Anderson v. Wal-Mart Stores East, LP

Filing 14

ORDER: "Plaintiff's Motion for Leave to Amend Complaint by Substitution of Parties and Motion for Remand with Incorporated Memorandum of Law" (Doc. 9) is denied. The Clerk is directed to strike "John Doe, as store manager" as a fictitious defendant in this action. See Order for details. Signed by Judge Thomas P. Barber on 3/11/2025. (ANL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
TISHA ANDERSON,
Plaintiff,
v.

Case No.: 8:25-cv-192-TPB-LSG

WAL-MART STORES EAST, LP.,
and JOHN DOE, as store manager.
Defendants.
______________________________________/
ORDER DENYING “PLAINTIFF’S MOTION FOR LEAVE TO AMEND
COMPLAINT BY SUBSTITUTION OF PARTIES AND MOTION FOR
REMAND WITH INCORPORATED MEMORANDUM OF LAW”
This matter is before the Court on “Plaintiff’s Motion for Leave to Amend
Complaint by Substitution of Parties and Motion for Remand with Incorporated
Memorandum of Law,” filed on February 24, 2025. (Doc. 9). On March 10, 2025,
Defendant Wal-Mart Stores East, LP., filed a response in opposition. (Doc. 13).
Upon review of the motion, response, court file, and record, the Court finds as
follows:
Background
This case arises from a routine “slip-and-fall” incident at a Walmart in
Pinellas Park, Florida. On October 12, 2023, Plaintiff Tisha Anderson alleges she
was shopping at Walmart when she slipped and fell on a white liquid substance on
the floor, sustaining serious personal injuries.
On September 23, 2024, Plaintiff filed her initial complaint against

Defendants Walmart Inc., and an unknown store manager in the Circuit Court for
the Sixth Judicial Circuit in Pinellas County, Florida. Plaintiff originally sued an
incorrect corporate defendant – Wal-Mart Stores East, LP., the proper Walmart
defendant, was later substituted into the state court case.
On December 26, 2024, she served responses to Defendant’s requests for
admissions, in which she admitted that her claimed damages exceeded $75,000 – in
fact, she listed medical expenses from numerous providers totaling $186,112.18. On
January 24, 2025, Defendant removed the case to this Court based on diversity
jurisdiction.
Plaintiff now seeks to amend her complaint to add Ashley Schilling, the store
manager, as a defendant. Because the substitution of Schilling, a Florida citizen,
for the unknown store manager would destroy diversity jurisdiction, Plaintiff also
seeks remand to state court.
Analysis
Because Plaintiff seeks to amend her complaint after removal and
amendment would destroy diversity jurisdiction, the Court must analyze the motion
pursuant to 28 U.S.C. § 1447(e). 1 See Ingram v. CSX Transp., Inc., 146 F.3d 858,
862 (11th Cir. 1998). “A district court, when faced with an amended pleading
adding a non-diverse defendant in a case removed based on diversity jurisdiction,
‘should scrutinize that amendment more closely than an ordinary amendment’ and

1 “If after removal the plaintiff seeks to join additional defendants whose joinder would

