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UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

JENNIFER ROMAN,

Plaintiff,

v.

WAL-MART STORES EAST, LP and

CHARLES COLEMAN,

Defendants.

/

DEFENDANT, WAL-MART STORES EAST, LP., NOTICE OF REMOVAL

Defendant, Wal-Mart Stores East, LP. (“Wal-Mart”), by and through its 

undersigned counsel and pursuant 28 U.S.C. §§ 1332, 1441 and 1446(b)(1), and Rule 

81(c) of the Federal Rules of Civil Procedure, removes to this Court the action filed 

in the 15th Judicial Circuit Court in and for Palm Beach County, Florida, Case No. 

50-2020-CA-004721, with full reservation of rights, exceptions and defenses, and in 

support thereof state: 

FACTUAL BACKGROUND

1. On April 28, 2020, Plaintiff commenced this action by filing a 

complaint against Wal-Mart, and the store manager, Charles Coleman, in the 15th

Judicial Circuit in and for Palm Beach County, Florida. See Pl.’s Initial Complaint 

attached as Ex. “A.” 

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2. The initial Complaint was served on Wal-Mart on May 1, 2020. See 

Service of Process Transmittal attached as Ex. “B.” 1

3. The Plaintiff’s Complaint against Wal-Mart and store manager, 

Charles Coleman, are for claims sounding in negligence as a result of injuries which 

the Plaintiff allegedly sustained on January 5, 2019, arising from an incident at the 

subject Wal-Mart store located at 9990 Belvedere Rd., West Palm Beach, Palm 

Beach County, Florida 33411. See Ex. “A” at ¶ 5-13.

4. Plaintiff alleges that she was struck by a Wal-Mart supply cart that 

was being pushed by an unknown employee of Wal-Mart. See Ex. “A” at ¶ 6.

5. The Plaintiff’s Complaint specifically defines the store Manager as 

COELMAN (emphasis added), yet to fails to allege that COELMAN was the 

employee that struck the Plaintiff with the supply cart. Instead, the Plaintiff alleges 

that “Defendant employee” struck the Plaintiff with the supply cart (See Ex. “A” at 

¶ 6-7). Throughout the Complaint, when referring to the store manager, Charles 

Coleman, the Plaintiff writes “COLEMAN,” yet, nowhere in the Complaint does it 

allege that COELMAN struck the Plaintiff with the supply cart. 

6. As to Wal-Mart, Plaintiff alleges that Wal-Mart breached a duty owed 

to the Plaintiff by, including but not limited to, failing to properly train and 

supervise its employees, and operate the cart in a safe condition. See Ex. “A” at ¶ 

11. 

 

1 Of the date of filing this lawsuit, Defendant, Charles Coleman, has not yet been 

served with the Complaint. 

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7. As for co-defendant, store manager, Charles Coleman, Plaintiff alleges 

that in his capacity as the store manager as an employee and manager, Charles 

Coleman, was responsible for training and supervising the Wal-Mart employees, an 

knew (or should have known) that the employees at the store were not properly 

train, supervised and hired. See Ex. “A” at ¶ 16-18.

8. Plaintiff specifically identifies Chares Coleman in his capacity as store 

manager for the subject Wal-Mart store. See Ex. “A” at ¶ 5.

9. Plaintiff’s Complaint fails to allege any facts indicating Charles 

Coleman was actively negligent by actively participating in and committing 

any tort to cause Plaintiff’s incident. Furthermore, the Complaint fails to even 

allege that Charles Coleman was ever on duty at the time of the Plaintiff’s incident. 

Instead, the Plaintiff merely alleges Charles Coleman is the store manager at the 

store, owed and breached a duty to Plaintiff. There are no allegations within the 

Complaint, indicating that Charles Coleman actively brought about Plaintiff’s 

incident. 

10. As shown more fully below, it is evident that Plaintiff’s Complaint fails

to allege any facts that Charles Coleman had any active participation and active 

involvement in the alleged incident. See Charles Coleman’s Declaration attached as 

Ex. “C.” 

11. Rather, the Plaintiff joined Charles Coleman to this lawsuit solely to 

destroy diversity jurisdiction.

