Duggins

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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FLORENCE DUGGINS,

Plaintiff, OPINION & ORDER

24-CV-8068 (NG)(ST)

-against-

WALMART, INC., et al.,

Defendants.

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GERSHON, United States District Judge:

Plaintiff Florence Duggins, a citizen of New York, commenced this personal injury action

in state court against Walmart Inc. (“Walmart”), Wal-mart Real Estate Business Trust (the “Trust”),

and Blum Enterprises, Inc. (“Blum”). A non-defendant, Wal-mart Stores East, LP (“WSE”),

removed the case to this district, alleging diversity jurisdiction. Plaintiff now moves to amend her

complaint to join two new defendants—Valley Stream Green Acres, LLC, (“VSGA”) and

Macerich Property Management Company, LLC (“Macerich”)—and to remand this action to state

court on the grounds that joinder of VSGA destroys diversity and that New York courts have

personal jurisdiction over Walmart. For the reasons set forth below, plaintiff’s motion to amend

her complaint is granted but the motion to remand this action to state court is denied.

This action arises from a February 11, 2023, incident in which plaintiff allegedly fell at a

Walmart Superstore located in the Green Acres Mall in Valley Stream, New York (the “Premises”).

In late November 2023, plaintiff sued Walmart, the Trust, and Blum in the Supreme Court of the

State of New York, Queens County, alleging that the Premises were owned, leased, managed,

operated, controlled, maintained, inspected, repaired, and/or controlled by all three defendants and

that they were jointly and severally liable for her alleged injuries. As required by N.Y. C.P.L.R. §

3017(c), the complaint does not specify the amount of damages sought other than to state that the

amount “exceeds the jurisdictional limits of all lower courts which would otherwise have

jurisdiction.” (Complaint, p. 13)

On January 10, 2024, WSE filed an answer to the complaint, claiming that it had been

incorrectly sued as Walmart and the Trust. About one month later, plaintiff stipulated to

discontinue her claims against Blum, a New York corporation. On November 12, 2024, plaintiff

moved to amend her complaint to join VSGA and Macerich as defendants. Two days later, in

response to WSE’s request for a supplemental demand setting forth the total damages to which

plaintiff deemed herself entitled, plaintiff emailed WSE a demand for ten million dollars. On

November 20, 2024, WSE removed the action to this district, alleging diversity jurisdiction.

On April 9, 2025, after learning that plaintiff’s motion to amend had not been adjudicated

in state court, I granted plaintiff permission to move to amend her complaint pursuant to Fed. R.

Civ. P. 15(a). I also granted plaintiff leave to move to remand this action on two grounds: 1) that

the removal of this action is improper because WSE is not a defendant and 2) that joinder of VSGA

and Macerich would destroy diversity jurisdiction. Plaintiff subsequently moved, by notice of

motion, to amend the complaint to join VSGA and Macerich. However, plaintiff chose not to argue

that WSE was not statutorily authorized to remove this action. Rather, plaintiff argues only 1) that

joinder of VSGA would destroy diversity jurisdiction and necessitate remanding this action to state

court pursuant to 28 U.S.C. § 1447(e), and 2) that there is not complete diversity because New

York courts have personal jurisdiction over Walmart under New York’s longarm statute.

Rule 15(a) provides that leave to amend a pleading “shall be freely given when justice so

requires.” Fed. R. Civ. P. 15(a). However, a court may deny a plaintiff’s request to amend “for

good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.”

Miller v. United States ex rel. Miller, 110 F.4th 533, 550 (2d Cir. 2024). In assessing the futility

of a proposed amendment at the early stages of a litigation, “the proper inquiry is comparable to

that required upon a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6).” Aetna Cas. & Sur.

Co. v. Aniero Concrete Co., 404 F.3d 566, 604 (2d Cir. 2005) (citation omitted). “That is, the court

must accept the facts alleged by the party seeking to amend as true and construe them in the light

most favorable to that party.” Id. Use of a Rule 56 standard in assessing the adequacy of a

plaintiff’s proposed amendment is inappropriate unless discovery has already closed. See Engles

v. Jones, 405 F. Supp. 3d 397, 404 (W.D.N.Y. 2019); Twahir v. Vill. Care of New York, Inc., 2011

WL 2893466, at *1 (S.D.N.Y. July 12, 2011).

In opposing plaintiff’s motion to amend her complaint, WSE relies on the Declaration of

David Smeaton, a Macerich employee who identifies himself as the property manager of the Green

Acres Mall, and four documents attached to that declaration: 1) a lease between the Trust and

Green Acres Mall, L.L.C.; 2) a sublease between the Trust and WSE; 3) a deed dated January 24,

2013, through which Green Acres Mall L.L.C. sold a parcel of real property to VSGA; and 4) a

Management Agreement—also dated January 24, 2013—between VSGA and Macerich. Smeaton

claims that these documents “establish that on the day of the alleged accident, [VSGA] was an out

of possession lessor” and that neither VSGA nor Macerich “was responsible, by lease or by

practice, for maintaining the interior of the Walmart store ….” (Smeaton Dec. at ¶ 5) Based on

this portion of the Smeaton Declaration, WSE argues that plaintiff should not be permitted to join

VSGA and Macerich as defendants because neither was responsible for the Premises. In support

of this argument, WSE cites two state court cases in which VSGA and/or Macerich were granted

summary judgment in cases involving slips and falls in other stores in the Green Acres Mall on the

theory that they were not in possession of the stores at the time of the accidents: Canela v. Valley

Stream Green Acres LLC, 2024 WL 5213437, at *1 (N.Y. Sup. Ct. Queens Cnty. Sept. 6, 2024),

and Harper v. Grey Hawk Flooring Inc., 2024 WL 891676, at *1 (N.Y. Sup. Ct. Queens Cnty. Jan.