destroy [diversity] jurisdiction, the court may deny joinder, or permit joinder and remand
the action to the State court.” 28 U.S.C. § 1447(e).
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should deny leave to amend unless strong equities support the amendment.”
Rutsky v. Target Corp., No. 12-61828-CIV, 2012 WL 5604620, at *2 (S.D. Fla. Nov.
15, 2012) (quoting Smith v. White Consol. Indus., Inc., 229 F. Supp. 2d 1275, 1281
(N.D. Ala. 2002)); see Dever v. Family Dollar Stores of Ga., LLC, 755 F. App’x 866,
869 (11th Cir. 2018) (“[A] district court must scrutinize more closely an amended
pleading that would name a new nondiverse defendant in a removed case because
justice requires that the district court also balance the defendant's interests in
maintaining the federal forum.”); Hensgens v. Deere & Co., 833 F.2d 1179, 1182 (5th
Cir. 1987) (“The district court, when faced with an amended pleading naming a new
nondiverse defendant in a removed case, should scrutinize that amendment more
closely than an ordinary amendment.”). “[C]ourts considering post-removal
motions to amend to add non-diverse defendants under 28 U.S.C. § 1447(e)
frequently find the equities tilt against permitting the amendment.” Houston v.
Creative Hairdressers, Inc., No. 3:17-cv-421-J-32MCR, 2018 WL 388490, at *2 n.2
(M.D. Fla. Jan. 12, 2018) (Corrigan, J.) (collecting cases).
When a plaintiff seeks to add a non-diverse defendant in a removed case,
courts often conduct a balancing analysis known as the Hensgens test. Hickerson v.
Enterprise Leasing Co. of Ga., LLC, 818 F. App’x 880, 885 (11th Cir. 2020) (noting
that Eleventh Circuit has no binding precedent addressing how district courts
should decide whether to permit joinder of non-diverse defendants following
removal, but finding other decisions, such as Hensgens, instructive). 2 The Hensgens
2 The Court notes that “[a]lthough an unpublished opinion is not binding on this court, it is

persuasive authority. See 11th Cir. R. 36-2.” United States v. Futrell, 209 F.3d 1286, 1289
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factors include whether “(1) the purpose of the amendment is to defeat federal
jurisdiction, (2) the plaintiff has been dilatory in seeking amendment, (3) the
plaintiff will be significantly injured if amendment is not allowed, and (4) any other
factors bear on the equities.” Norvilus-Foreste v. Walmart Stores East, LP, No. 2:23cv-163-SPC-NPM, 2023 WL 4235460, at *1 (M.D. Fla. June 28, 2023) (Chappell, J.)
(citing Hickerson, 818 F. App’x at 885).
Purpose of Amendment
Under Hensgens, the Court first considers the purpose of amendment. To be
frank, it appears that the primary purpose of the amendment sought here is to
defeat diversity jurisdiction. When considering the purpose of amendment, the
Court considers, among other things, whether Plaintiff can state a viable negligence
claim against Schilling, the Walmart store manager. “Florida law says a store
manager is not liable for negligence ‘simply because of his general administrative
responsibility for the performance of some function of his employment – he or she
must be actively negligent.’” Norvilus-Foreste, 2023 WL 4235460, at *2 (quoting
White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla. 1st DCA 2005)).
Consequently, to maintain a claim against a store manager under Florida tort law,
a plaintiff must establish that the manager owed a duty to the plaintiff, and that
duty was breached through personal, rather than technical or vicarious, fault. Id.
In this context, when a plaintiff is trying to state a claim against a manager or

(11th Cir. 2000). Where cited here, any unreported decision of a panel of the Circuit is
considered well-reasoned and is offered as persuasive, not binding, authority.
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other store employee, simply reciting the same general tort duties that the
corporate defendant owes the plaintiff is insufficient. See id.
Here, Plaintiff does not state any plausible negligence claim against Schilling
in her complaint or proposed amended complaint. Rather, the allegations against
Schilling arise only from her job as the store manager, and Plaintiff does not allege
that Schilling was personally negligent outside of boilerplate and conclusory
allegations related to the maintenance, management, and supervision of the store.
See id. As such, “this case ‘appears to be a run of the mill slip and fall case in which
the store manager individually has no liability.’” See id. (quoting Boyd v. Petco
Animal Supplies Stores, Inc., No. 3:18-cv-639-J-32PDB, 2018 WL 4360621, at *3
(M.D. Fla. Sept. 13, 2018)).
The Court recognizes that Plaintiff’s initial state court complaint named the
unknown store manager as a defendant. Taken at face value, this could suggest
that Plaintiff actually intended to sue the store manager in her personal capacity at
some point in the state court litigation. On the other hand, scrutinizing this
allegation more closely, as the Court must do when analyzing this issue in this
procedural context, it appears likely that inclusion of the store manager in the
initial state court complaint was a strategic move designed to give Plaintiff the
option of adding a Florida resident defendant to defeat diversity jurisdiction in the
event the Defendant attempted to remove the case to federal court. Here, Plaintiff
did exactly that.
Most cases of this nature are filed in state court, and plaintiffs rarely include

