ALDAJUSTE

v.

GEOVERA SPECIALTY INSURANCE COMPANY

These insurance disputes began when Plaintiff Marie Aldajuste sued her insurer, Defendant GeoVera Speciality Insurance Company (“GeoVera”) in Florida state court. Ms. Aldajuste brought three separate lawsuits seeking coverage under the same insurance policy for three purportedly different losses. (Docs. 1-2, 1-9, 1- 14.) The state court consolidated the cases “for the purpose of discovery.” (Doc. 1- 17 at 48–49.) GeoVera then filed a Notice of Removal with this Court based on diversity jurisdiction. (Doc. 1.) The Notice of Removal states that the “amount in controversy is approximately $118,936.81, excluding Plaintiff’s claims of attorneys’ fees and costs.” (Id. ¶ 6.)¹ Ms. Aldajuste moves to remand, arguing that GeoVera’s removal was untimely, and that GeoVera has not established that the amount in controversy

BACKGROUND

Ms. Aldajuste filed her first lawsuit against GeoVera on June 17, 2019. (Doc. 1-2.) She later amended that complaint on October¹, seeking coverage for alleged water damage that occurred around June 16, 2018. (Doc. 1-4.) Her second complaint, which she filed on July 23, 2020, sought coverage for water damage that occurred around May¹, 2018. (Doc. 1-9.) And her third complaint, seeking coverage for losses due to Hurricane Irma occurring around September 10, 2017,

was filed on August 10, 2020. (Doc. 1-14.) Again, while these pleadings seek coverage for ostensibly different losses, they do so under the same policy Ms. Aldajuste maintained with GeoVera. GeoVera moved to consolidate all three cases on October 12, 2020, arguing that the “issues in the cases are substantially the same” and requesting “that the cases be consolidated in their entirety inclusive of all pleadings and discovery.” (Doc. 1-7 at 117–22, 119 ¶ 7.) But on December 15, 2020, the state court consolidated the individual cases for the purpose of discovery only and reserved ruling on consolidation “for any other purpose.” (Doc. 1-17 at 48–49.) A little over a month later, GeoVera filed its Notice of Removal with this Court, treating all three state cases as a single, consolidated federal case. (Doc. 1.)

DISCUSSION

I. GeoVera’s removal was untimely. Removal must be timely. See 28 U.S.C. § 1446; Pretka v. Kolter City Plaza

II, Inc., 608 F. 3d 744, 756 (11th Cir. 2010). Specifically, section 1446 provides: [I]f the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446(b)(3) (emphasis added). And if a diversity case is not removable “solely because the amount in controversy” does not exceed $75,000, “information relating to the amount in controversy in the record of the State proceeding, or in responses to discovery, shall be treated as an ‘other paper.’” 28 U.S.C. § 1446(c)(3)(A). In any event, a party may not remove a case under diversity jurisdiction based on an amended pleading, motion, order, or other paper “more than¹ year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent [removal].” Id. § 1446(c)(1). In sum, whether GeoVera learned that “this case” was removable from either the face of Ms. Aldajuste’s complaints or from some “amended pleading, motion, order or other paper,” it only had thirty days to file its Notice of Removal after receiving the necessary information. Here, GeoVera correctly notes that “none of the initial pleadings, on their face, clearly indicates federal jurisdiction,” and it therefore filed its Notice of Removal well after thirty days from receiving any of the three initial pleadings. (Docs. 1, 25 at 6.) Ms. Aldajuste presumes that GeoVera first ascertained that these cases were removable when the state court entered its consolidation order on December 15, 2020. (Doc. 8 at 4–5.) She points out that if

GeoVera relied on that consolidation order, then its removal some thirty-five days later would certainly be untimely. Additionally, Ms. Aldajuste notes that GeoVera removed the June 17, 2019 lawsuit more than one year after she filed it, thereby making removal of that case untimely under 28 U.S.C. § 1446(c)(1). For its part, GeoVera argues that it could not ascertain removability from the face of Ms. Aldajuste’s initial pleadings, and that “more information was required.” (Doc. 25 at 7.) But it does not identify an amended pleading or motion that it relied on. GeoVera also claims that the state circuit court’s consolidation order was “insufficient to notify [it] that the clock [for removal] ha[d] started” because that order “itself does not clearly establish federal jurisdiction making removal improper.” (Id. at 6–7.) The logical implication of these representations (or lack thereof) is that GeoVera necessarily relied on some “other paper” it received after the consolidation order in removing the state court cases.

