Ralph et al v. Walgreen, Co et alMOTION to remand Motion for Attorney's FeesM.D. Fla.April 27, 2012UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MICHAEL RALPH and PAULA RALPH., Individually and as husband and wife, and BRANDON RALPH, Plaintiffs, vs. VVALGREEN, CO., a foreign corporation, IVIICHEI I E LFVVIS, pharmacy technician, RIGOBERTO A. QUIZON, pharmacist, CAPE CANAVERAL HOSPITAL, INC., RALPH P. PAGE, M.D. and RALPH P. PAGE, M.D., P.A., Defendants. PLAINTIFFS'GTIGN FGR REMAND, MGTIGN FGR ATTGRNEYS'EES ANI3 SUPPORTING MEMGRANDUM GF LAW Plaintiffs, MICHAEL RALPH and PAULA RALPH, Individually and as husband and wife, and BRANDON RALPH, by and through the undersigned attorneys and pursuant to 28 U.S.C. ~ 1447 move fol an Oldef remandln this action 'to the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida and for an award of attorneu's fees and as grounds would state 1. This motion is made pursuant to 28 U.S.C. g 1447(c). 2. Defendants, VVALGREEN, CO., a foreign corporation, MICHELLE LEVVIS, pharmacy technician, RIGOBERTO A. QUIZON, pharmacist, ("VValgreens Defendants" ) filed a Notice of Removal on April 2, 2012, removing this case from the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida, 3. This Court has no jurisdiction to adjudicate this action. The Plaintiffs are citizens of Florida with their place of residence in Brevard County, Florida. Three Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 1 of 14 PageID 83 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No,: 6:12-cv-516-Orl-19KRS Page 2 of 14 adverse parties, CAPE CANAVERAL HOSPITAL, INC., RALPH P. PAGE, M.I3. and RALPH P. PAGE, M.I3., P.A. ("Cape Canaveral and Page" ) are also citizens of the State of Florida. Therefore, complete diversity does not exist and this court does not have diversity jurisdiction over this case under 28 U,S.C. 3 1332. 4. Addit!onally the VVal~reen l3efendants did not obtain the consent of Cape Canaveral or Page and therefore, the Notice of Removal is procedurally improper. Defendants CAPF CANAVERAL and PAGE were nronerlxs ioined anrl ec Pic rl ~f %ha time the VValgreens Defendants filed their Notice of Removal." indeed, the Florida Defendants had no knowledge the case had been removed and filed their Answers and Affirmative Defenses in state cou, shortly after the VValgreens l3efendants filed their Notice of Removal. VVHEREFORE, Plaintiffs, MICHAEL RALPH and PAULA RALPH, Individually and as husband and wife, and BRANI3ON RALPH, respectfully request this Court to enteI Bn 0!del I emal ldll lg tl lls Bcilol I to t! Ie coul l frolmI wl lich It was I e/mloved Bl ld awarding attorney's fees as a sanction for improper removal. IVIEMGRANDUIVI GF LA'vv'his is an action for pharmacy negl!gence and medical negligence. The allegations that follow are contained in Plaintiffs'mended Complaint, which is attached as Exhibit C. Dr. Jos Santz wrote a prescription for 0.5 mg of Coumadin to be taken by Plaintiff, Michael Ralph as directed. See Exhibit C at 'ttla. The prescription was delivered to the VVALGREENS store located at 1600 Skibo Road, Fayetteville, North 'ee verified returns of Service attached at Composite Exhibit A.'ee Answer and Affirmative Defenses filed CAPE CANAVERAL HOSPITAL, INC. and by RALPH P. PAGE, M.D. and RALPH P. PAGE, M.D., P.A. attached as Composite Exhibit B, Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 2 of 14 PageID 84 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No.: 6:12-cv-516-Orl-19KRS Page 3 of 14 Carolina and negligently misfilled by the Walgreens l3efendants on or about February 5, 2010. /d. WALGREENS gave Plaintiff, MICHAEL RALPH, 5 mg tablets of Coumadin instead of 0.5 mg tablets. /d. This resulted in Plaintiff, MICHAEL RALPH, taking a slgAlf leant overdose of Coumadin. /6. PialAtlff took the