UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

CASE NO. 20-CV-14131-ROSENBERG/MAYNARD 

MICHAEL GALLUP & SHARON 

GALLUP, 

Plaintiffs, 

v. 

WAL-MART STORES EAST, LP, 

et al., 

Defendants. 

 / 

ORDER DENYING PLAINTIFFS’ MOTION TO FILE AMENDED COMPLAINT 

THIS CAUSE is before the Court on Plaintiffs’ Motion to File Amended Complaint at 

docket entry 34. The Motion has been fully briefed. For the reasons set forth below, the Motion is 

denied. 

In early 2016, Plaintiff Michael Gallup shopped at a store owned by Defendant Wal-Mart. 

DE 1-1 at 2.1 Mr. Gallup exited the store and walked through a crosswalk. Id. While in the 

crosswalk, Mr. Gallup was struck by a vehicle owned and operated by non-parties. Id. In 2020, 

Mr. Gallup and his wife initiated this suit against Wal-Mart for negligence. Id. The basis for 

Plaintiffs’ suit is that the crosswalk in front of the Wal-Mart should have had a stop sign. Id. at 3. 

Plaintiffs seek leave to amend. Plaintiffs seek to add the store manager and the assistant 

store manager as Defendants. Wal-Mart opposes amendment, arguing that such an amendment 

would be futile as it is impossible for the store managers to be held liable. Thus, Wal-Mart argues 

that Plaintiffs’ joinder of the store managers would be a fraudulent joinder intended to destroy 

diversity jurisdiction. A post-removal motion requesting joinder of a party should be closely 

 

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 These facts are taken from Plaintiffs’ Complaint at docket entry 1. 

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scrutinized by the Court. Access Pictures, LLC v. Sony Pictures Home Entm’t, Inc., No. 16-CV20529, 2017 WL 3107202, at *2 (S.D. Fla. Feb. 21, 2017). In considering whether to permit an 

amendment post-removal that would destroy diversity jurisdiction, the Court must consider the 

extent to which the purpose of the amendment is to defeat diversity jurisdiction. Scipione v. 

Advance Stores Co., No. 12-CV-687, 2012 WL 3105199, at *2 (M.D. Fla. July 31, 2012). Courts 

may consider the doctrine of fraudulent joinder in making such a determination on a motion to 

amend. Access Pictures, 2017 WL 3107202, at *2. 

Under Florida law an officer or employee of a company may be personally liable for a tort, 

even if that employee was operating within the scope of his or her employment, if the employee’s 

acts were due to personal fault. White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. Dist. Ct. 

App. 2005). A joinder of a party may be deemed fraudulent when there is no possibility that a 

plaintiff can prove a cause of action against a non-diverse defendant. Triggs v. John Crump Toyota, 

Inc., 154 F.3d 1284, 1287 (11th Cir. 1998). 

 Here, Wal-Mart has provided a sworn declaration in support of its Response. In the sworn 

declaration, Wal-Mart attests that its store managers have no authority or responsibility to alter the 

design of a Wal-Mart parking lot. DE 35-1. Because Plaintiffs’ suit is premised on Wal-Mart’s 

lack of a stop sign at a crosswalk, Wal-Mart has facially met its burden to provide evidence that 

joinder of the store managers would be futile—it would be fraudulent joinder. See Pacheco v. 

AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998) (the Court may consider affidavits to determine 

whether a defendant was fraudulently joined). 

 The burden therefore shifts to Plaintiffs to file counter-affidavits; Plaintiffs have not done 

so and, as a result, the facts in support of Wal-Mart’s Response are not resolved in favor of 

Plaintiffs. See Legg v. Wyeth, 428 F.3d 1317, 1322-23 (11th Cir. 2005). Furthermore, “When a 

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plaintiff seeks to join a party that would destroy diversity jurisdiction after removal, the analysis 

begins with 28 U.S.C. 1447(e) rather than the liberal amendment standards of Fed. R. Civ. P. 15.” 

Wade v. Dolgencorp, LLC, 2009 U.S. Dist. LEXIS 108908 (M.D. Fla. 2009) (citing Ingram v. CSX 

Transp., Inc., 146 F.3d 858 (11th Cir. 1998)); see 28 U.S.C. § 1447(e) (“If after removal the plaintiff 

seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the 

court may deny joinder, or permit joinder and remand the action to the State court.”). 

 Here, instead of a counter-affidavit Plaintiffs rely upon interrogatory responses wherein 

Wal-Mart concedes that store managers have a duty to “monitor” parking lots. But this is not a 

case about parking lot monitoring. The Court is unaware of any case law that would impose a duty 

on store managers to station employees in crosswalks to regulate traffic. This is a case about 

parking lot design—the lack of the inclusion of a stop sign at a crosswalk. Wal-Mart has provided 

evidence that its managers have no authority or personal responsibility over parking lot design. 

This evidence has not been challenged by Plaintiffs. 

Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion for Leave to File 

Amended Complaint [DE 34] is DENIED. 

DONE and ORDERED in Chambers, West Palm Beach, Florida, this 8th day of October, 

2020. 

 _______________________________ 

 ROBIN L. ROSENBERG 

 UNITED STATES DISTRICT JUDGE 

Copies furnished to Counsel of Record 

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