Fassmer Service America, LLC v. Ciramar Shipyards International Trading Co. LTD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-cv-21625-ALTMAN/Reid

FASSMER SERVICE AMERICA, LLC,

Plaintiff,

v.

CIRAMAR SHIPYARDS INTERNATIONAL

TRADING CO. LTD.,

Defendant.

_________________________________________/

ORDER GRANTING MOTION TO JOIN

NECESSARY PARTY DEFENDANTS

The Plaintiff has filed a Motion to Join Necessary Party Defendants and to Remand Case Back

to State Court (the “Motion to Remand”) [ECF No. 21]—which, after careful review, we now

GRANT.1

THE FACTS

This case presents a convoluted set of facts involving an interlocking cast of characters and

litigation across multiple jurisdictions. On June 10, 2021, the Plaintiff, Fassmer Service America, LLC

(“Fassmer”), entered into a contract (the “Master Agreement”) with the Defendant, Ciramar Shipyards

International Trading Company Ltd. (“Ciramar”), for the provision of maritime goods and services.

See Complaint [ECF No. 1-3] ¶ 8. The Master Agreement includes a forum selection clause designating

Miami-Dade County as the venue for any potential disputes. See id. at 18. Throughout 2021 and into

2022, Fassmer provided goods and services to Ciramar under the terms of the contract and invoiced

those goods and services accordingly. Id. ¶ 9. When Ciramar failed to pay the invoices—for reasons

1 The Motion to Remand is ripe for resolution. See Defendant’s Response to Motion to Remand (the

“Response”) [ECF No. 28]. The Plaintiff did not file a reply. See generally Docket.

we outline below—Fassmer sued Ciramar in the Circuit Court of the Eleventh Judicial Circuit in and

for Miami-Dade County, asserting claims of breach of contract, unjust enrichment, and quantum

meruit. See generally Complaint. Ciramar removed this case to federal court on May 2, 2023, under the

provisions of 28 U.S.C. §§ 1332, 1441, and 1446.2 See Notice of Removal [ECF No. 1] at 1. In short,

“[a]t the time of removal . . . this was a simple collection case wherein Plaintiff, Fassmer, was exercising

its right to sue Ciramar in Florida to recover monies owed under a contract for the provision of

maritime goods and services[.]” Motion to Remand at 5.

On May 19, 2023, Ciramar filed a Motion to Dismiss [ECF No. 11], connecting our case to a

separate but related lawsuit in the Dominican Republic. Fassmer then filed its Motion to Remand on

June 12, 2023, seeking to join two additional defendants: Moises Profesionales Marítimos, S.R.L.

(“MPM”) and Craig Gundry. See generally Motion to Remand. Ciramar filed its Response to the Motion

to Remand on June 26, 2023, alleging improper joinder.

The Complaint alleges that Ciramar owes Fassmer $125,494.44 in “materials and services

provided” and $16,400 in “machinery and equipment.” Complaint ¶¶ 11, 16. In its Motion to Dismiss,

Ciramar appears to concede that it owes Fassmer money and equipment. But, according to Ciramar,

its hands are tied because both the money and the equipment are caught up in garnishments in the

Dominican lawsuit:

[Ciramar] is a non-party garnishee caught in a fight between Plaintiff Fassmer . . . and

its provider Moises Servicios Marítimos, S.R.L. (“MSM”).[3] In prior proceedings in the

Dominican Republic, MSM seeks to collect a debt from Fassmer for services allegedly

provided in that country. In connection with that effort, in October 2022, MSM served

prejudgment writs of garnishment on Ciramar in the Dominican Republic. As required

2 According to the Complaint, Fassmer is a Florida limited liability company, and Ciramar is a

corporation “organized and operating in the Dominican Republic.” Complaint at 2. Fassmer’s

proposed Amended Complaint, however, describes Ciramar as a “Nevis corporation operating in the

Dominican Republic.” Proposed Amended Complaint [ECF No. 21] at 22.