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12. The Plaintiff is a resident of Palm Beach County, which is the county 

where the incident occurred. See Plaintiff’s Customer Incident Report and Medical 

Records attached as Ex. “D.”2 It is well-established that residency is prima facie

evidence of domicile, which is equivalent to residency for purposes of diversity of 

citizenship. 

13. Further, Plaintiff alleges past medical bills exceeding $44,103.00, 

as of May 18, 2020, which is the date that Plaintiff sent her pre-suit demand 

letter offering to settle this claim for $300,000.00. See Pre-suit Demand Letter 

attached as Ex. “E.”

14. This action is removable based on diversity of citizenship of the 

parties, and because the claimed amount in controversy is in excess of $75,000.00, 

exclusive of interest, attorneys’ fees, and costs. 

15. Wal-Mart requests this Court disregard the citizenship of Charles 

Coleman when determining that diversity jurisdiction exists in this case, and to 

dismiss Charles Coleman as he did not actively participate in bringing about 

Plaintiff’s incident, nor does the Complaint allege any facts indicating that Charles 

Coleman actively participated in bringing about Plaintiff’s incident. 

16. Wal-Mart attaches hereto and incorporates into this Notice a copy of

the process, pleadings, and other papers filed in the 15th Judicial Circuit in and for 

Palm Beach County, Florida together with a docket sheet from the Clerk of Court. 

See The state court filings are attached as Composite Ex. “F.”

 

2 The Plaintiff’s address as indicated on her Customer Incident Report and 

throughout her various medical records in connection with this incident, reveal that 

Plaintiff is a resident of Palm Beach County. 

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17. Wal-Mart attaches the Civil Cover Sheet at Ex. “G.”

18. Wal-Mart reserves the right to raise all defenses and objections in this 

action after the action is removed to this Court. 

REMOVAL IS TIMELY

19. In accordance with 28 U.S.C. § 1446(b)(1), Wal-Mart files this Notice of 

Removal within thirty (30) days of the date that it received a copy of Plaintiff’s 

initial Complaint. Plaintiff’s initial Complaint is the initial pleading setting forth 

the claim for relief upon which Plaintiff’s action is based. 

20. The thirty (30) day period commenced on May 1, 2020, when Plaintiff 

served her initial Complaint. Further, as of the date of this Notice of Removal, 

Charles Coleman has not yet been served with the Complaint. 

21. Prior to the service of Plaintiff’s initial Complaint, Plaintiff sent WalMart a written pre-suit demand outlining Plaintiff’s claimed damages inclusive of 

actual medical expenses in connection with her alleged incident. 

22. Venue exists in the United States District Court for the Southern 

District of Florida, West Palm Beach Division, because the 15th Judicial District in 

and for West Palm Beach County, where Plaintiff filed her state court Complaint is 

located in West Palm BeachCounty Florida, which is located within the United 

States District Court for the Southern District of Florida, West Palm Beach, 

Florida. 

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DIVERSITY OF CITIZENSHIP 

23. Under 28 U.S.C. § 1332(a)(1), “[t]he district court shall have original 

jurisdiction of all civil actions where the matter in controversy exceeds the sum or 

value of $75,000.00, exclusive of interest and costs, and is between – citizens of 

different States.” This action satisfies the complete diversity of citizenship 

requirement of 28 U.S.C. § 1332(a)(1).

A. Citizenship of Wal-Mart Stores East, LP. 

24. At the time of the alleged incident, and currently, Wal-Mart Stores 

East, LP is a limited partnership which currently is, and was at the time of the 

Complaint, a Delaware Limited Partnership with its principal place of business in 

the State of Arkansas. See SunBiz Report attached as Ex. “H.” WSE Management, 

LLC is the general partner and WSE Investment, LLC is the limited partner of 

Wal-Mart Stores East, LP. These are the only partners of Wal-Mart Stores East, 

LP. WSE Management, LLC and WSE Investment, LLC were at the time of filing 

the Complaint, and still are, Delaware limited liability companies. The sole member 

of WSE Management, LLC and WSE Investment, LLC is, and was at the time of 

filing the Complaint, Wal-Mart Stores East, LLC, an Arkansas Limited Liability 

Company. The sole member of Wal-Mart Stores East, LLC is, and was at the time of 

filing the Complaint, Wal-Mart Stores, Inc. Wal-Mart Stores Inc., is, and was at the 

time of filing the Complaint, an incorporated entity under the laws of the State of 

Delaware. Wal-Mart Stores Inc., at the time the Complaint was filed and presently, 

incorporated in the State of Delaware. The principal place of business for all of the 

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above mentioned entities (Wal-Mart Stores East, LP; WSE Management, LLC; WSE 

Investment, LLC; Wal-Mart Stores East, LLC; and Wal-Mart Stores, Inc.) is, and 

was at the time of filing the Complaint, Bentonville, Arkansas. 

