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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FT. LAUDERDALE DIVISION

CASE NO.: 

BRENDA HERNANDEZ and

LUIS LUQUE,

Plaintiff,

vs.

SAM’S EAST, INC.

Defendant.

________________________________________/

DEFENDANT, SAM’S EAST, INC., NOTICE OF REMOVAL

Defendant, Sam’s East, Inc., (“Sam’s East”), 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 17th Judicial Circuit Court in and for 

Broward County, Florida, Case No. CACE-20-010105, with full reservation of rights, exceptions 

and defenses, and in support thereof state: 

FACTUAL BACKGROUND

1. On June 19, 2020, Plaintiffs commenced this action by filing a complaint for 

negligence against Wal-Mart, Inc.,1 in the 17th Judicial Circuit Court in and for Broward County, 

 1 Plaintiffs’ initial Complaint identified the Defendant as Wal-Mart, Inc. Defense counsel 

advised Plaintiff’s counsel that the incorrect corporate Defendant was identified in the initial 

Complaint, and thus, the Complaint needed to be Amended in order to identify the proper 

corporate Defendant, Wal-Mart Stores East, L.P. On July 20, 2020, the Plaintiffs filed their 

Amended Complaint listing the proper corporate Defendant, Wal-Mart Stores East, L.P. See 

Amended Complaint attached as Ex. “B.” However, the Amended Complaint contained what 

appeared to be a scrivener’s error as the name of the Plaintiff was incorrect. Therefore, 

undersigned advised Plaintiffs’ counsel of the error, and requested that it be corrected prior to 

filing a response to Plaintiffs’ initial pleading. Plaintiffs’ counsel agreed, and withdrew the 

incorrect Amended Complaint on July 21, 2020. See Notice of Withdrawal attached as Ex. “C.”

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Florida, in which they allege that, Plaintiff, Brenda Hernandez, (hereinafter “Brenda 

Hernandez”) was injured when she slipped and fell on a liquid substance located on the floor of 

the Wal-Mart store located in Miramar, Florida on August 1, 2019. See Pl.’s Initial Complaint 

attached as Ex. “A” at ¶ 5,7.

2. Plaintiff, Luis Lique, filed a derivative claim for loss of consortium related to his 

wife, Brenda Hernandez’s, negligence claim against. Id. at ¶ 13. 

3. Plaintiffs allege that Sam’s East breached a duty owed to the Brenda Hernandez

by, inter alia, failing to maintain the store in a reasonably safe condition, failing to inspect its 

premises, failing to warn of potential hazards, and failing to correct unreasonably dangerous 

conditions. See Ex. “D” at ¶ 8-11.

4. Plaintiffs further alleges that as a result of Brenda Hernandez’s incident at WalMart she suffered bodily injury, mental anguish, medical expenses, and permanent and 

continuing losses. Id. at ¶ 13.

5. The Plaintiffs allege that at the time of the incident they were both residents of 

Broward County, which is the county where the incident occurred. See Ex. “D” at ¶ 2. It is wellestablished that residency is prima facie evidence of domicile, which is equivalent to residency 

for purposes of diversity of citizenship. 

6. The initial Complaint was served on July 16, 2020. See Service of Process 

attached as Ex. “F.”

 

On July 21, 2020, the Plaintiffs filed the current Amended Complaint which identifies the 

Defendant as Sam’s East, Inc. See Amended Complaint attached as Ex. “D.” Undersigned 

advised Plaintiffs’ counsel that the July 21, 2020 Amended Complaint incorrectly lists the wrong 

corporate Defendant, and requested that Plaintiffs correct their Amended Complaint to list the

proper corporate Defendant, Wal-Mart Stores East, L.P. Accordingly, undersigned filed a Motion 

for Extension of Time to file its response to Plaintiff’s Complaint until such time as Plaintiffs 

filed a complaint that listed/name the proper corporate Defendant and Plaintiffs. See Motion 

attached as Ex. “E.” Plaintiffs have not yet filed its Amended Complaint listing the correct 

corporate Defendant as Wal-Mart Stores East, L.P.

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7. On February 13, 2020, Brenda Hernandez sent Wal-Mart a pre-suit demand letter 

in which she enclosed past medical bills pertaining to the medical treatment she received as a 

result of her incident at Wal-Mart, which totaled $347,082.51.

