Remy v. Savoie et al

Filing 7

ORDER REMANDING CASE TO STATE COURT -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, the Court finds that Defendants have failed to show a reasonable probability exists that Plaintiff's claim is in excess of $75,000, a ju risdictional prerequisite for removal based on diversity of the parties pursuant to 28 U.S.C. § 1332(a). Accordingly, this case is REMANDED to New York State Supreme Court, Kings County, under Index No. 522432/2016. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 2/16/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOHANNE REMY,
:
:
Plaintiff
:
:
-against:
SUMMARY ORDER OF REMAND
:
17-CV-00663 (DLI)(RER)
MAXIME SAVOIE and
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TRANSPORT COVERT, INC.,
:
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Defendants.
:
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DORA L. IRIZARRY, Chief United States District Judge:
On February 6, 2017, defendants Maxime Savoie and Transport Covert, Inc.
(“Defendants”) filed a notice to remove this action from the Supreme Court for the State of New
York, Kings County to this Court (the “Notice,” Dkt. Entry No. 1). For the reasons set forth below,
this case is remanded sua sponte to the state court.
BACKGROUND
On December 16, 2016, Plaintiff Johanne Remy (“Plaintiff”), a Brooklyn resident,
commenced this action in state court alleging a claim against Defendants relating to a vehicular
collision that occurred in Bronx County, New York. (Complaint (“Compl.”) Ex. A to Notice.) On
February 6, 2017, Defendants removed the action to this Court, asserting that there was federal
subject matter jurisdiction pursuant to the diversity statute, 28 U.S.C. § 1332(a)(2). (Notice ¶¶ 210.) Specifically, Defendants argue that there is complete diversity of citizenship between the
parties and that they “believe that the amount in controversy between the parties is in excess of
$75,000.” (Notice ¶ 9.) To support their contention that the jurisdictional amount is satisfied,
Defendants rely exclusively on Plaintiff’s failure to respond to a Notice to Admit they served on
Plaintiff pursuant to N.Y. C.P.L.R. § 3123. (Notice ¶¶ 6-8.) In the Notice to Admit, Defendants

requested that Plaintiff either admit or deny that the “amount in controversy in this case is greater
than $75,000 exclusive of interests and costs.” (Ex. B to Notice.) Defendants assert that Plaintiff’s
failure to respond within the time specified by CPLR § 3123 is an admission that the amount in
controversy exceeds $75,000. (Notice ¶ 8.) The Complaint does not state an amount of damages.
(See Compl.) Thus far, Plaintiff has not filed a motion for remand.
DISCUSSION
As a threshold matter, the Court first must address whether it may remand this case to the
state court sua sponte, absent a motion from Plaintiff. The relevant statute, 28 U.S.C. § 1447(c),
states in pertinent part:
A motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.
Id. The Second Circuit has construed this statute as authorizing a district court, at any time, to
remand a case sua sponte upon a finding that it lacks subject matter jurisdiction. See Mitskovski
v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131, 133-34 (2d Cir. 2006) (citing Bender
v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)).
Here, as in all cases removed to the federal courts, the removing party has the burden of
establishing that the amount in controversy exceeds the $75,000 jurisdictional threshold mandated
by 28 U.S.C. § 1332(a). See Lupo v. Human Affairs Intern., Inc., 28 F.3d 269, 273-74 (2d Cir.
1994). “[I]f the jurisdictional amount is not clearly alleged in the plaintiff’s complaint, and the
defendant’s notice of removal fails to allege facts adequate to establish that the amount in
controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis
for removing the plaintiff’s action from state court.” Id. The Second Circuit has cautioned district
courts to “construe the removal statute narrowly, resolving any doubts against removability.”
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Stemmle v. Interlake Steamship Co., 2016 WL 4098559, at *3 (E.D.N.Y. July 27, 2016) (quoting
Lupo, 28 F.3d at 274).
With respect to the amount in controversy jurisdictional requirement for diversity
jurisdiction, the removing party must “prov[e] that it appears to ‘a reasonable probability’ that the
claim is in excess of [$75,000].” United Food & Commercial Workers Union, Local 919, AFLCIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 305 (2d Cir. 1994) (quoting
Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir.1994)). In this case,
Defendants fail to meet their burden to show that the jurisdictional amount has been satisfied, as
they rely solely on an inference they draw from Plaintiff’s alleged failure to respond to the Notice
to Admit.
CPLR 3123 provides that “a party may serve upon any other party a written request for
admission . . . of the truth of any matters of fact set forth in the request, as to which the party
requesting the admission reasonably believes there can be no substantial dispute at the trial.”
Failure to respond to the written request within twenty days of service deems admitted “[e]ach of
the matters of which an admission is requested.” Id. New York courts agree that “a notice to
admit is not to obtain information in lieu of other disclosure devices[.]” Nacherlilla v. Prospect
Park All., Inc., 88 A.D.3d 770, 772 (2d Dep’t 2011); Voigt v. Savarino Const. Corp., 94 A.D.3d
1574, 1575 (4th Dep’t 2012); Taylor v. Blair, 116 A.D.2d 204, 205 (1st Dep’t 1986).
Here, Defendants assert that Plaintiff admitted that the amount in controversy exceeds
$75,000 when Plaintiff failed to respond to the Notice to Admit. This argument is unpersuasive.
Defendants cannot rely on Plaintiff’s failure to respond to their Notice to Admit as the basis for
removal because, in a personal injury action such as this one, CPLR § 3017(c) provides an
alternative disclosure device from which Defendants may determine the amount of damages