3 Moises Profesionales Marítimos, S.R.L. (“MPM”), is sometimes referred to as “Moises Servicios

Marítimos, S.R.L.” or “MSM” in the briefings. For purposes of this Order, we’ll refer to the company

as MPM.

by Dominican law, Ciramar garnished the funds and property it was holding for

Fassmer there, and immediately informed Fassmer. Fassmer ignored that and failed to

challenge the garnishments. Six months later, Fassmer brought this action seeking the

very funds and equipment garnished by MSM.

Motion to Dismiss at 6. Ciramar claims that it can’t pay Fassmer back because it’s bound by the laws

of the Dominican Republic:

Ciramar, and the undersigned, have repeatedly advised Fassmer and its counsel that

Ciramar is bound by the garnishments and cannot release the claimed funds or

equipment without approval from a Dominican court . . . . [A]s mandated by Article

557 of the Dominican Republic Code of Civil Procedure, Ciramar is legally obliged

[sic] to . . . retain any payment which could be owed to Fassmer . . . until a definitive

judicial decision has been reached either authorizing Ciramar to proceed with payment

or to withhold the amount now under the garnishment.

Id. at 6, 10. Because (Ciramar claims) its hands are tied, it asks us to abstain from this case on the

grounds of international comity and to allow the Dominican Republic to adjudicate the dispute along

with the ongoing case between MPM and Fassmer: “Circuit precedent,” Ciramar says, “mandates

abstention on these facts, and dismissal of the Complaint on international comity grounds. The

Dominican court is uniquely positioned to settle both sets of claims: [MPM]’s against Fassmer and

Fassmer’s against Ciramar.” Id. at 6.

For its part, Fassmer insists that something isn’t quite right with Ciramar’s neat and tidy

recitation of the relevant facts. Back in 2018, Fassmer hired a man named Craig Gundry to serve as

General Manager of a “new division referred to as Fassmer Technical Projects.” Employment

Agreement [ECF No. 21] at 44. Under his employment agreement with Fassmer, Gundry agreed not

to “accept any other employment or engage, directly or indirectly, in any other business, commercial,

or professional activity (whether or not pursued for pecuniary advantage) which creates an actual or

potential conflict of interest with [Fassmer’s] business, or which otherwise is reasonably likely to

interfere with [Fassmer’s] business[.]” Ibid. Unbeknownst to Fassmer, however, and in apparent

violation of his Employment Agreement, “Gundry simultaneously owned another competing

company”—MPM. Motion to Remand at 7. Fassmer alleges that, in June of 2019, Gundry duped

Fassmer (his employer) into signing a contract with MPM (his own company), under which Fassmer

agreed to pay MPM “an agreed rate of $19.50 per hour to perform boat repair and maintenance,

shipbuilding and floating structures, engineering activities and technical consultancy.” Id. at 8.

“Fassmer later learned that on April 19, 2022, MPM wired $17,000.00 to Gundry . . . and that shortly

thereafter, on May 4, 2022, MPM wired an additional $32,000.00 to Gundry.” Ibid. Remember, MPM

is the plaintiff in the Dominican lawsuit.

In May of 2022, after Fassmer discovered that MPM was sending money to Gundry, Gundry

wrote a letter to Fassmer apologizing “for not being honest”—and admitting his involvement in MPM

and Ciramar. See Gundry Letter [ECF No. 21] at 50–54. In this letter, attached to the Motion to

Remand as Exhibit B, Gundry conceded that MPM “is a company formed from a previous company

I owned.” Id. at 53. He also admitted that he has close ties to Ciramar, the Defendant in this case:

“[Ciramar] had intended,” he wrote, “to add me as a board member to serve as Fassmer Liaison. This

has not become official yet, but I know has been included in investor presentations . . . . I have been

a key participant in many investor meetings to help convince private investors to provide the funds

necessary for Ciramar expansion.” Id. at 54. So, according to Fassmer, “any penalty that Ciramar might

have to pay MPM in the D.R. garnishment proceeding, would essentially be Gundry paying himself .

