United States District Court

for the

Southern District of Florida

Ingrid Senalle, Plaintiff,

v.

Geovera Specialty Insurance 

Company, Defendant.

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Civil Action No. 20-23211-Civ-Scola

Order Denying Motion to Dismiss

This matter is before the Court upon Defendant Geovera Specialty 

Insurance Company’s motion to dismiss the complaint for failure to join an 

indispensable party. (Def.’s Mot., ECF No. 4; Compl., ECF No. 1-1 at 7.)

Plaintiff Ingrid Senalle has responded to the motion and the Defendant has 

replied thereto. (Pl.’s Resp., ECF No. 6; Def.’s Reply, ECF No. 11.) Having 

reviewed the record, the motion, the parties’ submissions, and the relevant 

legal authorities, the Court denies the motion to dismiss (ECF No. 4).

I. Background

The Plaintiff filed this breach of contract action in the Circuit Court of 

the Eleventh Judicial Circuit in and for Miami-Dade County, Florida on June 

30, 2020. (ECF No. 1-1.) The complaint alleges that on or about September 10, 

2017, the Plaintiff suffered a property loss due to Hurricane Irma, which was a 

covered loss under an insurance policy issued by the Defendant. (Id.) The 

insureds under the policy are both the Plaintiff, Ingrid Senalle, as well as her 

then-husband, Modesto Gato. (ECF No. 4.)

The Defendant was served with a copy of the complaint on July 14, 2020, 

and removed the action to this Court on August 3, 2020. (ECF No. 1.) Shortly 

thereafter, the Defendant filed a motion to dismiss the complaint because the 

Plaintiff failed to join Modesto Gato, a named policyholder, on the basis that he 

is an indispensable party to this action.

II. Legal Standard

Dismissal of an action pursuant to Federal Rule of Civil Procedure 

12(b)(7), for failure to join a (party under Rule 19, is a “two-step inquiry.” See 

Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1279 

(11th Cir. 2003). “First, a court must decide whether an absent party is 

required in the case under Rule 19(a).” Int'l Imps., Inc. v. Int'l Spirits & Wines, 

Case 1:20-cv-23211-RNS Document 14 Entered on FLSD Docket 09/17/2020 Page 1 of 6
LLC, No. 10-61856-CIV, 2011 WL 7807548, at *8 (S.D. Fla. July 26, 2011) 

(O’Sullivan, Mag. J.) (citing Molinos Valle Del Cibao v. Lama, 633 F.3d 1330, 

1344 (11th Cir. 2011)). If a court determines that an absent party does satisfy 

the Rule 19(a) criteria, i.e., that the party is a required party, the court must 

order that party joined if its joinder is feasible. See Fed. R. Civ. P. 19(a)(2). If 

the absent party is not required, the litigation continues as is. See, e.g., 

Developers Sur. & Indem. Co. v. Harding Vill., Ltd., No. 06-21267-CIV, 2007 WL 

465519, at *2 (S.D. Fla. Feb. 9, 2007) (Cooke, J.). However, an absent party is 

considered necessary (i) if, in its absence, the court cannot accord complete 

relief among the existing parties to the action; (ii) if the nonparty's absence 

would have a prejudicial effect on that party's ability to protect its interest 

relating to the subject of the action; or (iii) if, due to the absent party's related 

interest, the nonparty's absence would leave the existing parties at a 

substantial risk of incurring inconsistent obligations upon the court's 

disposition of the current action. Fed. R. Civ. P. 19(a)(1); see also City of 

Marietta v. CSX Transp. Inc., 196 F.3d 1300, 1305 (11th Cir. 1999) (Per Rule 

19(a), the first question is “whether complete relief can be afforded in the 

present procedural posture, or whether the nonparty's absence will impede 

either the nonparty's protection of an interest at stake or subject parties to a 

risk of inconsistent obligations.”).

