UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

PALM BEACH DIVISION 

CASE NO. 

NATALIE MAHARAJ, 

 Plaintiff, 

v. 

HOME DEPOT U.S.A., INC., 

 Defendant. 

 / 

DEFENDANT’S NOTICE OF REMOVAL 

Defendant, Home Depot U.S.A., Inc., (“Home Depot” or “Defendant”), pursuant to 28 

U.S.C. §§ 1332, 1441, and 1446, hereby removes this action from the Fifteenth Judicial Circuit 

Court in and for Palm Beach County, Florida. The removal is based on diversity of citizenship, 

and this Court therefore has original subject matter jurisdiction over the case pursuant to 28 

U.S.C. § 1332(a). The specific grounds for removal are the following: 

I. STATEMENT OF THE CASE 

Plaintiff Natalie Maharaj filed a Verified Complaint against Home Depot in the Fifteenth 

Judicial Circuit Court in and for Palm Beach County, Florida, on or about July 17, 2019. The 

action is styled Natalie Maharaj v. Home Depot U.S.A., Inc. and Cristy Stillwagon, and is 

designated Case No. 502019-CA-009222XXXXMB (hereafter referred to as the “State Action”). 

Copies of all process, pleadings, and orders served upon Defendant in the State Action are 

attached hereto as Exhibit A. 

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Defendant was first served with the Summons and Verified Complaint on October 11, 

2019. See Exhibit A. 

Co-Defendant, Christina Stillwaggon, is deceased, and no service was accomplished upon 

her or her estate’s personal representative or Guardian ad Litem. 

A hearing was conducted on May 12, 2020 with Fifteenth Judicial Circuit Court Judge 

James Martz, who dismissed Co-Defendant Stillwaggon from the case with prejudice, pursuant 

to Fla. R. Civ. P. 1.260. 

The only remaining parties in the case are Natalie Maharaj and Home Depot U.S.A., Inc. 

II. GROUNDS FOR REMOVAL 

This removal is based on diversity of citizenship pursuant to 28 U.S.C. §§ 1441(b) and 

1446(b)(3), through application of 28 U.S.C. § 1332(a). Pursuant to 28 U.S.C. § 1332(a), the 

State Court Action can be properly removed to this Court if (a) the amount in controversy 

exceeds $75,000 exclusive of interest and costs and, (b) there is complete diversity of citizenship. 

(a) The Amount in Controversy Exceeds $ 75,000.00. 

Pursuant to 28 U.S.C. § 1446(c)(2)(A), this Notice of Removal asserts that the amount in 

controversy is greater than $75,000. 

Plaintiff’s Verified Complaint demands an unspecified amount of damages under the 

Florida Civil Rights Act (FCRA), including back pay and benefits, compensatory damages, and 

attorney’s fees. See Exhibit A, Pl.’s Compl. ¶¶ 20, 23, and 26 (in the “Wherefore” clause 

following each paragraph). 

Where, as in the instant case, a plaintiff has made an unspecified demand for damages in 

state court, the removing defendant must establish only by a preponderance of the evidence that 

the amount in controversy exceeds the jurisdictional amount for diversity jurisdiction. Pretka v. 

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Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010) (emphasis added); see also 28 

U.S.C. § 1446(c)(2)(B) (“removal of the action is proper on the basis of an amount in 

controversy asserted under subparagraph (A) if the district court finds by the preponderance of 

the evidence, that the amount in controversy exceeds the amount specified in section 1332(a).”). 

As such, the issue is whether, more likely than not, the amount in controversy exceeds $75,000. 

On November 1, 2019, Defendant served Plaintiff with interrogatories and asked Plaintiff 

to specify each element of damages that she is claiming in this case. See Defendant’s First Set of 

Interrogatories to Plaintiff, attached hereto as Exhibit B. 

 On December 18, 2019, Plaintiff served her Answers to Defendant’s First Set of 

Interrogatories to Plaintiff. See Plaintiff’s Answers to Defendant’s First Set of Interrogatories 

attached hereto as Exhibit C. Plaintiff stated that she is claiming lost wages in the amount of 

$23,920 per year (i.e., $460.00 per week), plus “bonuses, value of benefits including health and 

life insurance, pensions loss, overtime pay loss, vacation pay, sick pay and holiday pay...” 