. . . [D]epending on which hat Gundry is wearing at the moment, Gundry is secretly either the

garnishor or the garnishee over the same money[.]” Motion to Remand at 9–10.

Based on Ciramar’s argument in its Motion to Dismiss (that it’s a non-party garnishee and that

it cannot remunerate Fassmer because of MPM’s prejudgment writs of garnishment in the Dominican

Republic), Fassmer now seeks to join MPM and its owner, Gundry, as necessary parties (specifically,

as defendants) in our case:

Ciramar is asking this Court to send the case to the D.R., despite a Florida forum

selection clause and choice of law in the contract between Fassmer and Ciramar.

Defendant Ciramar has thus complicated the simple Florida state court collection case

by asserting arguments that implicate third parties, MPM and Gundry, and necessitate

amending the Florida Complaint so that all inextricably intertwined claims,

counterclaims, and crossclaims can be adjudicated in one proceeding . . . . The Court

must consider Gundry’s central involvement in both Fassmer’s Florida collection case

against Ciramar, and the dispute against Fassmer filed by MPM at the behest of

Gundry in the Dominican Republic. The relationship between Fassmer, Ciramar,

MPM, and Gundry are inextricably interwoven and Gundry is a necessary party for a

complete determination of all of the issues in the Florida suit because he is at the center

of all of the claims.

Motion to Remand at 6–7. Fassmer also seeks leave to amend its Complaint to assert new claims

against MPM and Gundry for breach of contract, breach of fiduciary duty, and usurpation of corporate

opportunity. See generally Proposed Amended Complaint [ECF No. 21] at 22–42.

Because this case was removed based on our diversity jurisdiction, see Notice of Removal at

1—and since Gundry and Fassmer are both Florida citizens within the meaning of 28 U.S.C. § 1332,

see Motion to Remand at 10—the Plaintiff’s proposed joinder would destroy complete diversity of

citizenship and require a remand back to state court.4

THE LAW

The Plaintiff’s Motion to Remand seeks both joinder and remand, so it isn’t governed by the

liberal pleading standard of Rule 15(a)(2), which instructs courts to grant leave freely when “justice so

requires.” FED. R. CIV. P. 15(a)(2). Instead, in resolving the Motion to Remand, we must look to the

provisions of 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.” T&G

Corp. v. United Cas. & Sur. Ins. Co., 552 F. Supp. 3d 1334, 1339 (S.D. Fla. 2021) (Altman, J.). Four

factors—referred to as the Hensgens factors—guide this decision: (1) the extent to which the purpose

4 Ciramar’s Notice of Removal asserts only diversity as the basis of our removal jurisdiction. See Notice

of Removal at 2.

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. See Dever v. Family Dollar Stores of Ga., LLC,

755 F. App’x 866, 869 (11th Cir. 2018) (citing Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.

1987)). Although the procedural choice is a binary one, we have “broad discretion in weighing these

factors” and in deciding which route to take. Ibid.

A federal court should remand to state court any case that has been improperly removed. See

8 U.S.C. § 1447(c). The party attempting to invoke the federal court’s jurisdiction bears the burden of

establishing that jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of Ind., Inc., 298 U.S. 178, 189

(1936). “Not only does the language of the Act of 1887 evidence the Congressional purpose to restrict

the jurisdiction of the federal courts on removal, but the policy of the successive acts of Congress

regulating the jurisdiction of federal courts is one calling for the strict construction of such legislation.”

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941). Indeed, “[d]ue regard for the rightful

independence of state governments, which should actuate federal courts, requires that they

scrupulously confine their own jurisdiction to the precise limits which the statute has defined.” Healy

v. Ratta, 292 U.S. 263, 270 (1934).

