UNITED STATES DISTRICT COURT 

SOUTHERN DISTIRCT OF FLORIDA 

MIAMI DIVISION 

CASE NO. __________________ 

JORGE UGARTE, 

Plaintiff, 

v. 

WHOLE FOODS MARKET I.P., L.P., 

Defendant. 

________________________________________/ 

DEFENDANT’S NOTICE OF REMOVAL 

Defendant, WHOLE FOODS MARKET I.P., L.P.1

 (“Defendant”), pursuant to 28 U.S.C. 

§§ 1332, 1441 and 1446, hereby removes this action from the Circuit Court of the 11th Judicial 

Circuit in and for Miami-Dade County, Florida, to the United States District Court for the Southern 

District of Florida. The removal of this action is based upon the following: 

I. INTRODUCTION

On or about April 20, 2020, Plaintiff JORGE UGARTE (“Plaintiff”) filed a civil action in 

the Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County, Florida, entitled Jorge 

Ugarte v. Whole Foods Market I.P., L.P., Case No. 2020-008685-CA-01 (hereinafter referred to 

as the “State Court Action”). Plaintiff’s Complaint asserts three causes of action against 

Defendant: Count I, discrimination based upon national origin pursuant to the Florida Civil Rights 

Act, Florida Statute §760.10, et seq. (FCRA); Count II, gender discrimination pursuant to the 

FCRA; and Count III, hostile work environment. A true and correct copy of all process, pleadings, 

 

1

 This is the incorrect entity. The proper entity that employed Plaintiff is Whole Foods Market Group, Inc. 

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orders and other papers or exhibits of every kind currently on file in the State Court Action are 

attached hereto as Composite Exhibit A, as required by 28 U.S.C. § 1446(a). 

This case is a civil action over which this Court has original jurisdiction pursuant to 28 

U.S.C. §1332(a), and it is one that may be removed to this Court pursuant to 28 U.S.C. §§1441 

and 1446. More specifically, this is an action between citizens of different states, and the amount 

in controversy exceeds the sum of $75,000, exclusive of interest and costs. Accordingly, 

Defendant removes this action to this Court. 

II. COMPLIANCE WITH PROCEDURAL REQUIREMENTS 

Defendant was served with the Complaint and Summons on May 1, 2020. A copy of the 

Summons reflecting service of process is attached as Exhibit B. This constituted Defendant’s first 

notice of the Complaint for purposes of removal. Thus, this Notice of Removal is timely filed 

pursuant to 28 U.S.C. §1446(b), within 30 days from the date Defendant received notice of the 

Complaint. 

In accordance with 28 U.S.C. § 1446(d), Defendant will promptly provide written notice 

to Plaintiff of the removal in this action and will promptly file a copy of this Notice of Removal in 

the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida. 

III. VENUE AND JURISDICTION 

A. Venue 

Pursuant to 28 U.S.C. § 1446(a), because the Circuit Court of Miami-Dade County lies in 

the Miami Division of the U.S. Southern District of Florida, this Court is the appropriate venue for 

removal. 

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B. Jurisdiction

1. Complete Diversity of Citizenship Exists. 

In order to qualify for diversity jurisdiction, there must be complete diversity between the 

parties, which means that no plaintiff may be a citizen of the same state as any defendant. See 

Pease v. Medtronic, Inc., 6 F. Supp.2d 1354, 1356 (S.D. Fla. 1998) (citing Tapscott v. MS Dealer 

Service Corp., 77 F.3d 1353 (11th Cir. 1996) (overruled on other grounds by Cohen v. Office 

Depot, 204 F.3d 1069 (11th Cir. 2000)). Diversity of citizenship exists in the instant action. 

In his Complaint, Plaintiff states that he is a resident of Miami-Dade County, Florida and 

that he was employed by Defendant in Miami-Dade County, Florida. Compl. ¶¶ 2 and 7. 

Accordingly, Plaintiff is a resident of Florida for the purposes of diversity jurisdiction. 