During the May 12, 2020 hearing, counsel for Plaintiff represented to the Court that 

Plaintiff has still not secured employment. Therefore, as of May 12, 2020, Plaintiff had accrued 

$65,780 in alleged economic losses. This does not account for the “bonuses” and other types of 

pay specified in her answers to interrogatories. Assuming trial were to occur nine months from 

the date of this removal notice,1 Plaintiff will have an additional $17,595 of claimed back pay, 

which, in total would amount to $83,375. 

Plaintiff is also seeking front pay or reinstatement under the FCRA. Front pay is a form 

of equitable relief awarded to a FCRA plaintiff in lieu of, or until, reinstatement. Brown v. Am. 

 

1

 This is a conservative estimate as the average time for a case to proceed to trial in the United 

States District Court for the Southern District of Florida is 15 months. 

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Express Co., No. 09-CIV-61758, 2010 WL 527756, at *5 (S.D. Fla. Feb. 10, 2010). For amountin-controversy purposes, such equitable relief is calculated as “the monetary value of the object 

of the litigation that would flow to the plaintiff” if the requested relief is granted. Leonard v. 

Enterprise Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002). 

In the event that the Plaintiff can show that reinstatement is not feasible and this Court 

considers the issue of front pay, an award of one or two years of front pay is not uncommon in 

employment discrimination cases. See Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1349 

(11th Cir. 2000) (affirming front pay award of one year in an employment discrimination case 

under ADEA and FCRA); Brown v. Cunningham Lindsey U.S., Inc., No. 305CV141J32HTS, 

2005 WL 1126670, at *5 (M.D. Fla. May 11, 2005) (assuming one year of front pay when 

determining amount in controversy in an employment discrimination/retaliation lawsuit under the 

FCRA); see also Whittlesey v. Union Carbide Corp., 742 F.2d 724 (2d Cir. 1984) (affirming 

award of 4 years front pay in an ADEA case). In this case, if Plaintiff were to prevail at trial and 

the Court were to award her one year of front pay, she would recover an additional $23,920. 

In addition, Plaintiff seeks an unspecified amount of compensatory damages. 

Compensatory damages under the FCRA are uncapped and unlimited. See Fla. Stat. § 760.11(5). 

There is also no legal certainty at this time that Plaintiff will be unable to recover such damages. 

See Munoz, 223 F.3d at 1348 (affirming $150,000 compensatory damages jury award in an 

employment discrimination FCRA case); Hill v. Xerox Corp., 998 F. Supp. 1378, 1384 (N.D. 

Fla. 1998) (upholding a jury award of $457,000 for emotional distress). 

Plaintiff is also seeking recovery of attorney’s fees. Attorney’s fees are authorized by the 

FCRA, and may therefore be claimed in this case. See Fla. Stat. § 760.11(5). Accordingly, 

Plaintiff’s potential attorney’s fees must be included in estimating the amount in controversy. 

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See Field v. Nat’l Life Ins. Co., No. 8:00CV-989-T-24TBM, 2001 WL 77101, at *4 (M.D. Fla. 

Jan. 22, 2001). 

Courts have found that reasonable hourly rates in Southern Florida for attorneys handling 

FCRA cases can range anywhere from $175 to $350 per hour. See Holland v. Gee, No. 8:08-

CV-2458-T-33AEP, 2012 WL 5845010, at *5 (M.D. Fla. Oct. 23, 2012) (awarding plaintiff $175 

and $350 per hour for attorney fees depending on experience level of counsel). As such, attorney 

fees in employment cases often alone exceed the jurisdictional threshold of $75,000. See Mock 

v. Bell Helicopter Textron, Inc., No. 6:04-CV-1415, 2010 WL 5066121 (M.D. Fla. Sept. 3, 2010) 

(awarding plaintiff $342,207.81 in attorney fees in age discrimination case); EEOC v. Enterprise 

Leasing Co., Inc., No. 8:00-CV-2012-T-24-EAD, 2003 WL 21659097, at * 8 (M.D. Fla. May 16, 

2003) (intervening attorney was awarded $77,165.00 for work performed in a non-complex case 

by lead counsel even after reducing lead counsel’s hourly rate, the number of hours billed, and 

adjusting the lodestar.). Should Plaintiff prevail at trial, it is likely that her attorney’s fees alone 

would exceed $75,000. 

