Bollea v. Clem

937 F. Supp. 2d 1344, 2013 WL 1296076, 2013 U.S. Dist. LEXIS 44625
CourtDistrict Court, M.D. Florida
DecidedMarch 28, 2013
DocketCase No. 8:13-cv-00001-T-27AEP
StatusPublished
Cited by15 cases

This text of 937 F. Supp. 2d 1344 (Bollea v. Clem) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bollea v. Clem, 937 F. Supp. 2d 1344, 2013 WL 1296076, 2013 U.S. Dist. LEXIS 44625 (M.D. Fla. 2013).

Opinion

ORDER

JAMES D. WHITTEMORE, District Judge.

BEFORE THE COURT is Plaintiffs Motion for Remand (Dkt. 20). Defendant Gawker Media, LLC responded in opposition (Dkt. 24), and Plaintiff replied in support of the motion (Dkt. 28) after leave of court (Dkt. 27).1 Upon consideration, the motion (Dkt. 20) is GRANTED.

I. Introduction

In 2006, Terry Gene Bollea was secretly videotaped while engaged in private sexual conduct with Heather Clem (Dkt. 2 ¶ 1). This video was eventually leaked to third-parties and obtained by the Gawker Defendants (id. ¶ 27). In 2012, the Gawker Defendants published excerpts of the video and a narrative describing the taped activity on its website (id. ¶ 28). Upon discovering the video, Bollea sued Clem and her ex-husband, Todd Alan Clem, in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County, Florida (Dkt. 1-1). On December 28, 2012, Bollea filed a First Amended Complaint dropping Todd Alan Clem as a defendant and adding the Gawker Defendants (Dkt. 2). Gawker Media, LLC promptly removed the case, premising jurisdiction on the fraudulent misjoinder of Heather Clem and federal questions arising under the United States Constitution and the United States Copyright Act (Dkt. 1). Bollea now seeks to remand the case back to state court (Dkt. 20).

II. Standard

Removal jurisdiction is determined “based on the plaintiffs pleadings at the time of removal.” Crowe v. Coleman, 113 F.3d 1536, 1538 (11th Cir.1997). The removing party bears the burden of proof regarding the existence of federal subject matter jurisdiction, City of Vestavia Hills v. Gen. Fidelity Ins. Co., 676 F.3d 1310, 1313 n. 1 (11th Cir.2012), and the plaintiffs factual allegations are taken in the light most favorable to the plaintiff. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1333 (11th Cir.2011). If removal is based on diversity of citizenship, the defendant has the burden of demonstrating complete diversity. See 28 U.S.C. § 1332(a); Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir.2010).

“Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly.” Univ. of. S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir.1999). All doubts about jurisdiction are resolved in favor of remand, Miedema v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir.2006), and any uncertainties about state substantive law are resolved in the plaintiffs favor. Stillwell, 663 F.3d at 1333.

[1349]*1349III. Discussion

A. The Court Does Not Have Diversity Jurisdiction Because Heather Clem Is Not Fraudulently Joined.

Federal district courts have original jurisdiction over all civil actions where the matter in controversy exceeds $75,000 and the case is between citizens of different states. 28 U.S.C. § 1332(a)(1). An action filed in state court meeting this criteria may be removed to federal court on the basis of diversity jurisdiction. 28 U.S.C. § 1441(a). After a diversity case is removed, it must be remanded to state court if there is not complete diversity of citizenship among the parties. Stillwell, 663 F.3d at 1332. However, when a plaintiff names, a non-diverse defendant solely in order to defeat diversity jurisdiction, the non-diverse ■ defendant is fraudulently joined and the district court must “ignore the presence of the non-diverse defendant and deny any motion to remand the matter back to state court.” Henderson v. Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir.2006).

Although Bollea and Heather Clem are both Florida citizens, Gawker removed this case based on Bollea’s allegedly fraudulent joinder of Heather Clem in this action. To establish fraudulent joinder, Gawker has the “heavy” burden of “proving by clear and convincing evidence” that (1) there is no possibility that Bollea can establish a cause of action against Heather Clem, (2) Bollea has fraudulently pled jurisdictional facts to bring Heather Clem into state court, or (3) Bollea’s misjoinder of Heather Clem and Gawker is “so egregious as to constitute fraudulent joinder.” Stillwell, 663 F.3d at 1332; Tapscott v. M.S. Dealer Serv. Corp., 77 F.3d 1353, 1360 (11th Cir.1996), overruled on other ground Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000).

1. Bollea States a Cause of Action Against Heather Clem.

Gawker first argues that there is no possibility that Bollea can establish a cause of -action against Heather Clem because the applicable statutes of limitations bar all of Bollea’s claims. If successful, this argument would establish fraudulent joinder, and the motion to remand would be denied. See Brown v. Jevic, 575 F.3d 322, 327 (3d Cir.2009) (“[A] statute of limitations defense is properly considered in connection with a fraudulent joinder inquiry.”); LeBlang Motors, Ltd. v. Subaru of Am., Inc., 148 F.3d 680, 690 (7th Cir.1998) (“If the time to bring the cause of action had expired, then the district court was correct in dismissing Wright and Knight as fraudulently joined.”).

Bollea asserts five causes of action against Heather Clem: (1) invasion of privacy by intrusion upon seclusion, (2) publication of private facts, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) violation of Section 934.10, Florida Statutes.2 If one of Bollea’s claims withstands the statute of limitations inquiry, then Gawk-er’s first argument for fraudulent joinder fails.

Gawker argues that Bollea’s claims against Heather Clem “arise almost entirely out of her alleged recording of the Video and are therefore time barred” (Dkt. 24 at 3). The First Amended Complaint, however, plainly asserts a claim against Heather Clem for publication of the video, as well (see Dkt. 2 ¶¶39, 50). While the [1350]*1350date of recording appears on the face of the First Amended Complaint, there are no allegations concerning the date of Heather Clem’s alleged publication that would enable an evaluation of the statute of limitations at this stage. See Brotherhood of Locomotive Engineers & Trainmen Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir.2008) (dismissal based on a statute of limitations is appropriate only if it is “apparent from the face of the complaint that the claim is time-barred”).

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Bluebook (online)
937 F. Supp. 2d 1344, 2013 WL 1296076, 2013 U.S. Dist. LEXIS 44625, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bollea-v-clem-flmd-2013.