Pursuant to 28 U.S.C. §1332(c)(1), a corporation is deemed to be a citizen of any State by 

which it has been incorporated and of any State where it has its principal place of business. In 

his Complaint, Plaintiff states that Defendant is a foreign corporation with its principal place of 

business in Texas. Compl. ¶3. The Complaint fails to plead any information about Defendant’s 

state of incorporation. Instead, Plaintiff only alleges that Defendant “conducted business in 

Miami-Dade County, Florida.” Id. However, Defendant is not the correct entity in question. The 

entity that employed Plaintiff was Whole Foods Market Group, Inc. 

Notwithstanding, both Defendant and Whole Foods Market Group, Inc. are incorporated 

in Delaware and have their principal place of business in Texas. See Declaration of Robert Tenzer 

at ¶3, attached as Exhibit C. Accordingly, Defendant and Whole Foods Market Group, Inc. are 

citizens of Delaware and Texas for the purposes of diversity jurisdiction. 

2. The Amount in Controversy Exceeds $75,000. 

Pursuant to 28 U.S.C. § 1332(a)(1), diversity jurisdiction requires that the amount in 

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controversy “exceed the sum or value of $75,000.00.” The amount in controversy in the instant 

action exceeds $75,000.00. 

Plaintiff states in his Complaint that he seeks to recover damages, attorneys’ fees and costs 

and other equitable and legal relief as the Court deems appropriate. See ad damnum clause 

following ¶38 of Pl.’s Complaint. Plaintiff further alleges that he suffered mental anguish, 

emotional distress, inconvenience, loss of capacity for the enjoyment of life, expense of medical 

and nursing care and treatment, out of the pocket expenses, loss of income, and loss of earning 

capacity. Pl.’s Compl. ¶¶25 and 32. The FCRA authorizes courts to award back pay, compensatory 

damages for mental anguish, loss of dignity, and any other intangible injuries, punitive damages, 

and attorneys’ fees and costs. FLA. STAT. § 760.11. 

Plaintiff does not say anything in his Complaint about the specific amount of damages that 

he seeks to recover in the instant action. Where, as here, removal is based on diversity of 

citizenship, and the initial pleading does not demand a specific sum, “the notice of removal may 

assert the amount in controversy.” 28 U.S.C. § 1446(c)(2); Dart Cherokee Basin Operating Co. 

v. Owens, 135 S. Ct. 547, 554, 2014 U.S. LEXIS 8435, at *14 (Dec. 15, 2014) (“[A]s specified in 

§ 1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount 

in controversy exceeds the jurisdictional threshold”). 

As a general rule, the amount in controversy is determined by considering the judgment 

that would be entered if the plaintiff prevailed on the merits of his case as it stands at the time of 

removal. Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010). In calculating 

potential lost wages for jurisdictional purposes, it is proper to calculate the figure through the trial 

date. See Messina v. Chanel, Inc., 2011 U.S. Dist. LEXIS 71138 (S.D. Fla. Jul. 1, 2011) 

(appropriate to calculate lost wages from time of termination through trial date in examining the 

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jurisdictional minimum); see also Cashman v. Host Int’l, Inc., U.S. Dist. LEXIS 123164, *4 (M.D. 

Fla. Nov. 9, 2010) (noting that “[c]onsideration of the additional back pay amount from the date 

of removal to the date of trial, based on a conservative estimate of the trial date, is not 

impermissible speculation”). 

Plaintiff’s allegations reflect that the amount in controversy exceeds the jurisdictional 

minimum of $75,000, exclusive of interest and costs. Plaintiff’s final rate of pay was $19.11 per 

hour. See Tenzer Declaration, ¶6. If Plaintiff were to recover all of his lost wages from June 20, 

2017, to the present, he potentially could recover lost wages totaling approximately $114,029.37.2 

See Tenzer Declaration, ¶¶6-7. Moreover, if the case proceeds to trial on or around June 20, 

2021—just over one year from the present—he may be seeking an additional approximately 55 

weeks of lost wages, or about $40,990.95 (i.e., $745.29 x 55 weeks). Id. Thus, standing alone, 

Plaintiff’s unmitigated back pay damages through the estimated date of trial total approximately 

$155,020.32 (i.e., $114,029.37 + 40,990.95). 

