UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION LUIS GARCIA, and wife, MARIA DEL ROCIO BURGOS GARCIA, Case No. 8:13-CV-220-T27 TBM Plaintiffs, vs. CHURCH OF SCIENTOLOGY RELIGIOUS TRUST; et al., Defendants.

PLAINTIFF • RENEWED MOTION TO AMEND COMPLAINT AND MEMORANDUM OF LAW

COMES NOW, Plaintiffs, by and through the undersigned counsels, upon this Motion to Amend Complaint, pursuant to Fl.

R

Civ.

P

15(a)(2), and in support hereof states as follows:

BACKGROUND

elevant procedural posture

1

Plaintiffs, both residents

of

California, initially filed their Complaint in the subject matter on January

23

, 2013.

2

Plaintiffs now seek leave to amend said Complaint based upon information that has been learned throughout the process

of

discovery in this matter

to

date.

1

3

Plaintiffs have filed suit in this Court against the Church

of

Scientology Religious Trust, U.S. lAS Members Trust, Church

of

Scientology Flag Service Organization, Inc. ( FLAG ), and

1

Plaintiffs initially filed this Motion on March 26,

2014

. Plaintiffs now re-file this Motion at the direction

of

this

Court s

Order

of

March

31

, 2014, D.E. I 05, wherein this Court denied Plaintiffs' Motion

without

prejudice

tore-file

same

upon

compliance

with this

Court

's Order.

Case 8:13-cv-00220-JDW-TBM Document 106 Filed 04/07/14 Page 1 of 7 PageID 2542

 

the Church

of

Scientology Flag Ship Service Organization, Inc., d/b/a Majestic Cruise Lines, and lAS Administrations, Inc., basing jurisdiction upon the diversity

of

citizenship

of

the parties.

4.

Defendants Church

of

Scientology Religious Trust ( CSRT 

,

U.S. lAS Members Trust ( USIMT ), and lAS Administrations, Inc. ( IASA ), subsequently challenged Plaintiffs' contention regarding jurisdiction, filing a Motion to Dismiss for Lack

of

Subject Matter Jurisdiction on October 21, 2013, approximately 9 months after Plaintiffs initially filed suit. Defendants specifically alleged that complete diversity was destroyed by virtue

of

the California residences

of

all trustees

ofth

USIMT, CSRT, and the IASA.

5.

This Court subsequently ordered discovery regarding the matter

of

diversity jurisdiction, which is now complete, and as a result

of

recently verified information regarding same, this Motion

to

Amend Complaint is filed, seeking amendment to remove Defendants USIMT, CSRT and IASA from the subject suit.

LEG L SUMM RY

Diversity Jurisdiction and Dispensable Non Diverse Parties

6.

Federal jurisdiction

is

determined based upon the facts as they existed at the time the complaint was filed.

7.

Commonly referred to as the time-of-filing rule, jurisdiction premised upon diversity

of

citizenship requires that each plaintiff

be

diverse from each defendant.

See

Newman-Green, Inc.

v.

Alfonzo-Larrain, 490 U.S. 826,829, 109

S.

Ct. 2218 (1989).

8.

The time

of

filing rule has one well-established exception. A district comi can dismiss a

dis

p

sable non-diverse party

pursuant to Fed.

R.

Civ.

P.

21

,

to

cure a jurisdictional defect at any point in the litigation ... Ravenswood Investment Company, L.P.

v.

Avalon Correctional Services, et al.,

651

F.3d 1219 (10

1

 

Cir. 2011)

emphasis added),

citing Grupo Dataflux

v.

Atlas

2

Case 8:13-cv-00220-JDW-TBM Document 106 Filed 04/07/14 Page 2 of 7 PageID 2543

 

Global Grp., L.P.

541

U.S.

567 572

124 S. Ct. 1920, 158 L.Ed. 2d 866 (2004); Newman-Green, Inc., 490 U.

S.

at 832; United States ex rei. Gen. Rock Sand Corp. v. Chuska Dev. Corp.,

55

F. 3d 1491, 1495 (10

1h

Cir. 1995);

see also

Fed. R. Civ.

P.

21

( On motion or on its own, the court may at any time, on just terms,

add

or drop a party. ).

mending the Complaint

9. Generally, the law favors liberal amendment

of

a petitioner's complaint such that

if

the underlying facts or circumstances relied upon by plaintiff may be a proper subject

of

relief, he ought

to

be afforded an opportunity to test his claim on the merits. Foman

v.

Davis,

371

U.

S.

178, 182, ( 1962). Such favoritism facilitates determination

of

claims on the merits and is aimed

to

prevent litigation from becoming a technical exercise in the fine points

of

pleading. Dussouy

v.

Gulf

Coast Inv. Corp., 660 F.2d 594, 598,

5th

Cir. 1981). 10. Federal Rule

of

Civil Procedure 15(a)(2) provides that a party may amend its pleadings by leave

of

court, or by written consent

of

the adverse party, and the court should

freely give leave

to

amend a complaint when justice

so

requires. 

See

Fed.

R.

Civ.

P.

15(a)(2)

(emphasis added).

11. In the absence

of

any apparent or declared

reason-such

as undue delay, bad faith or dilatory motive on the part

of

the movant, repeated failure

to

cure deficiencies by amendments previous allowed, undue prejudice

to

the opposing party by virtue

of

allowance

of

the amendment, futility

of

amendment, etc.

-the

leave sought should, as the rules require, by freely given. Foman,

371

U.

S.

at 182.

12

. Thus, the Court is constrained to allow a plaintiff leave to amend unless there is substantial countervailing reason. Grayson

v.

K Mart Corp

.,

79 F.3d 1086, 1110,

11th

Cir. 1996).

3

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