Whatever the individual amounts, it is clear that Plaintiff’s claimed lost wages, alone, 

will be more than $75,000 by the time of trial. This amount, plus additional amounts for front 

pay, compensatory damages, and attorney’s fees and costs, when all combined, clearly push the 

amount in controversy well beyond the $75,000 requirement. For these reasons, it is more likely 

than not that the amount in controversy threshold is satisfied. Thus, the amount in controversy in 

this matter, more likely than not, exceeds the $75,000.00 jurisdictional threshold pursuant to 28 

U.S.C. § 1332(a). 

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(b) Complete Diversity of Citizenship Exists between Plaintiff and the Properly Named 

Defendant 

Plaintiff is a resident of Florida, and is a citizen of Florida for diversity purposes. See 

Exhibit A, Pl’s. Compl. ¶ 3. 

Pursuant to 28 U.S.C. § 1332(c), for the purposes of determining diversity of citizenship, 

a corporation is deemed to be a citizen of the State where it is incorporated and where it has its 

principal place of business. Defendant Home Depot is incorporated in the State of Delaware 

with its principal place of business in Atlanta, Georgia. See Exhibit D, Declaration of Penny 

Paladino. ¶ 3. Thus, Home Depot is a citizen of Delaware and Georgia for purposes of 

determining diversity of citizenship. 

(c) Christina Stillwaggon’s Citizenship Should be Disregarded. 

Although co-Defendant Stillwaggon was, upon information and belief, a citizen of 

Florida, her citizenship should be ignored for purposes of determining diversity jurisdiction 

under 28 U.S.C. § 1332, because she was dismissed from the State Court Action with prejudice, 

and, because no claims have been initiated by Plaintiff against Ms. Stillwaggon’s estate within 

the requisite timeframe. As further discussed below, Plaintiff is deemed improperly joined for 

the purposes of this Notice of Removal. See Triggs v. John Crump Toyota, Inc., 154 F.3d 1284, 

1287 (11th Cir. 1998) (“Fraudulent joinder is a judicially created doctrine that provides an 

exception to the requirement of complete diversity.”). 

Improper or fraudulent joinder is determined as of the time of removal. Pacheco de Perez v. 

AT&T Co., 139 F.3d 1368, 1380-81 (11th Cir. 1998). The test is whether there is no reasonable 

possibility that state law will impose liability on the non-diverse defendant. Filla v. Norfolk So. Ry. 

Co., 336 F.3d 806, 810-11 (8th Cir. 2003); Jackson v. Bank of Am., N.A., 594 F. App’x 953, 956 

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(11th Cir. 2014), cert. denied, 135 S. Ct. 2895 (2015). If that test is met, then the non-diverse 

defendant is ignored for purposes of determining diversity. Id. 

In this case, there is no possibility that Plaintiff can state a claim against co-Defendant 

Stillwaggon. Ms. Stillwaggon was dismissed in the State Court Action with prejudice and is no 

longer a party to this lawsuit; and Plaintiff is now time-barred from pursuing any claims against 

Ms. Stillwaggon’s estate pursuant to the applicable statute of repose. See Cogan v. Allianz Life 

Ins. Co. of North American, 592 F. Supp. 2d 1349, 1355 (N.D. Ala. 2008) (dismissal of nondiverse defendant constitutes fraudulent joinder for the purposes of establishing diversity of 

citizenship where claims against the non-diverse defendant were time-barred); Byrnes v. Small, 

60 F. Supp. 3d 1284, 1288-89 (M.D. Fla. 2014) (statute of repose defense supported Court’s 

finding of fraudulent joinder). 

Christina Stillwaggon passed away on November 1, 2017, and, although her death was 

suggested on the record in November 2019, she was not substituted within 90 days as required by 

Fla. R. Civ. P. 1.260. This Rule states, in relevant part, the following: “Unless the motion for 

substitution is made within 90 days after the death is suggested upon record... the action shall be 

dismissed as to the deceased party.” (emphasis added). See also Nationwide Mutual Fire Ins. Co. 

v. Holmes, 352 So. 2d 1233, 1234 (Fla. 4th DCA 1977) (dismissal for failing to substitute the 

decedent within 90 days was “mandatory.”). After the Suggestion of Death remained on file for 

six months without any action by Plaintiff, the Fifteenth Judicial Circuit Court dismissed 

Stillwaggon from the case on May 12, 2020. 

