REGO v. CONTINENTAL AIRLINES, INC. et al
Filing
32
MEMORANDUM OPINION filed. Signed by Judge Mary L. Cooper on 2/28/2014. (kas, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RUSSELL REGO,
Plaintiff,
v.
CONTINENTAL AIRLINES, INC.,
Defendant.
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CIVIL ACTION NO. 13-1871 (MLC)
MEMORANDUM OPINION
THE PLAINTIFF, inter alia, seeks to remand the action to
state court.
(See dkt. entry no. 27, Pl. Notice of Cross Mot.)
For the following reasons, the Court will remand the action to
state court.
THE PLAINTIFF, who is a New Jersey citizen, commenced this
action in New Jersey state court on February 10, 2011.
entry no. 1-1, Compl.)
(See dkt.
The plaintiff originally named: (1) the
defendant, Continental Airlines, Inc. (“CAI”), which is not
deemed to be a New Jersey citizen; and (2) several individuals,
some of whom apparently are New Jersey citizens.
no. 1, Notice of Removal at 4.)
(See dkt. entry
The Complaint contained no
assertion as to the specific amount in controversy.
(See Compl.
at 1-13.)
CAI became the only remaining defendant pursuant to a statecourt order issued on February 22, 2013 (“February 2013 State
Court Order”).
(See dkt. entry no. 1-2, 2-22-13 State Court
Order; see also dkt. entry no. 9, 5-7-13 D.N.J. Order at 3
(stating “CAI is the only viable defendant remaining in this
action pursuant to the February 2013 [State Court] Order”).)1
As
a result, CAI removed the action in March 2013 pursuant only to
the subject-matter jurisdiction afforded by 28 U.S.C. §
(“Section”) 1332 by asserting (1) the existence of diversity of
citizenship between the plaintiff and CAI, and (2) that the
amount in controversy exceeded $75,000.
(See Notice of Removal
at 4-5.)
IN SUPPORT of the request to remand, the plaintiff
repeatedly stipulates that the amount in controversy is not in
excess of $75,000 and thus argues that the Court lacks
jurisdiction under Section 1332.
(See, e.g., dkt. entry no. 27-
2, Pl. Br. at 1 (“plaintiff is willing to assert and agree that
if this matter proceeds in state court, plaintiff’s damages will
not exceed $75,000, exclusive of interest and costs”).)
CAI in opposition argues that “[w]hen the ‘plaintiff after
removal, by stipulation, by affidavit, or by amendment of his
pleadings, reduces the claim below the requisite amount, this
does not deprive the district court of jurisdiction.’ [St. Paul
Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)]”.
(Dkt. entry no. 29, Def. Br. at 3.)
1
The caption on this Memorandum Opinion reflects that CAI
is the sole viable defendant.
2
CAI’S ARGUMENT is without merit here.
The plaintiff cannot
be accused of attempting to avoid federal court by “reduc[ing]
the claim below the requisite amount” because he did not
initially allege a specific amount that is in excess of the
jurisdictional threshold of Section 1332.
Indeed, the plaintiff
did not allege a specific amount in the initial pleadings at all.
See Standard Fire Ins. Co. v. Knowles, 133 S.Ct 1345, 1350 (2013)
(stating “[it] is so” that “federal courts permit individual
plaintiffs, who are masters of their complaints, to avoid removal
to federal court, and to obtain a remand to state court, by
stipulating to amounts at issue that fall below the federal
jurisdictional requirement”); Angus v. Shiley, Inc., 989 F.2d
142, 145 n.3 (3d Cir. 1993) (stating that “it is conceivable that
a court justifiably might consider a subsequent stipulation as
clarifying rather than amending an original pleading”); Kesting
v. Grayson Mitchell, Inc., No. 06-2458, 2006 WL 2321508, at *1
(E.D. Pa. Aug. 4, 2006) (granting remand based on plaintiff’s
stipulation because “Complaint did not specify an exact amount of
damages, nor did it demand damages in excess of the federal
jurisdictional amount”); Rudolph v. Taylor, No. 03-505, 2004 WL
51270, at *1-2 (D. Del. Jan. 5, 2004) (granting remand based on
plaintiff’s stipulation, as plaintiff had not filed pleading
before removal indicating amount that met Section 1332
threshold); cf. Rios v. Cabrera, No. 10-636, 2010 WL 2640191, at
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*3 (M.D. Pa. June 30, 2010) (denying remand because “Complaint
clearly contains a demand for $95,954.82”, and thus plaintiff’s
willingness to stipulate to lesser amount after removal is
suspect).
THE COURT also notes that the removal appears to have been
untimely.
CAI removed the action in March 2013 within thirty
days of the issuance of the February 2013 State Court Order, but
that removal occurred more than one year after the plaintiff
commenced the action in state court in 2011.
See 28 U.S.C. §
1446(b) (2011) (now found under Section 1446(c)(1)).2
THE COURT will grant the plaintiff’s request to remand.
For
good cause appearing, the Court will issue an appropriate order
and judgment.3
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
February 28, 2014
2
This one-year limitation is now located under Section
1446(c)(1), but the version of Section 1446(b) in effect in 2011
applies here. See Federal Courts Jurisdiction and Venue
Clarification Act of 2011, Pub.L.No. 112-63, 125 Stat. 758
(stating amendment applies to actions commenced in or after 2012,
and that an action removed to federal court is deemed to have
been commenced on the date the action was commenced in state
court).
3
The Court will dispose of the remaining requests for
relief in the aforementioned order and judgment.
4
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