Opinion
CASE NO.; 02-61578-CIV-MARRA
April 15, 2003
Plaintiffs, STUART SHEINBERG and DARICE SHEINBERG ("Plaintiffs"), file and serve this Memorandum of Law in support of their Cross Motion for Protective Order and in opposition to Defendant, MARK BRONSON's ("Bronson"), Motion to Compel Discovery and for Sanctions.
Introductory Statement
Plaintiffs have instituted this action, alleging that Defendant, PRINCESS CRUISE LINES, LTD., a Bermuda corporation ("Princess"), breached an Independent Contractor Agreement and Addendum to Independent Contractor Agreement (hereinafter referred to, collectively, as "the Agreement"), pursuant to which Plaintiffs were to serve as Art Auction Directors on board ships within the P O Princess fleet for the period January 1, 2001 through December 31, 2003, unless the period was otherwise extended in accordance with an option provided for in the Agreement or unless the Agreement was terminated. Plaintiff is seeking damages against Princess for the breach. Plaintiffs have also sued Defendant, Bronson, for tortious interference with the Agreement.
Plaintiffs filed their action in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida ("state court"). On November 6, 2002, Princess served a Notice of Removal of Case to Federal Court ("the Notice"), directed to the clerk of the state court. Bronson has filed an Answer and Affirmative Defenses in state court.
Plaintiffs thereafter moved to remand the case to state court and that Motion remains pending. Bronson has moved to compel discovery and for sanctions and Plaintiffs now cross move for a protective order. This Memorandum of Law is submitted in support of that Cross Motion and in opposition to Bronson's Motion to Compel Discovery and for Sanctions.
I. Participating in discovery can, potentially, result in a waiver of remand rights.
Motions to remand cases removed to federal court are governed by 28 U.S.C. § 1447 (c). It states:
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.
Undeniably, Plaintiffs timely moved to remand the case back to state court. Equally undeniable is the fact that the right to pursue a remand can be waived by engaging in certain acts. See e.g., Farm Constr. Services, Inc. v. Fudge, 831 F.2d 18 (1st Cir. 1987); Harris v. Edward Hyman Co., 664 F.2d 943 (5th Cir. 1981), reh. den., 669 F.2d 733; Parks v. Montgomery Ward Co., 198 F.2d 772 (10th Cir. 1952); Diaz v. Montaner Y Lizama, 248 F. Supp. 153 (D.C. Puerto Rico 1965); Chevrier v. Metropolitan Opera Ass'n, 113 F. Supp. 109 (S.D.N.Y. 1953). The following can be construed as acquiescing in federal jurisdiction and waiving the right to pursue remand:
1.) participating in discovery in the federal action (emphasis ours) and attending status conferences in federal court (See Wade v. Fireman's Fund Ins. Co., 716 F. Supp. 226 (M.D. La. 1989)); See, also, Chevrier andHarris, supra.)
2.) vigorously prosecuting the case after removal (See St. Louis Home Insulators v. Burroughs Corp., 597 F. Supp. 98 (E.D. Mo. 1984)), later proceeding 597 F. Supp. 100 (E.D. Mo. 1984), aff'd 793 F.2d 954 (5th Cir. 1986), cert den. 479 U.S. 1021; See, also Farm Constr. Services, Inc.,supra.).
Here, Plaintiffs have been extremely consistent. They have been adamant in refusing to do anything that could be perceived as a waiver of their remand rights. To that end, they moved for an extension of time until ten (10) days after any decision, denying their Motion to Remand, to respond to Defendant, Princess', Motion to Dismiss or Stay Pending Arbitration. Similarly, they moved for an extension of time until, again, ten (10) days after any decision, denying their Motion to Remand, to file and serve Rule 26(a) Disclosures. This second Motion was granted, and the first Motion is pending.
Defendants are fully aware why Plaintiffs do not want to proceed with discovery until after the Motion to Remand is decided. That desire is entirely reasonable and warranted and is supported by the case law cited above.
Accordingly, Bronson's Motion to Compel Discovery and for Sanctions should be denied (It is unclear how Defendant can seek sanctions before a Court Order is entered. (See, e.g., Salahuddin v. Harris, 782 F.2d 1127 (2d Cir. 1986).) and Plaintiffs' Cross Motion for a Protective Order should be granted. Bronson merely cites general case law in his Motion without providing any law that addresses the situation at hand, namely, Plaintiffs' refusal to engage in anything that could be perceived as a waiver of remand rights. The Motion to Remand remains pending, and it is respectfully submitted that until that Motion is decided, Plaintiffs should not be compelled to participate in any discovery, including their depositions.
CONCLUSION
Based upon the foregoing, it is respectfully requested that Plaintiffs' Cross Motion for a Protective Order be granted and Defendant, Bronson's, Motion to Compel Discovery and for Sanctions be denied.