medlcatloA as directed Dy the Defendant. WALGREENS from February 5 201Q through Februarv 22 2010, Id. at ll21. Plaintiff, MICHAEL RALPH, was transported to Cape Canaveral Hospital on February 22 2010 for emergency treatment,".'here it '.".'as discovered that he '"'as urinating blood and had severe back pain. /d. The Coumadin overdose caused an epidural hematoma from C4=T10. /cI. On admission, the PIaintN's INR level was very high as were his hemoglobin and hematocrit levels. Id. at /~24, While at CAPE CANAVERAL HOSPI;AL, INC. on February 26, 2010, RALPH P. PAGE, M.I3., negligently ordered a pharmacy consult to adjust and monitor anticoagulant dosing to Plaintiff, MICHAEL RALPH. /o', at g 25. PAGE aAd CAPE CANAVERAL negligenily administered Coumadin in tree amount of 2 mg by mouth at CAPE CANAVERAL HOSPITAL on or about February 26 2010 despite Plaintiff, MICHAEL RALPH's medical status. io. Had Plaintiff, MICHAEL RALPHi been treated in a non-negligent fash!on while at Cape Cana.eral hospital he would not have sustained permanent injuries. /d. Plaintiffs'mended Complaint also sets forth claims for loss of consortium on behalf of Paula Ralph, Michael's Ralph's spouse and on behalf of his unmarried dependent son pursuant to Fla. Stat. $768.0415. Plaintiffs Amended Complaint alleges that all conditions precedent to bringing a claim for medical negligence under Fla. Stat. Chapter 766 have been satisfied. See Exhibit C at $26. Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 3 of 14 PageID 85 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. 5/algreen, Co., et al. Case No.: 6:12-cv-516-Orl-19KRS Page 4 of 14 Defendants allege in their Notice of Removal that the Florida healthcare provider Defendants (CAPE CANAVERAL and PAGE) were fraudulently joined solely to defeat diversity jurisdiction. The only support for this claim of fraudulent joinder is the fact that Plaintiffs initially filed a Complaint on January 24, 2012 naming only the 8/a!greens Defendants which was nevel served Bnd subseqUently flied an Amended Co!T!pla!nt on March 9, 2012 adding the Florida healthcare Defendants, Defendants argue that the timing of the Amended Complaint somehow indicates fra dUlent 'oinder, suggesting that Plaintiffs added the Florida Defendants on a whim solely to defeat diversity jurisdiction. This is simply not true. In fact, Plaintiffs had evep intention of suing the Florida healthcare providers before filing a Complaint on January 24, 2012. On November 28, 2011, Plaintiffs filed a Petition to Extend the Statute of Limitations by 90 days with respect to the healthcare providers pursuant to Fla. Stat. g 766.104(2) in order to conduct a presuit investigation as required by Florida law. Plaintiffs could not have named t»6 Flo&lda heaiincare Defendants In the Jatluary 24, 20 i2 Complaint becaUse the mandatory presuit investigation had not yet concluded. l. The Iavt! of fraudulent ioinder and r6mBnd: Defendants, as the parties seeking removal, have the burden of proving by clear and convincing evidence that the joinder was fraudulent. See Parks v. Mew York Times Co., 308 F.2d 474, 478 (5'" Cir, 1962)'; see also, Katz v. Costa Armator!, S.P.A., 718 F.Supp.1508, 1510 (S.D. Fla. 1989); Lane v. Champion Int'I Corp., 827 F.Supp 701, 710 (S.D. Ala. 1003). This heavy burden is placed on the party seeking removal for two The Petitior, is attached as Exhibit D ln Bonner v. City of Priehard, 661 F.2d 1206, 1207 (11'ir. 1961), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit rendered prior to October 'I, 1981). Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 4 of 14 PageID 86 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No.: 6:12-cv-516-Orl-19KRS Page 5 of 14 reasons. First, in the absence of fraudulent joinder, the "plaintiff has the right to select the forum, to elect whether to sue joint tortfeasors and to prosecute his suit in his own way to a fjnal determjnatjon." Crogre K Co/emarf, 113 F.3d 1536, "l538 (I.lth Cjr Second, "[t]he strict construction of the removal statute also prevents 'exposing the Glaintiff tO the GOSSjbjljty that he Will Win 8 fjnal judgment jn federal COiirt Onlv tO haVB it deieiiiilned th8t 'ihe court jacked jurfsdIctlon GA removal. /cf. IA ihe EleveAth Circuit GAly thl 66 '" ' stances support 8 "- atioi i ™f fraudulent joinder: (1) where there is no possibility that the plaintiff can prove a cause of action against the IesldeAi (lioii-dlvefse) defendant; (2) ihele ls GU'illgh'i flaUd IA the plaIA'tiff s pleading Gf jurisdlciionaI iacis; Gl" (3) vvhere 8 iesident shaies Ao joIAt, sevelal, or alternative liability with the non-resident defendants and the claim against the resident defendant has no real connection to the claims against the non-resident defendants. Triggs v. John Crump Toyota, /nc., 154 F.3d 1284 (11'"Cir. 1998). None of the aforementioned clicUiiisiances exist IA ihjs case. In both Triggs and Crowe the Eleventh Circuit has held "lf there is even 8 possibility tA8'i 8 state coUfi wGUId find that ihe cofTlplaint states 8 caUse GT acllon against any one of the resident defendants, the feder I court must find that the joinder was proper and remand the case to the State court." In Triggs, court also said, "The plaintiff need not have a winning case against the allegedly fraudulent defendant; he need only have a possibi/ity of stating a valid cause of action in order for the joinder to be legitimate." Triggs at 1287 (emphasis in original). See 8/so CroIAB, supra 113 F.3d at 1541 (stating that the Plaintiff need not be able to survive a motion for summary judgment for the court to find that a reasonable basis exists for predicting that state law Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 5 of 14 PageID 87 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No.: 6:12-cv-516-Orl-19KRS Page 6 of 14 might impose liability on the non-diverse defendant); Pacheco Oe Parez v. AT8 T, 139 F.3d 1386, 1380 (11'" Cir. 1998) (stating that the fact that the plaintiffs may not ultimately prevail against the resident defendants because of an insufficient causal link between the defendants'ctions and the plaintiff's injuries does not mean that the plaintiffs have not stated 8 ca~use Qf act!Qn fQr ourpQses of 8 fraudulent joinder analxIsic) Moreover, the plaintiff's motivation in joining the non-diverse defendant is "not impor"iant as IQAg as pla!n.!,...asthe ,'ntent to p'', ue 8 ju gment aga!Ast the defBAdaAi. Trfggs, 154 F.3d at 129'I. Courts in the Eleventh Circuit have gone so far as to say that the district court's thority to look ir,to the merits of the plaintiff's claims must be limited to checking for obviously fraudulent or frivolous claims. Crovve, Montgomery 8 Larmoyeux v. Philip Moriris, Inc., 992 F.Supp. 1372 (S.D.Fla. 1998); Tran v. I/Yaste Management, Inc., 290 F. Supp. 2d 1286 (M.I3.Fia. 2003). In Bvaiuat! Ag 8 motion foi relmland, tl Ie I ernov! Ag party bea[ s tl le burden of demonstrating federal jurisdiction. Triggs, That burden has been described as a heavy Qne. Crovve. 113 F.3 at I 538. Federal courts are courts of limited jurisdiction, and there !s a presumption aga!nst the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand. Russell Corp. v. American Home Assurance Company, 264 F.3d 1040 (11'" Cir. 2001). Therefore, this Court need only determine if there exists a possibility Plaintiffs'omplaint states a cause of action or that her claim is not obviously fraudulent or frivolous. In performing this analysis, this court should resolve all questions of fact and controlling substantive law in favor of the Plaintiffs. Coker v. Amoco Oil