The problem, however, is that GeoVera never identifies that “other paper.” Cryptically, it states that the “final determination that removal was warranted based on the information available and research supporting same was made January 13, 2021. The Notice of Removal was filed⁷ days later.” (Id. at 7.) Rather than explain what this “information” is, GeoVera dances around the point and raises other arguments in passing—none of which the Court finds persuasive. Despite claiming it did not rely on the consolidation order, GeoVera argues that Ms. Aldajuste’s state court opposition led to a “confusing” order, thereby tolling the thirty-day period for removal. (Id.) It also argues that the time for removal was tolled because Ms. Aldajuste failed to fully respond to discovery. (Id.) Notably, GeoVera recognizes the one-year limitation period for removal of diversity actions but only claims that the initial June 17, 2019 lawsuit “was not removable in and of itself as the disputed value was below $15,000 per the pleading.” (Id. at 8.) Then, it simply concludes that “the notice of removal was timely.” (Id.) GeoVera’s failure to identify a specific paper that would otherwise make its removal timely is fatal to its argument. See Wachovia Mortgage, FSB v. Marquez, No. 12-10041-CIV, 2012 WL 13014712, at *2 (S.D. Fla. July 18, 2012) (“Defendant has not identified any ‘amended pleading, motion, order or other paper’ filed by [p]laintiffs that would trigger removal. Therefore, removal is untimely under section 1446(b).”), adopted, 2012 WL 13014756, (S.D. Fla. Aug. 30, 2012); see also Jordan v. Aarismaa, 896 F. Supp. 94, 96 (N.D.N.Y. 1995) (“These conclusory statements alleging that the defendant could not ascertain his federal claim from the plaintiff’s complaint and that he did so only from some other unidentified documents are not sufficient to make his notice of removal timely.”). A thorough review of the Notice of Removal and its accompanying exhibits likewise identifies no “other paper” GeoVera could have relied on for a timely removal. Delgado v. Lincoln Transp. Servs., Inc., No. CV 19-09449-CJC(SKx), 2019 WL 7208416, at *2 (C.D. Cal. Dec. 27, 2019) (“The Notice of Removal does not identify any other document that would make removal timely . . . . The Court therefore agrees that [] removal was untimely . . . .”).² The Court thus determines that GeoVera’s removal was untimely.3 But even if the Court gave GeoVera the benefit of the doubt on this point and determined that removal was indeed timely, GeoVera has still not established that the amount in controversy exceeds $75,000. II. GeoVera has not met its burden in establishing the amount in controversy. A. GeoVera’s burden under Lowery. If removal occurs within thirty days of receiving a summons or initial pleading, then the removing party must show by a preponderance of the evidence that the amount in controversy more likely than not exceeds $75,000. See Roe v. Michelin N. Am., Inc., 613 F. 3d 1058, 1060–61 & n.2 (11th Cir. 2010) (discussing removals under then-28 U.S.C. § 1446(b) (2012)). But in Lowery v. Alabama Power

Co., the Eleventh Circuit held that if a party removes beyond the thirty-day

B. The effect of state court consolidation on removal.

Looking to its response, GeoVera relies on Ms. Aldajuste’s Rule 26 disclosures in arguing that the total amount in dispute is actually “$136,711.92 (before deductibles).” (Doc. 25 at 3.) GeoVera does not attach the Rule 26 disclosures but, even if it had, its reliance would be misplaced. Assuming the $136,711.92 figure is correct, that amount would represent what Ms. Aldajuste seeks across all three lawsuits. On this point, GeoVera unpersuasively relies on a line of cases holding that a court can aggregate all the claims a single plaintiff brings against a single defendant within one lawsuit when calculating the amount in controversy. (See Doc. 25 at 4–5.) Those cases are inapplicable because that is not the situation at hand. The relevant inquiry is under what circumstances may a court aggregate the value of a plaintiff’s claims originally presented in three separate lawsuits for purposes of federal jurisdiction. The “few federal courts that have considered the effect of state consolidation on jurisdiction have found that, under certain circumstances, where two actions are consolidated into a single action, stateordered consolidation may affect jurisdiction and removability.” In re MTBE Prods. Liab. Litig., 399 F. Supp. 2d 340, 353 (S.D.N.Y. 2005). In particular, federal courts should determine whether “the state consolidation destroyed the identity of each suit and merged them into one.” Id. (citing Bley v. Travelers Ins. Co., 27 F. Supp. 351, 356, 358 (S.D. Ala. 1939)). State law governs this determination. See Hill v. United Ins. Co. of Am., 998