During the May 12 hearing, counsel for Plaintiff advised that he was going to open an 

estate for Christina Stillwaggon and then file a claim against her in probate court. He admitted 

that Plaintiff had not yet pursued any relief against Ms. Stillwaggon in probate court as a 

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prospective creditor for the relief sought in this lawsuit. Plaintiff is precluded from seeking relief 

against Ms. Stillwaggon’s estate at this juncture, however, pursuant to Fla. Stat. § 773.710. 

Fla. Stat. § 773.710 states, in pertinent part, the following: “2 years after the death of a 

person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries 

shall be liable for any claim or cause of action against the decedent.” In other words, Plaintiff is 

categorically foreclosed from obtaining any relief from Christina Stillwaggon’s estate, given the 

extensive passage of time since her death.

The Fourth District Court of Appeal, which is binding on the State Court Action, 

concluded that this limitation amounted to a statute of repose, rather than a statute of limitations, 

creating an “absolute deadline beyond which no claim may be entertained.” Comerica Bank v. 

SDI Operating Partners, 673 So. 2d 163, 165 (Fla. 4th DCA 1996) (holding that the pursuit of 

claims against a decedent’s estate in probate court, following a timely-filed civil action, were 

time-barred under the applicable statute of repose). Indeed, “there is no authority anywhere in 

the probate code to extend the 2-year period of section 733.710.” Id. at 166. This statute bars 

“untimely claims without any action by the opponent and deprive[s] the court of the power to 

adjudicate them.” Id. This statute “creates a self-executing, absolute immunity...” Id. See also 

Interim Healthcare of Northwest Fla., Inc. v. Estate of Ries, 910 So.2d 329, 330 (Fla. 4th DCA 

2005) (affirming dismissal of claim against probate estate as “jurisdictionally barred” by the 

statute of repose); In re Estate of Fleming, 786 So.2d 660, 661 (Fla. 4th DCA 2001) (denying 

creditor from pursuing claim against estate, even though the estate was not opened for probate 

until two years after the decedent’s death; the Fourth District Court of Appeal reasoned that Fla. 

Stat. § 773.710 was a statute of repose “that the court lacks the power to avoid.”) (internal 

citations omitted). 

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The Florida Supreme Court adopted the holding in Comerica Bank in 2000. See May v. 

Ill. Nat’l Ins. Co., 771 So. 2d 1143 (Fla. 2000). In doing so, the Florida Supreme Court likewise 

held that the statute created an “immunity from liability,” and that it “represent[ed] a decision by 

the legislature that 2 years from the date of death is the outside time limit to which a decedent’s 

estate in Florida should exposed by claims on the decedent’s assets.” Id. at 1155-56. The Court 

held further that the statute is a “jurisdictional statute of nonclaim that is not subject to waiver or 

extension in the probate proceedings.” Id. at 1150. 

In short, even if the Plaintiff were able to open up an estate and file her claim in probate 

court today, she would be time-barred under the applicable statute of repose because Christina 

Stillwaggon passed away well over two years ago. Because Plaintiff failed to timely initiate a 

claim in probate court, there is no possibility that she can recover anything from her estate now. 

III. VENUE 

Venue is proper in the United States District Court for the Southern District of Florida 

because the case is being removed from the Circuit Court in and for Palm Beach County, Florida. 

See 28 U.S.C. § 1446(b)(3). 

IV. CONSENT OF OTHER DEFENDANTS 

Only Home Depot has been served with initial process and it consents to the removal of 

this action. Co-Defendant Stillwaggon was never served with initial process. Under 28 U.S.C. § 

1446(b)(2)(A), “all defendants who have been properly joined and served must join in or consent 

to the removal of the action.” Because neither Stillwaggon nor any representative acting on her 

behalf were served, her consent is not required. See also Dasma Investments, LLC v. Realty 

Associates Fund III, L.P., 459 F.Supp.2d 1294, 1299 (S.D. Fla. 2006). 

