Hughes v. Target Corporation
ORDER REMANDING CASE TO STATE COURT -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER OF REMAND, this case is remanded to New York State Supreme Court, Richmond County under Index No. 150992/2017. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 6/15/2017. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
SUMMARY ORDER OF REMAND
17-CV-3548 (DLI) (SMG)
DORA L. IRIZARRY, Chief United States District Judge:
On June 13, 2017, defendant Target Corporation (“Defendant”), filed a Notice of Removal
to remove this action from the Supreme Court for the State of New York, Richmond County, to
this Court. See Not. of Removal by Def. (“Not. of Rem.”), Dkt. Entry No. 1. For the reasons set
forth below, this case is remanded sua sponte to the state court.
On May 1, 2017, plaintiff Lorraine Hughes (“Plaintiff”) commenced this action in state
court alleging that she was injured in the children’s clothing area in Defendant’s store at 2873
Richmond Avenue, Staten Island, New York. See Verified Complaint (“Ver. Compl.”), Dkt. Entry
No. 1-1 at ¶¶ 19-21. Plaintiff claims that while in the store on December 20, 2016, she tripped and
fell on a “cracked and defective portion of the floor.” Id. at ¶ 21. As a result, she “sustain[ed]
severe and serious personal injuries.” Id.
On June 13, 2017, Defendant removed the case to this Court, asserting that there was
federal subject matter jurisdiction pursuant to the diversity statute, 28 U.S.C. § 1332. See Not. of
Rem. at ¶ 1. In terms of citizenship, Defendant asserts that it is a citizen of Minnesota and that
Plaintiff is a citizen of New York. Id. at ¶ 6. As to the amount in controversy, while the Verified
Complaint does not state an amount of damages, Defendant insists that the allegations contained
therein permit it to “believe that the amount [in] controversy exceeds $75,000.00, exclusive of
interest and costs.” Id. at ¶ 2. Neither the Notice of Removal nor the Verified Complaint contain
any substantive allegations of fact establishing the amount in controversy. Plaintiff has not filed a
motion for remand.
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.
This statute authorizes 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) (internal citations omitted).
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.”
Stemmle v. Interlake Steamship Co., 198 F. Supp.3d 149, 156 (E.D.N.Y. 2016) (quoting Lupo, 28
F.3d at 274).
Insofar as establishing the amount in controversy, 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, AFL-CIO v. CenterMark Props. 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)). Here, Defendant fails to meet its burden to show that the jurisdictional amount
has been satisfied, as it relies solely on Plaintiff’s conclusory assertion that resulting “severe and
serious personal injuries” have rendered her “disabled,” and that she is and will be “prevented”
from performing her “usual duties.” Compare Ver. Compl. at ¶¶ 21, 24, with Not. of Rem. at ¶ 2.
Defendant concedes that the Verified Complaint does not specify any amount in controversy. Not.
of Rem. at ¶ 2. The Notice of Removal does not describe any attempt to ascertain an amount of
damages. See generally, Id.
Furthermore, Defendant cannot meet its burden by relying on the face of the Verified
Complaint because it neither alleges an amount of damages nor provides any specific information
concerning the nature and extent of Plaintiff’s injuries or the treatment received. Accordingly, the
Court is left to guess at the amount in controversy based on the boilerplate allegation that, as a
result of tripping on the floor inside Defendant’s store, Plaintiff:
was rendered disabled due to the injuries; upon information and
belief, [the injuries] are of a permanent character, that by reason
thereof, this [P]laintiff has been prevented from following her usual
duties and she is informed and verily believes, that in the future [she]
will be prevented from following her usual duties all to the [her]
damage in a sum that exceeds the jurisdictional limit of all lower
courts which would otherwise have jurisdiction.
Id. at ¶ 24. 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 v.
Bedard, No. 11-CV-4893 (RRM) (ALC), 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.”). As
Defendant has failed to meet its burden, this Court lacks subject matter jurisdiction over this case.
The Court notes that Defendant was not without recourse to determine the amount of
damages Plaintiff seeks. Pursuant to N.Y. C.P.L.R. § 3017(c), a defendant “may at any time request
a supplemental demand setting forth the total damages to which the pleader deems [her]self
entitled.” 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, Defendant
should have availed itself of the appropriate statutory provision, pursuant to which the state court,
on motion, is to order 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.”).
Consequently, the Court finds that based on the information contained in the Verified
Complaint and the Notice, Defendant has failed to show a reasonable probability exists that
Plaintiff’s claim is in excess of $75,000. Therefore, remand to state court is proper.
For the reasons set forth above, this case is remanded to New York State Supreme Court,
Richmond County, under Index No. 150992/2017.
Dated: Brooklyn, New York
June 15, 2017
DORA L. IRIZARRY
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