F. Supp. 1333, 1338 (M.D. Ala. 1998) (looking to state law “in determining whether the jurisdictional amount has been met” given the amount in controversy in “three separate complaints”); Poole v. Poppell, No. 18-6921, 2019 WL 1397944, at *1 (E.D. La. Mar. 27, 2019) (“The state law definition and parameters of ‘consolidation’ guide the federal court’s analysis in ruling on the motion to remand.” (citing White v. Fisher-Price, Inc., No. 1:96CV114-D-D, 1996 WL 408051, at *3–4 (N.D. Miss. June

24, 1996))). In Florida, “[w]here cases are consolidated for discovery and trial, they do not lose their individual identities as distinct, separately filed actions.” SPS Dev. Co. v. DS Enterps. Of Palm Beaches, Inc., 970 So. 2d 495, 497 (Fla. 4th DCA 2007) (noting apparent distinction between cases consolidated for discovery and trial and cases consolidated “for all matters”); see also OneBeacon Ins. Co. v. Delta Fire Sprinklers, Inc., 898 So. 2d 113, 115–16 (Fla. 5th DCA 2005). To that end, the state court could not have been any clearer that the three individual cases were “consolidated for the purpose of discovery,” and that the court otherwise “reserve[d] ruling on consolidation for any other purpose.” (Doc. 1-17 at 48–49 (emphasis added).) So, in essence, GeoVera is taking three separate cases that the state circuit court consolidated only for discovery purposes and, on its own initiative, consolidating them into one federal case to satisfy the amount in controversy requirement through impermissible aggregation. Simply put, “[t]he Court is aware of no procedural mechanism in either state or federal court whereby a defendant can unilaterally, without court intervention, consolidate [three] cases— even if they have many aspects in common.” Dockery v. Hartford Ins. Co. of the

Midwest, No. 19-21904-Civ, 2019 WL 8895231, at *1 (S.D. Fla. May 24, 2019) (emphasis added).⁵ Absent a state court order consolidating the three lawsuits for all purposes, GeoVera cannot combine the value of the three lawsuits in satisfying the amount in controversy on removal because they remain distinct actions.6 Thus, not only was GeoVera’s removal untimely, but the Court finds that it lacks subject matter jurisdiction over this dispute.

III. Ms. Aldajuste is entitled to fees and costs.

Finally, the Court addresses Ms. Aldajuste’s request for fees and costs under 28 U.S.C. § 1447(c). “Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). In Martin, the Supreme Court explained: The appropriate test for awarding fees under § 1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied.

Id. at 140. Here, there is a strong argument to be made that GeoVera lacked an objectively reasonable basis in removing the underlying state court actions.⁷ GeoVera’s Notice lacks critical information justifying its removal and nothing it attaches to the Notice supports its amount in controversy—in fact, GeoVera pivots to Ms. Aldajuste’s Rule 26 disclosures for this “evidence.” Simply put, “the Notice was patently improper.” Tran v. Waste Mgmt, Inc., 290 F. Supp. 2d 1286, 1295–96 (M.D. Fla. 2003). Then, GeoVera “failed to provide a reasonable argument in support of” its removal—choosing instead to raise undeveloped arguments in a

At bottom, the Court finds that an award of fees under section 1447(c) would deter similar removals which serve only the purpose of prolonging litigation and unjustly burdening the plaintiff with unnecessary expenses.⁸ Accordingly, it is ORDERED: 1. Ms. Aldajuste’s motion for remand (Doc. 8) is GRANTED.

2. The Clerk of Court is DIRECTED to REMAND these three

consolidated cases to the Twentieth Judicial Circuit in and for Collier

County, Florida (case no. 11-2020-CA-2539), terminate any pending deadlines, and administratively close the file.

JOHN L. BADALAMENTI

UNITED STATES DISTRICT JUDGE