Bercy v. American Airlines, Inc.
Filing
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ORDER denying 37 Motion to Remand (SEE ATTACHED). Ordered by Magistrate Judge Andrew L. Carter, Jr on 6/22/2011. (Figeroux, Davina)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GEORGES BERCY,
Plaintiff,
09 CV 1750 (ALC)
v.
MEMORANDUM
AND ORDER
AMERICAN AIRLINES, INC.,
Defendant.
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CARTER, United States Magistrate Judge:
Presently before me is plaintiff’s motion to remand the action to state court for lack of
subject matter jurisdiction. Based on the submissions of the parties, and for the reasons stated
below, the motion is denied.
BACKGROUND
Plaintiff Georges Bercy (“Plaintiff” or “Bercy”) filed the instant complaint (“Complaint”)
in the Supreme Court of Kings County on March 6, 2009, alleging injuries sustained when an
errant food cart made contact with his leg while he was aboard an American Airlines
(“Defendant”) plane traveling from Port-au-Prince, Haiti to Miami. Insofar as damages are
concerned, the Complaint merely reads “plaintiff demands judgment against the defendant in an
amount that exceeds the jurisdictional limits of all of the lower Courts, together with interest and
the costs and disbursements of this action.”
Defendant removed the action on April 24, 2009. The parties proceeded to arbitration, at
which an arbitrator fixed Plaintiff’s injuries at $55,000. On April 1, 2010, Defendant rejected
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arbitrator’s award and moved for a trial de novo. The parties have since conducted discovery
and attended two fruitless settlement conferences at which no offer or demand exceeded
$75,000.
The parties wrote to the Court on October 1, 2010 reporting the completion of
discovery and requesting a schedule for remaining pre-trial matters, and, at subsequent
conference before me, represented that no dispositive motions were anticipated. I directed the
parties to submit a Joint Pre-Trial Order by January 25, 2011, which was timely filed, along with
the parties’ consent to jurisdiction before me for all remaining purposes. In the Joint Pre-Trial
Order, Plaintiff argued that his damages do not exceed the amount in controversy requirement
and, as a result, the action should be remanded. Defendant opposes the motion on the grounds
that Plaintiff made an off-the-record settlement demand of $500,000; the arbitration award is not
controlling on the issue of the amount-in-controversy; and because type of injuries claimed by
Plaintiff have resulted in awards in excess of $75,000 in other actions.
DISCUSSION
Subject matter jurisdiction cannot be waived, and can be examined by the Court at any
point in the litigation, including on appeal of a judgment on the merits, by a party to the action or
sua sponte. See Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Ward v. Brown, 22 F.3d
516, 519 (2d Cir. 1994). If subject matter jurisdiction does not exist, the action must be
dismissed, regardless of Plaintiff’s failure to move to remand at an earlier junction. See 28
U.S.C. 1447(c) (“If at any time before final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be remanded.”); see also United Food & Commercial
Workers Union Local 919, AFL-CIO v. CenterMark Props. Meriden Square Inc., 30 F.3d 298,
301 (2d Cir. 1994). For the purpose of removability of diversity actions, the focus is the record
at the time of removal. Luo v. Mikel, 625 F.3d 772, 775 (2d Cir. 2010).
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“The rule governing dismissal for want of jurisdiction in cases brought in federal court is
that, unless the law gives a different rule, the sum claimed by plaintiff controls if the claim is
apparently made in good faith.” Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 115 (2d Cir. 2002).
This amount controls even if “[e]vents occurring subsequent to the institution of suit . . . reduce
the amount recoverable below the statutory limit.” St. Paul Mercury Indemnity Co. v. Red Cab
Co., 303 U.S. 283, 289-290 (1938). However, because New York law prohibits ad damnum
clauses in personal injury actions, N.Y. C.P.L.R. § 3017(c), there was no specific amount
demanded at the time of removal. In the absence of a specified sum, it is appropriate to look
outside of the pleadings to determine the amount in controversy, since jurisdictional inquiries are
not limited to the Complaint. See, e.g., Marakova v. United States, 201 F.3d 110, 113 (2d Cir.
2000) (“In resolving a motion to dismiss for lack of subject matter jurisdiction . . . a district court
. . . may refer to evidence outside the pleadings.”); see also APWU, AFL-CIO, v. Potter, 343
F.3d 619, 627 (2d Cir. 2003) (“A district court retains considerable latitude in devising the
procedures it will follow to ferret out the facts pertinent to jurisdiction.”) (citations omitted).
