ORDER

RAY B. DALTON, District Judge.

This cause is before the Court on consideration of: (1) Plaintiff's Motion to Remand and Incorporated Memorandum of Law (Doc. 15), filed December 15, 2016; (2) Defendant's Response to Plaintiff's Motion to Remand (Doc. 16), filed December 21, 2016; and (3) Plaintiff's Reply to Defendant's Response to Plaintiff's Motion to Remand (Doc. 22), filed February 3, 2017.

I. BACKGROUND

Defendant Safeco Insurance Company of Illinois ("Safeco") and Plaintiff Adrian Fridman ("Fridman") are before this Court after extensive litigation in the Florida courts ("State Proceedings"),1 which commenced on April 29, 2009, when Fridman filed a complaint against Safeco ("Initial Complaint") in the Circuit Court of the Ninth Judicial Circuit, in and For Orange County Florida ("State Trial Court").2 "[I]n accordance with the provisions of § 627.727, Florida Statutes" and insurance policy number X5140979 ("Policy")—Fridman demanded "damages in excess of $15,000.00, exclusive of prejudgment interest, costs and attorney's fees" ("UM Claim"), which damages arose out of an automobile accident with an underinsured tortfeasor ("UTF") on January 8, 2007 ("Accident").3

Before initiating the State Proceedings, Fridman sent Safeco multiple unsuccessful settlement demands, which advised that:

Fridman also served Safeco with a civil remedy notice ("CRN"), which Safeco did not cure.7 Nonetheless, Fridman did not assert a statutory bad faith claim ("Bad Faith Claim") against Safeco in his Initial Complaint.

In the year following commencement of the State Proceedings, Fridman and Safeco conducted discovery concerning Fridman's claimed injuries and economic damages ("State Discovery").8 By August 2009, Fridman had provided Safeco with discovery responses representing that his medical expenses totaled approximately $17,049.00.9 Subsequently, Fridman incurred an additional $62,217.00 in medical expenses; however, it is unclear when Safeco learned of these additional damages.10

In 2011: (a) Safeco tendered the UM Limits and requested entry of final judgment in favor of Fridman;11 (b) after a hearing on the matter, the State Trial Court denied Safeco's request ("Confessed Judgment Ruling");12 (c) Fridman then prevailed in a jury trial—obtaining a one million dollar verdict against Safeco ("Excess Verdict"));13 and (d) the State Trial Court entered judgment in favor of Fridman and against Safeco in "the sum of $50,000.00 . . ., notwithstanding the [Excess Verdict]" ("2011 Judgment").14 In the 2011 Judgment, the State Trial Court reserved "jurisdiction to determine" Fridman's right to amend his Complaint to assert a Bad Faith Claim against Safeco "as a result of" the Excess Verdict ("Reserved Jurisdiction Ruling").15

On direct appeal to the Fifth District Court of Appeals for the State of Florida ("State Appellate Court"), Safeco challenged the Confessed Judgment Ruling, the Excess Verdict, and the Reserved Jurisdiction Ruling.16 Ruling in favor of Safeco, the State Appellate Court: (1) held that the State Trial Court should have entered the confessed judgment in favor of Fridman as Safeco requested; and (2) directed the State Trial Court on remand to "enter an amended final judgment deleting any reference to the [Excess Verdict] and declining to reserve jurisdiction to consider a request to amend the complaint to add a [Bad Faith Claim]." Fridman I, 117 So. 3d at 20-21. On remand, the State Trial Court entered an amended final judgment as directed by the State Appellate Court ("2013 Judgment").17

Fridman sought reconsideration or review of the State Appellate Court's decision,18 and the Florida Supreme Court invoked its jurisdiction over the matter on April 14, 2014. Fridman v. Safeco Ins. Co. of. Ill., 145 So.3d 823 (Fla. 2014). After full briefing and oral argument,19 the Florida Supreme Court held that:

See Fridman II, 185 So. 3d at 1216, 1229-30. Hence Fridman I was quashed, and the matter was remanded to the State Appellate Court. See id. at 1230.