Second, if the absent party's joinder is not feasible — i.e., joinder would 

defeat the court's subject-matter jurisdiction, the absent party is not subject to 

the court's personal jurisdiction, or the absent party properly objects to the 

venue of the action — the court must consider if, “in equity and good 

conscience, the action should proceed among the existing parties or should be 

dismissed.” Fed. R. Civ. P. 19(b); see Challenge Homes, Inc. v. Greater Naples 

Care Ctr., Inc., 669 F.2d 667, 669 (11th Cir. 1982) (“[T]he court must [first] 

ascertain under the standards of Rule 19(a) whether the person in question is 

one who should be joined if feasible. If the person should be joined but cannot 

be (because, for example, joinder would divest the court of jurisdiction) then 

the court must inquire whether, applying the factors enumerated in Rule 19(b), 

the litigation may continue.”). “Thus, dismissal for failure to join an 

indispensable party is only appropriate where the nonparty cannot be made a 

party.” Moreiras v. Scottsdale Ins. Co., No. 20-CV-21303, 2020 WL 2084851, at 

*2 (S.D. Fla. Apr. 30, 2020) (Bloom, J.) (citations omitted).

Rule 19(b) enumerates a list of the most significant factors considered in 

determining whether joinder of an absent party is indispensable, which 

includes “whether the plaintiff will have an adequate remedy if the action is 

dismissed for nonjoinder” of the absentee. Fed. R. Civ. P. 19(b). Those factors 

“must be reviewed in light of pragmatic concerns, especially the effect on the 

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parties and the litigation.” Sierra Club v. Leathers, 754 F.2d 952, 954 (11th Cir. 

1985) (citations omitted). Finally, Rule 19(a)(3) provides that “[i]f a joined party 

objects to venue and the joinder would make venue improper, the court must 

dismiss that party.” Fed. R. Civ. P. 19(a)(3).

III. Analysis

At the outset, the Court unfortunately must state that “[w]hen parties do 

not explain their arguments or support them with citation to legal authority, 

the burden upon the Court is improperly increased.” Amerikooler, LLC v. 

Coolstructures, Inc., No. 17-24420-CIV, 2019 WL 2373560, at *2 (S.D. Fla. 

June 5, 2019) (Scola, J.). Although the Defendant submitted persuasive briefs, 

the one-sentence-long opposition brief submitted by the Plaintiff’s counsel was 

of unacceptably poor quality and it unduly drained judicial resources. The 

opposition is nothing more than a cover page for a two-sentence-long affidavit 

that, for reasons explained below, also does not assist the Court in resolving 

the motion. Further, the Plaintiff’s brief cites no authority. See Resolution Trust 

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) ("[T]he onus is upon 

the parties to formulate arguments."). It does not grapple with the issues, 

much less explain why the Court should deny the motion. The Plaintiff’s 

counsel is warned to correct this minimalist approach to litigating, which is a 

disservice to her client.

Turning to the issues at hand, Mr. Gato is identified as an “insured” 

under the policy and he is an interested party. The affidavit submitted by the

Plaintiff appears to be intended to establish that Mr. Gato assigned all of his 

interests in the insurance policy to the Plaintiff. (ECF No. 7-1.) The Defendant’s 

position is that it “does not oppose continuing the litigation with Ingrid Senalle 

as the sole Plaintiff,” but the Defendant “can only agree to do so if it has been 

established by the Court that Mr. Gato has successfully released all interests 

he may have in the claim, Policy and litigation.” (ECF No. 11 at 2.) The 

Defendant’s position is correct because if it “were to agree to Plaintiff’s position 

without judicial confirmation, it would leave [the Defendant] at risk of Mr. Gato 

changing his position or attempting to make a claim for the same benefits 

under the policy.” (Id.) This is the very result that Rule 19 is designed to avoid.

The Court cannot conclude that Mr. Gato released all interests he may 

have in the claim, policy, and litigation, and further that he assigned those 

interests to the Plaintiff. Mr. Gato’s notarized affidavit states, in full:

I, MODESTO GATO, irrevocably assign any and all insurance 

rights, benefits and proceeds under the above referenced case 

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number to INGRID SENALLED. As an interested party to this 

matter, I direct to be released as such.

(Gato Aff., ECF No. 7-1.) At the outset, it bears noting that this affidavit could 

have significant legal consequences to Mr. Gato. It was executed on August 24, 

2020, nearly three years after the claim arose and on the same day the 

Plaintiff’s opposition to the motion to dismiss was filed. This suggests that Mr. 

Gato had an interest in the insurance policy when the claim arose, so a finding 

of a post-claim assignment of his interests under the policy would be 

particularly damaging to Mr. Gato if he did not in fact intend to make the 

assignment. Indeed, he admits that he is “an interested party.” (Id.)

