KIMBLE v. PROGRESSIVE AMERICAN INSURANCE COMPANY (2024)

ORDER

Plaintiff Gary Kimble moves to remand this action to state court. Mot. to Remand (MTR) (Doc. 17). Kimble argues that Defendant Progressive American Insurance Company (Progressive)’s notice of removal is untimely under 28 U.S.C. § 1446(c)(1). For the below reasons, I grant Kimble's motion.

I. BACKGROUND

On May 15, 2020, Kimble filed a two-count complaint arising out of a motor vehicle accident. Compl. (Doc. 1-5). Kimble, a Florida resident, asserted a negligence claim against two Florida residents and an uninsured/underinsured (UM) motorist benefits claim against Progressive. Id. ¶¶ 8–15. Kimble later voluntarily dismissed the negligence claim. Not. of Removal (NOR) (Doc. 1) ¶ 3. In November 2023, a non-binding arbitration award was submitted, which determined Kimble's total damages to be $225,000, less a $25,000 set-off for the UM policy limit. Id. ¶ 4. On March 27, 2024, after submission of a non-binding arbitration award, final judgment was entered against Progressive in the amount of $25,000, the amount of the policy limit. (Doc. 1-6). The trial court “retain[ed] jurisdiction of [the] action to determine [Kimble's] right to amend his complaint to seek and litigate bad faith damages from [Progressive] as a result of the arbitration award in excess of policy limits.” Id. at 1; see Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214, 1230 (Fla. 2016) (authorizing this practice).

On April 26, 2024, in the same action, Kimble, seeking to add a bad faith claim against Progressive, moved for leave to amend the complaint. (Doc. 1-1) at 1. On August 1, 2024, the state court granted Kimble's motion and deemed Kimble's amended complaint filed the same day. (Doc. 1-2) at 1; (Doc. 1-1) at 3–7.

Progressive removed the action to federal court on August 20, 2024. NOR. Progressive alleges that complete diversity exists: Kimble is a citizen of Florida, Progressive is a citizen of Ohio, and Kimble seeks to recover $200,000 plus interest, attorney's fees, and costs. Id. ¶¶ 9–12. Kimble does not dispute that the parties are of diverse citizenship and the amount in controversy exceeds $75,000.00, but he contends that Progressive's notice of removal is untimely. MTR at 3.

II. LEGAL STANDARD

United States district courts have diversity jurisdiction if the parties are of diverse citizenship and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). No later than thirty days after receipt of “a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based,” id. § 1446(b)(1), a defendant may remove any case in which a federal district court would have had original jurisdiction, id. § 1441(a). If “the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 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.” Id. § 1446(b)(3). There is an exception to this rule, though, when a defendant attempts to remove a case based on diversity jurisdiction. In that circumstance, a “case” may not be removed under § 1446(b)(3) “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” Id. § 1446(c)(1).

On a motion to remand, the “removing party bears the burden of establishing jurisdiction.” Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir. 1996). Removal statutes are “construed narrowly” and “where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.” Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994).

III. ANALYSIS

The central issue in this case is whether Kimble's action was commenced when he filed his initial complaint in May 2020 or when he amended his complaint in August 2024 to add a bad-faith claim. Even if an amended complaint, like the one at issue here, provides a basis for federal diversity jurisdiction under § 1332, § 1446(c)(1) provides that the “case” may not be removed “more than 1 year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” Progressive does not argue that Kimble acted in bad faith, so this case must be remanded if the action was commenced more than one year before Progressive filed the notice of removal.

This question has created a split among my colleagues that the Eleventh Circuit has not yet resolved. See King v. Gov't Emps. Ins. Co., 579 F. App'x 796, 800 (11th Cir. 2014). Some have sided with plaintiffs like Kimble, reasoning that “the filing of an amended complaint does not reset the clock for removal purposes and, instead, an action is deemed commenced on the date that the [original] complaint was filed.” Fla. Health Scis. Ctr., Inc. v. Gov't Emps. Ins. Co., No. 8:17-CV-339-T-36AAS, 2017 WL 3720880, at *4 (M.D. Fla. Aug. 7, 2017) (collecting cases). Others have sided with insurers like Progressive and allowed for removal “on the basis that the bad faith claim is separate and independent from the underlying UM claim.” Id. (collecting cases). I agree with the former group and conclude that remand is required in this circumstance.

