Opinion
Case No: 8:21-cv-1791-MSS-CPT
2022-12-08
Ausencio FERIA, Plaintiff, v. US SOLAR SQUARED, LLC and L & V Landscaping and Tree Service, LLC, Defendants.
Alejandro Franklin Garcia, Ramhofer Garcia, PLLC, Coral Gables, FL, Raymond R. Dieppa, Florida Legal, North Miami, FL, for Plaintiff. Andrew S. Bolin, Bolin Law Group, Tampa, FL, for Defendant L & V Landscaping and Tree Service, LLC.
Alejandro Franklin Garcia, Ramhofer Garcia, PLLC, Coral Gables, FL, Raymond R. Dieppa, Florida Legal, North Miami, FL, for Plaintiff. Andrew S. Bolin, Bolin Law Group, Tampa, FL, for Defendant L & V Landscaping and Tree Service, LLC. ORDER MARY S. SCRIVEN, UNITED STATES DISTRICT JUDGE
THIS CAUSE comes before the Court for consideration of Defendant US Solar Squared, LLC's Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction, (Dkt. 53); Plaintiff's response in opposition thereto, (Dkt. 54); Plaintiff's Supplemental Brief as to Jurisdiction and in the Alternative Motion to Drop Nondiverse Parties Pursuant to Rule 21, (Dkt. 61); Defendant's Response to Plaintiff's Supplemental Brief on Subject Matter Jurisdiction, (Dkt. 62); and, Defendant's Response in Opposition to Plaintiff's Motion to Drop Nondiverse Parties. (Dkt. 63) Upon consideration of all relevant filings, case law, and being otherwise fully advised, the Court DENIES the Motion to Dismiss and GRANTS the Motion to Drop Nondiverse Parties.
I. BACKGROUND
This action arises from an incident that occurred while Plaintiff Ausencio Feria ("Plaintiff") was performing tree-trimming services on behalf of Defendant US Solar Squared, LLC ("US Solar") and its subcontractor, Defendant L&V Landscaping and Tree Service, LLC ("L&V") (collectively, "Defendants") to remove branches that were obstructing a residential roof-mounted solar panel heating system. (Dkt. 24) Plaintiff alleges that he was severely injured when he fell from an elevation of over 20 feet while performing the tree-trimming services on behalf of and at the direction of Defendants. (Id.) Plaintiff asserts that Defendants are directly and vicariously liable for his injuries due to their negligent training, supervision, and execution of the installation and tree-trimming services. (Id.) Plaintiff brings claims on his own behalf, and on behalf of his minor children, Ay.M, K.M., A.M, and C.S, as their natural guardian pursuant to Florida Statutes § 768.0415 for permanent loss of services, comfort, companionship, and society. (Id.)
Plaintiff predicates the Court's subject matter jurisdiction on diversity jurisdiction under 28 U.S.C. § 1332. (Id. at ¶ 1) As such, in addition to alleging that the amount in controversy exceeds $75,000, Plaintiff contends that complete diversity of citizenship exists among the Parties because Defendants are citizens of Florida and Plaintiff and his minor children are citizens of and domiciled in Mexico. (Id. at ¶¶ 3, 5) Defendant US Solar moves to dismiss the Second Amended Complaint ("Complaint") for lack of subject matter jurisdiction, contending that the minors are domiciled in Florida; thus, their presence in this suit destroys diversity jurisdiction. (Dkt. 53)
On August 22, 2022, the Court Ordered the Parties to provide supplemental briefing to address a line of authority suggesting that citizens of the United States are unable to invoke diversity jurisdiction of the federal courts under § 1332, as neither party disputes that the minor children are United States citizens. (Dkt. 60) In response, Plaintiff contends that the case law referenced by the Court is distinguishable. (Dkt. 61 at 1-3) Alternatively, Plaintiff seeks to drop the claims brought on behalf of the minor children from this suit. (Id.) U.S. Solar maintains that subject matter jurisdiction is lacking and opposes the request to drop the minor parties, arguing that doing so would be prejudicial. (Dkts. 62, 63)
II. LEGAL STANDARD
Federal courts are courts of limited jurisdiction. "[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously [e]nsure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises." Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001). Congress granted district courts original subject matter jurisdiction over civil actions sitting in diversity. 28 U.S.C. § 1332. Diversity jurisdiction exists where the amount in controversy exceeds $75,000 and the lawsuit is between citizens of different states or between citizens of a state and citizens or subjects of a foreign state. Id. § 1332(a)(1), (2). Each defendant must be diverse from each plaintiff for diversity jurisdiction to exist under 28 U.S.C. § 1332. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999). The Eleventh Circuit has stressed that "[c]itizenship, not residence, is the key fact that must be alleged . . . to establish diversity for a natural person." Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994). "In order to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State." Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). "A person's domicile is the place of his true, fixed and permanent home and principal establishment, and to which he has the intention of returning whenever he is absent therefrom." Id. at 1257-58, 109 S.Ct. 2218 (internal quotation marks and alterations omitted). "Domicile is not synonymous with residence; one may temporarily reside in one location, yet retain domicile in a previous residence." Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1341-42 (11th Cir. 2011).