B. Citizenship of Plaintiff, Jennifer Roman

25. Plaintiff, Jennifer Roman, is a resident of Palm Beach County, Florida.

See Ex. “D.” Although Plaintiff’s Complaint does not specifically state Plaintiff’s 

citizenship, “[i]t is well established that a party’s residence is prima facie evidence 

of a party’s domicile,” and “[f]or purposes of diversity jurisdiction, a party’s domicile 

is equivalent to his citizenship.” Katz v. J.C. Penney Corp., 2009 WL 1532129, *3 

(S.D.Fla.) (Cohn, J) (internal citations omitted). 

26. Here, Plaintiff’s Customer Incident Report and various medical 

records/bills reveal that she is a resident of Palm Beach County. See Ex. “D.” 

Plaintiff’s Palm Beach County, Florida residence is prima facie evidence of her

domicile which is equivalent to citizenship for purposes of establishing diversity in 

this case. See Katz, 2009 WL 1532129 at *3.

C. Complete Diversity Between the Parties Exists Because Charles 

Coleman Was Fraudulently Joined to Defeat Diversity Jurisdiction. 

27. The citizenship of co-defendant, Charles Coleman, should be 

disregarded because he was fraudulently joined in an attempt to destroy otherwise 

valid diversity jurisdiction. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th 

Cir. 2011); Henderson v. Wash. Nat’l Ins. Co., 454 F.3d 1278, 1281 (11th Cir. 2006); 

Evelyne Petigny v. Wal-Mart Stores East, L.P., Case No. 18-23762-CIV-MORENO, 

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ECF. No. 19, (S.D. Fla. November 14, 2018); Franco v. Wal-Mart Stores East, L.P., 

Case No. 16-20706-CIV-MORENO, ECF No. 17 (S.D. Fl. March 10, 2016). 

28. Courts routinely disregard the citizenship of fraudulently joined 

parties when determining whether diversity jurisdiction exists. Stillwell v. Allstate 

Ins. Co., 663 F.3d at 1332. A defendant seeking to prove that a co-defendant was 

fraudulently joined must demonstrate by clear and convincing evidence either that: 

(1) there is no possibility the plaintiff can establish a cause of action against the 

resident defendant; or (2) the plaintiff has fraudulently plead jurisdictional facts to 

bring the resident defendant into the state court. See Stillwell, 663 F.3d at 1332; 

Henderson, 454 F.3d at 1281.

29. The determination of whether the resident defendant has been 

fraudulently joined must be based upon the plaintiff’s pleadings at the time of 

removal, supplemented by any affidavits submitted by the parties. See Pacheco de 

Perez v. AT&T Co., 139 F.3d 1368, 1380 (11th Cir. 1998).

30. The issue of whether there is no possibility the plaintiff can establish a 

cause of action against the resident defendant turns on whether liability can be 

imposed on the resident defendant. Hunt v. Target Corp., Case No. 14-80266-CIV,

2014 U.S. Dist. LEXIS 54179, at *3-5 (S.D. Fla. Apr. 18, 2014); Tynes v. Target 

Corp., Case No. 12-24302-CIV, 2013 U.S. Dist. LEXIS 40355, at *4-5 (S.D. Fla. Mar. 

22, 2013). If a defendant shows that “there is no possibility that plaintiff can 

establish a cause of action against the resident defendant . . . the federal court must 

dismiss the non-diverse defendant and deny any motion to remand the matter back 

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to state court.” Florence v. Crescent Resources, LLC, 484 F.3d 1293, 1297 (11th Cir. 

