FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 11, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15860

Non-Argument Calendar

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D.C. Docket No. 02-80704-CV-CMA

RODRICK CARTER,

a.k.a. Harold Toney,

 Plaintiff-Appellant,

versus

FRITO-LAY, INC.,

NABISCO, INC.,

WISE FOODS, INC.,

 Defendants-Appellees.

__________________________

Appeal from the United States District Court 

for the Southern District of Florida

_________________________

(August 11, 2005)

Before TJOFLAT, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

Appellant is an inmate in the Florida prison system. He appeals the 

judgment the district court entered in favor of Frito Lay, Inc., a Delaware
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corporation; Nabisco, Inc., a New Jersey corporation; and Wise Foods, Inc., a

Delaware corporation (collectively “the defendants”) because his complaint failed

to state a claim for relief. The complaint, originally filed in Florida circuit court, 

alleges that the defendants were negligent and strictly liable for appellant’s 

injuries, which occurred as a result of his consumption of their products. 

Specifically, the complaint alleges that he became ill with acquired

immunodeficiency syndrome (“AIDS”) in 1997; that he had consumed the

defendants’ products since 1993; that he began experiencing “sicknesses of the

type usually or commonly attributable to infectious conditions . . . while

consuming food products . . . containing bacteria protease” that the defendants

manufactured. 

After the defendants removed the case to the district court, appellant moved

the court to remand it to the state court. The court denied his motion, and

thereafter granted the motions to dismiss now before us. Appellant’s brief

presents two issues. We address them in turn.

I.

Appellant contends that the defendants’ notice of removal was untimely;

thus, the district court erred in denying his motion to remand. The notice of

removal was untimely, he says, because it was filed more than 30 days after the
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defendants received the original summons and more than one year after the action

commenced.

According to 28 U.S.C. § 1446(b), 

The notice of removal of a civil action or proceeding shall be filed

within thirty days after the receipt by the defendant, through service

or otherwise, of a copy of the initial pleading setting forth the claim

for relief upon which such action or proceeding is based, or within

thirty days after the service of summons upon the defendant if such

initial pleading has then been filed in court and is not required to be

served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of

removal may be filed within thirty days after receipt by the defendant,

through service or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it may first be ascertained

that the case is one which is or has become removable, except that a

case may not be removed on the basis of jurisdiction conferred by

section 1332 of this title more than 1 year after commencement of the

action.

28 U.S.C. § 1446(b). 

Regarding the 30-day provision cited in the first paragraph, the Supreme

Court has held that a “defendant’s time to remove is triggered by simultaneous

service of the summons and complaint, or receipt of the complaint, ‘through

service or otherwise,’ after and apart from service of the summons, but not by

mere receipt of the complaint unattended by any formal service.” Murphy Bros.,

Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 347-48, 119 S.Ct. 1322, 1325,

143 L.Ed.2d 448 (1999). 
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As for the one-year limitation provision cited in the second paragraph, 

courts have held that it only applies to cases that were not removable to federal

court originally filed. The Eighth Circuit has noted that “the real question . . . is

whether the last clause of the second paragraph of § 1446(b) modifies only the

second paragraph, or applies more broadly to both paragraphs of the provision,”

and has held that “rules of usage and statutory construction lead inevitably to the

conclusion that the one-year limitation period modifies only the second paragraph

of § 1446(b), and therefore only applies to cases that were not removable to

federal court when originally filed.” Brown v. Tokio Marine & Fire Ins. Co., 284

F.3d 871, 873 (8th Cir. 2002); see also Badon v. R J R Nabisco, Inc., 224 F.3d

382, 389 (5th Cir. 2000); Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d

527, 535 (6th Cir. 1999). 

