Moore v. North America Sports Inc.

• Decision Date: 18 October 2010
• Docket Number: No. 09-13954.,09-13954.
• Citation: 623 F.3d 1325
• Parties: Brian MOORE, as Personal Representative on behalf of the Estate of Bernard P. Rice, Deceased, Plaintiff-Appellant, v. NORTH AMERICA SPORTS, INC., a foreign corporation, d.b.a. World Triathlon Corporation, d.b.a. Ironman Triathlon, d.b.a. Ford Ironman Florida, f.k.a. Ironman North America, USA Triathlon, a foreign company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

623 F.3d 1325

Brian MOORE, as Personal Representative on behalf of the Estate of Bernard P. Rice, Deceased, Plaintiff-Appellant,

v.NORTH AMERICA SPORTS, INC., a foreign corporation, d.b.a. World Triathlon Corporation, d.b.a. Ironman Triathlon, d.b.a. Ford Ironman Florida, f.k.a. Ironman North America, USA Triathlon, a foreign company, Defendants-Appellees.

No. 09-13954.

United States Court of Appeals,Eleventh Circuit.

Oct. 18, 2010.

Joel S. Perwin, Joel S. Perwin, P.A., Miami, FL, for Plaintiff-Appellant.

Larry A. Matthews, Jason Bernard Onacki, Shane M. Dean, Bozeman, Jenkins & Matthews, Pensacola, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before TJOFLAT, CARNES and COX, Circuit Judges.

PER CURIAM:

Bernard P. Rice drowned while competing in the 2006 Ford Ironman Florida Triathlon (“Triathlon”) at Panama City Beach, Florida. Brian Moore, as representative of the estate of Rice, sued North America Sports, Inc., USA Triathlon, Inc., and World Triathlon, Inc., alleging that Rice's death was the result of negligence in conducting the Triathlon. The case was tried to a jury, and resulted in a verdict and judgment for North America Sports and USA Triathlon. ¹ The jury found no proof of negligence on the part of North America Sports and USA Triathlon in conducting the Triathlon. Upon entry of judgment on the verdict, this appeal followed.

The suit was filed in state court, but successfully removed to federal court. Moore contends that the district court erred in failing to remand the case to state court because the notice of removal was untimely. We conclude that any error in failing to remand the case would be procedural error insufficient to warrant vacating the judgment and remanding for a new trial in state court. Thus we affirm the judgment of the district court.

I. BACKGROUND & PROCEDURAL HISTORY

In June 2008, Brian Moore, as representative of the estate of Bernard P. Rice, filed a wrongful death action in Florida state court alleging state law negligence claims against North America Sports, USA Triathlon, and World Triathlon. World Triathlon was a citizen of Florida, the state in which the action was brought, and thus the case was not removable as originally filed. See 28 U.S.C. § 1441(b) (precluding removal when any defendant is “a citizen of the State in which such action is brought”). The Complaint alleged that Rice, the decedent, was a “resident” of Montana, but did not allege his citizenship of a particular state. ² As to the amount in controversy, the Complaint alleged that damages were in excess of $15,000, the state court's minimum jurisdictional amount. Without otherwise quantifying the amount of damages sought, the Complaint alleged damages to the estate, Rice's surviving spouse, and Rice's three minor children. As to the estate, the Complaint alleged damages for the loss of prospective net accumulations as well as medical and funeral expenses. As to Rice's surviving spouse, the Complaint alleged damages for loss of support and services of the decedent, mental pain and suffering, and medical and funeral expenses. As to Rice's three minor children, the Complaint alleged damages for loss of support and services of the decedent and mental pain and suffering.

On July 14, 2008, North America Sports and USA Triathlon filed a motion to dismiss in state court, and attached to that motion Rice's online registration for the Triathlon. The online registration stated that Rice was born in 1971 (making him 35 years old at the time of his death), that his address was in Montana, that he held a bachelor's degree, and that he was president of a boat dealership.

On September 2, 2008, Moore dropped World Triathlon, a citizen of Florida, as a Defendant. Because no other Defendant was a citizen of Florida, dropping World Triathlon eliminated any removal problem based on the joinder of a Florida Defendant. Thirty days later, on October 2, 2008, USA Triathlon served Moore with a request that he admit that Rice was a citizen of Montana and that the amount in controversy exceeded the $75,000 threshold for diversity jurisdiction. Moore served his response to this request on November 3, 2008, admitting both of these jurisdictional facts. Eleven days later, on November 14, 2008, North America Sports and USA Triathlon filed a notice of removal. Moore promptly moved to remand the case to state court on the ground that the notice of removal was untimely.

