United States District Court 

for the 

Southern District of Florida 

Ed Gonzalez Ayala, Plaintiff,

v. 

Dermaforce Partners, LLC, et al., 

Defendants. 

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Civil Action No. 22-23000-Civ-Scola 

Order Remanding Case 

This matter is before the Court on the Plaintiff Ed Gonzalez Ayala’s 

(“Gonzalez Ayala”) motion to remand this case to Miami-Dade County Circuit 

Court (ECF No. 32) and motion to strike the Defendants’ late response 

opposing remand (ECF No. 36). On September 9, 2022, the Defendant 

Dermaforce Partners, LLC removed this action from the Eleventh Judicial 

Circuit in and for Miami-Dade County, Florida, asserting this Court’s diversity 

jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). (ECF No. 1.) On December 1, 

2022, however, Gonzalez Ayala filed an amended complaint, adding for the first 

time as Defendants Dermaforce Holdings, LLC, L’Oreal U.S.A., Inc., and Jessica 

Rivera, as personal representative of the Estate of Wellington Rivera (the 

“Estate”) (collectively, the “Defendants”). (ECF No. 14.) Realizing some months 

later that both he and the Estate are citizens of Florida, Gonzalez Ayala then 

moved to remand this matter on the ground that there is no longer diversity 

jurisdiction. (ECF No. 32.) Because Gonzalez Ayala filed his motion on 

February 27, 2023, the Defendants’ response (along with all supporting 

materials) was due by March 13, 2023. See S.D. Fla. L.R. 7.1(c)(1). However, 

the Defendants did not file that response until March 17, 2023, and did not file 

a supporting declaration until March 23, 2023. (ECF Nos. 33, 34.) On March 

24, 2023, Gonzalez Ayala filed both the motion to strike the Defendants’ 

untimely response (ECF No. 36) and his reply in support of his motion to 

remand (ECF No. 37). The Court has now reviewed the record, the parties’ 

briefs, and the relevant legal authorities. For the reasons stated below, the 

Court denies Gonzalez Ayala’s motion to strike (ECF No. 36) and grants his 

motion to remand (ECF No. 32). 

The Court will first briefly address Gonzalez Ayala’s motion to strike the 

Defendants’ untimely response. Under Rule 6(b)(1)(B) of the Federal Rules of 

Civil Procedure, a court may extend the time in which a party may act “on a 

motion made after the time has expired if the party failed to act because of 

excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “Whether neglect is excusable is 

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an equitable determination ‘taking account of all relevant circumstances 

surrounding the party’s omission.’” Fisher v. Office of the State Atty. 13th 

Judicial Circuit Fla., 162 F. App’x 937, 940 (11th Cir. 2006) (quoting Pioneer 

Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S. Ct. 

1489, 1498 (1993)). Such relevant “circumstances include the danger of 

prejudice to the opposing party, ‘the length of the delay and its potential impact 

on judicial proceedings, the reason for the delay, including whether it was 

within the reasonable control of the movant, and whether the movant acted in 

good faith.’” (Id.) District courts are afforded discretion under Rule 6(b) to 

accept untimely filings but are not compelled to do so. See McCool v. 

Bridgestone/Firestone N. Am. Tire, Inc., 222 F. App’x 847, 858 (11th Cir. 2007) 

(citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 896, 110 S. Ct. 3177, 3192, 

111 L. Ed. 2d 695 & n.5 (1990)). 

There is no question that the Defendants’ response in opposition to 

Gonzalez Ayala’s motion to remand is untimely. Moreover, the Defendants filed 

their response without acknowledging its lateness or seeking leave from the 

Court for an extension of time. Indeed, the Defendants only provided an 

explanation for their late filing when prompted to do so by Gonzalez Ayala’s 

motion to strike.1 The Court does not take these infractions lightly, and notes 

that in other circumstances they would likely suffice to strike the Defendants’ 

response. See, e.g., United Nat’l Ins. Co. v. Owl’s Nest of Pensacola Beach, Inc., 

