UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 20-cv-61693-WPD

FRANK DEMARZO,

Plaintiff,

v.

HEALTHCARE TRUST OF AMERICA, 

INC., a Foreign Profit Corporation, 

Defendant.

____________________________________/

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S CORRECTED 

MOTION TO AMEND COMPLAINT AND MOTION TO REMAND

COMES NOW, Defendant, HEALTHCARE TRUST OF AMERICA, INC. (hereinafter 

“HEALTHCARE TRUST”) by and through the undersigned counsel and hereby files the instant 

Response in Opposition to Plaintiff’s Corrected Motion to Amend Complaint [DE 7] and Motion 

to Remand [DE 8] filed with this Court on September 9, 2020 and September 10, 2020, 

respectively, and states the following as grounds:

1. This matter is premised upon a personal injury incident which occurred on June 11, 2018, 

wherein the Plaintiff alleges that he slipped and fell as a result of a yellow painted sidewalk curb

located on Defendant’s premises. More specifically, Plaintiff indicates that the paint used on the 

subject curb lacked the proper slip-resistance. Defendant was first contacted by Plaintiff’s counsel 

regarding the subject claim as early as August 2018.

2. Plaintiff’s Complaint was thereafter filed on July 28, 2020 and alleges a negligence cause 

of action against HEALTHCARE TRUST for failing to inspect and maintain the contested 

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dangerous condition, namely the “painted” curb, and/or failing to warn the Plaintiff of same. Id. 

No other party was named as a Defendant at such time.

3. Upon being served with Plaintiff’s Complaint, HEALTHCARE TRUST timely removed 

this matter to Federal Court on August 21, 2020 on the basis of diversity jurisdiction [DE 1]. As 

stated in HEALTHCARE TRUST’S Notice of Removal, complete diversity exists as Plaintiff is a 

citizen of the State of Florida while HEALTHCARE TRUST is a citizen of the State of Arizona. 

Id. 

4. Prior to this Court’s issuance of the Scheduling Order and the initiation of discovery, 

Plaintiff moved to amend his Complaint to add Florida company, SOUTH FLORIDA 

CONSTRUCTION as a Defendant in the present matter on September 9, 2020 [DE 7]. In his 

motion, Plaintiff asserts that SOUTH FLORIDA CONSTRUCTION applied for permits in 2016 

as it pertains to the striping and paving of the parking lot located on Defendant’s premises. Id. 

Accordingly, Plaintiff filed his Motion to Remand arguing that diversity jurisdiction no longer 

exists based on SOUTH FLORIDA CONSTURCTION’S prospective presence as a Defendant in 

the current matter [DE 8]. 

5. HEALTHCARE TRUST files the instant response in opposition to Plaintiff’s motion to 

amend his complaint to add SOUTH FLORIDA CONSTRUCTION as a Defendant, and motion 

to remand, arguing that Plaintiff has failed to show that the equities fall in favor of his need to 

amend and that such motions improperly join a non-diverse party for the purpose of defeating 

diversity. 

Case 0:20-cv-61693-WPD Document 12 Entered on FLSD Docket 09/24/2020 Page 2 of 7
MEMORANDUM OF LAW AND ARGUMENT

6. Subject matter jurisdiction must be assessed at the time of removal. Sierminski v. Transouth 

Fin. Corp., 216 F.3d 945, 949 (11th Cir. 2000). Pursuant to 28 U.S.C. § 1447(e), “[i]f 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.” 

The decision is within the district court’s discretion. Mayes v. Rapoport, 198 F.3d 457, 462 (4th 

Cir.1999); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th Cir.1987); Seropian v. Wachovia 

Bank, N.A., No. 10–80397–CIV, 2010 WL 2822195, at *2 (S.D. Fla. July 16, 2010).

7. Because the Court's decision will determine the continuance of jurisdiction, the addition of 

a non-diverse party should not be permitted without consideration of the original defendant's 

interest in the choice of the federal forum. Hensgens, 833 F.2d at 1182. Hence, the district court 

should scrutinize a motion to amend to join a non-diverse party more closely than a motion to 

amend under Rule 15 of the Federal Rules of Civil Procedure, Id.; see Kleopa v. Prudential Inv. 