2007) 

31. Under Florida law, “a corporate agent or employee may not be held 

personally liable simply because of his general administrative responsibility or 

performance of some function of his employment – he or she must be actively 

negligent.” Id (quoting McElveen v. Peeler, 554 So.2d 270, 272 (Fla. 1st DCA 1989); 

see also Niurka De Varona v. Discount Auto Parts, LLC., 860 F. Supp. 2d 1344, 1348 

(S.D. Fla. 2012) (quoting Orlovsky v. Solid Surf., 405 So.2d 1363, 1364 (Fla. 4th 

DCA 1981) (“[i]t is well established under Florida law that [a store manager] does 

not incur personal liability for the corporation’s tort merely by reason of the 

officer’s official character”)).

32. In Tynes, the plaintiff, a Florida citizen, filed a complaint in state court 

alleging negligence against Target Corporation, a Minnesota citizen, and an 

unnamed employee, John Doe, arising from a slip and fall incident inside a Miami 

Target store. Tynes, 2013 U.S. Dist. LEXIS 40355, at *1. The defendant removed 

the case seeking to invoke diversity jurisdiction. Id at *1. Plaintiff moved to remand

the case because the plaintiff identified through discovery the identity of John 

Doe—Target employee Wilbert A. Hernandez—and claimed that he was a resident 

of Miami-Dade County. Id at *2. In denying plaintiff’s motion to remand, the court 

found there was little possibility that the plaintiff could prove a cause of action for

negligence against Mr. Hernandez because the plaintiff failed to allege any 

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individual duty was owed or that the tort in question was committed in the store 

manager’s individual capacity. Id. at *4-6.

33. In Niurka De Varona, the plaintiff, a Florida citizen, filed a negligence 

claim against Advance Auto Parts, a Virgina Corporation. Niurka De Varona, 860 F. 

Supp. 2d at 1345. Plaintiff amended her complaint and named the store manager, a 

Florida resident, as a joint defendant asserting a separate count of negligence 

against the store manager. Id. Specifically, the plaintiff alleged the store manager 

had a duty to use ordinary care to maintain the store premises in a reasonable safe 

condition and was negligent by failing to remove the dangerous condition or warn 

the plaintiff of it. Id. Thereafter, the defendant removed the case arguing the 

citizenship of the store manager should be disregarded because he was fraudulently 

joined solely to avoid federal jurisdiction. Id. at 1346. In support of its notice of 

removal, Advance Auto Parts presented an affidavit from the store manager 

denying any personal responsibility for the plaintiff’s incident, attesting that he was 

not in the parking lot when the alleged accident occurred, that he could not see the 

parking lot from his vantage point in the store, and that he had no knowledge of 

any hazardous condition in the parking lot on the date of the incident. Id. The court 

denied the plaintiff’s motion to remand the stating “plaintiff has provided no facts 

showing that [the store manager] played any role in her injuries” and that a store 

manager does not incur personal liability for a corporation’s torts merely 

by reason of the store manager’s official title. See id. (citing Orlovsky, 405 So.

2d at 1364).

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34. Similarly, in Pritchard, the court also denied plaintiff’s motion to 

remand because the plaintiffs failed to point to any evidence in support of their 

claim that the store manager was actively negligent. Pritchard v. Wal-Mart Stores, 

Inc., Case No. 8:09-cv-46, 2009 U.S. Dist. LEXIS 18593, at *7. In Pritchard, the 

plaintiffs filed suit against defendants Wal-Mart and one of its store manager in 

state court alleging claims of negligence and loss of consortium. Id. at *1. The 

plaintiffs alleged the store manager owed a duty to plaintiffs to exercise reasonable 

care in the maintenance, inspection, repair, warning, and mode of operation of the 

premises,3 and the store manager breached those duties by acting negligently in 

falling to exercise reasonable care in the maintenance, inspection, repair, warning, 

and mode of operation of the premises. Id. Wal-Mart removed the case based upon 

diversity jurisdiction despite the Florida citizenship of the store manager pursuant 

to the fraudulent joinder doctrine. Id. Thereafter, the store manager filed a motion 

to dismiss based on fraudulent joinder. Id. The defendants submitted a declaration 

from the store manager, in which she stated she had no prior knowledge of the 

dangerous condition, and no one, including customers from her store, notified her of 

the dangerous condition prior to the plaintiff’s incident. Id. at *2. Wal-Mart 

submitted evidence that the store manager was not personally involved in the 

incident at issue, and as such, the store manager could not be found to be actively 

negligent. Id. at *3. The court agreed with Wal-Mart that the store manager was 

 

3 Under Florida law, negligent mode of operation claims based upon transitory 

foreign substances are no longer a viable cause of action since the enactment of 

Florida Statute section 768.0755. See Pembroke Lakes Mall Ltd. v. McGruder, 137 

So. 3d 418 (Fla. 4th DCA 2014). To be clear, Pritchard did not involve a transitory 

foreign substance.

