UNITED STATE DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO.: 0:20-cv-61693-WPD 

STATE CASE NO.: CACE 20-012179 

FRANK DEMARZO, 

Plaintiff, 

vs. 

HEALTHCARE TRUST OF 

AMERICA, INC., a Foreign Profit Corporation, 

Defendant. 

_________________________________________/ 

PLAINTIFF’S MOTION FOR REMAND 

AND MEMORANDUM OF LAW IN SUPPORT THEREOF 

 Plaintiff, FRANK DEMARZO, by and through his undersigned attorneys hereby 

files this Motion for Remand and Memorandum of Law in Support thereof and states as follows: 

 1. At the present time the only named Plaintiff is Frank Demarzo. 

 2. At the present time, the existing defendant in this case is Healthcare Trust of 

America, Inc. (“Healthcare Trust”). 

 3. Plaintiff, Frank Demarzo, is a Florida citizen and Defendant, Healthcare 

Trust, is a foreign corporation. 

 4. More pertinent to the instant Motion for Remand, Plaintiff has 

simultaneously filed a Motion to Amend to add South Florida Construction Associates, Inc. as a 

party Defendant. In particular, the Motion to Amend seeks to add a new defendant that is a 

Florida citizen. 

 5. If this Court grants the motion to amend to add the new Florida Defendant, 

diversity jurisdiction as afforded by 28 USC § 1332 will be destroyed. 

Case 0:20-cv-61693-WPD Document 5 Entered on FLSD Docket 09/01/2020 Page 1 of 5
 6. After removal of an action, where Plaintiff seeks to amend in a way which 

would destroy the diversity jurisdiction of the district court, the court may either (1) deny the 

amendment; or (2) allow the amendment and remand the case to the state court from which is 

was removed. 28 USC § 1447(e). 

 7. Because the amendment is proper in this case, Plaintiff requests the Court to 

enter an Order granting Plaintiff’s Motion to Amend and then remanding based upon 28 USC § 

1447(e). 

 WHEREFORE, Plaintiff FRANK DEMARZO, requests this Court to enter an Order 

remanding this case to the Circuit Court, in and for the Seventeenth Judicial Circuit, in and for 

Broward County, Florida. 

MEMORANDUM OF LAW

 As indicated above, filed simultaneously with this Motion for Remand is a Motion to 

Amend Plaintiff’s Complaint to add a non-diverse party as a Defendant. In particular, Plaintiff’s 

proposed First Amended Complaint adds as a Defendant the corporation who applied for several 

paving, restriping and resealing permits pertaining to the location where Plaintiff sustained injury 

(9800 W. Commercial Blvd., Sunrise, FL 33351). 

 Concern over amendments which would effectively divest a district court of diversity 

jurisdiction prompted the amendment of 28 USC § 1447 in 1998 to add subsection (e) which 

provides as follows: 

If after removal the Plaintiff seeks to join additional defendants whose joinder 

would destroy subject matter jurisdiction, the court may deny joinder or permit 

joinder and remand the action to the State court. 

 As noted by this Court in Heininger v. We Care Distributors, Inc., 706 F. Supp. 860 

(S.D. Fla. 1989), the determination of whether amendment to name a non-diverse party is 

Case 0:20-cv-61693-WPD Document 5 Entered on FLSD Docket 09/01/2020 Page 2 of 5
appropriate requires a balancing of the equities involved. The Heininger court outlined the 

various factors to be considered in determining whether amendment and remand was 

appropriate: 

For example, the court should consider the extent to which the purpose of the 

amendment is to defeat federal jurisdiction, whether the Plaintiff has been dilatory 

in asking for amendment, whether Plaintiff will be significantly injured if its 

amendment is not allowed and any other factors bearing on the equities. 

 In this case, the equities support granting Plaintiff’s motion to amend and remand of the 

action. First, it is hard to see how the Defendant will suffer prejudice since the instant action was 

removed shortly after it was filed in state court, and no proceedings have occurred there. The 

mere fact that a Defendant faces the prospect of a trial in state court is insufficient in itself to 

demonstrate legal prejudice. Hughes v. Promark Lift, Inc., 751 F.Supp. 985, 987 (S.D. Fla. 

