# Cruz v. Walmart Stores East, LP

> District Court, M.D. Florida · January 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10111894

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** January 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

IDA LUZ CRUZ,

Plaintiff,

v. Case No.: 2:22-cv-692-SPC-NPM

WALMART STORES EAST, LP,

Defendant.

/
OPINION AND ORDER1
Before the Court is Defendant Walmart’s Motion to Dismiss John Doe
(Doc. 14), as well as Plaintiff Cruz’s opposition (Doc. 24). Also before the Court
is Cruz’s Motion to Amend Complaint and Remand (Doc. 23) and Walmart’s
opposition (Doc. 38). These motions both discuss John Doe’s place in this
litigation, so the Court will address them together. The Court grants
Walmart’s Motion to Dismiss John Doe and denies Cruz’s Motion to Amend
Complaint and Remand.
BACKGROUND

1 Disclaimer: Papers hyperlinked to CM/ECF may be subject to PACER fees. By using
hyperlinks, the Court does not endorse, recommend, approve, or guarantee any third parties
or their services or products, nor does it have any agreements with them. The Court is not
responsible for a hyperlink’s functionality, and a failed hyperlink does not affect this Order.
This is a slip-and-fall case. In October 2021, Cruz went to Walmart.
Cruz slipped on grapes and was injured in some manner.2 (Doc. 7).

Cruz sues Walmart and John Doe store manager for negligence. (Doc.
7). The original complaint was filed in state court in May 2022. (Doc. 1-1).
Walmart informed Cruz of John Doe’s identity (Joshua Eldridge) via discovery
in June 2022. (Doc. 38 at 6; Doc. 1-3 at 47). The case was removed in October

2022. (Doc. 1). Now, Walmart moves to dismiss John Doe as a party because
John Doe has not been served. (Doc. 14). Cruz moves to “substitute” Eldridge
for John Doe and requests additional time to serve him. (Doc. 23). Cruz also
moves to remand, presumably because Cruz and Eldridge are both citizens of

Florida. (Doc. 23). However, the citizenship of Cruz is unclear.3
LEGAL STANDARD
An action may be dismissed for insufficient service of process under Fed.
R. Civ. P. 12(b)(5). Fed. R. Civ. P. 4 requires the plaintiff to serve the summons

and complaint upon defendants within 90 days from when the complaint is

2 In discovery provided to the Court with Walmart’s Notice of Removal, Cruz alleges injury
to her “back, neck, and left knee.” (Doc. 1-2 at 5). But Cruz does not allege this in her
complaint.
3 The original complaint alleges that Cruz is a “resident of Lee County [Florida].” (Doc. 7 at
1). There are two problems with this. First, residency does not determine a party’s
citizenship for jurisdiction purposes. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994).
Second, Cruz’s answer to Walmart’s interrogatories, which lists an address in the Virgin
Islands, arguably contradicts even her statement of residency. (Doc. 1-2 at 3). The Court
ordered Cruz to clarify her citizenship (Doc. 45), and Cruz filed an amended complaint again
alleging residency, not citizenship (Doc. 46). In the amended complaint, Cruz alleges she is
a resident of the Virgin Islands. (Doc. 46).
filed. Fed. R. Civ. P. 4(c); Fed. R. Civ. P. 4(m). If the plaintiff has not served
the defendant within 90 days, the plaintiff may avoid dismissal of the

complaint in one of two ways: (1) by showing good cause for failure to serve or
(2) by “convincing the court that it should exercise its discretion and extend
the time for service even absent a showing of good cause.” Grimes v. Rott, No.
15-80972-Civ-ZLOCH, 2018 LEXIS 9793, at *3 (S.D. Fla. Jan. 19, 2018).

The Court must extend time for service beyond 90 days if the plaintiff
shows good cause for failure to serve. Fed. R. Civ. P. 4(m). “Good cause exists
when some outside factor, such as reliance on faulty advice, rather than
inadvertence or negligence, prevented service.” Rance v. Rocksolid Granit

USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009) (citing Lepone-Dempsey v.
Carroll Cnty. Comm’rs, 476 F.3d 1277, 1281 (11th Cir. 2009)).
However, the Court also has discretion to extend service beyond 90 days
absent good cause. Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286

(11th Cir. 2009) (citing Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132
(11th Cir. 2005)). An extension absent good cause “may be justified, for
example, if the applicable statute of limitations would bar the refiled action, or
if the defendant is evading service or conceals a defect in attempted service.”