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fraudulently joined as a defendant because the plaintiffs could not establish that 

the store manager was personally at fault for the plaintiffs' injuries as there was no 

evidence to support that the store manager was actively negligent. Id. The court 

denied the plaintiffs’ motion to remand and granted the store manager’s motion to 

dismiss. Id.

35. Further, in Evelyne Petigny v. Wal-Mart Stores East, L.P., and Franco 

v. Wal-Mart Stores East, L.P., Judge Moreno dismissed the store employees who 

had been sued in their capacity as Wal-Mart managers on the basis that Plaintiff 

failed to allege any facts that the store managers were actively negligent (i.e. 

actively participated in braining about the plaintiff’s incident. See Evelyne Petigny 

v. Wal-Mart Stores East, L.P., Case No. 18-23762-CIV-MORENO, ECF. No. 19, 

(S.D. Fla. November 14, 2018); Franco v. Wal-Mart Stores East, L.P., Case No. 16-

20706-CIV-MORENO, ECF No. 17 (S.D. Fl. March 10, 2016).

36. In a factually similar case, Edman v Wal-Mart, the plaintiff alleged 

that she was struck in the back by a stock cart while she was shopping at a WalMart store. Edman v Wal-Mart Stores East, L.P., Case No. 9:19-CV-80356-DMM, at 

D.E. 20 and DE. 21, (S.D. Fla. May 6, 2019). The plaintiff sued both Wal-Mart and 

the store manager, Michael Gillespie. Id. The Honorable Judge Middlebrooks

granted Michael Gillespie’s Motion to dismiss [at D.E. 21] as the plaintiff’s 

complaint failed to allege that Michael Gillespie actively participated in bringing 

about the Plaintiff’s incident, and subsequently denied Plaintiff’s Motion to 

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Remand. Edman v Wal-Mart Stores East, L.P., Case No. 9:19-CV-80356-DMM, at 

DE. 21, (S.D. Fla. May 6, 2019).

37. In the instant case, although Charles Coleman was the store manager 

at the subject Wal-Mart store where the Plaintiff’s incident allegedly occurred on 

January 5, 2019, there is no possibility that Plaintiff can prove a cause of action for 

negligence against him because he was not actively negligent and had no personal 

involvement in Plaintiff’s incident. See Niurka De Varona, 860 F. Supp. 2d at 1347; 

Pritchard, 2009 U.S. Dist. LEXIS 18359, at *7; Evelyne Petigny v. Wal-Mart Stores 

East, L.P., Case No. 18-23762-CIV-MORENO, ECF. No. 19, (S.D. Fla. November 

14, 2018); Franco v. Wal-Mart Stores East, L.P., Case No. 16-20706-CIV-MORENO, 

ECF No. 17 (S.D. Fl. March 10, 2016).

38. Most importantly, Charles Coleman did not commit or participate in 

Plaintiff’s alleged tort and did not play any role in Plaintiff’s alleged injuries as he:

a. did not witness Plaintiff’s incident;

b. did not personally participate in the events leading up to Plaintiff’s 

alleged incident nor did he individually engage in tortious conduct;

c. did not push a supply cart (or any cart for that matter) into the 

Plaintiff on January 5, 2019, or any other day;

d. I did not have any knowledge of the subject supply cart (or any other 

type of cart) in the area of Plaintiff’s incident immediately prior to same;

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e. did not have any knowledge of a Wal-Mart employee handling the 

stock cart (or any other type of cart) in the area of Plaintiff’s incident immediately 

prior to same;

f. did not observe the subject supply cart (or any other type of cart) in the 

area of Plaintiff’s incident immediately prior to same, nor did he cause the subject 

supply cart (or any other type of cart) to be in the area of Plaintiff’s incident 

immediately prior to same; 

g. did not place the subject supply cart (or any other type of cart) in the 

aisle where Plaintiff’s incident occurred, nor did he have any prior knowledge 

pertaining to the identity of the individual who allegedly handled the subject supply 

cart in the area of Plaintiff’s incident immediately prior to Plaintiff’s incident;

h. was not in the area of Plaintiff’s alleged incident prior to her alleged 

incident, nor was he in the area of the incident at the time of Plaintiff’s incident; 

and

i. he did not investigate the Plaintiff’s incident on the date of her 

incident. See Charles Coleman’s Declaration attached as Ex. “C.”

