celeiro’s subrogee in this case.

Id. T&G would thus prefer to include Celeiro as a co-defendant because, otherwise, T&G could find
itself in the unenviable position of having to defend itself against identical claims in two different fora.
Id. at 5. What’s worse, T&G notes that Celeiro is also demanding payment for work it completed on
another project—renovations at the Tamarac Elementary School (the “Tamarac Project”). See Reply at
2. And, T&G says, this second claim—which T&G doesn’t really dispute—is subject to a “cross-
default” provision that, in essence, permits outstanding claims from the Morrow and Tamarac Projects
to be calculated together. See Affidavit of Joe Easton (“Easton Aff.”) [ECF No. 16-1] ¶ 4. This claim
agglomeration is important because it would (theoretically) allow T&G to exceed the Performance
Bond cap of $404,000 that would otherwise govern T&G’s claims against the Defendant. See Hearing;
see also Performance Bond, No. UCSX372X1063, Document 00620 (“Performance Bond”) [ECF No.
14-3], Ex. 2-A, at 1.
The Defendant, of course, would prefer to stay here, in federal court. In its view, T&G has no

real claims against Celeiro—as evidenced by T&G’s decision not to sue Celeiro in the first instance.
See Defendant’s Response in Opposition to Plaintiff’s Motion for Leave (“Response”) [ECF No. 15]
¶¶ 1, 2, 18–20. And, given that T&G filed its Motion soon after removal—but before any discovery
had taken place—the Defendant insists that T&G is using the specter of an unlikely Celeiro claim to
get what it really wants: a remand to state court. Id. The Defendant also tries to parry T&G’s thrusts
by pointing out that Celeiro had not actually filed for bankruptcy in July of 2020—and, therefore,
could have been sued, see id. ¶ 20; that this case could easily proceed without Celeiro both because
T&G has its own case files and because any Celeiro-centric evidence could be obtained through third-
party discovery, see id. ¶ 27; that T&G won’t be prejudiced by Celeiro’s absence because the Defendant
is solvent and can satisfy any adverse judgment, see id. ¶ 28; that T&G can still sue Celeiro in state
court, see id. ¶ 29; that T&G’s proposed amended complaint doesn’t seek a declaratory judgment—
and so, doesn’t actually dispute that Celeiro is entitled to the offsets, see id. ¶ 30; and that Celeiro is

willing to release any claims it may have against T&G, see id. ¶ 31. In support of this final contention,
the Defendant appends as an exhibit a September 15, 2020 email that one of its lawyers sent to T&G,
copying one of Celeiro’s lawyers and purporting to memorialize Celeiro’s willingness to release its
claims against T&G. See id. at Ex. 1-A.
The Court held a hearing on January 28, 2021, at which the parties presented their oral
arguments. See Jan. 28, 2021 Hearing (“Hearing”) [ECF No. 23]. As relevant here, the parties
represented that, as of the date of the hearing, Celeiro had neither released its claims against T&G nor
otherwise confirmed its willingness to do so. This Order follows.
THE LAW
Because the Motion seeks both joinder and remand, it isn’t governed by the liberal pleading
standard of FED. R. CIV. P. 15(a)(2), which instructs courts to grant leave freely when “justice so
requires.” Instead, in resolving the Motion, this Court must look to 28 U.S.C. § 1447(e), which

provides, in pertinent part, as follows: “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.”
The Court therefore has two options: deny joinder or permit it and remand the case. See Ingram
v. CSX Transp., Inc., 146 F.3d 858, 862 (11th Cir. 1998). Four factors—referred to as the Hensgens
factors—guide this decision: “(1) the extent to which the purpose of the amendment is to defeat
federal jurisdiction; (2) whether [the movant] has been dilatory in asking for the amendment; (3)
whether [the movant] will be significantly injured if the amendment is not allowed; and (4) any other
factors bearing on the equities.” Simon v. Howmedica Osteonics Corp., 981 F. Supp. 2d 1232, 1237 (S.D.
Fla. 2012) (citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir. 1987)). Although the procedural
choice is a binary one, the Court has “broad discretion in weighing these factors” and in deciding
which route to take. See Dever v. Family Dollar Stores of Ga., LLC, 755 F. App’x 866, 869 (11th Cir. 2018).

