FARREN et al v. FCA US, LLC
OPINION. Signed by Judge Noel L. Hillman on 1/11/2018. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BENEVILLE FARREN and JOHN J.
FCA US, LLC, et al.,
JOSEPH S. LUKOMSKI
ROVNER, ALLEN, ROVNER, ZIMMERMAN, LUKOMSKI & WOLF, ESQS.
411 ROUTE 70 EAST
CHERRY HILL, NJ 08034-2414
On behalf of Plaintiffs
TIFFANY M. ALEXANDER
TANENBAUM KEALE LLP
1085 RAYMOND BLVD
ONE NEWARK CENTER, 16TH FLOOR
NEWARK, NJ 07102-5225
On behalf of Defendants
HILLMAN, District Judge
Pending before the Court is the motion of Plaintiffs to
remand their case to New Jersey Superior Court Law Division,
Plaintiffs claim in their complaint that on
June 18, 2015, Plaintiff John J. Myers, Jr., stepson of
Plaintiff Beneville Fenton, was driving a 2005 Dodge Ram 1500
pick-up truck owned by Fenton in Deptford, New Jersey when the
truck began shaking and the rear wheels began to skid out,
resulting in Myers’ inability to control the truck.
Complaint further alleges the truck left the roadway, crashed
into a utility pole, rolled over, and struck a tree.
claim that the airbags failed to deploy, the truck was totaled,
and Myers suffered serious injuries.
Plaintiffs claim that
Defendants are liable for his injuries, and the damage to the
truck and utility pole, because of manufacturing defects, which
were the subject of safety recalls.
Defendants removed Plaintiffs’ case to this Court pursuant
to 28 U.S.C. § 1441(a), averring subject matter jurisdiction
under 28 U.S.C. § 1332(a)(1), which provides that a district
court has original jurisdiction over all civil actions where the
amount in controversy exceeds the sum or value of $75,000,
exclusive of interests and costs, and is between citizens of
Defendants’ notice of removal properly avers
the diversity of citizenship between the parties:
are citizens of New Jersey, and Defendants are citizens of the
United Kingdom and the Netherlands.
For the amount in controversy requirement, Defendants’
notice of removal avers that the allegations in Plaintiffs’
complaint readily establish that the amount in controversy
In the Complaint, Plaintiff, John J. Myers, Jr. claims
that he suffered injuries which are or may be "serious and
permanent, including, but not limited to, concussion,
closed head injury, dizziness, injuries to his left ear,
left shoulder, legs, ribs, rib cage, chest wall pain,
contusions, abrasions." Moreover, Plaintiff claims he has,
or in the future will be, disabled and "caused great pain
Given the alleged severity and permanency of
plaintiff, John J. Myers, Jr.'s injuries and his claims for
damages, it is facially apparent that Plaintiffs are
demanding an amount, exclusive of interest and costs, in
excess of the jurisdictional minimum set forth in 28 U.S.C.
(Docket No. 1 at 3.)
Defendants removed Plaintiffs’ case on July 24, 2017.
August 17, 2017, Plaintiffs’ counsel advised defense counsel
that Plaintiffs’ damages do not exceed $75,000, and on August
22, 2017, the parties executed a stipulation of damages, where
Plaintiffs agreed that the damages for all of their claims,
individually and collectively, do not exceed $74,999.99.
(Docket No. 6 at 22.)
On that same day, Plaintiffs filed their
motion to remand, presenting the stipulation as the basis to
defeat this Court’s subject matter jurisdiction under § 1332.
Defendants do not refute Plaintiffs’ stipulation as to their
maximum damages, and they do not oppose Plaintiffs’ motion.
(Docket No. 8.)
When a plaintiff has challenged a removal of his
complaint based on the amount in controversy requirement, as a
starting point a federal court determines the amount in
controversy from the complaint itself.
See Angus v. Shiley,
Inc., 989 F.2d 142, 145 (3d Cir. 1993) (“The general federal
rule is to decide the amount in controversy from the complaint
itself.”); Frederico v. Home Depot, 507 F.3d 188, 194 (3d Cir.
2007) (“In removal cases, determining the amount in controversy
begins with a reading of the complaint filed in state court.”).
If a plaintiff has not specifically averred that the amount in
controversy is less than the jurisdictional minimum, the test
espoused by Samuel-Bassett v. KIA Motors America, Inc., 357 F.3d
392 (3d Cir. 2004) applies to the review of the complaint.
Frederico, 507 F.3d at 196.
Under Samuel-Bassett, the
challenger to subject matter jurisdiction has to prove, to a
legal certainty, that the amount in controversy cannot exceed
the statutory threshold.
In contrast, where the complaint
specifically avers that the amount sought is less than the
jurisdictional minimum, the standard set forth by Morgan v. Gay,
471 F.3d 469, 473 (3d Cir. 2006) applies.
Under Morgan, a
defendant seeking removal must prove to a legal certainty that
the plaintiff can recover the jurisdictional amount.
Here, Plaintiffs’ complaint does not specify a particular
amount of damages, so to prevail on their motion to remand,
Plaintiffs must show to a legal certainty that they cannot
recover damages in excess of $75,000, or that they were never
entitled to recover that amount.
of damages, filed after removal, standing alone, does not
satisfy this burden.
