Lett v. Wells Fargo Bank, N.A.
| Decision Date | 05 January 2017 |
| Docket Number | Case Number: 16–61625–CIV–MARTINEZ–GOODMAN |
| Citation | 233 F.Supp.3d 1330 |
| Parties | Hazel LETT, et al., Plaintiffs, v. WELLS FARGO BANK, N.A., et al., Defendants. |
| Court | U.S. District Court — Southern District of Florida |
Chelsea A. Lewis, Chris Kleppin, Glasser & Kleppin, P.A., Plantation, FL, for Plaintiffs.
Steven Adam Siegel, Kenneth Alan Knox, Fisher & Phillips, Fort Lauderdale, FL, for Defendants.
ORDER ADOPTING MAGISTRATE JUDGE GOODMAN'S REPORT AND RECOMMENDATION
THE MATTER was referred to the Honorable Jonathan Goodman, United States Magistrate Judge, for a Report and Recommendation on Plaintiffs' Motion for Remand (the "Motion") [ECF No. 13]. Magistrate Judge Goodman filed a Report and Recommendation [ECF No. 37], recommending that the Motion be granted and that the case be remanded to the Broward County Circuit Court. The Court has reviewed the entire file and record and notes that no objections have been filed. After careful consideration, it is hereby:
ADJUDGED that United States Magistrate Judge Goodman's Report and Recommendation [ECF No. 37] is AFFIRMED and ADOPTED. Accordingly, it is:
ADJUDGED that Plaintiffs' Motion for Remand [ECF No. 13] is GRANTED. The Clerk is directed to REMAND this case to the Broward County Circuit Court. All pending motions are DENIED AS MOOT. The instant case is CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida, this 5 day of January, 2017.
Plaintiffs Hazel Lett, Vickie Rollins, Barbara Worthington, and Felicita Frank ("Plaintiffs") filed a Motion to Remand to State Court ("Motion") [ECF No. 13] and Defendants Wells Fargo Bank, N.A. ("Wells Fargo"), Theresa Garofalo, Jackie Schatz, and Dean Ewan ("Defendants") filed an opposition response [ECF No. 21] and Plaintiffs filed a reply [ECF No. 31]. United States District Judge Jose E. Martinez referred the Motion to the Undersigned. [ECF No. 18]. For the reasons explained below, the Undersigned respectfully recommends that the District Court grant the Motion.
On or about May 23, 2016, Plaintiffs filed their complaint against Defendants in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. Plaintiffs served Defendants with the Complaint on June 10, 2016, and Defendants removed the lawsuit to this federal court on July 8, 2016, within the 30-day deadline.
Plaintiffs' lawsuit alleges eight counts. Because the removal notice alleges that Plaintiffs fraudulently joined the individual defendants in order to defeat otherwise valid diversity of citizenship jurisdiction under 28 U.S.C. § 1332, the Undersigned will list only the claims asserted against the individuals: Count V is a claim by Lett against Garofalo and Ewan for battery; Count VI is a claim by Rollins against Ewan for battery; Count VII is a claim by all Plaintiffs against all the individual Defendants for violation of the Florida Minimum Wage Act; and Count VIII is a claim by all Plaintiffs against all Defendants for violating the retaliation provision of the Florida Minimum Wage Act.
According to the Complaint, Lett and Frank were lead tellers and Worthington and Rollins were tellers. The Complaint also alleges that at relevant times (1) Garofalo was a regional loss prevention manager for Wells Fargo; (2) Schatz was a district manager with operational control of the branch where Frank worked; and (3) Ewan was a branch manager with day-to-day operational control of the branches where Plaintiffs Lett and Rollins worked (and could hire, fire, and make payroll decisions at that branch).
The Complaint alleges that all three individual defendants knew that Plaintiffs objected to working without pay for bringing in on their time, off the clock, new accounts and other business.
Concerning the battery claims, Lett alleges that Ewan hugged her after telling her that she was fired. Lett alleges that the so-called "hug" was unwarranted and constitutes a battery because, among other reasons, it "was done in an insincere and patronizing manner" and "caused harm to Lett." Lett also alleges that Garofalo committed a battery on her by putting a hand on her shoulder when she was demanding to see a journal and by patting her in a patronizing way. According to the Complaint, Garofalo's battery caused Lett "extreme emotional distress" because it was "so hateful and hate-filled."
