627 So. 2d 1322 | Fla. Dist. Ct. App. | 1993
Rebecca and Robert J. Preston appeal an order dismissing their amended complaint without prejudice.
Rebecca and Robert J. Preston filed an action against their insurer, Allstate Insurance Company, seeking uninsured motorist benefits and making a claim for insurer bad faith. Allstate filed a notice of removal in the United States District Court for the Southern District of Florida. Subsequently, Allstate filed a copy of the notice of removal in the state court. Insofar as pertinent here, the federal removal statute provides that once a copy of the notice of removal is filed in state court, “the State court shall proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446(d); see General Electric Credit Corp. v. Smith, 484 So.2d 75, 76 (Fla.2d DCA 1986); Weiser v. Bierbrouwerij, B.V., 430 So.2d 986, 987 (Fla.3d DCA 1983);
In the present case the federal court dismissed the removed action without prejudice.
From the viewpoint of the state court, the removal statute gives the state court a clear demarcation of when state court jurisdiction ceases, and when (if ever) the state court may resume jurisdiction. Under the statute, state court jurisdiction ceases when a copy of the notice of removal is filed in the state court. 28 U.S.C. § 1446(d).
Once the federal court dismissed the case without prejudice, the plaintiffs were free (among other things) to file another lawsuit in state or federal court.
Although initially skeptical, the trial court ultimately concluded that Allstate’s position was correct. The court ruled that it was not free to proceed with the original (removed) state court lawsuit. That conclusion was correct.
We disagree with the trial court’s ruling in one particular. The trial court entered an order dismissing the plaintiffs’ amended complaint without prejudice. This the court
Affirmed as modified.
. We follow the citation form used in the Southern Reporter. It appears that the correct corporate name of the appellee is actually Grolsche Bierbrouwerij, B.V.
. Effective in 1988, 28 U.S.C. § 1446 was amended, inter alia, to substitute "notice of removal" for the previous term, “petition for removal.” 1A Moore & Ringle, Moore's Federal Practice para. 0.168[3.-1], at 542-43 n. 1.
. Plaintiffs failed to comply with the federal court's pretrial order.
. Because the notice of removal was actually ■ filed in this case, we need not explore the doctrine of constructive notice of removal. See Medrano v. Texas, 580 F.2d 803 (5th Cir.1978).
. The Second District Court of Appeal has held that the statute of limitations is tolled during the pendency of the removed case in federal court. General Electric Credit Corp. v. Smith, 484 So.2d 75, 77 (Fla.2d DCA 1986). When this case was dismissed without prejudice by the federal court, the statute of limitations was reactivated.
.During the pendency of proceedings below, Allstate brought an action in federal court seeking to enjoin the state court from proceeding further with the removed action. We are in substantial agreement with Judge Atkins' analysis of the jurisdictional issues. See Allstate Ins. Co. v. Preston, Case no. 92-1104-Civ-Atkins, Order Denying Motion for Injunctive Relief, and Order on Plaintiff's Motion for Rehearing (S.D.Fla., July 23, 1992, Oct. 13, 1992). Because the removed action had already been dismissed by the federal court, the federal court declined to issue an injunction, finding that irreparable injury had not been established by Allstate. The court reasoned that the expense to Allstate of further litigation in state court was not an irreparable injury. Order on Plaintiff's Motion for Rehearing, at 3-4.