Fed. R. Civ. P. 4(m) advisory committee’s note to 1993 amendment.
Generally, claims against fictitious parties are dismissed in federal
court. See Smith v. Comcast Corp., 786 Fed. App’x 935, 939 (11th Cir. 2019)
(citing Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010)). But in some
cases a plaintiff can bring claims against a fictitious party, “such as when the

plaintiff lacks sufficient information about the defendant’s identity at the time
of filing the complaint but would be able to obtain such information through
discovery.” Nalls v. Coleman Low Fed. Inst., 440 Fed. App’x 704 (11th Cir.
2011) (citing Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992); Brown v.

Sikes, 212 F.3d 1205, 1209 n.4 (11th Cir. 2000)). But this does not mean a
plaintiff is entitled to “proceed indefinitely against unnamed defendants
without serving them or providing good cause for his failure to do so.” Nalls v.
Coleman Low Fed. Inst., 440 Fed. App’x 704, 707 (11th Cir. 2011) (citing Bivens

v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390
n.2 (1971)).
DISCUSSION
It is undisputed that the Walmart store manager—whether John Doe (as

currently named) or Eldridge (whom Cruz has moved to “substitute” and
serve)—was not timely served. Cruz has requested “additional time to serve
Joshua Aldridge [sic],” indicating that John Doe—now Eldridge—has not been
served as of December 15, 2022, when Cruz’s Motion for Leave to Amend was

filed. (Doc. 24 at 2). Walmart argues that the deadline for service would have
been August 31, 2022 under Fla. R. Civ. P. 1.070(j) or August 1, 2022 under
Fed. R. Civ. P. 4(m), and Cruz does not dispute this in her response.4 (Doc. 14
at 2-3; Doc. 24). Under either rule, the time for service has long since passed.

A. No Good Cause
Despite knowing the identity of John Doe since June 2022 (prior to the
service deadline), Cruz did not request additional time to serve Eldridge until
December 2022. (Doc. 38 at 6; Doc. 1-3 at 47; Doc. 23). Cruz’s counsel

attributes this six-month delay to the birth of his child in June 2022, which
caused him to “inadvertently fail[] to notice” the June discovery naming
Eldridge as the store manager. (Doc. 24 at 2). Cruz argues this is “good cause”
for failure to serve. It is not.

First, although both parties reference Fed. R. Civ. P. 4(m) and Fla. R.
Civ. P. 1.070(j) in their filings, Fed. R. Civ. P. 4(m) controls. Effs v. City of
Miami, No. 21-11672, 2021 WL 6116643, at *4 (11th Cir. Dec. 27, 2021) (citing
Reynolds v. Behrman Cap., IV L.P., 988 F.3d 1314, 1323 (11th Cir. 2021))

(“[O]nce a case is removed to federal court, federal law governs matters of
procedure related to personal jurisdiction and service of process”).5 “Good

4 In August 2022, this case had not yet been removed to federal court.
5 But even if service were being judged under Fla. R. Civ. P. 1.070(j), the outcome would be
the same. Under Fla. R. Civ. P. 1.070(j), the court should extend the time for service “if the
plaintiff shows good cause or excusable neglect for the failure [to serve].” And as in federal
court, Florida courts have discretion to extend the service deadline absent good cause or
excludable neglect. Sly v. McKeithen, 27 So. 3d 86, 87 (Fla. Dist. Ct. App. 2009). While the
language in Fla. R. Civ. P. 1.070(j) differs slightly from the language in Fed. R. Civ. P. 4(m)
(namely in the use of the term “excusable neglect”), the state rule was likely intended to
mirror the federal rule and the same analysis would apply. Cf. Britt v. City of Jacksonville,
874 So. 2d 1196, 1198 (Fla. Dist. Ct. App. 2004).
cause [under Fed. R. Civ. P. 4(m)] exists when some outside factor, such as
reliance on faulty advice, rather than inadvertence or negligence, prevented

service.” Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir.
2009) (citing Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1281
(11th Cir. 2009)) (emphasis added).
Failing to review discovery for six months is not “good cause” for failure

to serve. While the birth of a child brings with it new stressors, life changes,
and time off from work, counsel still needs to be diligent as to his cases.
Counsel knew that there was a John Doe here whose identity he should have
been working to ascertain. And for six months before requesting additional