39. Therefore, Charles Coleman had no knowledge of the alleged 

dangerous condition prior to Plaintiff’s incident, and had no involvement therewith. 

See id.; see also Niurka De Varona, 860 F. Supp. 2d at 1347; Pritchard, 2009 2009 

U.S. Dist. LEXIS at *7; Evelyne Petigny v. Wal-Mart Stores East, L.P., Case No. 18-

23762-CIV-MORENO, ECF. No. 19, (S.D. Fla. November 14, 2018); Franco v. WalCase 9:20-cv-80869-RS Document 1 Entered on FLSD Docket 05/29/2020 Page 14 of 22
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Mart Stores East, L.P., Case No. 16-20706-CIV-MORENO, ECF No. 17 (S.D. Fl. 

March 10, 2016).

40. Essentially, Plaintiff has sued Charles Coleman because Plaintiff has 

discovered he was the store manager on the day of the Incident. As discussed above, 

this is contrary to Florida law.

41. This is particularly event in light of the fact that Plaintiff’s Complaint 

fails to allege any facts indicating Charles Coleman was actively negligent 

by actively participating in and committing any tort to cause Plaintiff’s incident. 

Furthermore, the Complaint fails to even allege that Charles Coleman was ever on 

duty at the time of the Plaintiff’s incident. Instead, the Plaintiff merely alleges 

Charles Coleman is the store manager at the store. The Plaintiff’s Complaint 

specifically defines the store Manager as COELMAN (emphasis added), yet to fails 

to allege that COELMAN was the employee that struck the Plaintiff with the 

supply cart. Instead, the Plaintiff alleges that “Defendant employee” struck the 

Plaintiff with the supply cart (See Ex. “A” at ¶ 6-7). 

42. After disregarding the fraudulently joined defendants, there can be no 

dispute that the citizenship of the Parties is diverse. 

AMOUNT IN CONTROVERSY

43. The amount in controversy exceeds $75,000.00. Although Plaintiff’s 

Complaint does not specify an amount in controversy other than the state court 

jurisdictional minimum, it is clear from Plaintiff’s pre-suit demand that her claimed 

damages exceeds the jurisdictional minimum in this Court of $75,000.00. See Katz 

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v. J.C. Penney Corp., Inc., 2009 WL 1532129, *5 (S.D. Fla. June 1, 2009) (concluding 

the defendant met its jurisdictional burden of establishing the amount in 

controversy based on information received from the plaintiffs in the pre-suit 

demand package); see also Mick v. De Vilbiss Air Power Co., No. 6:10-CV-1390-ORL, 

2010 WL 5140849, at *1 (M.D. Fla. Dec. 14, 2010) (discussing pre-suit demand 

letters are competent evidence of the amount in controversy.). 

44. Where, as here, a plaintiff makes “an unspecified demand for damages 

in state court, a removing defendant must prove by a preponderance of the evidence 

that the amount in controversy more likely than not exceeds the . . . jurisdictional 

requirement.” Tapscott v. MS Dealer Service Corp., 77 F.3d 1353, 1357 (11th Cir. 

1996), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 

(11th Cir. 2000). 

45. “In the Eleventh Circuit, a district court may consider the complaint 

and any later received paper from the plaintiff as well as the notice of removal and 

accompanying documents when deciding upon a motion to remand.” Katz, 2009 WL 

1532129, at *4 (S.D. Fla. June 1, 2009) (citing Lowery v. Alabama Power Co., 483 

F.3d 1184, 1213-1214 (11th Cir. 2007)). “Additionally, a district court may consider 

evidence outside of the removal petition if the facts therein existed at the time of 

removal.” Id (citing Williams v. Best Buy Co., 269 F.3d 1316, 1320 (11th Cir. 2001)

and Sierminski v. Transouth Financial Corp., 216 F.3d 945, 949 (11th Cir. 2000)). 