ANALYSIS
This is a close call. The Defendant’s arguments are well-taken, and some of T&G’s actions—
in particular, its failure to include a declaratory-judgment count in its proposed amended complaint—
smell of forum-shopping. In the end, though, T&G has shown that joining the three parties together
in one case will be the most efficient way of litigating the various competing interests while avoiding
the pitfalls of parallel—and duplicative—litigation. The Hensgens factors, in short, favor joinder. We
review each in turn.
First, the purpose and timing of the Motion. Generally, it’s true, courts are suspicious of a
plaintiff’s efforts to join a non-diverse defendant after removal—but before any discovery has been
taken—particularly where, as here, the plaintiff knew about the non-diverse defendant all along. See,
e.g., Alleyne v. Am. Sec. Ins. Co., 2011 WL 12711451, at *3 (S.D. Fla. Apr. 12, 2011). But “[t]he mere fact

that the requested amendment would divest the Court of its jurisdiction does not, in itself, establish
that Plaintiff’s motive in seeking amendment is to accomplish this aim.”
Fiddler’s Creek Cmty. Dev. Dist. 2 v. U.S. Bank Nat’l Ass’n, 2012 WL 2358295, at *3 (M.D. Fla. June 20,
2012). And T&G did have a good reason not to sue Celeiro in state court: all indications were that
Celeiro was going into bankruptcy, see Motion ¶ 2, where the bankruptcy court’s automatic stay would
have precluded T&G’s claims, see 11 U.S.C. § 362(a). And, while Celeiro didn’t ultimately declare
bankruptcy, it (notably) did begin seeking payments from T&G on the Morrow Subcontract, see
Motion ¶ 3—thus giving T&G a new (and valid) reason to add Celeiro to the case.
The Defendant asks the Court to ignore these Celeiro developments because (it says) Celeiro
is willing to release its claims against T&G. We address this issue in more detail below and explain
why the Defendant’s release argument isn’t persuasive. The point here, though, is that, even if this
were true—even if Celeiro did intend to release T&G—the Defendant only sent T&G “confirmation”

of Celeiro’s intent in a September 15, 2020 email, two weeks after T&G filed this Motion (and just two
days before the Defendant responded). See Response at Ex. 1-A. In other words, T&G didn’t know
about Celeiro’s (purported) willingness to release its claims until after T&G filed the Motion—a
sequence of events that strongly undermines the Defendant’s position that the Motion is purely a
tactic to defeat jurisdiction. In short, when Celeiro began demanding payment, T&G could have
reasonably believed that it faced parallel state-court litigation over the same contractual offsets. And,
even according to the Defendant’s telling, T&G had no reason to think that Celeiro was willing to
release those claims. T&G thus had legitimate reasons—having nothing to do with stripping this Court
of jurisdiction—for moving to add Celeiro after removal.1 This first factor, then, weighs in favor of
joinder.
Second, T&G didn’t create any unnecessary delay—nor could its pace be characterized as
“dilatory.” See, e.g., Simon, 981 F. Supp. 2d at 1237 (courts should consider whether the plaintiff was

“dilatory” in seeking joinder). Indeed, it filed this Motion on September 3, 2020, see Motion—well
within the Court’s amended pleading deadline, see Scheduling Order (setting an amended pleading
deadline of October 19, 2020). This second factor likewise militates in favor of joinder.
Third, T&G would be prejudiced if it were prohibited from joining Celeiro to this case. Here,
again, we focus on the threat of parallel litigation. As the Middle District of Alabama explained in
Godwin v. Nat’l Union Fire Ins. Co. of Pittsburgh, 2006 WL 3924795, at *2 (M.D. Ala. Dec. 15, 2006), “the
burden of having to prosecute two separate lawsuits is a significant injury which, although it does not
mandate allowing the amendment, weighs in favor of permitting the joinder.” The Defendant