The Supreme Court announced long ago that “the plaintiff
after removal, by stipulation, by affidavit, or by amendment of
his pleadings, reduces the claim below the requisite amount, 
does not deprive the district court of jurisdiction.”
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292–93 (1938)
(further reiterating that “events occurring subsequent to
removal which reduce the amount recoverable, whether beyond the
plaintiff's control or the result of his volition, do not oust
the district court's jurisdiction once it has attached”).
Plaintiffs’ post-removal agreement with Defendants that their
damages will not exceed $74,999.99, and Defendants’ lack of
opposition to Plaintiffs’ motion to remand cannot – without more
- extinguish this Court’s subject matter jurisdiction.
Plaintiffs’ claims in their complaint assert that Myers
suffered severe and permanent injuries, as well as significant
pain and suffering, as a result of his truck hitting a utility
pole, rolling over, and then hitting a tree, all because of
Defendants’ alleged manufacturing defects relating to the airbag
and rear axle.
These damages are in addition to property damage
to the truck and utility pole. 1
Plaintiffs have asserted claims
It appears that Plaintiffs are being held responsible for the
cost to repair the utility pole in the amount of $6,532.50.
for violations of the New Jersey Products Liability Act,
N.J.S.A. 2A:15-5.9, which provides for punitive damages five
times the amount of a compensatory damage award, along with
claims for general negligence and fraud.
In order to defeat Defendants’ contention that these claims
exceed $75,000 if they were to prevail, Plaintiffs must explain
why their claims do not, or cannot, exceed $75,000.
Plaintiffs have not done so, their motion to remand must be
See, e.g., Correas v. C.R. England-Global Transp., 2014
WL 2737986, at *3 (D.N.J. 2014) (finding that the plaintiff’s
statement in his motion to remand that his damages do not exceed
$75,000 insufficient to divest the court of subject matter
jurisdiction because he did not point “to any reason why he
cannot recover the amount stated in his explanation of damages,”
and he did not, “for instance, suggest that state law would
cap his damages at a level below the jurisdictional minimum”);
Tyson v. Schindler Elevator Corp., 2017 WL 1966919, at *2 (E.D.
Pa. 2017) (rejecting an amended complaint and a stipulation of
damages below $75,000 to support a motion to remand because the
court was unable to find, to a legal certainty, that the
plaintiff could not recover at least $75,000.00:
Amended Complaint, Plaintiff avers that her pain is significant
(Docket No. 1 at 19.)
and persistent; she has and may continue to expend large sums of
money to treat her injury and reduce her pain; her earning
potential has been impaired; she may be disfigured; and she
experiences emotional distress. . . . Thus, the pleadings
themselves do not make it apparent to this Court, to a legal
certainty, that Plaintiff is unable to recover an award in
excess of the jurisdictional limits.”).
Even though “removal statutes ‘are to be strictly construed
against removal and all doubts should be resolved in favor of
remand,’” Boyer v. Snap–On Tools Corp., 913 F.2d 108, 111 (3d
Cir. 1990) (quoting Steel Valley Auth. v. Union Switch & Signal
Div., 809 F.2d 1006, 1010 (3d Cir. 1987)), “[i]f the plaintiff
could, no matter how bona fide his original claim in the state
court, reduce the amount of his demand to defeat federal
jurisdiction[,] the defendant's supposed statutory right of
removal would be subject to the plaintiff's caprice,” Red Cab,
303 U.S. at 294.
“The claim, whether well or ill[-]founded in
fact, fixes the right of the defendant to remove, and the
plaintiff ought not to be able to defeat that right and bring
the cause back to the state court at his election.”
303 U.S. at 294.
In sum, two things are equally true.
This is a court of
It must not exercise its considerable
power beyond the scope of its authority as conferred by the
Constitution and statute.
However, it is equally so that this
Court has an unflagging obligation to maintain its jurisdiction,
Consequently, because Plaintiffs’ only basis for remand
rests upon a post-removal stipulation of damages below the
jurisdictional threshold, Plaintiffs’ motion to remand must be
The denial of Plaintiffs’ motion is without prejudice
to their right to re-file their motion if they wish to follow
Frederico in an attempt to meet the Samuel-Bassett legal
certainty standard. 2
An appropriate Order will be entered.
January 11, 2018
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
Neither Plaintiffs nor Defendants are prisoners of the federal
court if they would rather return to state court. The parties
may follow Fed. R. Civ. P. 41(a)(1)(A), which provides that
after a defendant has filed an answer, a plaintiff may dismiss
his action without a court order by filing a stipulation of
dismissal signed by all parties. Thereafter, Plaintiffs may
refile their action in state court. The Court recognizes that
the statute of limitations may be an issue in this case since
the accident occurred on June 15, 2015 and Plaintiffs’ complaint
was filed on June 15, 2017. There are at least two possible
remedies. Either a second complaint could be said, as a matter
of state law, to relate back to the first complaint tolling the
statute of limitations, or state law may allow the parties to
agree to waive any statute of limitations defenses in order to
accomplish the goal of re-filing and litigating this matter in
state court. The Court expresses no view on the legal efficacy
of either approach under state law. The Court also pauses to
note that this procedural complexity could have been easily
avoided if the parties had conferred about the extent of
Plaintiffs’ claim for damages prior to the filing of the removal
petition, a practice the Court would encourage.
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