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store managers as individual defendants absent active negligence or actual
involvement in the incident at issue. This makes sense because, in practical terms,
an individual defendant such as a store manager will be indemnified by his or her
employer. Where an employee is certainly going to be indemnified, adding him or
her as a defendant only serves to complicate and delay progress of a case with no
financial benefit to a plaintiff.
As such, based on the totality of the circumstances, it appears that Plaintiff
has sought to add this non-diverse defendant purely for strategic purposes, and the
Court concludes that the actual purpose of the amendment was most likely to defeat
diversity jurisdiction. This factor weighs heavily in favor of Defendant.
Timing of Amendment
The Court next considers the timing and whether Plaintiff was dilatory in
seeking amendment. Although the timing is suspicious, as the Court has noted, the
Court cannot find that Plaintiff was necessarily dilatory in seeking amendment –
she attempted to amend her complaint after the case was removed and before a
scheduling order has been entered. This factor slightly favors Plaintiff.
Significance of Injury if Amendment Not Permitted
The third Hensgens factor requires the Court to examine whether Plaintiff
will be significantly injured if amendment is not allowed. As explained above,
because the complaint and proposed amended complaint do not state a plausible
negligence claim against the store manager, the Court is hard pressed to find
significant injury. See id. at *3. Moreover, Plaintiff can still move forward with her

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claim against Defendant and obtain full relief from Defendant alone, even without
Schilling in the case. See id. (collecting cases). After all, if Plaintiff wins her case,
Defendant – a well-established large national corporation with more financial
resources than the individual store manager – will surely pay the full judgment.
See id. There has been no showing that Plaintiff will not be able to obtain full relief
without the presence of the store manager. See id.; Rutsky, 2012 WL 5604620, at
*3. There has also been no showing that Plaintiff will not be able to access the same
discovery without Schilling in the case. See Rutsky, 2012 WL 5604620.
Lastly, it should be noted that Plaintiff is free to sue Schilling in state court if
she chooses to do so. See id. Parallel lawsuits may result in both sides expending
additional costs and time. See id.; Roland v. Waffle House, Inc., No. 4:18cv410MW/CAS, 2018 WL 6715513, at *3 (N.D. Fla. Oct. 2, 2018). “However, ‘having
parallel state/federal proceedings is a consequence anytime a post-removal motion
to amend to add a non-diverse defendant is denied.’” Id. (quoting Houston, 2018 WL
388490, at *2). Plaintiff appears unlikely to pursue a claim against Schilling in
state court, and even if she did, it is “extremely unlikely that the claim would be
successful” for the reasons discussed above. See id. Ultimately, this factor weighs
in favor of Defendant.
Other Equities
As to the fourth and final Hensgens factor, the Court weighs other equitable
considerations. The purpose of the removal statute is to give diverse defendants the
option of choosing a federal forum. See id. at *3 (citing Wilson v. Target Corp., No.

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10-80451-CIV-MARRA, 2010 WL 3632794, at *5 (S.D. Fla. Sept. 14, 2010)).
Defendant, a citizen of Delaware and Arkansas, has a right to litigate this suit in
federal court. Should the Court grant Plaintiff’s motion, nearly “all premises
liability suits would be litigated exclusively in state courts because a plaintiff could
simply name a key employee then working at the premises where the plaintiff was
injured.” Id. This is extremely unfair to retail workers who could easily find
themselves getting sued in their individual capacities as a matter of course -- where
they have done nothing wrong -- as part of a litigation strategy intended to defeat
federal diversity jurisdiction. 3
Lawyers file lawsuits against individual people every day. Judges routinely
hear cases involving individual people and make decisions that impact different
aspects of their lives. For lawyers and judges who regularly handle cases involving
individual people, it may seem like it is just part of the job. But for an ordinary
person just trying to “play by the rules” and earn an honest living, getting sued in
his or her individual capacity can be a very serious matter. Notably, when a person
is sued in his or her individual capacity, that person may experience a variety of
difficult and sometimes permanent consequences.