Management, Inc., No. 08–81386–CIV, 2009 WL 2242606, at *2 (S.D. Fla. July 27, 2009), and 

should deny leave to amend unless strong equities support the amendment. Smith v. White Consol. 

Industries, Inc., 229 F.Supp.2d 1275, 1281 (N.D. Ala.2002).

8. In deciding whether to permit or deny joinder, the district court should conduct a balancing 

test to consider: (1) the extent to which the purpose of the amendment is to defeat federal 

jurisdiction, (2) whether plaintiff has been dilatory in asking for amendment, (3) whether plaintiff

will be significantly injured if amendment is not allowed, and (4) any other factors bearing on the 

equities. Small v. Ford, 923 F. Supp. 2d 1354, 1357 (S.D. Fla. 2013) citing Hensgens at 1182.; 

Case 0:20-cv-61693-WPD Document 12 Entered on FLSD Docket 09/24/2020 Page 3 of 7
Mayes, 198 F.3d at 462; Duckworth v. State Farm Mutual Auto Ins. Co., No. 6:07–cv–2014–Orl–

22DAB, 2008 WL 495380, at *1 (M.D. Fla. Feb. 20, 2008); Portis v. Wal–Mart Stores, Inc., No. 

07–0557–WS–C, 2007 WL 3086011, at *3 (S.D. Ala. Oct. 19, 2007); Jones v. Rent–A–Center 

East, Inc., 356 F.Supp.2d 1273, 1275 (M.D. Ala.2005).

9. The Southern District of Florida has acknowledged that the joining of a non-diverse 

defendant immediately after removal but before discovery suggests that the amendment was done 

for the specific purpose of destroying diversity jurisdiction. See Small v. Ford Motor Co., 923 F. 

Supp. 2d at 1357 (denying Plaintiff’s motion to amend complaint to add non-diverse Defendant), 

Ibis Villas at Miami Gardens Condo Ass’n Inc. v. Aspen Specialty Ins. Co., 799 F. Supp. 2d 1333, 

1335 (S.D. Fla. 2011)(“We emphasize that the district court was correct to carefully scrutinize 

Mayes's attempt to add a nondiverse defendant after removal. Especially where, as here, a plaintiff 

seeks to add a nondiverse defendant immediately after removal but before any additional discovery 

has taken place, district courts should be wary that the amendment sought is for the specific 

purpose of avoiding federal jurisdiction.”)).

Plaintiff’s Motion to Amend Complaint and Motion to Remand should be denied.

10. In his motion, Plaintiff provides that he should be permitted to name SOUTH FLORIDA 

CONSTRUCTION as a defendant as such entity completed “improvements” to HEALTHCARE 

TRUST’s parking lot in 2016. However, upon review of Plaintiff’s claims as contained within his 

pre-suit demand correspondence and Complaint, Plaintiff indicates that the supposed dangerous 

condition which caused him to slip and fall was the “freshly painted” curb on Defendant’s 

premises. Such is depicted in the photographs which were provided to HEALTHCARE TRUST 

by Plaintiff in his pre-suit demand correspondence. See Exhibit “A”.

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11. Plaintiff points to City of Sunrise permits in support of his amendment. Such permits 

indicate that SOUTH FLORIDA CONSTRUCTION completed the paving and striping of 

HEALTHCARE TRUST’S parking lot. The work that was completed in the parking lot has 

absolutely no connection with the subject yellow-painted sidewalk/curb which Plaintiff alleges is 

the cause of his injuries. The Plaintiff presents no evidence that SOUTH FLORIDA 

CONSTRUCTION was even tasked with painting the curb which is the subject of the instant 

matter.

12. To the contrary, HEALTHCARE TRUST’s pre-suit investigation of this claim has revealed 

that the subject curb/sidewalk, which is owned by HEALTHCARE TRUST, was maintained by 

HEALTHCARE TRUST’S property management group. 