1 This case is therefore distinguishable from the cases the Defendant cites, in which the plaintiffs
were—quite transparently and without valid justification—trying to undermine the courts’
jurisdiction. Take Vazquez v. Lowe’s Home Centers, Inc., 2007 WL 128823 (M.D. Fla. Jan. 12, 2007).
There, the plaintiff sued Lowe’s in state court after she slipped and fell in a Lowe’s store. Id. at *1.
After Lowe’s removed the case, the plaintiff sought to join two non-diverse Lowe’s employees as co-
defendants. Id. Notably, there was no evidence that the employees were, as here, demanding payments
from the plaintiff or threatening to countersue her—nor was there any claim that the plaintiff and the
employees were engaged in some ongoing commercial relationship. See generally id. There was also no
evidence that anything happened after removal to change the plaintiff’s calculus. There were thus no
moving parts or subsequent developments in the case—as there are in this case—that could have
triggered the need to join the employees (other than the plaintiff’s desire to return to state court).
The same is true of Gil v. State Farm Mut. Auto. Ins. Co., 2017 WL 7796182 (S.D. Fla. Apr. 24,
2017), where a driver injured in a car accident sued her insurer for payment under the policy. Id. at *1.
When the insurer removed, the plaintiff sought to join the driver who’d hit her. Id. As in Vasquez,
nothing had happened after removal to change the plaintiff’s relationship to the other driver. She had
all along known who he was and how he was responsible for her injuries. Nor did she have any new
reason to join him after removal. Here, by contrast, the relationship between T&G and Celeiro
continues to evolve, and T&G has given valid reasons for its post-removal request.
contends that T&G will suffer no prejudice because (1) Celeiro intends to release its claims against
T&G, and (2) even without a release, the Defendant’s rights to the offsets are superior to Celeiro’s.
See Response ¶¶ 31–32. But the only evidence the Defendant has adduced for Celeiro’s purported
interest in releasing its claims against T&G is an email from the Defendant’s lawyer—an email that, as
the Defendant now concedes, Celeiro has never confirmed. In fact, as of this writing, Celeiro still hasn’t
released its claims against T&G—nor has it even responded to T&G’s separate email, in which T&G’s

lawyers asked Celeiro’s lawyers whether the subcontractor was interested in releasing those claims.
There is thus no evidence that Celeiro has released its claims against T&G. To the contrary, all the
evidence suggests that, despite many opportunities, Celeiro has refused to release its claims—a refusal
that presents T&G with the very real threat of dual litigation. And this possibility weighs strongly in
favor of joinder. Compare Alleyne, 2011 WL 12711451, at *3 (denying joinder where “[t]he risk of
multiple litigation arising from this matter is small”). In this last respect, the Defendant’s assurance
that, because of its own subrogation rights—by which its claims to the offsets (apparently) supersede
Celeiro’s—T&G would be likely to win any such state lawsuit must come as little consolation to the
Plaintiff. After all, even if the Defendant is right, the Plaintiff would still have to pay lawyers to litigate
identical claims in two different fora—a needless outlay of time and money, however the state case
turns out.2
The “cross-default” provisions in the Morrow and Tamarac Subcontracts provide still another

reason for joinder. T&G faces a hard cap of $404,000 on any damages it might recover on the
Performance Bond from the Morrow Project.3 See Reply at 7; see also Hearing. Since T&G believes

2 This inequity is, of course, one-sided, because the Defendant would never have to participate in any
parallel state litigation—and thus has only to gain from forcing T&G to divide its resources (and
attention). For this reason, the fourth Hensgens factor—“any other factors bearing on the equities”—
likewise favors joinder.
3 We focus here on the Performance Bond because, at the Hearing, the parties seemed fairly confident
that their dispute over the Payment would (very likely) be resolved. See generally Hearing.
that Celeiro—and, by extension, the Defendant—owes it far more than $404,000, T&G stands to lose
money on this litigation, even if it prevails. But, T&G says, there’s an easy way for it to come closer
to breaking even. T&G apparently owes Celeiro money for work the subcontractor performed at the
Tamarac Project. See Reply at 7; see also Hearing. Why does that matter? Because the “cross-default”
provisions in the two Subcontracts allow T&G and Celeiro to net out, as it were, their various debits
and credits from the two projects on one balance sheet. See Hearing. T&G refers to this process as

“stacking,” and a simple illustration may underscore its significance here.
Imagine that, at the end of the day, the Defendant owes T&G $500,000 on the Performance
Bond from the Morrow Project. Given the damages cap, however, the Defendant would only have to
pay T&G $404,000—leaving T&G to try to collect the remaining $96,000, if it can, from Celeiro in a
separate state-court case. But, from T&G’s perspective, there are two problems with this strategy. The
first is that Celeiro—whose principal has recently sought bankruptcy protection—may not have the
money. The second is that pursuing Celeiro for the balance would require T&G to pay its lawyers
what will likely amount to tens of thousands of dollars—litigation isn’t cheap these days—to file and
prosecute that second case. This second problem is exacerbated by the fact that T&G apparently owes
Celeiro some $80,000 on the Tamarac Project. At best, then, T&G’s separate claim against Celeiro
might net it something in the range of $16,000—a meager sum T&G isn’t likely to pay any lawyers (let
alone the very expensive law firm it has retained) to pursue. So, how does adding Celeiro to this lawsuit

