Faktorovich v. Fleet Car Lease, Inc. et al

Filing 7

ORDER REMANDING CASE TO STATE COURT -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, this case is remanded to New York State Supreme Court, Kings County, under Index No. 500223/2017. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 4/10/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ANNA FAKTOROVICH,
:
:
Plaintiff,
:
:
-against:
:
FLEET CAR LEASE, INC. & CHARLES
:
BLACKWELL,
:
:
Defendants.
:
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DORA L. IRIZARRY, Chief Judge:

SUMMARY ORDER OF REMAND
17-cv-1824 (DLI)(LB)

On March 31, 2017, defendants Fleet Car Lease, Inc. and Charles Blackwell
(“Defendants”) filed a notice to remove this action from the Supreme Court for the State of New
York, Kings County to this Court. (Notice and Petition of Removal, Dkt. Entry No. 1 (the
“Notice”).) For the reasons set forth below, this case is remanded sua sponte to the state court.
BACKGROUND
On December 21, 2016, Anna Faktorovich (“Plaintiff”) commenced this action in state
court alleging she suffered injuries due to Defendants’ negligent “operation, maintenance,
management and control of their motor vehicles, in,” inter alia, “causing, permitting and allowing
them to come in contact with the plaintiff[’s] vehicle.” (Compl., Dkt. Entry No. 1-2 (the
“Complaint”).) Plaintiff further claims she “was caused to sustain serious permanent physical
injury,” but does not describe the extent of the injury, nor state the amount of damages she has
suffered. (Id.at ¶ 14.) Defendants were not served with the Complaint until March 23, 2017.
(Notice at ¶ 5; Proof of Service, Dkt. Entry No. 1-3.)
March 31, 2017, Defendants removed the case to this Court, asserting that there was
federal subject matter jurisdiction pursuant to the diversity statute, 28 U.S.C. § 1332. (Notice at

¶¶ 2-3.) Specifically, Defendants argues that there is complete diversity of citizenship between
the parties and that “upon information and belief, plaintiff seeks an amount in damages that
exceeds $75,000, exclusive of interest and costs, in this action.” (Notice at ¶ 3(e).) Neither the
Notice nor the Complaint contains any allegations of fact establishing the amount in controversy.
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 Plaintiff’s general assertion that she was injured. (See Notice at ¶ 3(e); Compl.
¶ 14.) The Complaint did not specify an amount of damages (see generally Compl.), and the
Notice does not describe any attempt made by Defendants to ascertain a damages amount (see
generally Notice).

Indeed, the only information in the Notice concerning the amount in

controversy is made “upon information and belief,” without support. (See Notice at ¶ 3(e).)
Additionally, Defendants cannot meet their burden in this case by relying on the face of
the Complaint because the Complaint neither alleges a damages amount nor 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
allegation that Plaintiff:
was caused to sustain serious permanent physical injury, became sick, sore lame
and disabled, suffered injuries to her nervous system[;] suffered mental anguish,
was confined to bed and home and may, in the future, be confined[;] was
incapacitated from attending to usual duties and vocation and may, in the future be
so incapacitated; will suffer a loss and/or limitation of quality and enjoyment of
life[;] and plaintiff, ANNA FAKTOROVICH, was otherwise damaged.
(Compl. at ¶ 18.) Such a barebones, general pleading does not suffice to establish that this action
involves an amount in controversy adequate to support federal diversity jurisdiction. See Noguera
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v. Bedard, 2011 WL 5117598, at *3 (E.D.N.Y. Oct. 26, 2011) (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”).1 As Defendants have failed to meet their burden,
this Court lacks subject matter jurisdiction over this case.
The Court notes that Defendants were not without recourse to determine the amount of
damages Plaintiff seeks. Pursuant to CPLR § 3017(c), 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). If the “supplemental demand is not served within fifteen days, the court,
on motion, may order that it be served.” Id. Rather than prematurely removing the action to this
Court, Defendants should have availed themselves of the appropriate statutory provision, pursuant
to which the state court, on motion, is to order the Plaintiff to respond to a demand for total
damages. Noguera, 2011 WL 5117598, at *2 (“Defendants’ remedy is not to presume, by
plaintiff’s silence, that the amount in controversy, if admitted, would confer federal subject matter
jurisdiction, and thus remove the action. Nor is it the province of this Court, in the face of its
concerns regarding its own jurisdiction, to order plaintiff to respond when the state court has the
power—indeed, the statutory obligation—to consider so doing.”).
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.

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Plaintiff’s statement that she “has been damaged in the amount in excess of the jurisdictional limits of all
lower courts,” does not help Defendants’ cause either because it merely conveys that she seeks more than $25,000,
which is the jurisdictional limit of the Civil Court of the City of New York. See Woodley v. Massachusetts Mut.,
2008 WL 2191767, at *2 (S.D.N.Y. May 23, 2008) (remanding case for failure to satisfy jurisdictional amount
where defendants relied solely on ad damnum clause in complaint stating that plaintiff was seeking damages in
excess of the “monetary jurisdiction of all lower [c]ourts”) (citing S.S.I.G. Realty, Inc. v. Bologna Holding Corp.,
213 A.D.2d 617, 624 (2d Dep’t 1995); see Woodley, 2008 WL 2191767 at *2 n.3 (collecting cases).

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CONCLUSION
For the reasons set forth above, this case is remanded to New York State Supreme Court,
Kings County, under Index No. 500223/2017.
SO ORDERED.
Dated: Brooklyn, New York
April 10, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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