2 See Pre-suit Demand Letter 

attached as Ex. “G.”

8. Moreover, the Plaintiff demanded $750,000.00 to settle the matter. Id. 

9. 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. 

10. Sam’s East attaches hereto and incorporates into this Notice a copy of the process, 

pleadings, and other papers filed in the 17th Judicial Circuit Court in and for Broward County, 

Florida, Case No. CACE-20-010105, together with a docket sheet from the Clerk of Court. See 

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

11. 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

12. In accordance with 28 U.S.C. § 1446(b)(1), Sam’s East files this Notice of 

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

Complaint. Plaintiff’s initial Complaint is the initial pleading setting forth the claim for relief 

upon which Plaintiff’s action is based. 

13. The thirty (30) day period commenced on July 16, 2020, when Plaintiffs served 

their initial Complaint. See Ex. “F.”

 2 Wal-Mart has not filed the entire complement of medical records which Brenda Hernandez 

submitted with her pre-suit demand letter in order to protect her personal information contained 

within her medical records. Should the Court wish to see these documents, they can be provided 

at the Court’s request and under its direction.

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14. Venue exists in the United States District Court for the Southern District of 

Florida, Ft. Lauderdale Division, because the 17th Judicial Circuit Court in and for Broward 

County, where Plaintiffs filed their state court Complaint is located in Broward County, which is 

located within the United States District Court for the Southern District of Florida, Ft.

Lauderdale Division. 

DIVERSITY OF CITIZENSHIP 

15. 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 Sam’s East, Inc.

16. Sam’s East was at the time of the alleged incident, and is currently, an Arkansas 

corporation and maintains its principal place of business in Bentonville, Arkansas. At no time 

material has Sam’s East been a citizen of Florida. See SunBiz Report for Sam’s East attached as 

Ex. “I.”

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

17. When Plaintiffs amend their Complaint to list the proper Defendant to reflect 

Wal-Mart Stores East, L.P., it will not destroy diversity between the parties. 

18. 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 incident, a Delaware Limited 

Partnership with its principal place of business in the State of Arkansas. 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 

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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 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. See Florida 

Department of State, Division of Corporations, Detail by Entity Name for Wal-Mart Stores East, 

L.P., attached as Composite Ex. “J.”

C. Citizenship of Plaintiffs

19. Plaintiffs, Brenda Hernandez and Luis Lique, allege that at the time of the incident

they were both residents of Broward County, which is the county where the incident occurred. 

See Ex. “D” at ¶ 2. Although Plaintiffs’ Amended Complaint does not specifically state 

Plaintiffs’ 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). 

20. Here, Plaintiffs’ allegation that they are both residents of Broward County, Florida 

at the time of the incident is prima facie evidence of their domicile which is equivalent to 

citizenship for purposes of establishing diversity in this case. See Katz, 2009 WL 1532129 at *3.

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AMOUNT IN CONTROVERSY

21. The amount in controversy exceeds $75,000.00. Although Plaintiffs’ Amended 

Complaint does not specify an amount in controversy other than to allege that this lawsuit 

exceeds the jurisdictional minimum for Florida State Circuit Civil Court,

3 it is clear from the 

pre-suit demand and the past medical bills that the claimed damages in this case exceed the 

jurisdictional minimum in this Court of $75,000.00. See Katz 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.). 

22. 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). 

23. “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. 

 3 The jurisdictional minimum is $30,000.00.

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2000)). “Therefore, pre-suit settlement offers and demands may be considered in evaluating 

whether a case has been properly removed.” Id. 

24. The relevant portions of the specifically detailed pre-suit demand conclusively 

establish that the amount in controversy exceeds the $75,000.00 jurisdictional minimum. 

Specifically, the pre-suit demand letter enclosing Brenda Hernandez’s past medical bills as of 

January 13, 2020 revealed that her past medical bills totaled $347,082.51, and the pre-suit 

demand letter estimates damages in the instant matter to be at least $750,000.00 as she offered 

to settle this claim for that amount. See Ex. “G.” In addition to Plaintiffs’ past medical bills 

incurred, the Plaintiffs’ Amended Complaint alleges damages for mental anguish, and loss of 

capacity for the enjoyment of life, and loss of consortium claim. See Ex. “D.” at ¶ 12, 15.