time to serve, counsel possessed discovery revealing John Doe’s identity and
could have made timely service. The length of counsel’s delay in this matter is
simply too long and is inadequately supported by his stated reason. See Gelin
v. Shuman, 35 F.4th 212, 218 (4th Cir. 2022) (“Good cause requires a showing

of diligence on the part of the plaintiffs . . . significant periods of inactivity and
a failure to seek extension of time before the deadline has lapsed tend to
undercut any claim of good cause”) (cleaned up).
B. The Court Declines to Exercise its Discretion and Extend the
Time for Service
But the Court’s analysis does not end there. The Court could still, at its
discretion, extend the time for service absent good cause. The Court declines

to do so.
First, the advisory committee envisioned courts using discretion to
extend time for service absent good cause in extreme scenarios. Fed. R. Civ. P.
4(m) advisory committee’s note to 1993 amendment (stating an extension

absent good cause “may be justified, for example, if the applicable statute of
limitations would bar the refiled action, or if the defendant is evading service
or conceals a defect in attempted service”). No such circumstances exist here.
Cruz slipped and fell in October 2021, so she still has over two years before her

claim is barred by the statute of limitations. Fla. Stat. § 95.11(3)(a).
But even without the ability to sue in state court, Cruz will not be
significantly injured if the Court dismisses John Doe under Fed. R. Civ. P.
4(m). Cruz’s claim against Walmart can proceed with or without John Doe and

she can obtain full relief for her slip and fall from Walmart alone. See Rutsky
v. Target Corp., No. 12-CV-61828, 2012 WL 5604620, at *3 (S.D. Fla. Nov. 15,
2012) (finding there has been “no showing that Plaintiff will not be able to
obtain full relief on her claims in this court without the presence of [the store

manager] as a defendant”); Judon v. Cumberland Farms, Inc., No. 17-14036-
CIV, 2017 WL 7732131, at *2 (S.D. Fla. Mar. 6, 2017) (“[N]o practical purpose
is achieved by suing both the owner/operator of the store where the slip-and-
fall took place and the manager-employee who was on duty at the time”);
Ramai v. Waffle House, Inc., No. 8:19-cv-2348, 2020 WL 8918201, at *4 (M.D.

Fla. Mar. 31, 2020) (discussing that there is no significant injury when the
plaintiff can obtain full relief on her claims without the joinder of the
defendant). And if Cruz obtains a favorable judgment, the Court presumes
that Walmart is more financially solvent than John Doe and better able to

satisfy any judgment awarded.
Another reason Cruz will not be significantly injured by the dismissal of
John Doe is that her complaint does not state a legitimate claim of liability
under Florida law against John Doe. Under Florida law, a store manager is

not liable “simply because of his general administrative responsibility for the
performance of some function of his [or her] employment—he or she must be
actively negligent.” White v. Wal-Mart Stores, Inc., 918 So. 2d 357, 358 (Fla.
Dist. Ct. App. 2005) (citing McElveen v. Peeler, 544 So. 2d 270, 271-72 (Fla.

Dist. Ct. App. 1989) (internal quotations omitted). To maintain a claim against
a store manager, the plaintiff must “allege and prove that the [store manager]
owed a duty to the [plaintiff], and that the duty was breached through personal
(as opposed to technical or vicarious) fault.” Id. at 272.

Cruz has not adequately alleged that John Doe store manager was
actively negligent. Cruz’s complaint as to John Doe is completely boilerplate,
committing the Fed. R. Civ. P. 8(a)(2) sin of asserting bare “labels and
conclusions, and a formulaic recitation of the elements of a cause of action.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint says that

John Doe is the manager of the Walmart store and as such “was in control of
and responsible for the area in or around the area of said store with the
smashed grapes on the floor.” (Doc. 7 at 3). The complaint copies and pastes
all possible theories of negligence with no factual support, saying that John