On remand, the State Appellate Court held that the State Trial Court erred in denying Defendant's request for remittitur of lost earnings damages, and remanded for further proceedings. See Fridman III, 196 So. 3d at 1285. The State Trial Court then vacated the 2013 Judgment and entered an amended final judgment (see Doc. 1-1 ("Final Judgment")). The Final Judgment provided that: (1) Fridman had already accepted Safeco's tender of the UM Limits, which was all Fridman was "entitled to recover" from Safeco; (2) the trial court reserved "jurisdiction to determine [Fridman's] right to amend his [Initial] Complaint" to assert a Bad Faith Claim; and (3) if Fridman prevails on a Bad Faith Claim, then he "will be entitled to a judgment" of $692,632.91 in accordance with the jury's remitted Excess Verdict, "plus any other damages allowed by the law."20

Based on the Final Judgment, Fridman sought leave to amend his Initial Complaint to assert his Bad Faith Claim ("Motion to Amend").21 After conducting a hearing on October 26, 2016 (Doc. 16-1 ("Amendment Hearing")), the State Trial Court granted the Motion to Amend on October 28, 2016 (Doc. 1-11, p. 39 ("Amendment Order")). Fridman then filed an amended complaint on November 7, 2016 (Doc. 2 ("Amended Complaint")), which set forth a single Bad Faith Claim against Safeco.

On November 18, 2016, Safeco removed the action to this Court based on diversity jurisdiction under 28 U.S.C. § 1332.22 (Doc. 1 ("Notice of Removal").) According to the Notice of Removal, Safeco was "entitled to remove within 30 days of [the] filing" of the Amended Complaint because such pleading reflected Fridman's first assertion of a Bad Faith Claim, "which is a separate and distinct cause of action." (See id. ¶ 5 (citing 28 U.S.C. § 1441 and Lahey v. State Farm Mut. Auto. Ins. Co., 8:06-cv-1949-T-27TBM, 2007 WL 2029334, at *2 (M.D. Fla. 2007).)) Fridman timely moved for remand (Doc. 15 ("Remand Motion")), Safeco responded (Doc. 16), and Fridman replied (Doc. 22).23 The matter is now ripe for the Court's consideration.

II. LEGAL STANDARDS

Although plaintiffs are well-recognized to be the master of their own claims,24 Congress has conferred a limited right on defendants to remove a civil action from state court to "the district court of the United States for the district and division within which such action is pending." See 28 U.S.C. § 1446(a); see Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Defendants may remove only those "actions that originally could have been filed in federal court,"25 and they bear the burden of proving by a preponderance of the evidence that original jurisdiction exists ("Removal Jurisdiction"). See Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001); see also Lowery v. Ala. Power Co., 483 F.3d 1184, 1207-09 (11th Cir. 2007); Fowler v. Safeco Ins. Co. of Am., 915 F.2d 616, 617 (11th Cir. 1990).

In addition to the Removal Jurisdiction requirement, Congress also imposed time constraints on the right to remove—particularly when removal is based on diversity jurisdiction:

28 U.S.C. § 1446.

Plaintiffs may seek remand of a removed action back to state court based on two grounds: "(1) lack of subject matter jurisdiction; or (2) procedural defect in the removal of the case." Russell Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1043-44 (11th Cir. 2001); see 28 U.S.C. § 1447(c). Due to "significant federalism concerns arising in the context of federal removal jurisdiction," removal requirements and limitations are "strictly interpreted and enforced." See Russell, 264 F.3d at 1049. "[A]mbiguities are generally construed against removal,"26 and "uncertainties are resolved in favor of remand." See Burns, 31 F.3d at 1095 (noting that the "[d]efendant's right to remove and [the] plaintiff's right to choose his forum are not on equal footing").

III. DISCUSSION

The Remand Motion is based on two grounds: (1) "Safeco waived its right of removal by its active participation that manifested an intent to litigate in state court" ("Waiver Argument"); and (2) "Safeco failed to timely file a notice of removal" ("Timeliness Argument"). (See Doc. 15, pp. 5, 7.) The Waiver Argument is meritless, the Timeliness Argument is not.

