Kim v. Staber et al, No. 2:2009cv00667 - Document 26 (M.D. Fla. 2010)

Court Description: OPINION AND ORDER granting 7 Motion to dismiss; granting 7 Motion to sever. Count I as to Polo R. Staber is REMANDED. See Order for details.Signed by Judge John E. Steele on 8/30/2010. (GEL)

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Kim v. Staber et al Doc. 26 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION KEE K. KIM, as Personal Representative of the Estate of Gee B. Sunn, Deceased, and as Natural Guardian for GNS and FS, Plaintiff, vs. Case No. POLO R. COMPANY, STABER, GEICO 2:09-cv-667-FtM-29DNF CASUALTY Defendants. ______________________________________ OPINION AND ORDER This matter comes before the Court upon Defendant GEICO Casualty Company s Motion to Dismiss and Motion to Sever Count I of Plaintiff s Amended Complaint (Doc. #7). Plaintiff filed a response on November 5, 2009 (Doc. #12) acquiescing in the motion to dismiss Count I. The Court agrees with the parties that there is no case or controversy as to GEICO relating to Count I. Therefore, Count I will be dismissed as to GEICO. The Court also agrees with GEICO that defendant Polo R. Staber was fraudulently joined in Count I for the sole purpose of destroying diversity jurisdiction. Fraudulent joinder exists where a diverse defendant is joined with a non-diverse defendant as to whom there is no joint, several, or alternative liability and the claim against the diverse defendant has no real connection to the Dockets.Justia.com claim against the non-diverse defendant. Triggs v. John Crumpa Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)(citing Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1355 (11th Cir. 1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000)); Stone v. Zimmer, Inc., No. 09-80252-CIV, 2009 WL 1809990, at *2 (S.D. Fla. 2009). In Count I, plaintiff seeks a declaratory judgment because there is a dispute as to whether or not Polo Staber has cooperated with plaintiff, and if he has not cooperated with plaintiff, whether said cooperate violates the mediated settlement agreement. ¶ 11.) failure to (Doc. #2, Nothing in the Amended Complaint would justify joinder of GEICO and Staber pursuant to Fed. R. Civ. P. 20. In the ten months this case has been pending in federal court, plaintiff has made no apparent effort to serve Staber with process, despite knowing he was incarcerated. Accordingly, it is now ORDERED: 1. GEICO Motion to Dismiss Count I of the Amended Complaint (Doc. #7) is GRANTED, and Count I is DISMISSED as to GEICO. 2. GEICO s Motion to Sever Count I of the Amended Complaint (Doc. #7) is GRANTED, and Count I as it relates to Polo R. Staber is REMANDED to the Twentieth Judicial Circuit in and for Lee County, Florida. -2- 3. The clerk of the court shall send a certified copy of this Opinion and Order to the Clerk Twentieth Judicial Circuit in and for Lee County, Florida pursuant to 28 U.S.C. § 1447. DONE AND ORDERED at Fort Myers, Florida, this August, 2010. Copies: Counsel of record -3- 30th day of

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