Rollins made a similar allegation about a hug (by Ewan) and alleged that Ewan hugged her "in an unwanted and patronizing manner" and instructed her to gather her things and then escorted her from the bank building. Lett and Rollins both allege that the batteries were intentional, malicious, willful, wanton and in reckless disregard for their rights and that they have suffered lost income, emotional distress, mental anguish and humiliation.
In a reply memorandum, Plaintiffs attached a declaration from Rollins, who commented on an affidavit submitted by Ewan. Rollins' declaration stated that Ewan "did commit a battery upon me" and explained that Ewan "intentionally touched me in a way that was unwanted and unsolicited that was offensive that caused me harm." [ECF No. 31–1].
Plaintiffs allege that Defendants were engaged in age discrimination and perpetrated a subterfuge to fire older tellers for pretextual reasons, noting that they were replaced with much younger tellers.
The two claims under the Florida Minimum Wage Act allege that the individual defendants had day-to-day operational control of the branches where Plaintiffs worked and note that they could, among other powers, hire and fire, make payroll decisions, and supervise and direct employees at the branches. They further allege that the individual defendants failed to keep track of the time they worked off of the clock and failed to ensure that teller journals would be kept. In addition, they allege that Schatz was advised that Frank was one of the older workers who objected to working off the clock to solicit new accounts.
Because Defendants allege in their opposition [ECF No. 21, pp. 2–3] to the remand motion that "this is Lett's second attempt to defeat diversity jurisdiction" and refer to an earlier lawsuit, the Undersigned will summarize the first lawsuit.
Specifically, in Lett v. Wells Fargo Bank, N.A. , No. 14–cv–60434 (S.D. Fla. 2014), Lett filed a state court lawsuit against the bank and Garofalo. Two counts were alleged there against Garofalo, and neither was for battery or violations of Florida's Minimum Wage Act. Count II was for negligent infliction of emotional distress and Count III was for intentional infliction of emotional distress. Defendants removed the lawsuit to federal court, alleging that Lett fraudulently joined Garofalo in order to defeat diversity jurisdiction. Lett filed a motion to remand.
United States District Judge Robin Rosenbaum denied the motion to remand, finding that Garofalo was fraudulently joined because, on the negligence claim, Lett failed to allege any cognizable duty that Garofalo allegedly owed her, and, on the intentional claim, the alleged facts did not satisfy the required standard for outrageous conduct. Lett v. Wells Fargo Bank, N.A. , No. 14–cv–60434, ECF No. 26 (S.D. Fla. May 9, 2014). Because Lett failed to state claims there against Garofalo, those claims had to be dismissed, which then meant that the motion to remand had to be denied (because there was complete diversity for removal on diversity of citizenship grounds once Garofalo was eliminated).
28 U.S.C. § 1332 provides that federal "district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between [ ] citizens of different States[.]" Section 1441 authorizes, with certain inapplicable exceptions, the removal of "any civil action" in which "the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a).
"Diversity jurisdiction, as a general rule, requires complete diversity—every plaintiff must be diverse from every defendant." Palmer v. Hosp. Auth. , 22 F.3d 1559, 1564 (11th Cir. 1994) (citation omitted). If complete diversity is not present, then the case is not removable, but where joinder of the non-diverse party is fraudulent, then diversity may still be satisfied. Triggs v. John Crump Toyota, Inc. , 154 F.3d 1284, 1287 (11th Cir. 1998).
The doctrine of fraudulent joinder discounts allegations against a non-diverse party where the defendant can show either that "(1) there is no possibility the plaintiff can establish a cause of action against the resident defendant; or (2) the plaintiff has fraudulently pled jurisdictional facts to bring the resident defendant into state court." Stillwell v. Allstate Ins. Co. , 663 F.3d 1329, 1332 (11th Cir. 2011) (citation and quotation omitted). To determine whether fraudulent joinder has occurred, the Court employs a procedure that "is similar to that used for ruling on a motion for summary judgment," yet the inquiry is more limited and the Court must not go so far as to "subsume substantive determination." Crowe v. Coleman , 113 F.3d 1536, 1538 (11th Cir. 1997) (citation omitted) ( that "federal courts are not to weigh the merits of a plaintiff's claim beyond determining whether it is an arguable one under state law"); see also Stillwell , 663 F.3d at 1332–33.
Thus, the Court's duty in this regard is "limited to checking for obviously fraudulent or frivolous claims." Crowe , 113 F.3d at 1542. The Court may base its decision on the plaintiff's pleadings at the time of removal, as well as on other documents that the parties submit. Id. ; see also Coker v. Amoco Oil Co. , 709 F.2d 1433, 1440 (11th Cir. 1983) (), superseded by ...
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