help T&G mitigate its “losses?” The “cross-default,” of course. That provision, remember, allows
T&G to add a –$80,000 to its balance sheet with Celeiro (and, by extension, the Defendant) on the
Morrow Project. With Celeiro in the case, then, T&G would start out at –$80,000—a deficit that
would permit T&G to recover up to $484,000 from the Defendant under the Performance Bond’s
damages cap.4 Adding Celeiro to the case would thus net T&G—all things being equal—$80,000,
without having to expend any additional time or money on parallel litigation.
Of course, the Court takes no position on how the Subcontracts operate or whether the facts
as T&G presents them5 are true. But these outstanding questions do reinforce the Court’s view that
there remain overlapping and unresolved issues between the three parties, which should be addressed
in one case.

At the Hearing, the Defendant argued that the Tamarac Project really had nothing to do with
its liability under the Morrow Project’s Performance Bond. See Hearing. But that’s hard to square with
the Defendant’s subrogation rights. See Response ¶¶ 31–32. If T&G is right about the effect of the
“cross-default” provision—and, specifically, its “stacking” effect in the unique circumstances
presented here—then the Defendant-as-subrogee may well be bound by that provision, just as, for
example, it’s entitled to stand in Celeiro’s shoes and assert Celeiro’s contract defenses. See Response
at 11. But, again, the point is not whether T&G is right on the merits; the point is, rather, that T&G
has a colorable contract-based argument that it can only advance if Celeiro is joined as a defendant. See
Wade v. Dolgencorp, LLC, 2009 WL 8630725, at *2 (M.D. Fla. Oct. 14, 2009) (“Where a plaintiff states
even a colorable claim against the resident [i.e., non-diverse] defendant, joinder is proper and the case
should be remanded to state court.” (quoting Pacheco de Perez v. AT&T Co., 130 F.3d 1368, 1380 (11th
Cir. 1998)).

The Defendant also suggested that any decision allowing Celeiro’s joinder would unlock a
frightening Pandora’s box—chock full of hypothetical horribles. Chief among these, counsel warned,
was a slippery slope of the if-now-then-always variety: if we permit joinder here, the argument goes,

4 $404,000 – (–$80,000) = $484,000.
5 Viz., that T&G’s damages exceed the Performance Bond cap, that T&G owes Celeiro money on the
Tamarac Project, or that the Subcontracts allow T&G to “stack” its debt to Celeiro on top of the
Performance Bond cap.
then general contractors will always join subcontractors as defendants in suits against sureties—a
calamity that, the Defendant assures us, isn’t remotely the norm. But we need not follow the
Defendant into this worm hole. Who’s to say that the parties’ respective domiciles in future cases will
align as they do here—eviscerating diversity? Or that these future actions will implicate restrictive
damages caps for which the only salve may well be the contractor’s debt to the subcontractor—a debt
the contractor hopes to apply against the surety through a cross-default provision that might alleviate

the greater part of the cap’s burden? And will all such future cases involve a subcontractor who’s
demanded payment on two separate projects—only one of which implicates the rights of the surety
as subrogee? More fundamentally, even if all such future cases turn on all these same facts—an unlikely
prospect, to be sure—what is it about sending this narrow range of cases back to state court that so
offends us? Surely, the sureties’ preference for federal court shouldn’t be viewed as some irrebuttable
entitlement—an unprecedented federal-court privilege that overrides the strictures of Article III and
§ 1447(e). The upshot is that, where (as here) the general contractor—who’s master of its complaint—
has legitimate, post-removal reasons to add the subcontractor, and when (again, as here) the Hensgens
factors favor joinder, the non-diverse subcontractor should be joined and the case should be remanded.
The Defendant advances five additional arguments—all meritless. First, the Defendant insists
that most of the evidence in the case should come from T&G’s files, so we won’t need Celeiro during
discovery—and, even if we do, Celeiro could be subjected to third-party practice. See Response ¶ 27.

