In an unusual display of speedy discretion, federal District Judge Sheri Polster Chappell wasted no time in dismissing the complaint on a public works payment bond filed by Advance Industrial Coating, LLC in Advance Indus. Coating, LLC v. Westfield Ins. Co., No. 2:15-cv-141-FtM-38DNF (D. for M.D. Fla., Mar. 6, 2015). Advance filed its complaint in the Middle District of Florida – Ft. Myers Division – on March 4, 2015. Just two (2) days later, on March 6, 2015, Judge Chappell dismissed the action without prejudice for Advance’s failure to properly plead the citizenship of the parties! The Court’s order was sua sponte!
Specifically, Advance properly identified itself as a limited liability company but improperly alleged its citizenship as though it was a corporation: “Plaintiff, Advance Industrial Coatings, LLC (“AIC”), is a Florida limited liability company with its principal place of business in Jacksonville, Florida.” See DE 1, para. 2. The Court reminded Advance that “[a] limited liability company is a citizen of every state in which one of its members is located” and noted that “the members of the LLC and their respective locations are not disclosed in the complaint.” Additionally, Advance properly identified Westfield’s state of incorporation as Ohio but improperly alleged that Westfield was also a “foreign insurance company authorized to issue surety bonds in the State of Florida.” See DE 1, para. 3. In other words, Advance failed to allege Westfield’s principal place of business. As such, the Court dismissed the action because it was “not satisfied that it has federal jurisdiction to facilitate this case.”
It should be noted that the undersigned just learned that Advance filed an amended complaint that included corrected jurisdictional allegations.
For more information on this matter, or any other litigation-related questions, please contact Edward Sylvester directly.
Edward Sylvester is a partner in the Miami office and is licensed to practice in all state and federal courts in both Florida and Ohio.
Hinshaw & Culbertson LLP partner James Castle recently enhanced and updated the chapter on Media Liability Insurance for LexisNexis’ California Insurance Law & Practice. Cases discussed include:
S.B.C.C., Inc. v. St. Paul Fire & Marine Ins. Co., that an expanded exclusion in a current CGL form bars claims not only for misappropriation of trade secrets (intellectual property) but also for any other injury alleged in the same suit.
Hartford Cas. Ins. Co. v. Swift Distribution, Inc., and Street Surfing, LLC v. Great Am. E&S Ins. Co. on different aspects of the extent of the insurer’s duty to defend.
Pryor v. Warner/Chappell Music, Inc. as to what a plaintiff seeking to establish a claim for copyright infringement must prove.
Range Road Music, Inc. v. East Coast Food, Inc., on the “substantial similarity” doctrine in copyright infringement jurisprudence.
Welenco, Inc. v. Corbell, on vaicarious liability in copyright infringement.
Inter123 Corp. v. Ghaith is cited as an example as to the eight factors courts have considered when analyzing the likelihood of “confusion” in trademark infringement jurisprudence.
Burrill v. Nair on the elements of a claim for defamation.
Opperman v. Path, Inc. on the necessary elements of a claim for public disclosure of private facts.
For more information on Media Liability Insurance, please contact James Castle (email).
Four insurance companies sued the California Department of Insurance, claiming the agency has become “increasingly aggressive” in its efforts to enforce the state’s Unfair Insurance Practices Act.
The companies say the department is trying to enforce the UPA beyond the scope of the original statute, by wanting to impose “millions of dollars in monetary penalties” against insurance companies.
In statute form, the UPA outlines 16 unfair claims settlement practices that companies must avoid in order to be compliant with the law. Prohibited practices include misrepresenting pertinent facts or policy revisions to clients, compelling insured clients to pursue litigation to recover amounts due, and attempting to settle a claim for less than a “reasonable” amount.
But the four plaintiffs known as the Torchmark group of companies said the department has been adding to the original 16 practices, creating 25 “categories of acts” that outline specific conduct to be followed or prohibited in the settlement of claims.
The Torchmark group includes Globe Life and Accident Insurance Company, American Income Life Insurance Company, United American Insurance Company and United Investors Life Insurance Company and is represented in the suit by Robert Hogeboom of the Los Angeles firm Hinshaw & Culbertson.
READ MORE at Courthouse News Service
Another year has passed, and what better way to celebrate than by taking a look at the various interesting disability cases that have been issued during that time. This year they are collected in the Medley.
In this booklet I have summarized a couple …
In Gabriel v. Alaska Electrical Pension Fund, the Ninth Circuit ruled that a pension plan participant could not be “made whole” by using the equitable remedy of surcharge to recover pension benefits he was erroneously told he would receive….
In a unanimous decision, the California Supreme Court on May 29 reversed a class action verdict for a class which was based on a flawed statistical model to determine liability and damages. Duran v. U.S. Bank National Association.
In Duran, plainti…
DRI members Martin E. Rosen and Jenny H. Wang, partners with Barger & Wolen LLP in Los Angeles and Newport Beach, California, respectively, recently obtained a summary judgment from the U.S. District Court for the Centr…
Attorney’s fees were the subjects of two U.S. Supreme Court decisions today in high profile patent cases. In Octane Fitness v. Icon Health and Highmark v. Allcare Health, the Court decided in “exceptional cases” reasonable attorneys fees may be awarded to a prevailing party.
Interestingly, the Court leaves it to the trial court to define which cases are exceptional. This is to be done in the court’s exercise of its discretion on a case-by-case basis. This is a dramatic change. The prior standard used in these types of matters required a finding of “subjective bad faith” and/or “objectively baseless” conduct.
Those standards were very high; making the circumstances where a fee award was granted to be rare. The policy surrounding this decision appears to deter parties who have abused the patent system for their own financial gain.
Originally posted to Barger & Wolen’s Litigation Management & Attorney Fee Analysis blog.
According to a Law360 report, Sony Units Denied Coverage For Suits Tied To Cyber Attack (subscription required), a New York state judge ruled last Friday in the Zurich v. Sony insurance litigation that the stealing of consumer information through a cyb…
At first glance, the holding of the California 4th District Court of Appeal in XL Specialty Insurance Co. v. St. Paul Mercury Insurance Co. seems harsh. The court upheld the dismissal of XL Specialty Insurance Co.’s suit against one of two (D&…