Co., 709 F.2d Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 6 of 14 PageID 88 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Lavv Ralph v. Walgreen, Co., et al. Case No,: 6:12-cv-516-Orl-19KRS Page 7 of 14 1433 (11'" Cir, 1983), superseded by statute on other grounds as stated in 991 F,2d 1533 (11'" Cir. 1993). In addition, the court must construe removal jurisdiction narrowly, and resolve any doubts regarding the existence of federal jurisdiction in favor of the non-removing party. Oross/er v. With-Ayherst, 64 F.Supp.2d 'I 265 (S.D. Fia. 1999). A. Plaintiffs have a va!id cause of action for medica! neolioence against CAPE CANAVERAL HOSPITAL, INC., RALPH P. PAGE, M.D. and RALPH P. PAGE, M.D., P.A. under Florida law. Under Florida law, to prevail in a medical malpractice case a plaintiff must establish the following: a standard of care owed by defendant, defendant's breach of the standard of cale, and 'that said breach proximately caused the damages claimed. See Gooding v. University Hospita/ /3/c/g., /nc., 445 So. 2d 1015. Plaintiff's Amended Complaint alleges that Cape Canaveral had a duty to provide Plaintiff with medical care and treatment in accordance with the standard of care. The Amended Complaint alleges that Cape Canaveral breached this duty by departing from the standard of care in the following respects: failure to reverse Michael Ralph's INR in a timely fashion; failure to administer sufficient fresh frozen plasma and/or Vitamin K to timely to reverse Mlcl laei Ralph s INR; failure to keep its hospital pharmacy from filling Coumadin 2mg for Michael Ralph on or about February/ 26, 2010; and failure to prov!de that level of care, skill, and treatment which, in light of ail relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers. See Exhibit C at Count V. Likewise, Plaintiffs Amended Complaint alleges that Page had a duty to administer care to the Plaintiff in accordance with the prevailing professional standard of care for internal medicine physicians in Brevard County and other similar medical Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 7 of 14 PageID 89 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No.: 6:12-cv-516-Grl-19KRS Page 8 of 14 communities. The Amended Complaint alleges that Page breached this duty of care by: negligently ordering on February 22, 2010 at Cape Canaveral Hospital a pharmacy consult to adjust and monitor anticoagulant dosing to Michael Ralph; negligently ordering Coumadin in the amount of 2 mg by mouth at Cape Canaveral Hospital on February 2R )n10 deSpjte MjChael Qzlnh'c, rnerlir'~l cf~4i &S &ai!i~~ &~ ~@Verse MIChaeI Ralph s INR ln 8 timely 'fashion on admission; falling to adininls'tel sufficient fl'esh flozen plasma and/zr gtarnjn P $z f&~z}y 4A rewinrc n All}r Knack Palp)'s lklD on admjssjr v r ~A failing to provide that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar healthcare providers, See Exhibit C at Count X. The Amended Complaint also contains allegations of vicarious liability and negligent credentialing. However, it is unnecessary to discuss these allegations, as the allegations of medical negligence clearly establish that it is at least possible that a Florida court would find the Amended Complaint states 3 cause of action. It certainly cannot be said thai Plaintiff's Amended Complaint is frivolous, the standard set forth in Crowe, Montgomery and Tran, 8Upr 8. Indeed, Florida'resuit scheme renders it virtually impossible to file a fri'olous claim for medical negligence. Any complaint must allege compliance with the statutory conditions precedent to bringing such a claim set forth in Chapter 766, Fla. Stat. See Kukr8/ v, Mekras, 679 So. 2d 278 (Fla. I996)(compliance vvith presuit provisions set forth in Chapter 766 is a condition precedent to maintaining a cause of action for indeed 'the Florida «ealthcal e Defe& &dents have filed Answers to the Complaint raihei than attempting to dismiss the complaint for failure to state a cause of action. See Exhibit B. 