No. 3:05cv374/MCR/MD, 2006 U.S. Dist. LEXIS 42859, at *13 (N.D. Fla. June 

8, 2006) (striking untimely response to motion for summary judgment where 

party failed to acknowledge the lateness of his filing or seek leave from the 

court to file out of time). Having said that, here, the Court will exercise its 

discretion to consider the Defendants’ response. Perhaps most importantly, 

Gonzalez Ayala will not be prejudiced by the Court’s denial of his motion to 

strike because he has filed a reply that thoroughly addresses the points raised 

in the Defendants’ response. Moreover, the Defendants have explained that 

their late filing was inadvertently caused by the departure of the associate 

attorney formerly handling this matter, and the length of the delay was not 

such as to significantly interfere with these proceedings. As such, the Court 

finds excusable neglect for the Defendants’ untimely filing and declines to 

strike the Defendants’ response in opposition to remand. (ECF No. 36.) 

1 The Court construes the Defendants’ response in opposition to Gonzalez Ayala’s motion to 

strike as a post-deadline motion for extension of time. See Lujan v. Nat’l Wildlife Fed’n, 497 

U.S. 871, 875, 110 S. Ct. 3177, 3181 (1990) (“Although Rule 6(b) allows a court, ‘in its 

discretion,’ to extend any filing deadline ‘for cause shown,’ a post-deadline extension must be 

‘upon motion made,’ . . . .”).

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Moving to the merits of Gonzalez Ayala’s motion to remand, the Court 

must determine whether Gonzalez Ayala is correct that the addition of Jessica 

Rivera, as personal representative of the Estate of Wellington Rivera, destroys 

diversity jurisdiction in this case.2 “Diversity jurisdiction requires complete 

diversity,” meaning that “every plaintiff must be diverse from every defendant.” 

Leyva v. Daniels, 530 F. App’x 933, 934 (11th Cir. 2013) (quoting Triggs v. John 

Crump Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir. 1998)). “Where,” as in this 

case, “an estate is a party, the citizenship that counts for diversity purposes is 

that of the decedent, and [he] is deemed to be a citizen of the state in which 

[he] was domiciled at the time of h[is] death.” King v. Cessna Aircraft Co., 505 

F.3d 1160, 1170 (11th Cir. 2007) (citing 28 U.S.C. § 1332(c)(2); Palmer v. Hosp. 

Auth. of Randolph County, 22 F.3d 1559, 1562 n.1 (11th Cir. 1994)); see also 

Lyons v. O’Quinn, 607 F. App’x 931, 933 n.3 (11th Cir. 2015) (same). “A 

person’s domicile is the place of ‘his true, fixed, and permanent home and 

principal establishment, and to which he has the intention of returning 

whenever he is absent therefrom.’” McCormick v. Aderholt, 293 F.3d 1254, 

1257-58 (11th Cir. 2002) (quoting Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 

1974), cert. denied, 419 U.S. 842, 95 S. Ct. 74, 42 L. Ed. 2d 70 (1974)). In line 

with this, “a change of domicile requires ‘[a] concurrent showing of (1) physical 

presence at the new location with (2) an intention to remain there indefinitely.’” 

Id. Whether a change in domicile has occurred presents a question “of 

compound fact and law.” Welsh v. Am. Sur. Co., 186 F.2d 16, 18 (5th Cir. 

1951). 

The Defendants argue that there remains complete diversity between the 

parties because the decedent, Wellington Rivera, was not domiciled in Florida 

at the time of his death on August 24, 2021. (Resp. to Mot. to Remand 1, ECF 

No. 33.) In support of their position, they cite various facts—supported by the 

declaration of Jessica Rivera, the decedent’s spouse—purportedly tying the 

decedent to the northeast United States. Among other things, the Defendants 

point out that Mr. Rivera was employed by the Defendant Dermaforce Partners, 

LLC; that, while employed by Dermaforce Partners, LLC, he resided with Mrs. 

Rivera in East Orange, New Jersey; that he owned businesses and property in 

New York; and that he had all business mail directed to an apartment in New 

York, where he was the secondary tenant on a lease with his mother. (Id. at 5.) 

