SIBILIA

v.

MAKITA CORP.

JAMES S. MOODY, JR., District Judge.

THIS CAUSE comes before the Court upon Plaintiffs Motion to Remand (Dkt. 9) and Defendant’s Response to Plaintiffs Motion to Remand and Incorporated Memorandum of Law (Dkt. 10). The Court, having considered the motion, response, and being otherwise advised in the premises, concludes that the motion should be denied.

DISCUSSION

Plaintiff Mark Sibilia (“Plaintiff’) originally filed this action in state court, alleging causes of action pursuant to Florida law for personal injuries suffered because of an alleged defective product manufactured and sold by Defendants (the “State

*1330

Court Action”). On November 13, 2009, Defendant Makita U.S.A., Inc. (“Defendant”) filed a notice of removal and removed the State Court Action to this Court

(see

8:09-cv-2324-JSM-AEP; Dkt. 1). Plaintiff then moved to remand the case, arguing that remand was appropriate because Defendant failed to establish by a preponderance of the evidence that the amount in controversy exceeded $75,000. The Court agreed and remanded the case.

Id.

at Dkt. 12; 674 F. Supp. 2d 1290 (M.D.Fla.2009). Notably, the Court stated in its order that “removal would be appropriate if Defendant had used an ‘other paper’ under 28 U.S.C. § 1446(b) to establish the jurisdictional amount, such as

Plaintiffs answers to requests for admissions

regarding the jurisdictional amount, interrogatory responses regarding the amount of Plaintiffs damages, deposition testimony, or even medical bills or invoices establishing the amount of Plaintiffs damages.”

Id.

at n. 4 (emphasis added).

Back in the State Court Action, Defendant received Plaintiffs amended response to Defendant’s request for admissions admitting that Plaintiff was seeking more than the requisite amount in controversy.

1

Specifically, Plaintiff admitted that he was seeking damages in excess of $75,000.

2

Based on this amended response, Defendant filed a notice of removal for a second time and removed the State Court Action to this Court.

This issue is now before the Court on Plaintiffs motion to remand. Plaintiff argues that this case should be remanded because Defendant’s second notice of removal amounts to a “de facto appeal or reconsideration” of the Court’s first remand Order. The Court disagrees because the amended answer to the request for admission serves as a different factual basis supporting re-removal.

DISCUSSION

As the Court noted in the first remand Order, the Eleventh Circuit Court of Appeals held in

Lowery v. Alabama Power Co. that, under 28 U.S.C. § 1446(b), removal may be premised on either the plaintiffs initial pleading, such as a complaint, or “a copy of an amended pleading, motion, order or

other paper.”

483 F. 3d 1184, 1212-13 (11th Cir.2007) (emphasis added).

3

Plaintiff, however, is correct that “a party is not entitled, under existing laws, to file a second petition for removal upon the same grounds, where, upon the first removal by the same party, the feder

*1331

al court declined to proceed and remanded the suit....”

St Paul & C. Railway Co. v. McLean,

108 U.S. 212, 217, 2 S.Ct. 498, 27 L.Ed. 703 (1883). But this language does not prevent successive removals provided that the subsequent removal petition alleges a different factual basis for seeking removal and otherwise meets the requirements of section 1446(b).

Sudduth v. Equitable Life Assur. Society,

No. 07-0436, 2007 WL 2460758, at *4 (S.D.Ala. Aug. 27, 2007) (holding that a deposition served as a source of “different factual basis” to support re-removal);

see also Benson v. SI Handling Syst., Inc.,

188 F. 3d 780, 783 (7th Cir.1999) (holding that disclosure in discovery that the damages exceeded the jurisdictional amount justified re-removal).

Thus, “section 1446(b) allows [a defendant] to file successive removals based on [a] different factual basis.”

Sudduth,

2007 WL 2460758, at *4. And this is precisely the situation here; Defendant’s second removal is based on Plaintiffs amended response to the requests for admissions admitting the amount in controversy to establish federal court jurisdiction. This “other paper” was not available at the time of the first removal. Plaintiffs argument that Defendant’s second removal is an inappropriate attempt to circumvent the Court’s previous remand Order lacks merit. If the Court were to even entertain such an argument, it would reward Plaintiff for the gamesmanship he engaged in to circumvent federal court, which required two hearings in the State Court Action and two orders compelling him to admit or deny the request for admission before he finally admitted the amount in controversy was met. Such behavior should not be entertained, let alone rewarded.

See Devore v. Howmedica Osteonics Corp.,

658 F. Supp. 2d 1372, 1380 n. 13 (M.D.Fla.2009) (noting that the court “does not countenance such gamesmanship”).

It is therefore ORDERED AND ADJUDGED that:

1. Plaintiffs Motion to Remand (Dkt. 9) is hereby DENIED.

2. Defendant’s Motion to Strike (Dkt. 22) is hereby DENIED as moot.