In evaluating whether the “particular factual circumstances of a case give rise to removal

jurisdiction, we strictly construe the right to remove and apply a general presumption against the

exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved

in favor of remand.” Scimone v. Carnival Corp., 720 F.3d 876, 882 (11th Cir. 2013) (cleaned up); see

also Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994) (“[W]here plaintiff and defendant

clash about jurisdiction, uncertainties are resolved in favor of remand.”). “To determine whether [a]

case should be remanded, the district court must evaluate the factual allegations in the light most

favorable to the plaintiff.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997).

ANALYSIS

Fassmer has established that joining MPM, Gundry, and Ciramar together in one case (at least

in the United States) will be the most efficient way of litigating the parties’ various competing interests

while avoiding the pitfalls of parallel—and duplicative—litigation. The Hensgens factors thus weigh

heavily in favor of joinder. We’ll review each factor in turn.

First, we must evaluate the purpose of the proposed joinder and whether its aim is to defeat

federal jurisdiction. Courts are generally suspicious of a plaintiff’s efforts to join a non-diverse

defendant after removal—“particularly where, as here, the plaintiff knew about the non-diverse

defendant all along.” T&G Corp., 552 F. Supp. 3d at 1339. But “[t]he mere fact that the requested

amendment would divest the Court of its jurisdiction does not, in itself, establish that [a 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) (Covington, J.). Here, Fassmer had

good reason for leaving MPM and Gundry out of its original Complaint: because they weren’t

necessary parties in its ordinary breach-of-contract claim against Ciramar—at least not initially. See

Motion to Remand at 5 (“At the time of removal from state court by Ciramar, this was a simple

collection case wherein Plaintiff, Fassmer, was exercising its right to sue Ciramar in Florida to recover

monies owed under a contract for the provision of maritime goods and services.”).

A careful review of the briefing reveals that it was Ciramar’s Motion to Dismiss that

transformed MPM and Gundry into key players in this case—not (as Ciramar would have us believe)

Fassmer’s bad-faith attempt to “wrestl[e] jurisdiction from this Court[.]” Response at 5. As we’ve said,

Ciramar argues that it cannot and will not release any of the money and equipment it allegedly owes

Fassmer because “these very funds and equipment . . . have been garnished by [MPM] in the

Dominican Republic.” Motion to Dismiss at 21. Ciramar also contends that this case belongs in the

Dominican Republic, where a “Dominican court [can] adjudicate both sets of claims: [MPM]’s against

Fassmer and Fassmer’s against Ciramar.” Ibid. By specifically identifying the lawsuit between MPM

and Fassmer as the reason it cannot pay Fassmer in our lawsuit, Ciramar has made the resolution of this

case contingent upon the result of Fassmer’s dispute with MPM and Gundry.

More importantly, the crux of Ciramar’s argument in its Motion to Dismiss is that all the

disputes among the various players we’ve mentioned are interconnected and belong together in a

single court:

Ciramar and [MPM] both have their places of business in the Dominican Republic[,]

and, notably, Fassmer’s claim here and [MPM]’s claim in the Dominican Republic both

arise out of services performed and conduct allegedly taking place in that country . . .

. [T]his case can be much more efficiently litigated in the Dominican Republic where

[MPM] and Ciramar are present and Fassmer engaged in substantial business with both

companies, where most of the evidence is located, and where the Garnishments are in

effect . . . . [B]oth this case and the Dominican Litigation involve significant common issues and

parties.

