Universal Properties Management USA LLC v. Certain Underwriters At Lloyd's London ( 2021 )

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION CASE NO. 1:21-cv-23509-JLK UNIVERSAL PROPERTIES MANAGEMENT USE, LLC, Plaintiff, v. CERTAIN UNDERWRITERS AT LLOYD’S LONDON et al., Defendants. ______________________________________/ ORDER DENYING PLAINTIFF’S MOTION TO REMAND THIS MATTER is before the Court on Plaintiff’s Motion to Remand (the “Motion”) (DE 7), filed on November 3, 2021. The Court has also considered Defendants’ Response (DE 8) and Plaintiff’s Reply (DE 9). I. BACKGROUND On May 11, 2021, Plaintiff filed its Complaint in the Eleventh Judicial Circuit Court in and for Miami-Dade County seeking declaratory relief against ten insurance companies stemming from property damage by Hurricane Irma. See Compl., DE 1-3. Plaintiff alleges that each Defendant issued an individual policy. Id. ¶ 15. Specifically, Plaintiff asks the Court to determine whether the arbitration clause within each insurance policy (the “Policy”) is invalidated by the Policy endorsement’s service of suit clauses, Florida state law, and public policy. See generally id. On October 5, 2021, all ten Defendants removed this action alleging federal question jurisdiction under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38, as implemented by 9 U.S.C. §§ 201-208 (the “Convention”). See Not. of Removal, DE 1. Defendants also allege that removal is timely because the plain language in Section 205 of the Convention allows for removal any time before trial. Id. at 11. Now, Plaintiff moves to remand, arguing that not all the prerequisites needed for removal under the Convention are satisfied. See Mot. II. LEGAL STANDARD A civil case filed in state court may be removed to federal court if the case could have been brought originally in federal court. See 28 U.S.C. § 1441(a). District courts have “original jurisdiction over all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. “A case covered by the Convention confers federal subject matter jurisdiction upon a district court because such a case is ‘deemed to arise under the laws and treaties of the United States.’” Bautista v. Star Cruises, 396 F.3d 1289, 1294 (11th Cir. 2005) (citing 9 U.S.C. § 203). An arbitration agreement is governed by the Convention if all of the following four factors are present: (1) there is an agreement in writing within the meaning of the Convention; (2) the agreement provides for arbitration in the territory of a signatory of the Convention; (3) the agreement arises out of a legal relationship, whether contractual or not, which is considered commercial; and (4) a party to the agreement is not an American citizen, or that the commercial relationship has some reasonable relation with one or more foreign states. Id. at 1294 n.7. III. DISCUSSION Plaintiff argues that the first Bautista factor is not satisfied here because there is no agreement to arbitrate in writing that is signed by the parties. See Mot. Specifically, Plaintiff argues that it never signed each Policy that contains the arbitration agreement, but only signed the application for each insurance policy (the “Application”), which is insufficient to trigger the strictly construed meaning of “an agreement in writing” under the Convention. Mot. at 4 (citing Czarina, LLC v. W.F. Poe Syndicate, 358 F.3d 1286, 1288–90 (11th Cir. 2004); Convention, Art. II, 9 U.S.C. § 201 (“The term ‘agreement in writing’ shall include an arbitral clause in a contract or an arbitration agreement signed by the parties or contained in an exchange of letters or telegrams.”). Defendants argue that Plaintiff’s signature on the Application is an agreement in writing under the Convention and is therefore sufficient to establish jurisdiction. See Resp. Additionally, Defendants bring persuasive caselaw to the attention of the Court. In VVG Real Estate, an identical arbitration provision with one defendant (also named in the instant case) was considered and held enforceable under the Convention. VVG Real Estate Invs. v. Underwriters at Lloyd's, 317 F. Supp. 3d 1199, 1205 (S.D. Fla. 2018) (In analyzing the first Bautista factor, Judge Bloom found that “[i]n the instant case, it is undisputed that the Policy contains an agreement in writing to arbitrate . . . ." and granted defendant’s motion to compel arbitration ruling against plaintiff’s argument that Florida law preempted the Convention.). Similarly, in Gold Coast, there was an identical arbitration clause where plaintiff moved to remand based on the same argument that the Plaintiff in the instant case makes: that there was no agreement in writing to satisfy the first Bautista factor. See Order Granting Mot. to Compel Arbitration and Stay Proceedings and Den. Pl.’s Mot. to Remand, Gold Coast Property Management Inc. v. Certain Underwriters at Lloyd’s London, et al., ECF No. 55, No. 18-cv-23693, 2019 WL 2482058, at *3 (S.D. Fla. June 14, 2019) (Judge Gayles held that “[p]laintiff's signature on the Application, via its manager, which became a part of the Policy, is sufficient to constitute a signature on a written agreement to arbitrate.”). Plaintiff argues that Gold Coast was erroneously decided because an application may only be construed as part of the policy when such policy construction expands coverage under the policy. Mot. at 7. It is true that the application “becomes a part of the agreement between the parties and the policy together with the application form the contract of insurance,” but it does not only become part of the agreement when it expands coverage as Plaintiff argues. See Mathews v. Ranger Ins. Co., 281 So. 2d 345, 348 (Fla. 1973). The only Bautista factor at issue is whether the signed Application for the insurance Policy constitutes an agreement in writing and signed by the parties. Because an application becomes part of the agreement and policy and due to the directly applicable caselaw, the Court finds that the first Bautista factor is satisfied under the Convention and this Court has jurisdiction. Accordingly, it is ORDERED, ADJUDGED and DECREED that Plaintiff's Motion to Remand (DE 7) be, and the same hereby is, DENIED. DONE AND ORDERED in Chambers at the James Lawrence King Federal Justice Building and United States Courthouse, Miami, Florida this 21st day of December, 2021. we SJAMES LAWRENCE KING A Lowomn UNITED STATES DISTRICT JUP E ce: All counsel of record =