13. Being that SOUTH FLORIDA CONSTURCTION had no involvement with the 

maintenance or painting of the subject curb/sidewalk, the likelihood of Plaintiff actively pursuing 

his claim against them is non-existent.

14. Additionally, in its responsive pleading to the Plaintiff’s Complaint, HEALTHCARE 

TRUST does not allege the existence of a third-party who may bear responsibility in causing the 

Plaintiff’s injuries. Nor did HEALTHCARE TRUST list SOUTH FLORIDA CONSTRUCTION 

as a third-party who would be liable as it relates to Plaintiff’s claim.

15. The facts asserted by Plaintiff, specifically SOUTH FLORIDA’s paving and striping of the 

parking lot, have no relevance to the parties’ pleadings. As such, Plaintiff should not be permitted 

to amend his Complaint to include SOUTH FLORIDA CONSTRUCTION as a defendant.

16. Despite the fact that Plaintiff has failed to provide sufficient evidence to support the 

existence of a claim against SOUTH FLORIDA CONSTRUCTION as it relates to the present slip 

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and fall, Plaintiff has also failed to provide any explanation as to why this entity was not included 

as a Defendant in his original Complaint and otherwise delayed its presence as a party in this 

matter. The information Plaintiff relies upon to support his amendment to add SOUTH FLORIDA 

CONSTRUCTION as a party defendant, namely the City of Sunrise permits, is public record and 

has been readably assessable to the Plaintiff for a period of almost two years when he accepted 

this claim in August 2018. 

17. Moreover, the timing of Plaintiff’s Motion to Amend his Complaint is highly suggestive 

that such motion is being made for the specific purpose of defeating diversity. Plaintiff filed his 

motion only days after HEALTHCARE TRUST filed its Notice of Removal and prior to the 

initiation of discovery in this case. See Small, 923 F. Supp. 2d at 1357. The Plaintiff has not 

performed any discovery in this case which could have arguably shed light on a potential claim 

against SOUTH FLORIDA CONSTRUCTION. Instead, Plaintiff bases his motion to amend from 

information he either knew or should have known regarding SOUTH FLORIDA 

CONSTURCTION’S supposed involvement.

18. Being that the instant suit is still in the very early stages of litigation, Plaintiff has failed to 

show that SOUTH FLORIDA CONSTUCTION had any involvement with the contested 

curb/sidewalk. Therefore, if the Court is so inclined to allow Plaintiff to amend his Complaint, 

such should only be permitted once the parties have had the opportunity to engage in discovery 

and further ascertain the parties who may be involved, if any. 

19. Plaintiff also fails to show that he would be unfairly prejudiced in the event that the 

amendment is not permitted. As stated above, it is unlikely that Plaintiff will pursue a claim against 

SOUTH FLORIDA CONSTRUCTION given the lack of evidence of its involvement with the 

subject painted curb as well as Plaintiff’s delay in identifying this entity, being only after 

Case 0:20-cv-61693-WPD Document 12 Entered on FLSD Docket 09/24/2020 Page 6 of 7
Defendant’s removal. There is also no sufficient argument that Plaintiff will not be able to obtain 

full relief on his claims without the presence of SOUTH FLORIDA CONSTRUCTION. 

Furthermore, discovery will allow Plaintiff to access the same information with or without SOUTH 

FLORIDA CONSTRUCTION as a party to this matter. 

WHEREFORE, Defendant, HEALTHCARE TRUST OF AMERICA, INC. prays that this 

Honorable Court deny Plaintiff’s Motion to Amend Complaint and Motion to Remand for the 

aforementioned reasons.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was 

electronically filed with the Clerk of the Court using CM/ECF on September 24, 2020 to: Marc 

Lyons, Esquire [marc@lyonssnyder.com; pi_filings@lyonssnyder.com; 

natalia@lyonssnyder.com; vanessa@lyonssnyder.com] .

Vernis & Bowing of Broward, P.A.

5821 Hollywood Boulevard

Hollywood, FL 33021

(954) 927-5330

(954) 927-5320 (Fax) 

By: _/s/ Megan Pariti

 Megan Pariti, Esq. 

 Fla. Ba No.: 1002533

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