Id. at 15, 17 (cleaned up & emphasis added). Ciramar has, therefore, undermined the contradictory

position it has taken in this Response, where it suddenly argues that the “Plaintiff’s threatened claims

against Mr. Gundry and MPM arise from Plaintiff’s separate and unrelated contractual relationship

with each of them.” Response at 5. It’s absurd for Ciramar to advance this argument after having

argued precisely the opposite point in its Motion to Dismiss. But, for purposes of our task today, it suffices

to point out that Ciramar’s Motion to Dismiss offers a contention that’s strikingly similar to Fassmer’s:

viz., that this case and the case in the Dominican Republican involve “inextricably intertwined claims,

counterclaims, and crossclaims” that should be “adjudicated in one proceeding.” Motion to Remand

at 6. Given that the parties essentially agree on this fundamental point (and only disagree on which

court should adjudicate those claims), we’re not persuaded that Fassmer seeks to join MPM and

Gundry “for the sole purpose of destroying federal jurisdiction.” Response at 16. The first Hensgens

factor thus weighs in favor of joinder.

Second, Fassmer caused no unnecessary delays in requesting this amendment and thus cannot

be accused of engaging in “dilatory” tactics. See Simon v. Howmedica Osteonics Corp., 981 F. Supp. 2d

1232, 1236 (S.D. Fla. 2012) (Altonaga, J.) (courts should consider whether the plaintiff was “dilatory”

in seeking joinder). Fassmer filed its Motion to Remand on June 12, 2023—only six weeks after

Ciramar removed the case to federal court—and well within this Court’s amended-pleadings deadline.

See Scheduling Order [ECF No. 15] (setting an amended-pleadings deadline of July 18, 2023). This

second factor, in sum, likewise militates in favor of joinder.

Resisting this conclusion, Ciramar cites an Eleventh Circuit case, Hickerson, for its position that

Fassmer was dilatory:

Plaintiff argues that it was not dilatory in seeking to join Mr. Gundry because it filed

the Motion shortly after removal and within the deadline to amend pleadings. The

Eleventh Circuit rejected a similar argument in Hickerson, reasoning that “the swift

filing does not necessarily indicate diligence” because there as here, Plaintiff knew of

the non-diverse defendant’s alleged involvement in the underlying facts before it filed

the Complaint. Hickerson, 818 F. App’x at 886 (“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.”).

Response at 12. But Ciramar leaves out a crucial difference between Hickerson and our case: In

Hickerson, which involved a car accident, the plaintiffs knew of the non-diverse defendant’s “role in the

accident when it happened, more than two years” before they even filed the complaint. Hickerson v.

Enter. Leasing Co. of Ga., LLC, 818 F. App’x 880, 886 (11th Cir. 2020) (emphasis added). In our case,

by contrast, although Fassmer knew about Gundry’s alleged misdeeds in a different context, it didn’t

learn about “the MPM case [in the Dominican Republic] and the pre-judgment garnishment” until

April 27, 2023—three months after this case was filed. Motion to Remand at 14. And it wasn’t until

May 19, 2023, when Ciramar filed its Motion to Dismiss, that Fassmer discovered Ciramar was using

the MPM lawsuit as its justification for non-payment. Id. at 13. Since Fassmer filed its joinder motion

less than a month after Ciramar submitted its Motion to Dismiss, see generally Docket, we cannot say that

Fassmer was (in any respect) “dilatory.”

Third, Fassmer “will be significantly injured if amendment is not allowed.” Hensgens, 833 F.2d

at 1182. For one thing, Fassmer must now defend itself against the claims Ciramar made in its Motion

to Dismiss, which will presumably involve disputing MPM and Gundry’s writs of garnishment in the

Dominican proceeding. See Motion to Remand at 12–13 (“Ciramar [claims] it [does] not have to pay

Fassmer because of a pre-judgment writ of garnishment in [the] Dominican case brought by MPM

against Fassmer. In response, Fassmer has to show why the claimed monies are not owed to MPM.”).

For another, Fassmer will be significantly injured by the “threat of parallel litigation.” T&G Corp., 552

F. Supp. 3d at 1340. “[T]he 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.” Ibid. (quoting Godwin v. Nat’l Union Fire Ins. Co. of Pittsburgh, 2006 WL 3924795, at *2 (M.D.

Ala. Dec. 15, 2006)). In this case, denying Fassmer’s joinder motion would result in three separate and

ongoing lawsuits.