The “commencement of an action” is “[t]he time at which” a judicial proceeding “begin[s], typically with the filing of a formal complaint.” Commencement of an Action, Black's Law Dictionary (12th ed. 2024); see Vachon v. Travelers Home & Marine Ins. Co., 20 F.4th 1343, 1348 (11th Cir. 2021) (Pryor, C.J., concurring); Home Depot U. S. A., Inc. v. Jackson, 587 U.S. 435, 450, 139 S.Ct. 1743, 204 L.Ed.2d 34 (2019) (Alito, J., dissenting) (“[I]f diversity jurisdiction arises later in litigation ․ § 1446(c)(1) allows removal only within one year of the start of the action in state court.”). Florida law provides materially the same definition. See Moultrop v. GEICO Gen. Ins. Co., 858 F. Supp. 2d 1342, 1346 (S.D. Fla. 2012) (“In general, when an action is ‘commenced’ for purposes of the removal statutes is determined by the law of the state where a removed action originally was filed.”); 14 Charles Alan Wright et al., Federal Practice and Procedure § 3723 (rev. 4th ed. June 2024 update) (“The time of commencement of the state-court action is determined by reference to the relevant state law.”). In Florida, “[e]very action of a civil nature shall be deemed commenced when the complaint or petition is filed except that ancillary proceedings shall be deemed commenced when the writ is issued or the pleading setting forth the claim of the party initiating the action is filed.” Fla. R. Civ. P. 1.050; see, e.g., Szabo v. Essex Chem. Corp., 461 So. 2d 128, 129 (Fla. 3d DCA 1984) (“Since 1955, an action is commenced in Florida by the filing of a complaint.”).

Although not mentioned by Progressive, it is true that Florida courts, for purposes of applying the summary judgment rule, see Fla. R. Civ. P. 1.510(b) (“A party may move for summary judgment at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.”), have sometimes concluded that the filing of an amended complaint that “contain[s] material and substantial changes from those alleged in the original complaint” constitutes the commencement of the action, Mussler v. Computer Leasing of Fla., Inc., 511 So. 2d 1124, 1125 (Fla. 4th DCA 1987); see Wood v. Kleaveland, 64 So. 2d 684, 684 (Fla. 1953). But there is no indication that this reasoning is generally applicable, or, in other words, that the filing of an amended complaint containing a new claim qualifies as the “commencement of the action” for all purposes in Florida law. Cf. Safeco Ins. Co. of Ill. v. Rader, 132 So. 3d 941, 948 (Fla. 1st DCA 2014) (noting that the “entire action” was pending when the plaintiff amended his complaint to add a bad-faith claim). When a plaintiff files a complaint under Florida law raising a bad faith claim along with other causes of action, Florida courts treat this as the commencement of one action, not two. See State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So. 3d 809, 809 (Fla. 4th DCA 2010) (addressing a procedural issue when “causes of action for both the underlying damages and bad faith are brought in the same action”).

Treating the filing of an amended complaint as the commencement of a new action also does not map onto the structure of § 1446. Section 1446(b)(3)’s authorization of the removal of a case when the plaintiff files an amended complaint rests on the assumption that the filing of an amended complaint is not the commencement of a new action. Otherwise, it would make no sense to subject § 1446(b)(3) to § 1446(c)(1)’s one-year bar, which of course ties back to the date of the action's commencement.

For all these reasons, I conclude that Kimble commenced this action in May 2020 when he filed the initial complaint. (Doc. 1-5). As a result, even if federal diversity jurisdiction exists, Progressive's notice of removal, filed on August 20, 2024, is untimely under § 1446(c)(1). NOR.