23, 2024)).

WSE’s arguments do not rely on plaintiff’s allegations or a Rule 12(b)(6) analysis. Rather,

WSE relies on extrinsic evidence and the above-cited state court cases, both of which were decided

on summary judgment. This invites the court to engage in a premature summary judgment

analysis, which the court cannot do so without foreclosing plaintiff’s opportunity to conduct

discovery and to litigate VSGA’s and Macerich’s liability. Accordingly, plaintiff’s motion to

amend the complaint to add VSGA and Macerich as defendants is granted.

In light of this decision, I must next address plaintiff’s argument that joinder of VSGA

necessitates remand. This argument is rooted in 28 U.S.C. § 1447(e), which provides: “If 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.” Plaintiff’s argument that joinder of VSGA will destroy subject matter jurisdiction is

predicated on the assertion that VSGA is a citizen of New York, as is plaintiff.

Plaintiff has submitted two documents in support of that assertion. The first is a document

downloaded from the New York Department of State’s website which indicates that VSGA is a

foreign limited liability company incorporated in Delaware. The second is a document

downloaded from the Federal Communications Commission’s website which relates to a radio

license issued to VSGA. This document indicates that the “control point” for VSGA’s radio station

is located in Valley Stream, New York.

Neither of these documents supports the assertion that VSGA is a New York citizen. With

respect to the second document, FCC regulations require a radio station to have a “control point”—

an “operating position … under the control and supervision of the licensee; … [w]here a person

immediately responsible for the operation of the transmitter is stationed; [and where] … the

monitoring facilities … are installed.” 47 C.F.R. § 90.429(b). The regulations further require that

the “location of the control point … be specified in the station license.” Id., § 90.429(c). But the

control point for the radio station operated by VSGA is not determinative of VSGA’s citizenship.

The New York Department of State document establishes that VSGA is not a corporation,

but a limited liability corporation or LLC. For purposes of determining citizenship, this distinction

is important. A corporation is “deemed to be a citizen of every State and foreign state by which it

has been incorporated and of the State or foreign state where it has its principal place of business.”

28 U.S.C. § 1332(c)(1). But “an LLC is treated as an unincorporated association.” Windward

Bora LLC v. Browne, 110 F.4th 120, 127 (2d Cir. 2024). “Although Congress has never explicitly

laid out jurisdictional rules for unincorporated entities, the Supreme Court has held that diversity

jurisdiction in a suit by or against such an ‘entity depends on the citizenship of all its members.’”

Id. (quoting Americold Realty Tr. v. Conagra Foods, Inc., 577 U.S. 378, 381 (2016)) Thus, for

diversity purposes, an LLC “takes the citizenship of each of its members.” Bayerische

Landesbank, N.Y. Branch v. Aladdin Cap. Mgmt. LLC, 692 F.3d 42, 48 (2d Cir. 2012).

Plaintiff’s submissions do not discuss the membership of VSGA. Accordingly, there is no

evidence that VSGA is a citizen of New York and that the joinder of VSGA would destroy complete

diversity.1

1 The only evidence before the court relating to the membership of VSGA is contained in the

Smeaton Declaration submitted by WSE. It states:

The sole member of [VSGA] is Valley Stream GA Mezzanine LLC, a

Delaware limited liability company. The sole member of Valley Stream GA

Mezzanine LLC is MACWH, LP, a Delaware limited partnership. Its general

Plaintiff advances a second argument for remand, asserting that there is not complete

diversity of citizenship. However, plaintiff does not allege the citizenship of any of the defendants,

much less establish that they, like plaintiff, are New York citizens. Rather, plaintiff seeks to

establish that a New York court has personal jurisdiction over Walmart under New York’s longarm

statute. This argument reflects a misunderstanding of the difference between personal jurisdiction

and subject matter jurisdiction. That New York courts have longarm jurisdiction over a defendant

does not establish the citizenship of that defendant, much less establish that a defendant is a New

York citizen.2

CONCLUSION

For the reasons set forth above, plaintiff’s motion to amend the complaint to join Valley

Stream Green Acres, LLC, and Macerich Property Management Company, LLC, as defendants is

granted. Wal-mart Stores East, LP, shall also be added as a defendant. Plaintiff shall file an

amended complaint on or before October 30, 2025, identifying the defendants it intends to sue and

setting forth the basis for its claims against them.

partner and its limited partner are both Delaware limited liability companies.

The members of those companies are all Delaware citizens.

(Smeaton Dec. at ¶ 6) This indicates VSGA is a citizen of Delaware, not New York.

2 Since plaintiff chose to waive the argument that WSE is not a defendant and not statutorily

authorized to remove the case, the court cannot address it sua sponte. See Fax

Telecommunicaciones Inc. v. AT&T, 138 F.3d 479, 487–88 (2d Cir. 1998); Fradys v. Rondeau,

2022 WL 1289674, at *2 (S.D.N.Y. Apr. 29, 2022). However, because WSE claims that it is the

proper defendant in this action, and plaintiff does not dispute this, plaintiff is directed to add WSE

as a defendant, including in the caption of the case. The parties are directed to confer and

determine whether to stipulate to dismiss Walmart and the Trust from the action.

Plaintiff’s motion to remand this action to state court is denied.

SO ORDERED.

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NINA GERSHON

United States District Judge

October 20, 2025

Brooklyn, New York