In similar actions, courts faced with amount-in-controversy disputes have considered the
following non-exhaustive set of factors: whether the plaintiff sought to amend the amount-incontroversy or otherwise stipulate to a minimum or maximum amount; whether plaintiff
represented that damages exceed $75,000; whether plaintiff’s alleged injuries have yielded
awards in excess of $75,000 in other actions; and evidence of forum- or judge-shopping. See
Luo, 625 F.3d at 775-6 (jurisdictional threshold satisfied where plaintiff, at the initial postremoval conference, was reluctant to stipulate to damages less than $75,000, and represented
shortly thereafter that the amount was $600,000); Bernadin v. Amer. Airlines, No. 08 CV 1774
(NG) (VVP), 2009 WL 1910964, at *2-3 (E.D.N.Y. Jul. 1, 2009) (plaintiff’s letter request to
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amend complaint to reduce the amount in controversy deemed binding and sufficient to divest
the court of jurisdiction); Felipe v. Target Corp., 572 F. Supp. 2d 455, 459-60 (S.D.N.Y. 2008)
(amount in controversy requirement met where plaintiff refused to sign a stipulation capping
damages at $75,000, made no effort to amend the complaint, and represented in court that the
amount in controversy requirement would be met); Quinones v. Nat’l Amusements, Inc., No. 07
CV 663 (MHD), 2007 WL 1522621, at *3 (S.D.N.Y. May 21, 2007) (denying motion to remand
where, inter alia, stipulation consenting to remand, if endorsed, permitted defendant to effect a
second removal to federal court if the amount in controversy was again adjusted); cf. Purple
Passion, Inc. v. RCN Telecom Servs., Inc., 406 F. Supp. 2d 245 (S.D.N.Y. 2005) (denying
motion to remand where plaintiff sought to reduce the amount in controversy from $100,000 to
$74,000 but permitting amendment of the complaint to reflect reduction). With these factors in
mind I will address the parties’ arguments.
While Defendant claims that Plaintiff made a demand for $500,000 at the first conference
following removal, the record contains no indication of such a large demand.
However,
Plaintiff’s responses to Defendant’s first set of interrogatories allege $22,030.70 in medical
expenses, and also allege that Bercy had yet to receive all medical bills. Bercy’s interrogatory
responses also revealed his claim of $60,000 in lost wages for the two-year period following his
injury, which would put his loss, with respect to these two categories alone, at $83,020.70.
Plaintiff’s complaint alleges injuries to his head, body, limbs and nervous system, some of which
are of a “permanent and/or protracted nature,” and which collectively confined him to his home
and bed. (Complaint ¶ 17.) Additionally, he listed in his interrogatories a series of surgical
procedures that he underwent under general anesthesia, including, inter alia, arthroscopy and
partial meniscectomy of the left knee, post-operative intra-articular anesthetic injection and
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placement of a 4mm full radial shaver in the left knee. These losses and injuries counsel in favor
of an initial amount in controversy above $75,000.
The fact that Plaintiff raised the issue of remand on the eve of trial, after 21 months of
litigation in federal court -- including motion practice, an arbitration, settlement conferences and
representations that he was prepared to proceed to trial -- suggests that the true issue may be
more tactical than jurisdictional.
Plaintiff’s motion is essentially a change of position in
damages well after the close of discovery. Cf. Quinones, 2007 WL 1522621, at *3 (change of
position on damages an insufficient basis for remand) (collecting cases); Purple Passion, 406 F.
Supp. 2d at 246-7 (motion to remand denied following plaintiff’s amendment to the amount in
controversy because of, inter alia, the potential for forum shopping and/or judge shopping).
Plaintiff’s argument in favor of remand is distinguishable from the situation in which subject
matter jurisdiction is divested once it is shown that a plaintiff could never have recovered the
amount sought. For example, in Tongkook Amer., Inc. v. Shipton Sportswear Co., 14 F.3d 781
(2d Cir. 1994), an accounting error led the parties to incorrectly assume damages in excess of the
amount in controversy.
Id. at 783.
The Second Circuit determined that, under those
circumstances, dismissal was warranted, since there is an objective element to assessing the
amount in controversy when it is for a sum certain. On the contrary, the end result of a pursuit
for unliquidated damages in a tort action is inherently uncertain. See Deutsch v. Hewes Street
Realty Corp., 359 F.2d 96, 100 (2d Cir. 1966) (“[T]o allow a district court judge to value a
plaintiff's claim in a case which involves a demand for unliquidated damages and in which the
jurisdictional issue is inextricably bound up with the merits of the controversy is tantamount to
depriving the plaintiff of his present statutory right to a jury trial.”); Quinones, 2007 WL
1522621 at *1 (“[T]he operative question in assessing whether a case meets [the amount in
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controversy] requirement is whether it appears to a legal certainty that the claim is really for less
than the jurisdictional amount”) (citing St. Paul, 303 U.S. at 289). Plaintiff has not shown how
the arbitrator’s award differs from any other post-removal reduction in the amount in
controversy. Accordingly, Plaintiff’s motion is denied.
CONCLUSION
For the foregoing reasons, Plaintiff’s motion to remand is denied. The parties shall
appear before me on July 12, 2011 at 1:00pm for a Pre-Trial Conference.
SO ORDERED.
DATED: June 22, 2011
Brooklyn, New York
______________/s/________________
Andrew L. Carter, USMJ
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