Feder v. Costco Wholesale Corporation et al
Order Adopting Report and Recommendation and Remanding Action to State Court, Supreme Court of the State of New York, Kings County, case number 509999/2017. Finding no clear error, the court OVERRULES Defendant Costco Wholesale Corp.'s objections (Dkt. 5) and ADOPTS the R&R (Dkt. 4) IN FULL. The action is REMANDED to the Supreme Court of New York, Kings County pursuant to 28 U.S.C. § 1447(c), as removal was premature and Defendants have not met their burden of establishing that the requirements for diversity jurisdiction have been met. So Ordered by Judge Nicholas G. Garaufis on 7/13/2017. (certified copy of Order mailed to Supreme Court. Kings County) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-againstCOSTCO WHOLESALE CORP. and COSTCO
WHOLESALE WAREHOUSE #318,
NICHOLAS G. GARAUFIS,United States District Judge.
On May 18, 2017,Plaintiff Esther Feder commenced this personal injury action in New
York state court against Defendants Costco Wholesale Corp. and Costco Wholesale Warehouse
#318. fSee Compl.(Dkt. 1 at ECF p.6); Summons(Dkt, 1 at ECF p.5).)^ Plaintiff alleges that
she was injured at a Costco warehouse in Brooklyn on February 11, 2016, and, as a result ofthat
accident, she has been "damaged,in an amount in excess of the jurisdictional limits of all lower
courts in which this action could otherwise have been brought." (Compl.^ 39.)
On June 20,2017, Defendants removed the action to this court pursuant to 28 U.S.C.
§ 1441. (See Not, of Removal(Dkt. 1 at ECF p.l).) The Notice ofRemoval states that this court
has original jurisdiction over the action pursuant to 28 U.S.C. § 1332. (Id K 13.) Defendants
submit that the parties are diverse and that the amount in controversy exceeds the jurisdictional
threshold of$75,000, as evidenced by the fact that Plaintiff made a settlement demand "in excess
ofS75,000."2 (Id tH 7-11.)
Defendant filed multiple documents together as Document 1.
^ There is no evidence that Plaintiff made her settlement demand in writing.
On June 27, 2017, Magistrate Judge Roanne L. Mann issued a sua sponte Report and
Recommendation("R&R"),recommending that the court remand the action to the state court.^
(R.& R.(Dkt. 4).) Judge Mann determined that Defendants' removal was premature and thus
procedurally defective. (Id. at 1-2.) Pursuant to 28 U.S.C. § 1446(b)(3),
ifthe case stated by the initial pleading is not removable, a notice of
removal may be filed within thirty days after receipt by the
defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable.
The 30-day 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)(per curiam). "[A]n oral demand is not a pleading or
other paper that meets the requisites of28 U.S.C. § 1446(b)." Abbas v. Kienzler,
(WP),2010 WL 5441663, at *1 (E.D.N.Y. Dec. 23, 2010).^
Accordingly, Judge Mann reasoned that because the Complaint does not include an ad damnum
clause and Defendants rely exclusively on an oral settlement demand to establish the amount in
controversy,"the removal clock never started to run." (R&R at 2.) "[DJefendants' removal is
premature, and thus imtimely." fld.l Judge Maim further determined that the court lacks subject
matter jurisdiction over the action, as neither the allegations in Plaintiff's Complaint nor the facts
alleged in Defendants' Notice ofRemoval are sufficient to establish that the amount in
controversy exceeds the jurisdictional threshold.^ (Jd. at 3.)
Plaintiff has not moved to remand the action.
See also Ouintana v. Werner Enters.. Inc.. No. 09-CV-7771 (PKC),2009 WL 3756334, at *1 (S.D.N.Y. Nov. 2,
2009)("Under section 1446(b),... an oral assertion is insufficient to start the 30-day clock for a defendant's
removal petition, as the text ofthe statute refers to a pleading, motion, order,'or other paper.' The statute does not
recognize oral settlement demands as a basis for triggering the 30-day removal window.").
^ The fact that Plaintiff alleges that her damages exceed "the jurisdictional limits of all lower courts"(Compl. ^39)
does not necessarily mean that the amount in controversy exceeds $75,000, as "the jurisdictional limitation of the
Defendant Costco Wholesale Corp. timely objected to the R&R,arguing that the action
was properly removed and that the court has diversity jurisdiction, (See Costco Wholesale Objs.
to R.& R.(Dkt. 5).) Costco Wholesale Corp. asserts that the amount in controversy exceeds
$75,000, as evidenced by (1)Plaintiffs settlement demand; and(2)the fact that Plaintiff refused
to cap damages at $74,999. (Id. at 1-2.) It further asserts that Defendants removed the action
when they first ascertained that the case was removable, i.e. when Plaintiff informed Defendants
that Plaintiff would not cap damages at $74,999. (Id at 2.) Costco Wholesale Corp. appears to
suggest—^without any citation to case law—^that the parties' discussion about a damages cap
meets the requirements of§ 1446(b)(3), which requires receipt by the defendant of"a copy of
amended pleading, motion, order, or other paper from which it may first be ascertained that the
case [is removable]." 28 U.S.C. § 1446(b)(3)(emphasis added).
Because Defendant Costco Wholesale Corp. makes only conclusory and general
objections to the R&R,the court reviews the R&R for clear error.
Pall Corp. v. Entegris,
Inc., 249 F.R.D. 48,51 (E.D.N.Y. 2008)(holding that if a party "makes only conclusory or
general objections ...the Court reviews the[R&R]only for clear error"(citation omitted)).
Finding no clear error, the court OVERRULES Defendant Costco Wholesale Corp.'s objections
(Dkt. 5)and ADOPTS the R&R(Dkt. 4)IN FULL.
The action is REMANDED to the Supreme Court of New York, Kings County pursuant
to 28 U.S.C. § 1447(c), as removal was premature and Defendants have not met their burden of
establishing that the requirements for diversity jurisdiction have been met.^ S^ Mitskovski v.
Buffalo & Fort Erie Pub. Bridge Auth.. 435 F.3d 127, 133(2d Cir. 2006)(holding that § 1447(c)
lower civil courts of New York is $25,000." (R.& R. at 2-3 (citing Valente v. Garrison From Harrison LLC.
(MDG),2016 WL 126375, at *1 (E.D.N.Y. Jan. 11,2016)).
^ Mehlenbacher v. Akzo Nobel Salt. Inc.. 216 F.3d 291,296(2d Cir. 2000)(holding that the party seeking to remove
the action has the burden of establishing that the requirements of diversity jurisdiction are met).
"authorizes a remand for either a procedural defect asserted within 30 days ofthe filing of notice
ofremoval or a lack of subject matter jurisdiction"(citing Hamilton v. Aetna Life & Cas. Co.,
5 F.Sd 642,644(2d Cir. 1993)(per curiam)). The Clerk of Court is respectfully DIRECTED to
send a certified copy ofthis Order to the Clerk of Court of Supreme Court ofNew York, Kings
County, 360 Adams Street, Brooklyn, New York 11201, and to close this case.
s/Nicholas G. Garaufis
Dated: Brooklyn, New York
l)fICHOLAS G. GARAUFIl!
United States District Judge
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