'laintiffs Amended Complaint alleges compliance. See Exhibit C at g 26. Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 8 of 14 PageID 90 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Lavv Ralph v. Walgreen, Co., et al. Case No.: 6:12-cv-516-Orl-19KRS Page 9 of 14 medical negligence). Before bringing suit, a claimant must determine whether reasonable grounds exist to believe that a healthcare provider has acted negligently and caused the claimant's injuries. See g 766.203(2), Fla. Stat. As part of this determination, the claimant must obtain a verified written opinion from a medical expert. See g 766.202(5).'. There is no outright fraud in the Plaintiffs pleading of jurisdictional facts. The Walgreens Defendar,ts do not and canno', contend that there is outright fraud in Plaintiffs'leading of jurisdictional facts. The Notice of Removal concedes that Cape Canaveral and Page are citizens of Florida. C. The Florida defendants are joint tortfeasors with the non-resident defendants, and the claims against the Flor!da defendants are intricately connected wi'th the claims agatiAst the noA-resideAt defeAdants. Fraudulent joinder may occur where the resident defendant shares no liability with the non-resident defendant or where the claims against the resident defendant sl"iares nio coniieciionI to the claim against the non-resident defendants. See Tflggs, supra. Under Florida law, joint tortfeasors are defined as those who act together in committing vviong, or wnose acts if independent of each other, unite in causing a single inju, See Lef ter v. Cephas, 792 So. 2d 481, 486 (. la. 4'" DCA 2001); see /s, Jackson v. York Hanover Nursing Centers, 876 So, 2d 8 (Fla. 5'" DCA 2004)(even if two seemingly independent tortious acts do not precisely coincide in time, the actors can be considered joint tortfeasors if the sequence of their actions produces a single injury); Leesburg Hospital Assn., Inc. v. Carter, 321 So. 2d 433 (Fla. 2d DCA 1975)(finding that Plaintiffs are attaching the expert opinion they obtained in presuit corroborating reasonable grounds to suppoit a claIni of irnicdIcal malplac'tice agaInst the iioin-OIvei'sB iiealihicaI'e defendants as Exhibit E. This Affidavit leaves no doubt that the Plaintiffs can and have stated a cause of action against the non-diverse defendants. There simply is no fraudulent joinder. Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 9 of 14 PageID 91 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co,, et al. Case No.: 6:12-cv-616-Grl-19KRS Page 10 of 14 the alleged acts of the hospital and the physician combined to produce a single injury even though the alleged wrongful acts did not precisely coincide with time). Whether or not defendants are joint tortfeasors is normally a question of fact determined by the circumstances of the particular case. See Letzter, 792 So. 2d at 486. In this case, P!aintiffS'mended COmnlaint aileneS that the aCtiOnS Of the Walgreen DefendantS in negligently filling the Coumadin prescription, and the negligent acts of the Florid medical providers from whorr, Plair,tiff sought treat„,ent for the e~I,ccts "'h= ~o"-""'" overdose, resulted in permanent injuries to the Plaintiff. Although their actions did not precisely coincide, it certainly cannot be said that there is no connection between the claims asserted against the removing l3efendants and the Florida l3efendants. Indeed, if the claims against the VValgreens l3efendants and the Florida healthcare l3efendants (Cape Canaveral and Page) are not tried together, there will be a risk of inconsistent verdicts as each