25. 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 district court decisions support this 

conclusion.

26. For example, in Katz v. J.C. Penney Corp., this 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 August 21, 2018 pre-suit demand 

letter in this case, it was based on medical records provided by the plaintiff. Id. 

27. District courts have found that the amount in controversy is satisfied by a showing 

that Plaintiff’s pre-suit demand letter demonstrates Plaintiff’s past medical bills exceed 

$75,000.00. For example, in Stramiello v. Petsmart, Inc., 2010 WL 2136550, at *3 (M.D. Fla. 

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2010), the court determined the defendant established its burden of proving the amount in 

controversy exceeded $75,000.00 where the plaintiff’s medical bills alone totaled $108,351.92 

and plaintiff alleged that his injuries were permanent and she would “surely seek recovery of 

future medical expenses and significant pain and suffering damages.” Id. The court found the 

defendant established complete diversity and that the amount in controversy exceeded the 

minimum jurisdictional requirement; therefore, the court denied the plaintiff’s motion to remand. 

Id. at *5. 

28. Additionally, in Wilson v. Target Corp., the plaintiff submitted a pre-suit demand 

letter indicating she had incurred over $100,000.00 in past medical expenses and would incur 

additional $1 million dollars in future medical expenses as a result of his incident. Wilson V. 

Target Corp., 2010 WL 3632794, at *4 (S.D. Fla. 2010). Although the plaintiff’s complaint did 

not specify the exact amount of damages she bought, but only plead that her damages were in 

excess of $15,000.00, the court denied plaintiff’s motion to remand finding plaintiff’s pre-suit 

demand letter and unspecified damages in his complaint were sufficient to demonstrate by a 

preponderance of the evidence that the amount in controversy exceeded $75,000.00. Id. 4

29. Here, the pre-suit demand letter which reveals that Brenda Hernandez’s past

medical expenses total $347,082.51, is an honest assessment of her claimed damages as it is 

based on her past medical bill, as well as her alleged injuries and future medical care expenses. 

See Katz, 2009 WL 1532129 at 4. 

30. Like Stramiello and Wilson, the pre-suit demand letter includes medical expenses 

incurred by Brenda Hernandez which exceed $75,000.00, in addition to medical records which 

indicate that she will incur future medical expenses for medical care. Wilson, 2010 WL 3632794, 

 4 The court also considered plaintiff’s refusal to admit or deny that damages exceeded 

$75,000.00 as evidence regarding the amount in controversy.

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at *4; Stramiello, 2010 WL 2136550, at *3. This evidence demonstrates the Plaintiffs’ claimed 

damages in the instant case far exceed $75,000.00. Accordingly, Sam’s East 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 Plaintiffs and Sam’s East5 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, Sam’s East will promptly give written notice to Plaintiffs, 

through their attorneys of record, and the Clerk of the Circuit Court for the 1th Judicial Circuit 

Court in and for Broward County, Florida. Wal-Mart attaches the Civil Cover Sheet at Ex. “I.”

WHEREFORE, Defendant, Sam’s East, Inc., respectfully requests the Notice of 

Removal be accepted as good and sufficient as required by law, and that the aforesaid action, 

Case No. CACE-20-010105, on the docket of the Court for the 17th Judicial Circuit Court in and 

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

the Southern District of Florida, Ft. Lauderdale 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: August 14, 2020

[Signature on following page]

 5 When the Plaintiffs ultimately amend their complaint to identify the proper corporate 

Defendant, then Plaintiffs and the proper corporate Defendant, Wal-Mart Stores East, L.P., are 

also diverse. The amendment will not destroy diversity among the parties as discussed in detail 

above. 

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 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 August 14, 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.

SERVICE LIST

Attorneys for Plaintiff

Stuart B. Yanofsky, Esq. 

Fla. Bar No. 841358 

STEINGER, GREENE & FEINER 

2727 W. Cypress Creek Rd. 

Ft. Lauderdale, FL 33309 

Email:sbyanofsky@InjuryLawyers.com 

Telephone: 954-491-7701

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