ORDER GRANTING PLAINTIFF'S MOTION FOR REMAND

FEDERICO A. MORENO, District Judge.

THIS CAUSE came before the Court upon Plaintiffs Motion for Remand (D.E. 5), filed on June 6, 2018. THE COURT has considered the motion, the pertinent portions of the record, and is fully advised in the premises.

Plaintiff Hircio Barrios filed this lawsuit against American Zurich Insurance Co. and Atlas Construction Company. American Zurich subsequently removed the case to federal court based on diversity jurisdiction. Barrios asks this court to remand the case, contending that this Court lacks diversity jurisdiction because Atlas is a "citizen" of Florida. However, American Zurich maintains that Barrios fraudulently joined Atlas for the sole purpose of destroying diversity jurisdiction, so the court should deny Barrios' motion to remand.

American Zurich's "fraudulent joinder" argument stems from Barrios' repeated failure to serve Atlas. Barrios commenced this action April 20, 2017 in the Circuit Court of the Eleventh Judicial Circuit of Florida. However, Barrios never sought the issuance of a summons for Atlas from the Miami-Dade Clerk of Court for the entire time the action was pending in state court—a total of 284 days. Accordingly, American Zurich previously removed this action to federal court on November 22, 2017, and the case was assigned to Judge Gayles. On March 6, 2018, Judge Gayles issued an order remanding the case "with the expectation that Plaintiff [would] serve Atlas with a summons and complaint within sixty (60) days." When Barrios failed to serve Atlas within 60 days of the Remand Order, American Zurich once again removed the case.

Despite American Zurich's contention that Barrios has "no bona fide intention of prosecuting this case against Atlas," Barrios has finally served Atlas and Atlas has filed an answer to Barrios' complaint. It therefore appears that Barrios does intend to pursue his claim against Atlas. As such, his failure to serve Atlas does not constitute "fraudulent joinder." Accordingly, it is

ADJUDGED that Plaintiffs Motion for Remand is GRANTED. The case is remanded back to the Eleventh Judicial Circuit in and for Miami-Dade County, Florida.

DONE AND ORDERED.