A. Waiver Argument

"Waiver may be a proper basis upon which to find lack of removal jurisdiction." Codgell v. Wyeth, 366 F.3d 1245, 1249 (11th Cir. 2004). Waiver occurs when, although the right to remove is apparent, the defendant takes "`some substantial offensive or defensive action in the state court action indicating a willingness to litigate in that tribunal . . . .'" See Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 364 F.3d 1244, 1246 (11th Cir. 2004) (quoting Charles A. Wright, et al., 14B Federal Practice & Procedure § 3721 (2003)); Engle v. R.J. Reynolds Tobacco Co., 122 F.Supp.2d 1355, 1360 (S.D. Fla. 2000) ("A defendant waives its right to remove . . . after it is apparent that the case is removable" by taking action in state court that manifest "intent to have the matter adjudicated there.").

There is no dispute that the damages Fridman could recover under the claim asserted in his Initial Complaint were capped at $50,000.00, which is significantly less than the requisite AIC. Nonetheless, Fridman contends that his "uncured" CRN should have put Safeco on notice that the AIC was met. (See Doc. 15, pp. 16-17; Doc. 22, pp. 2-5.) He is wrong. "Jurisdiction may not be sustained on a theory that the plaintiff has not advanced." Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 809 n.6 (1986). An uncured CRN is not advancement of a Bad Faith Claim—it is a mere prerequisite to the filing of a Bad Faith Claim.27 Thus, Safeco's undisputed litigiousness in the State Proceedings was no waiver because Removal Jurisdiction was not apparent—indeed, the AIC was not satisfied—until Fridman asserted his Bad Faith Claim.28

B. Timeliness Argument

Again, when a defendant asserts Removal Jurisdiction under 28 U.S.C. § 1332, its notice of removal must be filed within one year of the date the plaintiff commenced the action in state court ("One Year Limit"). (Supra p. 8.) Thus, the first question is the date the removed action "commenced" for removal purposes. The parties point to different dates: (1) Fridman's date is April 29, 2009, when the Initial Complaint was filed; (2) Safeco's date is November 7, 2016, when Fridman first asserted a Bad Faith Claim in his Amended Complaint. The Court considers Florida law to resolve this dispute. See Moultrop v. GEICO Gen. Ins. Co., 858 F.Supp.2d 1342, 1346 (S.D. Fla. 2012).

In Florida, there is "one form of action to be known as `civil' action" (Florida Rule of Civil Procedure 1.040), and such civil action "shall be deemed commenced when the complaint or petition is filed" (Rule 1.050). Pleaders "may set up in the same action as many claims or causes of action . . . in the same right as the pleader has." Fla. R. Civ. P. 1.110(g). Further, once a civil action is commenced by filing a complaint, Florida courts may allow the parties to add new claims—including separate and distinct claims added after final judgment—when justice requires.29 See Fla. R. Civ. P. 1.110(h) (providing for subsequent pleadings after entry of judgment); Fla. R. Civ. P. 1.190 (permitting amended and supplemental pleadings); see also Fla. R. Civ. P. 1.170 (permitting Counterclaims and Crossclaims); Fla. R. Civ. P. 1.180 (permitting Third Party Complaints); Fla. R. Civ. P. 1.250(a) (permitting the addition of parties).

By its Reserved Jurisdiction Ruling, the State Trial Court determined that Fridman should be permitted to amend his Initial Complaint to add the Bad Faith Claim and continue in the removed action. Importantly, the Florida Supreme Court agreed over Safeco's strenuous objections. See Fridman II, 185 So. 3d at 1216, 1229-30 (reasoning that the Reserved Jurisdiction Ruling was consistent with controlling precedent—Allstate Indemnity Company v. Ruiz, 899 So.2d 1121, 1130 (Fla. 2005)—and similar to the process of abating Bad Faith Claims that are initially filed with UM Claims). Given this law, the Court must reject Safeco's argument that the Amended Complaint commenced a new civil action. Hence the Court finds that the removed action commenced on April 29, 2009, and the One Year Limit expired on April 29, 2010. Because Safeco filed its Notice of Removal on November 18, 2016, the Timeliness Argument has obvious merit.