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Plaintiff seeks. CPLR § 3017(c) states that a defendant “may at any time request a supplemental
demand setting forth the total damages to which the pleader deems himself entitled.” N.Y.
C.P.L.R. § 3017(c). Rather than improperly utilizing the Notice to Admit and prematurely
removing the action to this Court, Defendants should have availed themselves of this provision,
pursuant to which the state court, on motion, is to order the Plaintiff to respond to a demand for
total damages. See e.g., Gullo v. Burns, 2013 WL 3364366, at *1 (W.D.N.Y. July 3, 2013)
(“Defendants removed this case to federal court prior to requesting any such supplemental demand,
and therefore, they are at a disadvantage to proving the amount in controversy to a reasonable
probability.”).
Moreover, to infer from Plaintiff’s silence that the amount in controversy is met does not
come close to meeting the “reasonable probability” threshold necessary to satisfy the amount in
controversy element of diversity jurisdiction. The Second Circuit has held that “the removal clock
does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies
the amount of monetary damages sought.” Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d
Cir. 2010).

Thus, Plaintiff’s failure to respond to requests conceding that the amount in

controversy exceeds $75,000 is insufficient to establish that the jurisdictional amount is satisfied.
See e.g., Santamaria v. Krupa, 2015 WL 6760140, at *2 (E.D.N.Y. Nov. 5, 2015) (“Plaintiffs’
silence regarding the amount in controversy does not relieve Defendants of their burden to set forth
facts in their notice of removal establishing the jurisdictional amount.”); Kum v. Walcott, 2012 WL
4772072, at *1 (E.D.N.Y. Oct. 5, 2012) (mere fact that plaintiff will not stipulate that damages do
not exceed $75,000 “does not show, by a preponderance of the evidence, that the amount-incontroversy requirement is satisfied”); Nogeura v. Bedard, 2011 WL 5117598, at *2 (E.D.N.Y.
Oct. 26, 2011) (“Defendants’ remedy is not to presume, by plaintiff’s silence, that the amount in

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controversy, if admitted, would confer federal subject matter jurisdiction, and thus remove the
action.”).
Finally, neither the Complaint nor the Notice provides any information concerning the
nature and extent of Plaintiff’s injuries or the treatment received. As such, the Court is left to
guess at the amount in controversy based on the Complaint’s boilerplate allegations that Plaintiff
“sustain[ed] severe and serious injuries and was required to seek and obtain medical care and
attention in an effort to cure and alleviate [the] same[.]” (Compl. ¶ 9.) Such a boilerplate pleading
does not suffice to establish that this action involves an amount in controversy adequate to support
federal diversity jurisdiction. See Noguera, 2011 WL 5117598, at *3 (remanding personal injury
action where neither the complaint nor the notice of removal “particularize[d] or amplifie[d] in
any way the extent of plaintiff’s injuries or damages.”). Therefore, because Defendants failed to
meet their burden, the Court lacks subject matter jurisdiction over this case.
Accordingly, the Court finds that based on the information contained in the Complaint and
the Notice, Defendants have failed to show a reasonable probability exists that Plaintiff’s claim is
in excess of $75,000. Therefore, remand to the state court is proper.
CONCLUSION
For the reasons set forth above, this case is remanded to New York State Supreme Court,
Kings County, under Index No. 522432/2016.
SO ORDERED.
Dated: Brooklyn, New York
February 16, 2017

/s/
Dora L. Irizarry
Chief Judge

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