may be able to convince the jury that the injuries were caused by the other. This scenario would cause llle Plaintiffs slgnlllcanl plejuolce, II. Removal was procedurally improper because all of the Defendants did not consent to removal. It is weil settled that all defendants must consent to removal to federal court. Smith v. The Health Center of Lake City, Inc., 252 F.Supp.2d 1336, 1339 (Fla. M,D. 2003)(citing Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1049 (11'" Cir. 2001)); Harbour Light Towers Assn., v. Ameriflood LLC, 2011 VVL 2517222, *5 (M.D. Fla. June 23, 2011)(citing Smith, supra). This requirement is referred to as the 'n their Notice of Removal, the VValgreens Defendants suggest that if this case is not remanded, Plaintiffs will not be prejudiced because they will still be able to pursue their claims against the Co- defendants in state court. Not only is this aigUment UnfoUnded, piejUdlce Is not a standard by which courts determine the existence of fraudulent joinder and whether or not a case should be remanded to s'tate coUI t. Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 10 of 14 PageID 92 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. VValgreen, Co., et al. Case No.: 6:12-cv-516-Orl-19KRS Page 11 of 14 unanimity rule. This unanimity rule must be strictly interpreted and enforced. id. If all the defendants do not consent to removal, this constitutes a defect in the removal procedure under 28 U.S.C. 1447(c), and remand is appropriate. /d. In this case, the Notice of Removal does not state that ail defendants consent to removal, nor have any separate written consents been f!led. !t Is quite clear on its face that the Flo:ida Defendants (Cape Canaveral and Page) did not even knovv the action had been I emoved as t By fIled Answel"s to P I8Intlffs Amended Complaint In 8'tate Court, subsequent to removal. See Exhibit B. Counsel for the Florida Defendants (Cape Canaveral and Page) have since confirmed that they did not consent to removal. Thele agee soITIB exceptions to the una) limlty IequllemBA't, AGAB of which apply to this case. OI IB exceptlol I Is that the non-consenting defendants have not been served. See English v. Unum Life /ns. Co., 2010 N/L 3269794, *4 (M.D. Fla. June 21, 2010). This exception is not applicable. See returns of service with respect to the Florida DefenGants atiaci ted as Ex!i!bit A. Anothel BxceplIGII applies to defendants vvho have been fraudulently joined. /d. As Plaintiffs have set forth above, the Florida defendants have not been fraudulently joined. A third exception arises when the non-consenting defendants are only nominal or formal pa&les. /cI. 'he N/algreens Defendants have not suggested that Canaveral or Page are merely nominal defendants, nor would such an assertion pass muster. Courts examining the nominal defendant exception have defined the term in varying ways. Many cite to Black's Law Dictionary which defines a nominal defendant as a "party who, having some interest in the subject matter of a A fourth exception which is not applicable to this case exists where removal is based upon 28 U.S.C. 1441(c}(joinder of federal claims and state law claims). Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 11 of 14 PageID 93 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No.: 6:12-ov-516-Orl-19KRS Page 12 of 14 lawsuit, will not be affected by any judgment but is nonetheless joined in the lawsuit to avoid procedural defects." See Career Network Inc., v. MIQT Services, 2011 VVL 397906, *2 (2011 VVL 397906 (M.D. Feb 3, 2011). Another test is to ask if the defendarit's "role in the lawsuit is that of a depository or stakeholder" or to determine Whether the "COurt Can enter 8 final iudgment COASiStent With erI! Iiitv and gOOd coflscience which would Ao't be ill 8ily way