Safeco has recognized that this Court consistently remands removed insurance disputes under circumstances similar to this action.30 (Doc. 16, p. 14 n.5; see Barroso v. Allstate Prop. & Cas. Ins. Co., 958 F.Supp.2d 1344, 1347 (M.D. Fla. 2013)).31 Nonetheless, Safeco urges the Court to deny remand in this case because "the procedures employed by the state court" violate the Supremacy Clause of the U.S. Constitution ("Supremacy Clause Argument"). (See Doc. 16.)

The Supremacy Clause, Art. VI, cl. 2, creates "a rule of decision" for the courts:

Armstrong v. Exceptional Child Ctr., Inc., 135 S.Ct. 1378, 1383 (2015). "The purpose of the Supremacy Clause is . . . to ensure that, in a conflict with state law, whatever Congress says goes." Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606, 618 (2012). Courts violate the Supremacy Clause by giving "effect to state laws that conflict with federal laws." See Armstrong, 135 S. Ct. at 1383; see also Kan. Pub. Emps. Ret. Sys. v. Reimer & Koger Assoc., Inc., 4 F.3d 614, 619 (8th Cir. 1993) (finding that a Kansas court violated the Supremacy Clause by entering an ex parte severance order with the "stated purpose" of preventing the Resolution Trust Corporation from intervening and removing a state court action as explicitly provided for under federal law, 12 U.S.C. § 1441a(1)(3)(A)).

According to Safeco, the Florida courts have violated the Supremacy Clause by employing either of two procedures to effectively foreclose proper removal of Bad Faith Claims asserted by plaintiffs—like Fridman—who have UM insurance policies with coverage limits that do not exceed the AIC:

(See id. at 7-14.) These procedures effectively foreclose removal because the One Year Limit inevitably expires before a Bad Faith Claim can be added or abated. (See id.)

Here, Safeco contends that the Amendment Procedure was used to defeat Safeco's "right" to remove the Bad Faith Claim. (See id.) Safeco urges the Court to remedy this purported violation of the Supremacy Clause by denying the Remand Motion based on findings that:

(See id. at 13-14.) Upon review, the Court rejects these and other radical remedies suggested by Safeco as unwarranted under the law.

Declaring a state law or process void under the U.S. Constitution is a weighty matter that federal courts avoid absent absolute necessity. See Neumont v. Fla., 451 F.3d 1284, 1285 (11th Cir. 2006); see also Burton v. U.S., 196 U.S. 283, 295 (1905) (noting that constitutional questions are not decided "unless absolutely necessary to a decision of the case"); Brown v. U.S., 748 F.3d 1045, 1049 (11th Cir. 2014); 907 Whitehead St., Inc. v. Sec'y of U.S. Dept. of Agric., 701 F.3d 1345, 1349 (11th Cir. 2012). Here, the Court is particularly hesitant to reach the constitutional issue because—as is evident from the transcript of the Amendment Hearing—Safeco did not give the State Trial Court an opportunity to pass on the matter. (See Doc. 16-1, pp. 5-12.) Although Safeco did complain to the State Trial Court that allowing the amendment would prejudice Safeco by preventing removal, Safeco did not explicitly argue that the Supremacy Clause prohibited the Amendment Procedure in general or the Amendment Order in particular.32

Safeco also has not persuaded the Court that operation of the One Year Limit in this case is inequitable or improper. To the contrary, allowing a Bad Faith Claim and a UM Claims to be asserted in a single removable "civil action" is entirely consistent with both the meaning of "civil action" discussed above (supra pp. 11-12), as well as the intent of Congress to prevent removal—even to the detriment of defendants—once "substantial progress" is made by the parties and the state court.33 See Burns, 31 F.3d at 1097 n.12 (discussing the legislative history concerning the One Year Limit).

Here, substantial progress was made in the State Proceedings, and—although the theories of liability are quite different for a Bad Faith Claim—the State Record will not be immaterial to resolution of the Bad Faith Claim.34 Similarly, the State Trial Court's practical experience and knowledge of the parties and their attorneys gained after years of litigation will plainly have value in the handling and resolution of the Bad Faith Claim. In short, the One Year Limit was not intentionally subverted by the State Court here—it simply operated as intended and in conformity with the Florida Supreme Court's approved methodology for resolution of such insurance disputes. Thus, the Court rejects Safeco's Supremacy Clause Argument.

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that:

DONE AND ORDERED.