3 Another way to avoid innocent employees being unnecessarily sued in their individual

capacities as a strategic move to avoid federal diversity jurisdiction would be for Congress
to raise the jurisdictional dollar amount for diversity jurisdiction beyond the current
$75,000 amount-in-controversy threshold. The last time Congress raised the jurisdictional
dollar amount for federal diversity jurisdiction was in 1996, nearly 30 years ago.
Commentators in recent years have regularly called for an increase in the jurisdictional
dollar amount. See, e.g., Steven Gensler & Roger Michalskit, The Million-Dollar Diversity
Docket, 47 BYU L. REV. 1653 (2022).
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Those consequences include, among other things, the possibility of having
personal financial assets subject to a court judgment, wages garnished, bank
accounts attached, and personal property seized. In addition, when a person gets
sued in his or her individual capacity, that individual may be required to disclose
the fact that he or she was sued to current and potential employers, insurance
carriers, and professional licensing entities. Similarly, a person who gets sued
personally may find that his or her credit report and credit rating have been
adversely affected, or their ability to get a government security clearance has been
jeopardized. When applying for jobs, promotions, or security clearances, an
individual who has been sued may have to disclose the lawsuits and explain the
reasons he or she got sued. In some circumstances, a person who gets sued
personally may have to hire and pay for his or her own lawyer. In most
circumstances, a person who gets sued personally must surrender days, months and
sometimes years of his or her life participating – involuntarily – in the litigation
process. As Thomas Edison reportedly said: “A lawsuit is the suicide of time.” But
perhaps most importantly, in all circumstances, a person who gets sued experiences
stress, anxiety, and pays a heavy psychological price associated with constant
worry.
Sadly, a person who is sued in his or her individual capacity experiences most
of these adverse consequences even when the lawsuit is won, settled, dismissed by
the court as frivolous, or simply abandoned or voluntarily dismissed by the plaintiff.
Getting sued should not be just “part of the job” for people working in the retail

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industry. These hard-working people should not be used as pawns in a
metaphorical chess game played by lawyers trying to move cases back and forth
between state and federal courts.
For this and other reasons, courts should not permit an individual to be
added as a defendant in cases like this unless there is a factual basis supporting
allegations of active negligence and not just a hypothetical legal argument as to
individual personal liability. The fourth Hensgens factor weighs heavily in favor of
Defendant.
Conclusion
Applying the Hensgens factors relevant to the exercise of jurisdiction under
28 U.S.C. § 1447(e), the Court concludes that the considerations militate against
permitting amendment to destroy complete diversity.
It should be clear that the law does not impose a bright-line rule disallowing
amendments to add non-diverse defendants after a case has been removed. Should
a plaintiff in a premises liability case such as this have a viable negligence claim,
supported by facts and brought in good faith against a store manager, clerk, cashier,
or other employee, amendment to add that person may very well be appropriate. 4
But that determination must be made based on the facts of each case, and
amendment should be permitted only where there is a factual basis supporting

4 This Court has previously allowed post-removal amendments to add nondiverse store

employees in other cases where the request was supported by the facts. See Saxton v.
Dollar Tree Stores, No. 8:19-cv-2670-T-60TGW, Doc. 26 (M.D. Fla. Mar. 6, 2020) (retail
store cashier). In Saxton, the addition of a cashier as a party defeated diversity jurisdiction
and the case was remanded to state court.
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allegations of active negligence, not merely hypothetical legal arguments as to
individual personal liability. In this particular case, amendment will not be
permitted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

“Plaintiff’s Motion for Leave to Amend Complaint by Substitution of
Parties and Motion for Remand with Incorporated Memorandum of Law”
(Doc. 9) is DENIED.

(2)

The Clerk is directed to strike “John Doe, as store manager” as a fictitious
defendant in this action.
DONE and ORDERED in Chambers, in Tampa, Florida, this 11th day of

March, 2025.

__________________________________________
TOM BARBER
UNITED STATES DISTRICT JUDGE

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