In addition to his back pay damages, Plaintiff is also entitled to seek “front pay” damages 

if he prevails on his claim. Front pay is a form of equitable relief that the Court may award in lieu 

of reinstatement. See Pollard v. E.I. DuPont de Nemours & Co, 532 U.S. 843, 846 (2001). For 

purposes of determining the amount in controversy, the value of equitable relief “is the monetary 

value of the object of the litigation that would flow to the plaintiff[] if the [requested relief] were 

granted.” Leonard v. Enterprise Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002). Thus, front pay 

is properly considered in assessing the amount in controversy and it is reasonable to include one 

year of front pay in the estimate of Plaintiff’s potential recovery for the purposing of analyzing the 

amount controversy. See Brown v. Cunningham Lindsey U.S., Inc., 2005 U.S. Dist. LEXIS 38862, 

 

2

 $745.29/week (average earnings per week). $745.29/week x 153 weeks = $114,029.37. 

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* 15 (M.D. Fla. 2005) (crediting one year of back pay plus one year of front pay, as a conservative 

measure of potential lost wages in a wrongful termination case). An award of one or more years 

of front pay is not uncommon in employment discrimination cases. Munoz v. Oceanside Resorts, 

Inc., 223 F.3d 1340, 1349 (11th Cir. 2000) (affirming award of one year of front pay). Based on 

Plaintiff’s final rate of pay and average weekly earnings, one year of front pay is the equivalent of

$38,755.08.3 

As noted above, Plaintiff is seeking to recover unspecified compensatory damages. 

Plaintiff’s compensatory damages may include a variety of intangible, non-economic losses that 

potentially exceed the jurisdictional minimum. See generally Bartley v. Starwood Hotel & Resorts 

Worldwide, Inc., No. 07-80637-CIV, 2007 WL 2774250 (S.D. Fla. Sept. 24, 2007). Even “gardenvariety” compensatory damages in employment termination cases may significantly increase the 

amount in controversy. See e.g., Munoz, 223 F.3d at 1349 (affirming award of $150,000 damages 

for emotional distress on Florida Civil Rights Act claim). As these cases demonstrate, 

compensatory damages under the FCRA may, standing alone, meet the amount in controversy 

requirement. 

Plaintiff also seeks to recover his attorneys’ fees, which the Court may award to the 

prevailing party under the Florida Civil Rights Act. Fla. Stat., § 760.11. Attorneys’ fees are 

included in the amount-in-controversy calculation if a statute mandates or permits recovery of 

attorneys’ fees. Morrison v. Allstate Ins. Co., 228 F.3d 1255, 1265 (11th Cir. 2000), Cowan v. 

Genesco, Inc., No. 3:14-cv-261-J-34JRK, 2014 WL 3417656, 2014 U.S. Dist. LEXIS 95412 (M.D. 

Fla. July 14, 2014). If Plaintiff were to prevail at trial – which the Court properly assumes for 

 

3

 $745.29 (average earnings per week) x 52 weeks. 

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purposes of removal – his claim for attorney’s fees alone more likely than not will exceed $75,000. 

See Cowan v. Genesco, Inc, 2014 U.S. Dist. LEXIS 95412 at *15. 

Considering the cumulative value of Plaintiff’s potential claims for back pay, front pay, 

compensatory damages, and attorney’s fees, Plaintiff’s claims, though vigorously contested by 

Defendant, will more likely than not involve an amount in controversy that exceeds the sum of 

$75,000, exclusive of interest and costs. 

WHEREFORE, having fulfilled all statutory requirements, Defendant removes this action 

from the Circuit Court in and for Miami-Dade County, Florida, to this Court, and requests that this 

Court assume full jurisdiction over this matter as provided by law. 

Dated this 29th day of May 2020 Respectfully submitted, 

 By: /s/ Alexandra Blanco Mangas 

Patrick G. DeBlasio, III, Esq. 

Florida Bar No. 871737 

E-Mail: pdeblasio@littler.com 

Secondary: btapia@littler.com 

Alexandra Blanco Mangas, Esq. 

Florida Bar No. 106874 

E-Mail: alblanco@littler.com 

Secondary: kljackson@littler.com 

LITTLER MENDELSON, P.C. 

Wells Fargo Center 

333 SE 2nd Avenue, Suite 2700 

Miami, FL 33131 

Telephone: (305) 400-7500 

Facsimile: (305) 603-2552 

Attorneys for Defendant 

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