Motions to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack jurisdiction facially or factually. Morrison v. Amway Corp., 323 F.3d 920, 924 n. 5 (11th Cir. 2003). When the jurisdictional attack is factual, the Court may look outside the four corners of the complaint to determine if jurisdiction exists. Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 732 (11th Cir. 1982). In a factual attack, the presumption of truthfulness afforded to a plaintiff under Fed. R. Civ. P. 12(b)(6) does not attach. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
III. DISCUSSION
In the Motion to Dismiss, US Solar lodges a factual attack on this Court's subject matter jurisdiction, arguing that the allegations in the Complaint are incorrect in alleging that complete diversity of citizenship exists in this case. (Dkt. 53) Section 1332(a) provides that district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 and where the matter is between:
(1) citizens of different states;28 U.S.C. § 1332(a).
(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State.
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state . . . as plaintiff and citizens of a State or of different States.
Alienage jurisdiction, set out in § 1332(a)(2), is a form of diversity jurisdiction under which federal courts may hear cases between citizens of a State and citizens or subjects of a foreign state. Molinos Valle del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1340 (11th Cir. 2011). US Solar does not dispute that Plaintiff Ausencio Feria, the father of the minor children, is neither a United States citizen nor a legal permanent resident. Thus, if Mr. Feria was the only Plaintiff in this lawsuit, the court would have subject matter jurisdiction under alienage jurisdiction pursuant to 28 U.S.C. § 1332(a)(2), as the claims would be between a citizen of a foreign state and citizens of a State.
However, Plaintiff also brings claims on behalf of his minor children. Under 28 U.S.C. § 1332(c)(2), "the legal representative . . . of an infant or incompetent shall be deemed to be a citizen only of the same State as the infant or incompetent." Thus, the citizenship of the minor children is also relevant for purposes of establishing diversity jurisdiction. See L.D.J. by & through D.A.J. v. Walt Disney Parks & Resorts US, Inc., No. 614CV19260RL22GJK, 2017 WL 3065144, at *5 (M.D. Fla. July 19, 2017) ("A parent bringing a personal injury claim as next friend on behalf of a child acts as a de facto guardian ad litem, and is not the real party in interest insofar as the child's claims; the child is the real party in interest.").
In the Motion to Dismiss, US Solar contends that Plaintiff's minor children are United States citizens domiciled in Florida; thus, complete diversity jurisdiction is destroyed under 28 U.S.C. § 1332(a)(1) because the matter does not involve citizens of different States. (Dkt. 53 at 7-10) Plaintiff counters that diversity is not destroyed because the minor children are deemed to be domiciled in Mexico by virtue of their parents' lack of United States citizenship and subsequent inability to form a domicile in Florida. (Dkt. 54 at 5)
Plaintiff urges the Court to rely on Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), which discusses the domicile of a minor under the Indian Child Welfare Act of 1978 and its provisions concerning jurisdiction over child custody proceedings. Id. at 36, 109 S.Ct. 1597. In Holyfield, the Supreme Court explained that "[f]or adults, domicile is established by physical presence in a place in connection with a certain state of mind concerning one's intent to remain there." Id. at 48, 109 S.Ct. 1597. "One acquires a 'domicile of origin' at birth, and that domicile continues until a new one (a 'domicile of choice') is acquired." Id. However, the Court explained that the domicile of a minor is determined by that of their parents, since "most minors are legally incapable of forming the requisite intent to establish a domicile." Id. Under these principles, the Supreme Court has advised that "on occasion, a child's domicile of origin will be in a place where the child has never been." Id. Plaintiff thus contends that, under Holyfield, the children cannot form the requisite intent to be domiciled in Florida because their