To decide whether the one-year provision in the second paragraph of §

1446(b) applies here, we must first determine whether appellant’s case was

removable when it was filed. As stated in 28 U.S.C. § 1332(a)(1), “[t]he district

courts shall have original jurisdiction of all civil actions where the matter in

controversy exceeds the sum or value of $75,000, exclusive of interest and costs,

and is between . . . citizens of different States.” “A case falls within the federal

district court’s original diversity jurisdiction only if diversity of citizenship among
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the parties is complete, i.e., only if there is no plaintiff and no defendant who are

citizens of the same State.” Wisconsin Dep’t of Corr. v. Schacht, 524 U.S. 381,

388, 118 S.Ct. 2047, 2052, 141 L.Ed.2d 364 (1998).

The defendants filed their notice of removal less than 30 days after

receiving service of the complaint. Hence, they complied with the first paragraph

of § 1446(b). The complaint alleges damages in excess of $75,000 and is brought

against citizens of different states. See Schacht, 524 U.S. at 388, 118 S.Ct. at

2052. Thus, the district court had original jurisdiction over the case, and it was

removable when it was filed. See 28 U.S.C. §§ 1332(a)(1), 1446(b). For this

reason, the one-year limitation of the second paragraph of § 1446(b) is

inapplicable. 

II.

Appellant contends that the court erred in dismissing his complaint pursuant

to Fed. R. Civ. P. 12(b)(6) because (1) the complaint contained factual, scientific,

and medical support for his allegations, and (2) the district court interpretation of

the factual allegations were clearly erroneous. In reviewing a motion to dismiss,

we need only to “accept well-pleaded facts and reasonable inferences drawn from

those facts. Gonzalez v. Reno, 325 F.3d 1228, 1235 (11th Cir. 2003) (quotations

omitted). “[u]nsupported conclusions of law or of mixed fact and law [do] not to
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prevent a Rule 12(b)(6) dismissal.” Id. (quotation and alteration omitted). In a

diversity action, the district court applies the law of the forum in which the court

sits. LaTorre v. Conn. Mut. Life Ins. Co., 38 F.3d 538, 540 (11th Cir. 1994). 

Because this case was filed in Florida, we apply Florida law to analyze appellant’s

strict liability and negligence claims.

A.

To establish strict liability under Florida law, appellant was required to

allege the following: (1) “the manufacturer’s relationship to the product in

question,” (2) “the defect,” (3) “the unreasonably dangerous condition of the

product,” and (4) “the existence of a proximate causal connection between the

condition and the user’s injuries or damage.” Clark v. Boeing Co., 395 So.2d

1226, 1229 (Fla. 3d DCA 1981). As for what constitutes “unreasonably

dangerous,” one court has noted that “something which is inherently dangerous

must be so imminently dangerous in kind as to imperil the life or limb of any

person who uses it.” Seitz v. Zac Smith & Co., Inc., 500 So.2d 706, 710 (Fla. 1st

DCA 1987).

The complaint alleges that the defendants’ products were “unreasonably

dangerous,” because the products contained “protease,” but does not present a

factual basis for this allegation. That is, the complaint presents no information
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beyond the allegation that“protease” actually is dangerous, or that appellant’s 

consumption of “protease” caused harm. No facts are alleged to support

appellant’s contention that “protease” actually was used in the defendants’

products. In fine, appellant’s unsupported conclusions are insufficient to preclude 

a Rule 12(b)(6) dismissal. 

B.

In Florida, “[i]n order to establish negligence, [the plaintiffs] must prove the

existence of a duty to protect them, a breach of that duty, and injury sustained as a

proximate cause of the breach.” Clark, 395 So.2d at 1228.

In his complaint, appellant, who suffers from AIDS, attempted to show

causation by alleging that he began experiencing “sicknesses of the type usually or

commonly attributable to infectious conditions . . . while consuming food products

. . . containing bacteria protease” that were manufactured by the defendants. He

presents no factual basis, however, to support his claim that his illness was the

result of his consumption of the defendants’ products, rather than a result of the

AIDS virus itself. 

We find no basis for setting aside the district court’s judgment. 

AFFIRMED.