Uflfafl ol IfleqUI'table Lo plaifltl! I Ifl the absenr 6 of that dufepdanf /rl (r !ting Trf'f'tfac fLfnylenannrc Inc v Tri Cilia c Drintinrv Pressmen and Assistants'oca/ 349, Int'I Printing Pressmen and Assistants'nion of IV.A., 427 F.2d 325, 327 (5th Cir.1970). Other definitions include "those against whom no real relief is sought." See Thorn v. Amaigamated Transit Union, 305 F.3d 826, 833 (8'" Cir. 2002). Finally, nominal defendants have been described as those for which there is no reasonable basis for predicting they will be held liable. See Shaw v. Dow Brands, 994 F.2d 364,369 (7'" Cir. 1993). None of the aforementioned definitions of flornlflal pafty accUfaLely descl ibe LI le Ao! I"co!IseIILII Ig defencllaIILs in LI IiS Case. Therefore, the nominal party exception to the unanimity rule does not apply. III. Attornev's fees sanction Sec'tion 28 U.S,C, 1447 (c) provides an order of remar.d may require payment of attorney's fees incurred as a result of the removal. This award is within the sound discretion of the court. There need not be a finding of bad faith as a predicate to awarding fees since the intent of $1447 is to reimburse plaintiffs who have incurred expenses in seeking remand of improper removals. Martyak K Martyak, 378 F.Supp,2d 1365 (S.D.Fla. 2005). Defendants'otice of Removal is without merit. It was filed prematurely and warrants sanction upon remand. Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 12 of 14 PageID 94 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No.: 6:12-cv-516-Orl-19KRS Page 13 of 14 CGNCLUSIGN The Eleventh Circuit imposes a heavy burden upon one seeking to remove a case between two patently non-diverse litigants on fraudulent joinder grounds. l3efendants have failed io meet this burden. i3efendanis have also failed to satisfy the L!Aanimifv r!8!le by failinn tO Obtain the r Grise nt Of all defendantS nr!Gr tn remnVal Defendants 8!tempt to CI'Bate jLlrisdiciion IA this Court whele Aone exists ShoLlld be rjellied R~rrland With ap @yard Of attorney'S feme ir anne nnr!n4n nnr! iasnrrnn4nr! CERTIFICATE GF GGGD FAITH CONFERENCE I HEREBY CERTiFY that pursuant to Local Rule 3.01(g), counsel for the movant has cGAfelled with GpposIAg coLlnsel In Grdel io make 8 good faith Bffol!. io lesoive the IssUes ralseG IA this rnotlon and coUnsel was AG't agreeable 'to 8Ay such !resGIUilon. I HEREBY CERTiFY that 8 true and correct copy of the foregoing has been furnished by electronic mail vvith the Clerk of the U.S. Middle l3istrict Court by using the CM/ECF and U.S. Mail to all counsel on Ihe 8llached list, iills 27 day Gf April, 2Q12. /s Karen E. Terrv Karen E. Terry Florida Bar No 4578Q Searcy l3enney Scarola Barnhart 8 Shipiey, P.A. 2139 Palm Beach Lakes Boulevard N/est Palm Beach, Florida 334Q9 Phone: (561) 686-63QQ Fax: (561) 383-9441 Attorneys for Plaintiff(s) Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 13 of 14 PageID 95 Plaintiffs'otion For Remand, Motion For Attorneys'ees And Supporting Memorandum of Law Ralph v. Walgreen, Co., et al. Case No.: 6:12-cv-516-Grl-I BKRS Page 14 of 14 COUNSEL LIST Arthur J. Laplante, Esquire Hinshaw 8 Culbertson LLP One E Broward Blvd., Suite 1010 Fort Lauderdale, FL 33301 Phone: (954) 375-1137 Fax: (954) 467-1024 Attorney for Walgreen Co, Marche!!e Lewis and Rjgoberto Qi~izon Jennings L. Hurt, III, Esquire Karissa I Owens Fsquire Rissrnan Barr~» Hu,". D"nahue 8 McLain PA 201 E Pine STreet, 15th Floor Orlando, FL 32802-0120 Phone: (407) 839-0120 Fax: (407) 841-9726 Attorney For: Cape Canaveral Hospital, Inc. Robert D. Henry, Esquire Ringer, Henry, Buckley 8; Seacord, P.A. 14 E. Washington Street, Suite 200 Post Office Box 4922 Orlando, FL 32802-4922 Phone: (407) 841-3800 Fax: (407) 841-3855 Case 6:12-cv-00516-PCF-KRS Document 9 Filed 04/27/12 Page 14 of 14 PageID 96