parents cannot be domiciled there. See Holyfield, 490 U.S. at 48, 109 S.Ct. 1597. Non-United States citizens may not have a state domicile. See Fahrner v. Gentzsch, 355 F.Supp. 349, 353 (E.D. Pa. 1972), citing City of Minneapolis v. Reum, 56 F. 576 (8th Cir. 1893); Frick v. Lewis, 195 F. 693 (6th Cir. 1912); PW W. Coast LLC v. Monteverde, No. 17-22233-CIV, 2018 WL 1795486, at *3 (S.D. Fla. Feb. 13, 2018), report and recommendation adopted, No. 17-22233-CIV, 2018 WL 1795440 (S.D. Fla. Mar. 6, 2018) (diversity jurisdiction is not destroyed under § 1332(a)(2) when one of the parties is not a legal permanent resident, even if that party resides in an American state and intends to reside there permanently). Defendant contends that Holyfield is inapposite because it does not discuss diversity jurisdiction under § 1332. (Dkt. 53 at 9)
Even assuming Plaintiff is correct that Holyfield applies to the issue of domicile, and and the minor children cannot be domiciled in Florida, the Court finds that complete diversity is destroyed nonetheless by virtue of the children's United States citizenship. The Court makes this determination based on the line of authority cited in its Order directing supplemental briefing. (Dkt. 60) Unlike their parents, it is undisputed that the minor children were all born in the United States. (Dkt. 54 at 4) Every person born in the United States "becomes at once a citizen of the United States." Miller v. Albright, 523 U.S. 420, 424, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998). Moreover, even if the children are dual citizens of the United States and Mexico, "an individual who is a dual citizen of the United States and another nation is only a citizen of the United States for the purposes of diversity jurisdiction under § 1332(a)." Molinos Valle Del Cibao, C. por A., 633 F.3d at 1341.
Importantly, United States citizens without a State domicile are unable to invoke diversity jurisdiction of the federal courts under § 1332. Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1341 (11th Cir. 2011) ("U.S. citizens domiciled abroad are neither 'citizens of a State' under § 1332(a) nor 'citizens or subjects of a foreign state' and therefore are not proper parties to a diversity action in federal court.") (citing Newman-Green, Inc., 490 U.S. 826, 828-29, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (a United States citizen with no domicile in any State is deemed "stateless" and cannot invoke diversity jurisdiction under §§ 1332(a)(2) or 1332(a)(3))); see also Bou-Assaly v. George P. Mann & Assocs., P.C., No. 16-12159, 2017 WL 33736, at *2 (E.D. Mich. Jan. 3, 2017) (United States citizen domiciled abroad is deemed a "stateless citizen, barring jurisdiction under §§ 1332(a)(1) and 1332(a)(3)."); Rick v. Women's & Children's Hosp., No. CIV.A.08-2013, 2010 WL 2360703, at *3 (W.D. La. May 10, 2010) ("[A]s a United States citizen living abroad and domiciled in Switzerland, Anna is considered 'stateless.' "); Fahrner v. Gentzsch, 355 F. Supp. 349, 353 (E.D. Pa. 1972) (United States citizen's lack of domicile in any particular state at the time the complaint was filed destroys complete diversity).
Plaintiff's attempts to distinguish these cases are unavailing. Thus, to the extent Plaintiff sues on behalf of his minor children, these claims destroy complete diversity of citizenship in this matter due to the minor children's United States citizenship, regardless of their domicile. The minor children are either United States citizens domiciled in Florida, as contended by US Solar in its Motion, or they are United States citizens who are "stateless" due to their parents' lack of domicile, as argued by Plaintiff. Under either scenario, complete diversity is lacking, and the Court is without subject matter jurisdiction due to the inclusion of the claims brought on behalf of Plaintiff's minor children.
Plaintiff requests, however, that instead of dismissing this action for lack of subject matter jurisdiction, the Court permit it to drop the claims brought on behalf of the minor children. (Dkt. 61) As stated above, absent the claims brought on behalf of the minor children, the Parties would be completely diverse, and Plaintiff, as a citizen of Mexico, would be entitled to invoke this Court's subject matter jurisdiction.