1990), citing, LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). 

Second, as noted by the Hughes court, although the purpose of the amendment may be a 

factor, it alone does not support denying amendment and refusing remand. As stated by the 

Hughes court: 

[Defendant’s] “motive” argument also fails because § 1447(e) does not require a 

tribunal to make an inquiry into the Plaintiff's motive in adding a non-diverse 

defendant. Righetti v. Shell Oil Co., 711 F.Supp. 531 (N.D. Cal.1989). The 

permissive language of § 1447(e) indicates that Congress intended to give the 

judiciary broad discretion in allowing joinder, even though remand may result. Id.

The legislative history of § 1447(e) evidences that the express purpose of the 

section is to “take advantage of the opportunity opened by removal from a state 

court to permit remand if a plaintiff seeks to join a diversity-destroying defendant 

after removal.” H.R.Rep. No. 889, 100th Cong., 2d Sess. 72, reprinted in 1988 

U.S.Code Cong. & Admin.News 6033. 

In this case, adding as a Defendant, the corporation who applied for several paving, 

restriping and resealing permits pertaining to the location at issue, and performed the 

Case 0:20-cv-61693-WPD Document 5 Entered on FLSD Docket 09/01/2020 Page 3 of 5
“improvements” regarding the paved asphalt lot located at 9800 W. Commercial Blvd., Sunrise, 

FL 33351 is entirely appropriate. 

Finally, the Plaintiff has not been dilatory in seeking the amendment. Plaintiff filed his 

Motion to Amend, within 11 days of the case being removed to federal court. 

 In sum, this Court should remand this case to state court pursuant to 28 USC § 1447 (e). 

WHEREFORE, Plaintiff requests this Court to grant his Motion to Remand this case to 

the state court from which it was removed. 

Respectfully submitted, 

 

LYONS, SNYDER & COLLIN, P.A.

By: /s/ Marc P. Lyons 

 Marc P. Lyons, Esq. 

 marc@lyonssnyder.com 

 FBN: 804681 

Philip M. Snyder, Esq. 

 philip@lyonssnyder.com 

 FBN: 815101 

 1250 South Pine Island Road, Suite 200 

 Plantation, FL 33324 

 T: 954.462.8035 

 F: 954.462.8036 

 Service email: pi_filings@lyonssnyder.com 

 Attorneys for Plaintiff, Frank Demarzo 

CERTIFICATE OF SERVICE 

 I, the undersigned attorney, do hereby certify that on the ____ day of September, 2020, 

the foregoing document has been served upon all parties or counsel of record for the parties at 

Case 0:20-cv-61693-WPD Document 5 Entered on FLSD Docket 09/01/2020 Page 4 of 5
interest in this cause by filing the document electronically through the Court’s CM/ECF System, 

which will serve the document electronically to those who are registered uses of its system: 

Thomas Paradise, Esq. 

Megan Pariti, Esq. 

Vernis & Bowling of Broward, P.A.

5821 Hollywood Blvd 

Hollywood, FL 33021 

Tel: 954-927-5330 

Fax: 954-927-5320 

mpariti@Florida-Law.com

tparadise@Florida-Law.com

Attorney for Defendant, Healthcare Trust of America, Inc. 

 

LYONS, SNYDER & COLLIN, P.A.

By: /s/ Marc P. Lyons 

 Marc P. Lyons, Esq. 

 marc@lyonssnyder.com 

 FBN: 804681 

Philip M. Snyder, Esq. 

 philip@lyonssnyder.com 

 FBN: 815101 

 1250 South Pine Island Road, Suite 200 

 Plantation, FL 33324 

 T: 954.462.8035 

 F: 954.462.8036 

 Service email: pi_filings@lyonssnyder.com 

 Attorneys for Plaintiff, Frank Demarzo 

 

Case 0:20-cv-61693-WPD Document 5 Entered on FLSD Docket 09/01/2020 Page 5 of 5