Doe store manager “either perform[ed] or fail[ed] to perform one or more of” a
list of enumerated acts. (Doc. 7 at 4). This generic list of acts includes “failing
to maintain the grounds,” “failing to correct a dangerous condition,” “failing to
warn Plaintiff of a dangerous condition,” “creat[ing] a dangerous condition,”

and that John Doe “knew or should have known” of the existence of “the
condition” because it “occurred with such regularity.” (Doc. 7 at 4). Nowhere
in this list does the Court see an actual, factually supported allegation that
John Doe store manager was “personally liable” and “actively negligent” in

relation to Cruz’s fall. See Petigny v. Wal-Mart Stores E., L.P., No. 18-23762-
CIV, 2018 WL 5983506, at *4 (S.D. Fla. Nov. 13, 2018) (finding that the
complaint was insufficient because “Plaintiff does not allege facts showing that
[the store manager] caused grapes to be on the floor, was told the grapes were
on the floor, knew or should have known about the grapes being on the floor,
or was in the area of Plaintiff’s incident prior to same in order to correct it”).6

Even reading the complaint in the light most favorable to Cruz, she has
not alleged that John Doe actively participated in a tort. Instead, “this
appears to be a run of the mill slip and fall case in which the store manager
individually has no liability.” 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).
Given this, Cruz probably would not succeed in a suit against John Doe even
if the Court allowed the claim to proceed. See Wade v. Dolgencorp, LLC, No.
8:09-cv-01470-T-24-EAJ, 2009 WL 8630725, at *4 (M.D. Fla. Oct. 14, 2009)

(finding “any potential prejudice is significantly lessened by the existence of
the very high probability that Plaintiffs have no colorable claim against [the
store manager] under Florida law”).
C. Amending the Complaint

Because the Court dismisses John Doe for failure of service, the Court
orders Cruz to file a second amended complaint striking her claim against John

6 See also 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) (finding fraudulent joinder of the store manager
when the allegations were “not specific and direct; rather, they are conclusory” and the
plaintiff “has provided no facts demonstrating that [the store manager] played any role in
[plaintiff’s] injuries”) (citing Pritchard v. Wal-Mart Stores, Inc., No. 809-CV-46-T-24TGW,
2009 WL 580425, at *3 (M.D. Fla. Mar. 5, 2009)).
Doe. And when Cruz amends her complaint, the Court directs her, for the
second time, to properly allege her citizenship.

The Court previously directed Cruz to clarify her citizenship. (Doc. 45).
She did not. (Doc. 46 at 1). Cruz’s amended complaint continued to state her
“residency.” (Doc. 46 at 1). As previously explained by the Court, residency
does not equal citizenship. Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir.

1994) (“Citizenship, not residence, is the key fact that must be alleged in the
complaint to establish diversity for a natural person”). A person’s citizenship
is determined by his “domicile,” or “the place of his true, fixed, and permanent
home and principal establishment . . . to which he has the intention of

returning whenever he is absent therefrom.” McCormick v. Aderholt, 293 F.3d
1254, 1257-58 (11th Cir. 2002). “Residency” and “citizenship” are two different
concepts because “citizenship” (also referred to as “domicile”) entails both
physical presence in a state or territory plus an intent to remain.

For adults, domicile is established by physical
presence in a place in connection with a certain state
of mind concerning one’s intent to remain there.
Domicile is not synonymous with residence; one may
temporarily reside in one location, yet retain domicile
in a previous residence. Although physically present
in the current residence, the person does not intend to
remain in that state indefinitely.
Molinos Valle Cibao, C. por A. v. Lama, 633 F.3d 1330, 1341-1342 (11th Cir.
2011) (internal citations omitted).
Right now, the Court has two conflicting statements of Cruz’s residency
(Doc. 7, Doc. 46) and no information about Cruz’s citizenship.
Thus, the Court orders Cruz to file a second amended complaint which
complies with the Court’s prior Order to clarify her citizenship. (Doc. 45). In
this amended complaint, the Court further directs Cruz to strike John Doe.
Accordingly, it is now
ORDERED:
1. Defendant Walmart’s Motion to Dismiss John Doe (Doc. 14) is
GRANTED.
2. Plaintiffs Complaint against John Doe store manager is
DISMISSED without prejudice for failure to serve process under
Fed. R. Civ. P. 4(m).
3. Plaintiff Cruz’s Motion to Amend Complaint and Remand (Doc. 23) is
DENIED as moot.
4. Plaintiff must file a second amended complaint striking John Doe and
properly alleging her citizenship by February 38, 20238.
DONE and ORDERED in Fort Myers, Florida on January 27, 20238.

UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10111894. Public record. Not legal advice.