Brian Moore v. North American Sports, Inc.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 18, 2010
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-13954
________________________
D.C. Docket No. 08-00343 CV-5-RS-MD
BRIAN MOORE, as Personal Representative
on behalf of the Estate of Bernard P. Rice, Deceased,
Plaintiff-Appellant,
versus
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.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 18, 2010)
Before TJOFLAT, CARNES and COX, Circuit Judges.
PER CURIAM:

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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. The jury found no proof of1
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
World Triathlon was dismissed as a defendant prior to trial. We use the term “Defendants”1
throughout the opinion to refer to North America Sports and USA Triathlon collectively.
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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. As to the amount in2
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.
Where an estate is a party, as in this case, the citizenship that counts for diversity purposes2
is that of the decedent. 28 U.S.C. § 1332(c)(2); King v. Cessna Aircraft Co., 505 F.3d 1160, 1170
(11th Cir. 2007).
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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
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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
Moore also raises three other issues on this appeal: (1) whether the district court abused3
its discretion in denying his motion for a mistrial after the Defendants introduced evidence that Rice
had “wrongfully converted” or was guilty of “stealing” money from his father’s car dealership; (2)
whether the district court abused its discretion in declining to poll the jury regarding a local public
opinion poll revealing that 92% of respondents thought that the plaintiff should lose the case; and
(3) assuming that reversal is warranted on any of the foregoing grounds, whether the district court
erred in failing to grant summary judgment to Moore on his claim that the decedent had not, through
several release forms ordinarily signed by Triathlon participants, waived his rights to sue the
Defendants. We have considered Moore’s arguments on issues one and two and find them
unpersuasive. We therefore need not consider issue three because the jury, having found no proof
of negligence, did not reach the issue of releases.
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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 (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 . . . .
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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
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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 (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 of the case after
removal but before trial commenced. Id. at 64, 117 S. Ct. at 470. The Court noted
that although the “jurisdictional defect” had been cured in the case by the time of
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judgment, the “statutory flaw” of failing to meet § 1441(a)’s requirements at the time
of removal “remained in the unerasable history of the case.” Id. at 73, 117 S. Ct. at
475. The Court unanimously held “that a district court’s error in failing to remand
a case improperly removed is not fatal to the ensuing adjudication if federal
jurisdictional requirements are met at the time judgment is entered.” Id. at 64, 117
S. Ct. at 471. “Once a diversity case has been tried in federal court . . . considerations
of finality, efficiency, and economy become overwhelming.” Id. at 75, 117 S. Ct. at
476; see also Huffman v. Saul Holdings Ltd. P’ship, 194 F.3d 1072, 1080 (10th Cir.
1999) (holding that “a defect in removal procedure does not warrant a remand to state
court if subject matter jurisdiction existed at the time the district court entered
judgment”).
Any untimeliness in the filing of the notice of removal in this case would be
an insufficient basis to vacate the judgment and remand for a new trial in state court.
It is undisputed in this case that the timeliness of removal is a procedural defect – not
a jurisdictional one. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751-52
(11th Cir. 2010) (noting that timeliness of removal is a procedural issue, not a
jurisdictional issue); see also In re Uniroyal Goodrich Tire Co., 104 F.3d 322, 324
(11th Cir. 1997) (“The untimeliness of a removal is a procedural, instead of a
jurisdictional, defect.”). It is also undisputed that the requirements for diversity
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jurisdiction were met by the time the district court entered judgment. Therefore,
under the reasoning of the Caterpillar decision, we need not decide whether the
Defendants’ notice of removal was untimely because any defect would not be fatal
to the ensuing adjudication. We note that considerations of “finality, efficiency, and
economy” support our decision. Caterpillar, 519 U.S. at 75, 117 S. Ct. at 476. The
litigation in this case has spanned over a year in federal court, and has included
considerable discovery, multiple pretrial motions, and a five-day jury trial. Further,
to remand this case to state court for a new trial, as Moore would have us do, would
wipe the slate clean and provide Moore with a second opportunity to try this case on
the merits after a jury has found against him. Considering the substantial judicial
resources that have been dedicated to this case, remanding this case to state court
“‘would impose an exorbitant cost on our dual court system, a cost incompatible with
the fair and unprotracted administration of justice.’” Ayres v. Gen. Motors Corp., 234
F.3d 514, 519 n.6 (11th Cir. 2000) (quoting Caterpillar, 519 U.S. at 77, 117 S. Ct. at
477).
Moore’s attempt to distinguish Caterpillar on the basis of Lexecon Inc. v.
Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S. Ct. 956 (1998), is
unavailing. In Lexecon, the Supreme Court addressed whether a district court could
transfer to itself, pursuant to 28 U.S.C. § 1404(a), an action that had been
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consolidated before it by the Judicial Panel on Multidistrict Litigation, despite the
command of 28 U.S.C. § 1407(a) that the Panel remand such a case back to the court
of origin after pretrial matters had been concluded. Id. at 28, 118 S. Ct. at 959.
Citing the plain language of 28 U.S.C. § 1407(a), which dictates that “[e]ach action
. . . transferred [under § 1407(a)] shall be remanded by the panel at or before the
conclusion of . . . pretrial proceedings,” the Court held that § 1407(a) does not permit
a district court to entertain a § 1404(a) transfer motion to keep the case for trial. Id.
at 34-35, 118 S. Ct. at 962.
Lexecon is distinguishable from this case. First, Lexecon involved a transfer
between different federal districts under the venue provisions of 28 U.S.C. §§ 1404
and 1407, and its decision turned on the language in those statutes. Lexecon did not
address removal under § 1446(b), or the federalism concerns of removing cases in a
dual court system. Second, the Lexecon court distinguished its facts from those of
Caterpillar, and explained why a new trial was required in Lexecon but not in
Caterpillar. In Lexecon, the statutory error – the failure to remand a consolidated
case back to the court of origin after the conclusion of pretrial matters pursuant to §
1407(a) – required a reversal and a new trial because § 1407 would “lose all meaning
if a party who continuously objected to an uncorrected categorical violation of the [§
1407(a)] mandate could obtain no relief at the end of the day.” Id. at 43, 118 S. Ct.
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at 966. By contrast, “untimely compliance” with the removal statute (if the
compliance was untimely) does not require a new trial because the removal statute
retains significance “since removal is permissible only where original jurisdiction
exists at the time of removal or at the time of the entry of final judgment . . . .” Id. at
43, 118 S. Ct. at 966. Therefore, this case is like Caterpillar and unlike Lexecon, and
any procedural defect in the timeliness of the notice of removal is an insufficient basis
to vacate the judgment and remand for a new trial.
IV. CONCLUSION
We affirm the judgment entered in favor of Defendants.
AFFIRMED.
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