Pursuant to Federal Rule of Civil Procedure 21, the Court has the authority to drop a dispensable, nondiverse party at any time in the litigation to preserve diversity jurisdiction. Fed. R. Civ. P. 21; Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 833, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) ("[I]t is well settled that Rule 21 invests district courts with authority to allow a dispensable nondiverse party to be dropped at any time, even after judgment has been rendered."). Courts apply Federal Rule of Civil Procedure 19 to determine whether a party is dispensable, and "addressing dispensability is a prerequisite to potentially curing a case's jurisdictional defects." Diverse Staffing Servs., Inc. v. Consultative Sales Pros., LLC, No. CV421-028, 2022 WL 1271726, at *4 (S.D. Ga. Apr. 28, 2022) (citation and alterations omitted). Once the court determines a nondiverse party is dispensable, dismissal is proper if such dismissal would not create prejudice against another party. Payroll Mgmt. v. Lexington Ins. Co., No. 3:10cv471/MCR/CJK, 2014 WL 12759759 at *2-3, 2014 U.S. Dist. LEXIS 200760 at *6 (N.D. Fla. 2014).
Rule 19 states a two-part test for determining whether a party is indispensable. First, the court must ascertain under the standards of Rule 19(a) whether the minor children are "required" parties. Fed. R. Civ. P. 19(a). If they are required parties, but cannot be joined—i.e., because they are non-diverse—Rule 19(b) provides a list of factors to "determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed." Fed. R. Civ. P. 19(b). These factors include the prejudice to all parties caused by the party's absence, the extent to which the prejudice can be lessened or avoided, the adequacy of a judgment rendered in the party's absence, and the opportunity for the plaintiff to obtain an adequate remedy if the action is dismissed. Id.
Having reviewed the allegations and law presented by the Parties, the Court concludes that the nondiverse minor children are dispensable under Rule 19 and the Parties would not be sufficiently prejudiced by their dismissal to warrant dismissal of the case in its entirety. Defendant's claims to the contrary are not persuasive.
Defendant contends that "there is some authority that a derivative claim must be handled in the same action." (Dkt. 63 at 6) However, the authority cited by Defendant concerning loss of consortium claims, to the extent it applies to the minor children's statutory claims, does not indicate that any derivative claim must be handled in the same action as the lead claim. Rather, these cases simply explain that a plaintiff may recover for a loss of consortium claim only if the plaintiff's spouse has a cause of action against the same defendant, i.e., only if the tort-feasor was negligent and the plaintiff's spouse was free from contributory negligence. See Gates v. Foley, 247 So. 2d 40, 45 (Fla. 1971). Moreover, Defendant's argument that the minor children may be prejudiced in their ability to bring their claims separately from Mr. Feria's is unavailing in light of Plaintiff's own claims to the contrary. Plaintiff contends that the minor children will suffer no prejudice from their dismissal, stating that their claims will be unaffected and are not time-barred. (Dkt. 61 at 5) Moreover, alleviating any concerns about inconsistent verdicts, Plaintiff suggests that once refiled, the minors' claims could be stayed pending a determination in this case as to liability and immunity. (Id. at 6) Plaintiff's proposal that the state court's determination of the minors' claims could be deferred pending this Court's rulings on the issue of liability also alleviates the prejudice claimed by Defendant in having to litigate multiple actions twice and face contradictory liability outcomes. In short, any claimed prejudice by Defendant is insufficient to overcome deference to the Plaintiff's right to select the forum for his own claims and "prosecute his own suit in his own way to a final determination." Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir. 1997). Finally, the Court is not persuaded by Defendant's contention that dismissal of the minor plaintiffs would pose an "exponential burden on judicial economy." (Dkt. 63 at 3) Ultimately, in consideration of the factors enumerated in Rule 19 and weighing the overall prejudice to the Parties, the Court finds that the minor children are dispensable, and it is appropriate to drop them from this action pursuant to Rule 21 to preserve subject matter jurisdiction.
IV. CONCLUSION
Upon consideration of the foregoing, it is hereby ORDERED that Defendant US Solar Squared, LLC's Motion to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction, (Dkt. 53), is DENIED. Plaintiff's Alternative Motion to Drop Nondiverse Parties Pursuant to Rule 21, (Dkt. 61), is GRANTED. All claims brought on behalf of the minor children Ay.M, K.M., A.M., and C.S. are DISMISSED WITHOUT PREJUDICE.
The stay of deadlines in this case is LIFTED. Defendants are directed to respond to Plaintiff's Motion for Partial Summary Judgment on Defendants' Affirmative Defenses, (Dkt. 59) within twenty-one (21) days of the date of this Order. The Court will reset remaining deadlines, including the trial term, by separate notice.
DONE and ORDERED in Tampa, Florida, this 8th day of December 2022.