The district court concluded that Defendants' notice of removal was timely and denied Moore's motion to remand. Relying on this court's opinion in Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir.2007), the district court held that the Complaint and online registration did not provide Defendants with an unambiguous statement sufficient to establish that Moore's claims potentially exceed $75,000. Accordingly, the district court found that the thirty-day removal period did not start to run until November 3, 2008, when Moore admitted that the value of his claims exceeded $75,000, making Defendants' removal on November 14, 2008, timely.

The case was tried to a jury and resulted in a verdict for the Defendants. On the verdict form, the jury found that there was no negligence on the part of North America Sports and USA Triathlon which was a legal cause of the death of Rice. Upon entry of judgment on the verdict, this appeal followed.

II. ISSUES ON APPEAL

This appeal presents two basic issues relating to removal procedure: (1) whether Moore's notice of removal was untimely under 28 U.S.C. § 1446(b) and, if so, (2) whether a failure to comply with the statutory deadline requires vacating the judgment and remanding for a new trial in state court. ³

III. DISCUSSION

We review de novo the denial of a motion to remand to state court. Dial v. Healthspring of Ala., Inc., 541 F.3d 1044, 1047 (11th Cir.2008); Florence v. Crescent Res., LLC, 484 F.3d 1293, 1297 (11th Cir.2007). The parties agree that this case, filed in Florida state court, was not removable as originally filed because the Defendant World Triathlon was alleged to be a citizen of Florida. A case cannot be removed on the basis of diversity jurisdiction if a defendant is “a citizen of the State in which such action is brought.” 28 U.S.C. § 1441(b); see also Henderson v. Washington Nat'l Ins. Co., 454 F.3d 1278, 1281 (11th Cir.2006) (citing Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89-90, 126 S.Ct. 606, 613, 163 L.Ed.2d 415 (2005)) (“When a defendant removes a case to federal court on diversity grounds, a court must remand the matter back to state court if any of the properly joined parties in interest are citizens of the state in which the suit was filed.”). Because the case stated by the initial pleading was not removable, the removal of this case is governed by the second paragraph of § 1446(b), which provides:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty 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). The timeliness of the notice of removal in this case turns on when the thirty-day clock for filing a notice of removal began to run.

Moore contends that this case became removable on September 2, 2008, when he served Defendants with notice that World Triathlon, allegedly a citizen of Florida, was dropped as a defendant. Moore argues that the Defendants should have ascertained at that time that diversity of citizenship existed and that the amount-in-controversy requirement was satisfied. As to the amount in controversy, Moore argues that “it does not require speculation to conclude that a claim for the wrongful death of a 35-year-old man who was president of his own company, leaving a wife and three minor children, exceeds $75,000.” (Appellant's Br. at 35.) Starting the thirty-day removal clock on September 2, 2008, would make Defendants' notice of removal, filed seventy-three days later on November 14, 2008, untimely.

Defendants start the thirty-day clock differently. They argue that the thirty- day clock did not begin to run until November 3, 2008, when Moore admitted that he was seeking damages in excess of $75,000, exclusive of interest and costs. Defendants contend that prior to Moore's jurisdictional admission, there was no “unambiguous statement” clearly establishing the amount in controversy under the reasoning of our decision in Lowery v. Ala. Power Co., 483 F.3d 1184 (11th Cir.2007). Starting the thirty-day clock on November 3, 2008, would make Defendants' notice of removal, filed eleven days later on November 14, 2008, timely.

Defendants also contend that, even if the notice of removal was untimely and created a procedural defect in removal, such a defect does not require vacating the district court's judgment and remanding the action for a new trial in state court. Rather, Defendants argue, under the Supreme Court's decision in Caterpillar Inc. v. Lewis, 519 U.S. 61, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996), the district court's judgment should be affirmed because it is uncontested that the district court had diversity jurisdiction at the time judgment was entered.

We need not decide the timeliness of the notice of removal in this case. Under the Supreme Court's decision in Caterpillar, any untimeliness would be an insufficient basis to vacate the judgment and remand for a new trial.

In Caterpillar, the Supreme Court considered whether the absence of complete diversity at the time of removal, as required by 28 U.S.C. § 1441(a), was fatal to federal-court adjudication. 519 U.S. at 64, 117 S.Ct. at 471. Although § 1441(a)'s requirement that complete diversity exist at the time of removal was not satisfied, this defect was later cured when the non-diverse party dropped out...