Opinion
Case No. 6:22-cv-1000-RBD-EJK
2023-01-19
The ESTATE OF Daniel EVERETT; Wendy Everett; and ex rel. Wendy Everett, Plaintiffs, v. UNDER ARMOUR, INC.; Under Armour Retail of Florida, LLC; and Sheldon Wright, Defendants.
Chelsea A. Lewis, Chris Kleppin, The Kleppin Firm, P.A., Plantation, FL, for Plaintiffs. Justin Otis Scott, Cole, Scott, Kissane P.A., Tampa, FL, Angelique Groza Lyons, Constangy, Brooks & Smith, LLP, Tampa, FL, for Defendants Under Armour, Inc., Under Armour Retail of Florida, LLC. Shannon L. Kelly, FordHarrison LLP, Orlando, FL, for Defendant Sheldon Wright.
Chelsea A. Lewis, Chris Kleppin, The Kleppin Firm, P.A., Plantation, FL, for Plaintiffs. Justin Otis Scott, Cole, Scott, Kissane P.A., Tampa, FL, Angelique Groza Lyons, Constangy, Brooks & Smith, LLP, Tampa, FL, for Defendants Under Armour, Inc., Under Armour Retail of Florida, LLC. Shannon L. Kelly, FordHarrison LLP, Orlando, FL, for Defendant Sheldon Wright. ORDER ROY B. DALTON JR., United States District Judge
Before the Court is Plaintiffs' Motion for Remand. (Doc. 28 ("Motion").) The Motion is due to be granted.
The facts of this case are lengthy but only a brief recitation is needed for this Motion. The decedent Daniel Everett was a Black man who worked for Under Armour. (See Doc. 1-1, ¶ 19.) Everett was allegedly harassed by Defendant Sheldon Wright, another Black man, because Everett married a white woman. (Id. ¶¶ 27, 45.) Wright eventually fired Everett after which Everett shot and killed a coworker and then himself. (Id. ¶¶ 53, 84, 85.) So Everett's Estate, his daughter, and his wife (together, "Plaintiffs") sue Under Armour, Inc. ("UAI"), Under Armour Retail of Florida, LLC ("UAR"), and Wright for multiple state court claims. (Id. ¶¶ 113-51.)
Plaintiffs sue two Under Armour companies but it is unclear which one, or both, actually employed Everett. (See Doc. 1-1, ¶ 19.)
Plaintiffs bring claims for "grossly negligent/reckless infliction of emotional distress" ("GNIED"). (See Doc. 1-1, ¶¶ 118-24, 135-44.) While the Court is highly skeptical that GNIED claims are cognizable in Florida, the state courts are better equipped to determine the existence and contours of this claim. See generally Est. of Roig v. United Parcel Serv., Inc., 2020 WL 6875790, at *8 (S.D. Fla.), adopted, No. 20-cv-60811, 2020 WL 6873892 (S.D. Fla. Nov. 22, 2020) (declining to recognize a GNIED claim).
Plaintiffs served all Defendants in May 2022. (Doc. 1, p. 2; Doc. 1-2, p. 1.) UAI removed this case under diversity jurisdiction in June 2022, without obtaining consent from UAR or Wright. (Doc. 1.) UAI stated that although Plaintiffs, UAR, and Wright were Florida citizens, UAR and Wright were fraudulently joined. (Id. at 2-4; Doc. 1-1, ¶¶ 10, 13.) Plaintiffs now move to remand, arguing, among other things, that UAR did not consent to removal. (Doc. 1, pp. 2-4; see Doc. 28.) UAI responds that fraudulently joined defendants need not consent to removal. (Doc. 44, p. 2.) In assessing the remand motion, it became apparent to the Court that UAI had not established UAR's citizenship. (See Doc. 1.) Giving UAI another bite at the apple, the Court directed it to establish UAR's citizenship in order to meet their burden of establishing proper removal. (Doc. 53.) UAI then clarified that UAR was actually a citizen of Maryland. (Doc. 54; Doc. 54-1.) But to date, UAR has not consented to removal.
The removing party bears the burden of demonstrating federal jurisdiction. See Pacheco de Perez v. AT & T Co., 139 F.3d 1368, 1373 (11th Cir. 1998). Removal statutes are construed narrowly and all doubts are resolved in favor of remand. See id.; City of Vestavia Hills v. Gen. Fid. Ins. Co., 676 F.3d 1310, 1313 (11th Cir. 2012). "The unanimity rule requires that all defendants consent to and join a notice of removal in order for it to be effective." Bailey v. Janssen Pharm., Inc., 536 F.3d 1202, 1207 (11th Cir. 2008).
Here, it is undisputed that UAR never consented to removal in any form. UAR did not file a notice of consent, indicate in its motion to dismiss that it consented, or join in on UAI's opposition to the remand motion. (See Docs. 1, 21 44.) See generally Stone v. Bank of N.Y. Mellon, N.A., 609 F. App'x 979, 981 (11th Cir. 2015) (stating that a defect in the unanimity rule "may be cured by opposing a motion to remand"). Because UAR never consented, UAI failed to establish removal was proper. See Pacheco, 139 F.3d at 1373. So the case must be remanded. See Bailey, 536 F.3d at 1207; e.g., Wesco Distrib., Inc. v. Sunrise V.A. Med. LLC, No. 09-60686-CIV, 2009 WL 10668910, at *2 (S.D. Fla. Oct. 29, 2009).
Neither UAI nor UAR ever argued that UAR was a nominal party, an exception to the unanimity rule. See Thermoset Corp. v. Bldg. Materials Corp of Am., 849 F.3d 1313, 1317 (11th Cir. 2017) (discussing nominal parties when complete diversity is lacking). UAI only argued that UAR was fraudulently joined because it mistakenly believed UAR was nondiverse. (See Doc. 44.) But the U.S. Court of Appeals for the Eleventh Circuit recently expressed doubt that the judicially created doctrine of fraudulent joinder applies when parties are completely diverse—as is the case here. See Championship Prop. LLC v. Coan, No. 20-13728, 2022 WL 4455208, at *6 (11th Cir. Sept. 26, 2022).
Accordingly, it is ORDERED AND ADJUDGED:
1. Plaintiffs' Motion (Doc. 28) is GRANTED.
2. This case is REMANDED to the Circuit Court for the Ninth Judicial Circuit in and for Orange County, Florida.
3. The Clerk is DIRECTED to terminate all pending motions as moot and to close the file.
DONE AND ORDERED in Chambers in Orlando, Florida, on January 19, 2023.