“Therefore, pre-suit settlement offers and demands may be considered in evaluating 

whether a case has been properly removed.” Id. 

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46. In the present case, the relevant portions of Plaintiff’s $300,000.00 

pre-suit demand conclusively establish that the amount in controversy exceeds the 

$75,000.00 jurisdictional minimum. Notably, Plaintiff’s medical bills totaled 

$44,103.00 as of March 18, 2020. See Ex. “E.”

47. Admittedly, Plaintiff demanded $300,000.00 to settle her claims which 

are inclusive of past medical expenses; future medical expenses and care; and pain 

and suffering. Id. 

48. Additionally, Plaintiff alleges damages for mental anguish, and loss of 

capacity for the enjoyment of life. See Ex. “A” at ¶ 13.

49. These representations sufficiently and conclusively establish by a 

preponderance of the evidence that the amount in controversy exceeds the requisite 

$75,000.00 jurisdictional minimum for this Court to retain jurisdiction. Numerous 

decisions from the Southern District of Florida support this conclusion. 

50. For example, in Katz v. J.C. Penney Corp., supra, the court concluded 

that the removing defendant properly established the amount in controversy by 

addressing through affidavit information received from Plaintiff’s pre-suit demand 

package. The court specifically noted it was persuaded that the pre-suit demand 

package reflected an honest assessment of damages by plaintiffs because, like 

Plaintiff’s pre-suit demand letter, it was based on medical records provided by the 

plaintiff. See Katz v. J.C. Penney Corp., Inc., 2009 WL 1532129, *5 (S.D. Fla. June 1, 

2009). 

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51. In AAA Abachman Enterprises, Inc. v. Stanley Steemer, Int’l, Inc., 268 

Fed. Appx. 864 (11th Cir. 2008), the court relied on plaintiff’s demand letter seeking 

more than $75,000.00 in damages to establish federal jurisdiction. See also Scott v. 

Home Depot U.S.A., Inc., 2012 WL 86986, *3 (S.D.Fla. Jan. 11, 2012) (denying 

defendant’s motion for remand citing plaintiff’s actual damages of approximately 

$39,000.00 and concluding that future treatment would likely exceed the amount 

needed to reached the jurisdictional minimum.); La Rocca v. Stahlheber, 676 F. 

Supp. 2d 1347, 1349 (S.D. Fla. 2009) (the court denied plaintiff’s motion to remand 

citing plaintiff’s demand letter claiming $22,563.00 in medical bills and the court’s 

projections on likely future damages where a doctor estimated that plaintiff “‘could’ 

incur costs of $2,500 to $5,000 per year” for future care).

52. In Lazo v. US Airways, Inc., 2008 WL 3926430 (S.D. Fla. Aug. 26, 

2008), the court denied the plaintiff’s motion to remand citing to an affidavit filed by 

defense counsel where he recounted a conversation in which Plaintiff’s counsel 

stated his client was seeking to recover “at least $1,000,000.” The court found this

representation “constitute[d] legally certain evidence that plaintiff seeks damages 

in excess of $75,000.00.” Id.

53. In the instance case, although the totality of Plaintiff’s future medical 

expenses are not specifically set forth in her pre-suit demand letter, Plaintiff’s 

future damages in the instant matter certainly exceed the $75,000.00 jurisdictional 

limit given that Plaintiff’s demand letter, together with her accompanying medical 

records and bills, demands $300,000.00. See Ex. “E.” 

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54. In addition to past future medical expenses, Plaintiff’s Complaint 

claims damages for pain and suffering, loss of capacity for the enjoyment of life, and 

aggravation of prior injuries. See La Rocca, 676 F. Supp. 2d at 1349 (S.D. Fla. 2009); 

Scott, 2012 WL 86986, *3 (S.D.Fla. Jan. 11, 2012). Furthermore, Plaintiff also 

alleges her losses are permanent or continuing and she will suffer further loss into 

the future. See Ex. “C.” at 13.

55. Like Katz, here, even though the current actual medical expenses are 

below the jurisdictional amount, Plaintiff’s future damages will certainly make up 

the difference since Plaintiff will require ongoing treatment due to the alleged 

permanent nature of her injuries. 

