Borges v. SmileDirectClub, LLC.

• Court: District Court, S.D. Florida
• Decided: October 26, 2021
• Docket: 1:21-cv-23011
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 21-CV-23011-O’SULLIVAN [CONSENT] ALEJANDRO BORGES, Plaintiff, v. SMILEDIRECTCLUB, LLC, Defendant. / DISTRICT COURT CERTIFICATION OF CONSTITUTIONAL QUESTION THIS MATTER is before the Court on the defendant, SmileDirectClub, LLC’s Notice of Constitutional Challenge (DE# 5, 8/19/21) (hereinafter “Notice”). This matter was referred to the undersigned by the Honorable Marcia G. Cooke, United States District Judge, pursuant to the Parties’ Consent to Proceed Before a United States Magistrate Judge (DE# 28) (DE# 29, 9/30/21). Pursuant to Rule 5.1(a)(1)(b) of the Federal Rules of Civil Procedure, the defendant gave notice that its Motion to Dismiss raises federal constitutional challenges to one or more provisions of Florida state law. See 28 U.S.C. § 2403(b); Fed. R. Civ. P. 5.1(a)(1)(b). Specifically, the defendant’s Motion to Dismiss calls into question the constitutionality of Section 501.059(8)(a) of the Florida Statutes. Fla. Stat. § 501.059(8)(a). In its Notice, counsel for the defendant certified to the Court that its “Notice of Constitutional Challenge as well as [its] Motion to Dismiss and Memorandum in Support will be served via certified mail on the Attorney General of the State of Florida concurrently with the filing of this notice.” Notice (DE# 5, 8/19/21). Pursuant to 28 U.S.C. § 2403(b) and Rule 5.1(b) of the Federal Rules of Civil Procedure, the Court must certify to the Attorney General of the State any filing challenging the constitutionality of any statute of that State. 28 U.S.C. § 2403(b); Fed. R. Civ. P. 5.1(a)(1)(b); See Georgia Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 805, 811 n.3 (11th Cir. 1988) (recognizing that Section 2403(a) requires the district court to notify the United States Attorney General that this case raised a question of the constitutionality of an Act of Congress). In McDaniel, the Eleventh Circuit cited Bridges v. Phillips Petroleum Co. 733 F.2d 1153, 1156 n.7 (5" Cir. 1984), cert. denied, 469 U.S. 1163 (1985) for comparison and explained that 28 U.S.C. § 2403(b) requires the federal court to certify the constitutional question to the state attorney general when the federal case involves the constitutionality of a state statute affecting the public interest. Accordingly, after careful consideration and pursuant to Section 2403(b) of Title 28 of the United States Code, the Court hereby CERTIFIES to Ashley Moody, Attorney General of the State of Florida, that the defendant has raised such constitutional challenges. The Clerk of Court is DIRECTED to immediately transmit to Ashley Moody, Attorney General of the State of Florida, copies of the District Court’s Certification of Constitutional Question, the defendant’s Notice (DE# 5, 8/19/21) and the plaintiff's Complaint filed with the Notice of Removal (DE# 1, 8/18/21), by certified mail, return receipt requested, at the following address: Hon. Ashley Moody Office of the Attorney General State of Florida PL-01 The Capitol Tallahassee, FL 32399-1050 The Court hereby provides that Ms. Moody is entitled to sixty (60) days from the date of this notice to intervene on behalf of the State of Florida in this action. See 28 U.S.C. § 2403(b); Fed. R. Civ. P. 5.1(c). DONE AND ORDERED in Chambers af Miami, Florida this 25th day of October, 2021. Gh. JORN J. O'S$ULLIVAN CHIEF UNITED STATES MAGISTRATE JUDGE