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Moreover, Stillwaggon’s consent to removal is also not necessary because she was 

improperly joined in this action. Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir. 1993) 

(“[A]s a general rule, removal requires the consent of all co-defendants. In cases involving 

alleged improper or fraudulent joinder of parties, however, application of this requirement to 

improperly or fraudulently joined parties would be nonsensical, as removal in those cases is 

based on the contention that no other proper defendant exists.”). 

V. TIMELINESS OF REMOVAL 

28 U.S.C. § 1446(b)(3) provides: 

[I]f the case stated by the initial pleading is not removable, a notice 

of removal may be filed within 30 days after receipt by the 

defendant, through service or otherwise, of a copy of an amended 

pleading, motion, order or other paper from which it may first be 

ascertained that the case is one which is or has become removable. 

Here, the case stated by the initial pleading was not removable on its face because, at the 

outset, there was not complete diversity of citizenship and Defendant could not determine, with 

certainty, whether Christina Stillwaggon had been fraudulently or improperly joined. 

On May 12, 2020, the Court dismissed Christina Stillwaggon with prejudice pursuant to 

Fla. R. Civ. P. 1.260. During that same hearing, counsel for Plaintiff admitted that Plaintiff had 

not pursued any claims against Christina Stillwaggon in probate court. It was not until the May 

12 hearing that Defendant was able to unequivocally confirm that no reasonable possibility

existed for liability on the non-diverse defendant. 

The thirty days allotted for removal by 28 U.S.C. § 1446(b) will expire on or about June 

11, 2020. Moreover, the one year period for removal under 28 U.S.C. § 1332, as prescribed by 

28 U.S.C. § 1446(c), will expire on July 17, 2020, which is one year from the date in which 

Plaintiff filed her Verified Complaint. 

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Because this Removal is being filed within thirty days of May 12, 2020, it is timely. 

VI. ATTACHMENT OF STATE COURT PLEADINGS 

Pursuant to 28 U.S.C. § 1446(a), a copy of all process, pleadings, and orders served upon 

the Defendant in the State Court Action is annexed hereto as Exhibit A. 

VII. NOTICE OF REMOVAL GIVEN TO STATE COURT 

Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of Removal is being filed with the 

Fifteenth Judicial Circuit Court in and for Palm Beach County, Florida. See Exhibit E. 

Date: May 29, 2020. 

Respectfully submitted, 

OGLETREE, DEAKINS, NASH, 

SMOAK & STEWART, P.C. 

9130 S. Dadeland Boulevard 

Suite 1625 

Miami, Florida 33156 

Telephone: 305.374.0506 

Facsimile: 305.374.0456 

Kelly M. Peña 

Christopher P. Hammon 

Florida Bar No. 176753 

chris.hammon@ogletreedeakins.com 

Kelly M. Peña 

Florida Bar No. 106575 

kelly.pena@ogletreedeakins.com 

Counsel for Defendant, 

Home Depot U.S.A., Inc. 

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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 document 

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

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. 

 Kelly M. Peña 

Kelly M. Peña 

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SERVICE LIST 

Natalie Maharaj v. Home Depot U.S.A., Inc. 

United States District Court for the Southern District of Florida 

Palm Beach Division 

CASE NO.: 

Isidro M. Garcia 

isidrogarcia@garcialaborlaw.com 

Garcia Law Firm, P.A. 

120 South Olive Avenue 

Suite 401 

West Palm Beach, FL 33401 

Telephone: 561.832.7732 

Facsimile: 561.832.7137 

Counsel for Plaintiff, Natalie Maharaj 

Method of Service: CM/ECF 

 

Christopher P. Hammon 

 chris.hammon@ogletreedeakins.com 

Kelly M. Peña 

 Kelly.pena@ogletreedeakins.com 

OGLETREE, DEAKINS, NASH, 

 SMOAK & STEWART, P.C. 

9130 S. Dadeland Boulevard 

Suite 1625 

Miami, Florida 33156 

Telephone: 305.374.0506 

Facsimile: 305.374.0456 

Counsel for Defendant, 

Home Depot U.S.A., Inc. 

42856404.1 

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