2 The Court notes in passing that it is doubtful whether either of Gonzalez Ayala’s complaints 

adequately addressed the citizenship of the other Defendants for purposes of invoking this 

Court’s diversity jurisdiction. (See Am. Compl. ¶¶ 3–5, ECF No. 14 (allegations seem to 

mistake, for example, the citizenship requirements for limited liability companies with those for 

corporations).) However, this order addresses only the parties’ arguments regarding the 

citizenship of the Estate because that determination alone requires that the Court remand this 

case to state court.

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However, the Defendants acknowledge that “in July 2021” Mr. Rivera “came to 

Florida,” and, critically, absent from their facts is any suggestion that Mr. 

Rivera intended to stay in the northeast following his move to Florida. (Id.)

In contrast, Gonzalez Ayala’s reply asserts that, at the time of his death, 

Mr. Rivera had moved to Florida with the intention to remain here indefinitely. 

(Reply in Supp. of Mot. to Remand 2–3, ECF No. 37.) Gonzalez Ayala’s position 

is supported by various sources. For example, he relies on the declaration of 

Yvonee Souchet, Mr. Rivera’s “lifelong friend,” who states that Mr. Rivera 

contacted her in February 2021 about moving to Florida and starting a real 

estate investment business here. (Id. at 4.) Ms. Souchet also declares that, to 

that end, Mr. Rivera negotiated a deal on a condominium, created a Florida 

limited liability company (naming her, a Florida resident, as registered agent), 

and put his New York business and property up for sale, intending to use the

capital for his new business and investments in Florida. (Id.) Ms. Souchet 

explains that the decedent ultimately moved into his new Florida condo in early 

July 2021, and that Mrs. Rivera joined him soon after. (Id. 4–5.) Ms. Souchet 

declares that Mr. Rivera “absolutely intended to reside in Florida indefinitely 

and to start a new life[,]” and supports her declaration with screenshots of her 

conversations with Mr. Rivera. (See Y. Souchet Decl. ¶ 12, ECF No. 38-1; Ex. 1 

to Y. Souchet Decl., ECF No. 38-2.) In addition to Ms. Souchet’s declaration, 

Gonzalez Ayala provides copies of various documents evidencing Mr. Rivera’s 

move to Florida. (See generally ECF No. 38.) Perhaps most important, however, 

is Gonzalez Ayala’s provision of a copy of Ms. Rivera’s sworn Petition for 

Administration of the Estate of Wellington Rivera in Case No. 2021-004928-

CP02, in the probate division of the Eleventh Judicial Circuit in and for MiamiDade County, Florida. (See ECF No. 38-8.) There, Ms. Rivera unequivocally 

represents, under penalty of perjury, that “this is the county where the 

decedent was domiciled.” (Id. at ¶ 4.) Thus, not only has Gonzalez Ayala 

provided affirmative evidence that Mr. Rivera was domiciled in Florida in 

August 2021, but he has also completely undermined Ms. Rivera’s declaration 

in support of the Defendants’ position. 

In short, after reviewing all the facts and supporting evidence, the Court 

has no difficulty concluding that Mr. Rivera was domiciled in Florida at the 

time of his death, and that, as such, his Estate is considered a citizen of 

Florida for purposes of diversity jurisdiction. Accordingly, because Gonzalez 

Ayala is also a citizen of Florida, there is no diversity between the parties, and 

the Court cannot exercise subject matter jurisdiction pursuant to 28 U.S.C. § 

1332. 

Therefore, for the reasons stated above, the Court denies Gonzalez 

Ayala’s motion to strike (ECF No. 36) and grants his motion to remand (ECF 

Case 1:22-cv-23000-RNS Document 44 Entered on FLSD Docket 05/26/2023 Page 4 of 5
No. 32). The Court remands the case to state court. The Court directs the 

Clerk to close this case and take all necessary steps to ensure the prompt 

remand of this matter and the transfer of this file back to the Circuit Court for 

the Eleventh Judicial Circuit in and for Miami-Dade County. Any pending 

motions are denied as moot.

Done and ordered at Miami, Florida on May 25, 2023.

________________________________

Robert N. Scola, Jr.

United States District Judge

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