56. Based upon the pertinent case law above, Wal-Mart has conclusively 

established by a preponderance of the evidence the amount in controversy is 

satisfied based upon (1) Plaintiff’s $300,000.00 pre-suit demand letter and 

accompanying medical records and bills, as well as (2) Plaintiff’s claim for damages 

for pain and suffering, loss of capacity for the enjoyment of life and aggravation of 

prior injuries. See La Rocca, 676 F. Supp. 2d at 1349 (S.D. Fla. 2009); Scott, 2012 

WL 86986, *3 (S.D.Fla. Jan. 11, 2012); Katz, 2009 WL 1532129, *4 (S.D.Fla. June 1, 

2009).

57. The representations made in Plaintiff’s Complaint, medical records/bills 

and pre-suit demand letter together sufficiently and conclusively establish by a 

preponderance of the evidence that the amount in controversy exceeds the requisite 

$75,000.00 jurisdictional minimum for this Court to retain jurisdiction. 

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58. For example, in Katz v. J.C. Penney Corp., the court concluded that the 

removing defendant properly established the amount in controversy by addressing 

information received from Plaintiff’s pre-suit demand package. Katz, 2009 WL 

1532129 at 4. The court specifically noted it was persuaded that the pre-suit 

demand package reflected an honest assessment of damages by plaintiffs because, 

like Plaintiff’s pre-suit demand letter in this case, it was based on medical records 

provided by the plaintiff. Id. Accordingly, Wal-Mart has shown by a preponderance 

of the evidence that the amount in controversy exceeds the jurisdictional minimum, 

rendering removal proper. 

V. CONCLUSION

This action is removable pursuant to 28 U.S.C. §§ 1332, 1441 and 1446 

because there exists complete diversity in this matter as the Plaintiff and Wal-Mart 

are citizens of different states, and the amount in controversy exceeds $75,000.00 

exclusive of interest, fees, and costs. Upon filing of this Notice of Removal, 

Wal-Mart will promptly give written notice to Plaintiff, through her attorneys of 

record, and the Clerk of the Circuit Court for the 15th Judicial Circuit in and for 

Palm Beach County, Florida. 

WHEREFORE, Defendant, WAL-MART STORES EAST, L.P., (“Wal-Mart”), 

respectfully requests the Notice of Removal be accepted as good and sufficient as 

required by law, and that the aforesaid action, Case No. 50-2020-CA-004721, on the 

docket of the Court for the 15th Judicial Circuit in and for Palm Beach County, 

Florida, be removed from that Court to the United States District Court for the 

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Southern District of Florida, West Palm Beach Division, and that this Court assume 

full and complete jurisdiction thereof and issue all necessary orders and grant all 

general equitable relief to which Wal-Mart is entitled.

Dated: May 29, 2020

 Respectfully submitted, 

/s/ Patricia Concepcion

Jerry D. Hamilton

Florida Bar No.: 970700

jhamilton@hamiltonmillerlaw.com

Robert M. Oldershaw

Florida Bar No.86071

roldershaw@hamiltonmillerlaw.com

Patricia Concepcion

Florida Bar No. 109058

pconcepcion@hamiltonmillerlaw.com

HAMILTON, MILLER & BIRTHISEL, LLP

150 Southeast Second Avenue, Suite 1200 

Miami, Florida 33131

Telephone: (305) 379-3686

Attorneys for Defendant, Wal-Mart 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 29, 2020, I electronically filed the foregoing 

document with the Clerk of the Court using CM/ECF. I also certify that the foregoing 

is being served this day on all counsel of record or pro se parties identified on the 

following Service List in the manner specified, either via transmission of Notices of 

Electronic Filing generated by CM/ECF or in some other authorized manner for those 

counsel or parties who are not authorized to receive electronically notices of Electronic 

Filing.

/s/ Patricia Concepcion 

 Patricia Concepcion, Esq.

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SERVICE LIST

Attorneys for Plaintiffs 

Ian Bressler, Esq.

Florida Bar No. 104905

ian@ianbresslerlaw.com

12161 Ken Adams Way

#113

Wellington, Florida 33414

Telephone: 561-305-8257

Facsimile: 561-210-8925

Counsel for Plaintiff

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