Progressive's arguments do not convince me otherwise. Progressive points out that, under Florida law, “a bad faith action is a separate and distinct cause of action from an underlying action for insurance benefits.” Resp. (Doc. 18) at 6; see, e.g., Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So. 2d 1289, 1291 (Fla. 1991) (“[A] claim arising from bad faith is grounded upon a legal duty to act in good faith, and is thus separate and independent of the claim arising from the contractual obligation to perform.”); id. (“[A]n insured's claim against an uninsured motorist carrier for failing to settle the claim in good faith does not accrue before the conclusion of the underlying litigation for the contractual uninsured motorist insurance benefits.”); Allstate Ins. Co. v. Jenkins, 32 So. 3d 163, 165 (Fla. 5th DCA 2010) (“The bad faith action is a separate and distinct cause of action, which did not accrue until completion of the initial action.”).

Progressive is correct that, under Florida law, a bad faith claim is distinct from a claim for UM benefits. Kimble does not argue otherwise. There is also no dispute that a plaintiff could initiate a new action to pursue his bad faith claim. But it does not follow that a plaintiff commences a new action when he amends his complaint to add a bad faith claim. See Hawkinson v. State Farm Mut. Auto. Ins. Co., 325 F. Supp. 3d 1293, 1297 (M.D. Fla. 2018) (“[C]ommencement happens when the complaint is filed, and amendment of the complaint adding a bad faith claim does not commence the action anew.”). Progressive's argument misses the distinction—which is hardly “immaterial,” Resp. at 10—that § 1446 makes between a “claim” and an “action.” See Vachon, 20 F.4th at 1349 (Pryor, C.J., concurring) (rejecting a similar argument); cf. Home Depot U. S. A., Inc., 587 U.S. at 441, 139 S.Ct. 1743 (majority opinion) (noting that § 1441(a) “refers to ‘civil actions,’ not ‘claims’ ” (alteration adopted)); Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir. 1980) (explaining that § 1441(d) “provides for the removal of ‘civil actions,’ not simply claims, involving ‘foreign state’ defendants” and that the “same phrase in the remaining subsections of [§] 1441 denotes the entirety of the proceedings in question, not merely those aspects involving discrete federal claims” (footnote omitted)).

A “cause of action,” or “a factual situation that entitles one person to obtain a remedy in court from another person,” Cause of Action, Black's Law Dictionary (12th ed. 2024), is analogous to a “claim,” or “the means by which a person can obtain a privilege, possession, or enjoyment of a right or thing,” Claim, Black's Law Dictionary (12th ed. 2024). Both terms are distinct in meaning from an “action,” defined as a “civil or criminal judicial proceeding.” Action, Black's Law Dictionary (12th ed. 2024). An “action” is the “whole case,” whereas a “particular claim” is merely a “portion of a plaintiff's lawsuit.” Perry v. Schumacher Grp. of La., 891 F.3d 954, 958 (11th Cir. 2018) (emphasis omitted) (quoting Berthold Types Ltd. v. Adobe Sys. Inc., 242 F.3d 772, 777 (7th Cir. 2001)); see Fla. R. Civ. P. 1.110(g) (“A pleader may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined.”).

Congress recognized the difference in meaning between these terms in enacting § 1446 and neighboring provisions. See, e.g., 28 U.S.C. § 1446(b)(1) (providing that the notice of removal of a “civil action” should be filed within thirty days “after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based”); id. § 1441(c) (discussing a “civil action” that includes both “a claim arising under the Constitution, laws, or treaties of the United States” and “a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute”). Reading “action” to mean the same thing as “claim” or “cause of action,” as Progressive suggests, would confuse this statutory scheme. See Vachon, 20 F.4th at 1349 (Pryor, C.J., concurring) (“[B]ecause ‘a word or phrase is presumed to bear the same meaning throughout a text,’ it follows that an ‘action’ in subsection (c) is similarly distinct from a ‘claim.’ ” (alteration adopted) (quoting Antonin Scalia & Bryan a. Garner, Reading Law: the Interpretation of Legal Texts § 25, at 170 (2012))).

