Monday, July 17, 2006

N.D. Fla. Strictly Applies Florida Law Re “Commencement” of an Action in Deciding Applicability of CAFA

Per Jones v. Fort Dodge Animal Health, Slip Copy, 2006 WL 1877103 (N.D. Fla. July 5, 2006):

…Florida law expressly provides that commencement occurs when the complaint is filed, Fla. R. Civ. P. 1.050, and Defendant has offered no case law suggesting that Florida courts require timely service as an additional requirement to effecting commencement. Thus, this Court finds that this action commenced upon Plaintiff filing her complaint [on Feb. 17, 2005, one day prior to CAFA’s effective date], and CAFA does not apply. Such a strict interpretation of Florida's rule regarding commencement is consistent with this Circuit's “rule of construing removal statutes strictly and resolving doubts in favor of remand.” [See Footnote 9 below] Miedema v. Maytag Corp., No. 06-12430, 2006 WL 1519630, at *15 (11th Cir. Jun. 5, 2006). This interpretation is also consistent with the statutory construction of Florida's Rules of Civil Procedure, which already provide an adequate state remedy for failure to provide timely service. Under Rule 1.070, a court may dismiss an action without prejudice if a plaintiff cannot show good cause or excusable neglect for its failure to serve on time. Fla. R. Civ. P. 1.070(j).

Footnote 9: This approach of strictly interpreting state commencement statutes has also been used by other circuits considering this issue. See Braud v. Transp. Serv. Co., 445 F.3d 801, 803-04 (5th Cir .2006) (finding the date of commencement to be the date of filing under Louisiana law, but acknowledging that under other state statutes, such as Connecticut's, commencement occurs on the date of service); Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir .2005) (strictly adhering to California law for purposes of defining commencement, while acknowledging that this may lead to unanticipated results in states allowing a significant lapse of time between filing and providing service); Cannon v. Kroger Co., 837 F.2d 660, 664 (4th Cir.1988) (“It is clear that a federal court must honor state court rules governing commencement of civil actions when an action is first brought in state court and then removed to federal court, even though the cause of action arises from federal law.”).


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