Ciramar doesn’t dispute that there’s “parallel” litigation pending in the Dominican Republic.

See Response at 8. And Fassmer tells us that, if we deny its request to join additional defendants, it will

be forced to bring a new case in Florida state court to resolve its dispute with MPM and Gundry:

“There is,” Fassmer credibly alleges, “a definite threat of parallel litigation in a separate Florida lawsuit

which will be filed if this motion is denied. It would be burdensome for Fassmer to have to litigate in

multiple cases that overlap in both fact and law . . . . Here, the legal fees, which are already substantial,

might double or even triple if Fassmer has to sue MPM and Gundry separately.” Motion to Remand

at 14–15. Litigating three parallel lawsuits (we think it goes without saying) will jack up the parties’

legal fees, waste judicial resources, and needlessly increase the likelihood of inconsistent or conflicting

judgments. See Hensgens, 833 F.2d at 1182 (holding that the diverse defendant’s “interest in retaining

the federal forum” must be weighed against “the danger of parallel federal/state proceedings [and] the

inherent dangers of inconsistent results and the waste of judicial resources”).

Putting the Dominican lawsuit aside, therefore, Ciramar’s interest in retaining a federal forum

is substantially outweighed by the near-guarantee of a parallel state proceeding. See Cox v. Wal-Mart

Stores E., LP, 2023 WL 4535058, at *4 (M.D. Ga. July 13, 2023) (finding that the risk of a parallel state

proceeding outweighed the defendants’ interest in retaining a federal forum because the “most logical,

economical and equitable approach is to determine the respective rights and liabilities of all relevant

parties inter se in one proceeding”); Delorenzo v. Wal-Mart Stores, Inc., 2017 WL 6525009, at *3 (N.D.

Ala. Dec. 21, 2017) (holding that the third Hensgens factor weighed in favor of joinder because “a denial

of the proposed amendment would force [the plaintiff] to litigate her claims against [the non-diverse

defendant] in a separate lawsuit in state court,” which would “cause[ ] her to bear additional costs and

time and does not serve the purpose of judicial economy” (cleaned up)); T&G Corp., 552 F. Supp. 3d

at 1336 (“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.”). Denying Fassmer’s proposed amendment would force the Plaintiff

to litigate its claims against MPM and Gundry in state court—this, on top of the litigation that’s

proceeding apace here and in the Dominican Republic. Because parallel state litigation would waste

court resources, burden the parties, and potentially result in inconsistent judgments, we find that the

third Hensgens factor weighs heavily in favor of joinder.

Fourth, and relatedly, we look to “any other factors bearing on the equities.” Hensgens, 833 F.2d

at 1182. Ciramar insists that “joining Mr. Gundry will prejudice Ciramar [by] unjustly deny[ing] its

right to defend this action in a federal forum.” Response at 14. That’s a bizarre claim for Ciramar to

make given its earlier position (advanced in its Motion to Dismiss) that the “Dominican Litigation . .

. has priority over this action,” so “[d]ismissal is the only appropriate outcome.” Motion to Dismiss at

11, 21; see also id. at 6 (“The Dominican court is uniquely positioned to settle both sets of claims:

[MPM]’s against Fassmer and Fassmer’s against Ciramar.”). Ciramar cannot credibly argue in one

motion that this case doesn’t belong in federal court, while, in another, insisting that the Plaintiff

“seeks to deprive Ciramar of its properly selected forum” in federal court. Response at 16. Given that

Ciramar itself has maintained that “this Court’s exercise of jurisdiction would create the prospect of

dueling courts, conflicting judgments, and attempts to enforce conflicting judgments,” we don’t think

the balance of equities tips in Ciramar’s favor.