If Congress wanted to tie § 1446(c)(1)’s one-year bar to the accrual of a “claim,” it could have used that language. Before the enactment in 1988 of the one-year bar, Pub. L. No. 100-702, § 1016(b), 102 Stat. 4642, 4669 (1988), and a 1990 revision to § 1441(c), Pub. L. No. 101-650, § 312, 104 Stat. 5089, 5114 (1990), a defendant could remove an entire case to federal court based on a “separate and independent claim or cause of action, which would be removable if sued upon alone” under § 1332, see § 1441(c) (1982). But with the present iteration of the removal statutes, Congress tied § 1446(c)(1) to the commencement of the action, and it does not allow for the removal of cases based on the removability of independent claims under § 1332. Remanding this case respects Congress's decisions and the distinctions it currently employs.

Without a solid footing in text, Progressive turns to policy. Progressive suggests that Kimble's amendment of the complaint is akin to a “device[ ] intended to prevent a removal to a federal court where one has that right.” Resp. at 12 (quoting Wecker v. Nat'l Enameling & Stamping Co., 204 U.S. 176, 186, 27 S.Ct. 184, 51 L.Ed. 430 (1907)). It is “difficult to imagine,” Progressive argues, “how an insurer could ever timely exercise its statutory right to removal of a bad faith action that was subsequently tacked-on to the original UM case.” Id. Progressive presses powerful policy problems. But those concerns do not (nor could they) surmount the best reading of § 1446(c)(1). See BP P.L.C. v. Mayor & City Council of Baltimore, 593 U.S. 230, 141 S. Ct. 1532, 1542, 209 L.Ed.2d 631 (2021) (explaining that “ ‘even the most formidable’ policy arguments cannot ‘overcome’ a clear statutory directive” (quoting Kloeckner v. Solis, 568 U.S. 41, 56 n. 4, 133 S.Ct. 596, 184 L.Ed.2d 433 (2012))). Further, as mentioned, the one-year bar does not apply if “the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.” § 1446(c)(1). The fact that Congress has already provided one exception to § 1446(c)(1) “supplies another reason to decline to rewrite the statute.” Vachon, 20 F.4th at 1351 (Pryor, C.J., concurring).

Progressive's policy arguments are best addressed to either Congress or the Florida Supreme Court, not the federal courts. See SAS Inst., Inc. v. Iancu, 584 U.S. 357, 368, 138 S.Ct. 1348, 200 L.Ed.2d 695 (2018) (stating that when the statutory text is clear, it is the court's “job to follow the policy Congress has prescribed”). Congress could revert to allow for removal upon the accrual of a new cause of action. Or the Florida Supreme Court could amend the rules of procedure to preclude post-verdict amendments to the complaint in this circumstance. Either way, federal courts cannot remedy Progressive's concerns. See Barroso v. Allstate Prop. & Cas. Ins. Co., 958 F. Supp. 2d 1344, 1347 (M.D. Fla. 2013) (“[U]nless and until Florida courts require the commencement of a new action or Congress acts to amend the removal statute, this Court can only apply § 1446 as drafted—imposing a one-year limitation that begins with commencement of the action—to the vagaries of state procedural practice prior to removal.”).

IV. CONCLUSION

Progressive removed this action on diversity grounds more than four years after Kimble commenced the action in state court. Under § 1446(c)(1), the removal was untimely. Accordingly, it is ORDERED:

1. The Clerk is directed to REMAND this action to the Circuit Court for the Fifth Judicial Circuit in and for Hernando County, Florida, and to transmit a certified copy of this order to the clerk of that court.

2. The Clerk is further directed to TERMINATE any pending motions and deadlines, and to CLOSE this case.

ORDERED in Tampa, Florida, on December 11, 2024.

Kathryn Kimball Mizelle, United States District Judge