To begin with, though, it isn’t true that Celeiro will have little to add here. To the contrary, given that
the dispute hinges to a large degree on how much work Celeiro did and how much that work cost,
Celeiro’s files—and, indeed, some choice depositions of Celeiro’s employees—will likely play a crucial
role in discovery. Why, then, would we relegate these questions to third-party discovery under Rule
45—as the Defendant suggests, see id.—when we can easily bring all the parties, including Celeiro,
under one court’s jurisdiction? The Defendant never answers this rather simple question.
Second, the Defendant assures us that it has more than enough capital to satisfy any adverse
judgment—the supposition being that T&G wouldn’t be prejudiced by Celeiro’s absence. See id. ¶ 28.
That may be true—but it’s quite beside the point. T&G’s prejudice would arise, not from the
Defendant’s default, but from T&G’s inability to use the “cross-default” provisions to “stack” its
damages from the Tamarac Project on top of the Morrow Performance Bond’s damages cap.6 And,
as we’ve seen, the potential threat (and cost) of parallel—and duplicative—litigation with Celeiro only

further highlights the scope of T&G’s prejudice.
Third, the Defendant maintains that T&G could always just sue Celeiro in a separate action in
state court, see id. ¶ 29, and that any overlapping issues could be worked out by an aggressive
administration of issue preclusion and res judicata, see Hearing. But this is precisely what the Hensgens
factors are meant to prevent. See, e.g., Godwin, 2006 WL 3924795, at *2 (explaining that “the burden of
having to prosecute two separate lawsuits is a significant injury”). T&G shouldn’t have to litigate two
interconnected lawsuits in two separate fora—incurring additional costs and fees—when it has
advanced a viable basis for joinder. Issue preclusion and res judicata, moreover, don’t operate
automatically. The parties will inevitably have to litigate complex factual and legal questions, presumably
after some robust discovery, to prevail under either doctrine—a logistical reality that renders the
Defendant’s proposed solution cumbersome and (at least so far as T&G is concerned) tremendously
unfair.7

Fourth, the Defendant says that T&G’s failure to include a declaratory-judgment count against
Celeiro in its proposed amended complaint belies its true objectives. See Response ¶ 30. But it’s not

6 Again, the Court takes no position on whether the Subcontracts support this kind of liability stacking.
But T&G has made a “colorable” claim that they do—and, if they do, then T&G would be prejudiced
by Celeiro’s absence.
7 Unfair because (as we’ve said) the Defendant—unlike T&G—wouldn’t have to participate in, or
incur the costs of, that other lawsuit.
immediately clear that a declaratory judgment would be necessary to resolve the competing-offset
question. Presumably, the offsets could get worked out in a final damages computation—a
computation that could proceed just as well within the rubric of a contract claim. Even if a declaratory-
judgment claim were the best way to resolve this issue, though, counsel for T&G has already agreed to
add such a claim. See Hearing. And so, while it isn’t necessary now, the Court will remand the case to
state court, where T&G can (though it need not) assert a state-law, declaratory-judgment claim as

appropriate.
Fifth, the Defendant downplays the significance of any joint-and-several liability it may share
with Celeiro, noting that FED. R. CIV. P. 19 doesn’t govern the analysis under § 1447(e). That’s true,
of course—but the point only undermines the Defendant’s position because § 1447(e) is more permissive
than Rule 19. In other words, in the context of § 1447(e), the non-diverse defendant need not be
indispensable to be joined. See Heininger v. Wecare Distribs., Inc., 706 F. Supp. 860, 862 (S.D. Fla. 1989)
(explaining that the new defendant “need not be indispensable . . . in order for a district court to permit
joinder and remand the action to state court” (emphasis added)); see also Hensgens, 833 F.2d at 1182
(concluding that the “balancing of these competing interests is not served by a rigid distinction of
whether the proposed added party is an indispensable or permissive party”); Mayes v. Rappaport, 198
F.3d 457, 462 (4th Cir. 1999) (“Under Section 1447(e), the actual decision on whether or not to permit
joinder of a [non-diverse] defendant . . . is committed to the sound discretion of the district court;

thus, this decision is not controlled by a Rule 19 analysis.”). The Rule 19 distinction thus adds little to
the analysis.
***
For the foregoing reasons, the Court hereby ORDERS and ADJUDGES as follows:
1. T&G’s Motion [ECF No. 14] is GRANTED.
2. T&G’s First Amended Complaint [ECF No. 14-1] is deemed filed as of this Order.
3. The Clerk shall REMAND this case to the Seventeenth Judicial Circuit in and for Broward
County, Florida.
4. ‘The Clerk shall CLOSE this case. All pending deadlines are TERMINATED, and any
pending motions are DENIED as moot.
DONE AND ORDERED in Fort Lauderdale, Ca 2021.

ROY K. ALTMAN
UNITED STATES DISTRICT JUDGE
CC: counsel of record

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10118705. Public record. Not legal advice.