As to other factors bearing on the equities, we’ve already established that nonjoinder could

result in three separate actions, which would create extraordinary inefficiency and increase the risk of

conflicting judgments. This inequity is also “one-sided, because [Ciramar] would never have to

participate in any parallel state litigation—and thus has only to gain from forcing [Fassmer] to divide

its resources and attention.” T&G Corp., 552 F. Supp. 3d at 1341 n.2. For this reason, too, the fourth

Hensgens factor—“any other factors bearing on the equities”—favors joinder.

Against all this, Ciramar advances one final argument: fraudulent joinder. “To establish

fraudulent joinder, the removing party has the burden of proving by clear and convincing evidence

that either: (1) there is no possibility the plaintiff can establish a cause of action against the resident

defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant

into state court.” Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th Cir. 2011). “This burden is a

heavy one,” ibid., because, “[i]f 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 the joinder was proper and remand the case to the state court,” Tillman v. R.J. Reynolds Tobacco,

253 F.3d 1302, 1305 (11th Cir. 2001) (quoting Coker v. Amoco Oil Co., 709 F.2d 1433, 1440–41 (11th

Cir. 1983)). To establish fraudulent joinder, Ciramar would have to show, by “clear and convincing

evidence,” Stillwell, 664 F.3d at 1332, that “there is no possibility that the plaintiff can prove a cause of

action against the resident (non-diverse) defendant.” Triggs v. John Crump Toyota, Inc., 154 F.3d 1284,

1287 (11th Cir. 1998) (emphasis added).

Ciramar hasn’t come close to meeting that high burden here. Ciramar advances two arguments

in support of its claim of fraudulent joinder. First, it (correctly) notes that a defendant is fraudulently

joined “when a diverse defendant is joined with a nondiverse defendant as to whom there is no joint,

several or alternative liability and where the claim against the diverse defendant has no real connection

to the claim against the nondiverse defendant.” Response at 16. Citing this principle, Ciramar contends

that the “claim arising under the [Master Agreement] between Plaintiff and Ciramar is fundamentally

different and not genuinely connected to Plaintiff’s threatened claims against Mr. Gundry.” Ibid. Second,

Ciramar says that, “even if it were true that Mr. Gundry somehow is controlling MPM and Ciramar—

which is not true as it pertains to Ciramar at least—he is not needed for Plaintiff to seek relief from

its contractual counterparts Ciramar or MPM[.]” Id. at 17.

As to the first argument, we reject Ciramar’s view that Fassmer’s claims against MPM and

Gundry have “no real connection” to Fassmer’s claims against Ciramar because, as we’ve said, it

admits (in its Motion to Dismiss) that “this case and the Dominican Litigation involve significant

common issues and parties.” Motion to Dismiss at 17. And, with respect to the contention that

Gundry is “not needed for Plaintiff to seek relief from its contractual counterparts,” Response at 17,

the law is clear that “a non-diverse party need not be indispensable as defined by Fed. R. Civ. P. 19 in

order for a district court to permit joinder and remand the action to state court,” Heininger v. Wecare

Distribs., Inc., 706 F. Supp. 860, 862 (S.D. Fla. 1989) (Nesbitt, J.) (emphasis added). Ciramar, in short,

hasn’t met its heavy burden of establishing fraudulent joinder—principally because it’s failed to show,

by clear and convincing evidence, no possibility that Fassmer might prevail in its claims against MPM

and Gundry.

* * *

After careful review, therefore, we hereby ORDER and ADJUDGE as follows:

(1) The PlaintifPs Motion to Join Necessary Party Defendants and to Remand Case Back to

State Court [ECF No. 21] is GRANTED.

(2) ‘The case is REMANDED to the Circuit Court of the 11th Judicial Circuit in and for

Miami-Dade County, Florida.

(3) The Clerk of Court is directed to CLOSE this case. All pending deadlines and hearings

are TERMINATED, and any pending motions, including the Defendants’ Motion to

Dismiss [ECF No. 11], are DENIED AS MOOT.

DONE AND ORDERED in the Southern District of Florida on October 4, 2023.

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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