Unaided by the Plaintiff’s counsel, the Court presumes that the purpose 

of this affidavit is to reflect that Mr. Gato assigned his interests in the 

insurance policy to the Plaintiff. However, that is not what the words of the 

affidavit say, and the Court cannot conclude that this is an effective 

assignment. First, the affidavit states that Mr. Gato assigns his “insurance 

rights” under a “case number.” (Id.) The “case number” that appears on the 

affidavit is the state court case number assigned to this case before it was 

removed (even though the affidavit was executed after this case was removed 

and assigned a new case number in this Court). This begs multiple questions. 

If an affidavit was prepared for Mr. Gato that reflects the wrong case number in 

the wrong jurisdiction, was he made aware of this federal case? If he disclaimed 

rights under a closed case number (although it is unclear what it means to 

disclaim rights under a “case number”), did he intend thereby to also disclaim 

rights under the insurance policy? Moreover, the timing of the affidavit suggests 

that it was procured by the Plaintiff in order to defeat the motion to dismiss. Is 

he aware that he may have rights under the policy? Was he told that the 

insurance policy that is the subject of litigation may have entitled him to a 

considerable payout if it covered a jointly owned property when Hurricane Irma 

damaged it?

The affidavit raises many questions and it answers virtually none. The 

Court declines to answer these and other questions in a manner adverse to Mr. 

Gato, who is neither a party to, nor represented by counsel in, this case. The 

Court cannot find that this purported assignment was knowingly and 

voluntarily entered. Moreover, even if it was so entered, it does not expressly

assign his rights under the insurance policy. Similarly ineffective was the 

Plaintiff’s “Notice of Serving Marital Settlement Agreement in Opposition to 

Defendant’s Motion to Dismiss.” (ECF No. 6.) The Notice states that the Plaintiff 

and Mr. Gato’s marriage was dissolved and that a copy of the marital 

settlement agreement (“MSA”) was served upon the Defendant. However, the 

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MSA was not put in the record, leaving the Court without so much as a clue as 

to what it says, much less how it ought to be construed “in opposition” to the 

motion.

Now that it has been established that Mr. Gato is an interested party and 

that his purported assignment was ineffective, the Court turns to the second 

step of the Rule 19 analysis: Whether “the action should proceed among the 

existing parties or should be dismissed.” Fed. R. Civ. P. 19(b). The action 

should be dismissed only “where the nonparty cannot be made a party.” 

Moreiras v. Scottsdale Ins. Co., No. 20-CV-21303, 2020 WL 2084851, at *2 

(S.D. Fla. Apr. 30, 2020) (Bloom, J.). As no briefing was submitted on this 

issue, the Court is not in a position to evaluate whether Mr. Gato can be made 

a party to this action.

However, because the Defendant has not argued that joinder would be 

infeasible, and despite the Plaintiff’s counsel’s failure to address this issue, the 

Court concludes that dismissal of the action is inappropriate at this juncture. 

See Fed. R. Civ. P. 19(a)(2) (“If a person has not been joined as required, the 

court must order that the person be made a party.”); see also Davis v. 

Raymond, No. 12-22578-CIV, 2013 WL 2047424, at *4 (S.D. Fla. May 14, 2013)

(Moreno, J.) (“In this case, [Defendant] has not argued that Hodge cannot be 

made a party or that joinder is not feasible. Since joinder of Hodge is thus 

presumably feasible, [Defendant] cannot seek dismissal of [the] complaint 

under Rule 12(b)(7) . . . . Rather, [Defendant] may at most request that the 

Court order Davis to join Hodge as a necessary party under Rule 19(a)(2).”); 

EuroSillas, C.A. v. Citigroup, Inc., No. 11-23103-CIV, 2012 WL 253227, at *2 

(S.D. Fla. Jan. 26, 2012) (Cooke, J.) (finding dismissal of the action 

“inappropriate” for failure to join where indispensable party could be joined to 

the case). Therefore, rather than dismissing this case, the Court will order that 

the Plaintiff join Modesto Gato as a party to this action by September 24, 2020. 

See Moreiras v. Scottsdale Ins. Co., 2020 WL 2084851, at *3.

IV. Conclusion

Accordingly, the Plaintiff is ordered to join Modesto Gato as a party to 

this action, via an amended complaint, which shall be filed on or before 

September 24, 2020. The Plaintiff’s failure to comply with this order may 

result in sanctions, including dismissal without further notice.

Done and ordered at Miami, Florida on September 16, 2020.

________________________________

Robert N. Scola, Jr.

United States District Judge

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