Ferrer v. New England Motor Freight, Inc.

Filing 7

ORDER REMANDING CASE TO STATE COURT -- For the reasons set forth in the ATTACHED WRITTEN SUMMARY ORDER, this matter is REMANDED to New York State Supreme Court, Queens County, under Index No. 701993/2017. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 7/24/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JOSE L. FERRER,
:
:
Plaintiff,
:
:
-against:
SUMMARY ORDER OF REMAND
:
17-CV-3898 (DLI) (JO)
NEW ENGLAND MOTOR FREIGHT, INC. and :
“JOHN DOE”,
:
:
Defendants.
:
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DORA L. IRIZARRY, Chief United States District Judge:
On June 29, 2017, defendant New England Motor Freight, Inc. (“Defendant”), filed a
Notice of Removal to remove this action from the Supreme Court for the State of New York,
Queens 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.
BACKGROUND
On February 11, 2017, plaintiff Jose L. Ferrer (“Plaintiff”) commenced this action in state
court alleging that he was injured in the course of his employment at 154-09 146th Avenue,
Queens, New York. See Verified Complaint (“Ver. Compl.”), Dkt. Entry No. 1-1. Plaintiff claims
that on May 12, 2016, while standing in the rear cargo area of a vehicle owned by Defendant, an
unknown driver suddenly pulled the vehicle away. Id. at ¶¶ 1-17. As a result of the sudden motion,
Plaintiff “was damaged in an amount exceeding the jurisdictional limits of all lower courts which
would otherwise have jurisdiction.” Id. at ¶ 23.
On June 29, 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. Defendant asserts that it is a citizen of New Jersey and that Plaintiff is a citizen of

New York. Id. at ¶¶ 4-5. As to the amount in controversy, while the Verified Complaint does not
state an amount of damages, Defendant contends that the information contained in the Verified
Bill of Particulars permits the inference that the damages claimed by Plaintiff surpass the federal
diversity jurisdictional threshold. Id. at ¶¶ 6-8. In that document, Plaintiff states that he “has
sustained economic loss in excess of basic economic loss in that [he] has, or will in the future,
incur medical, hospital and other necessary expenses that have or will exceed Fifty Thousand
Dollars ($50,000.00).” Ver. Bill of Parts. (“BOP”), Dkt. Entry No. 1-3 at ¶ 23. Neither the Notice
of Removal, the Verified Complaint, nor the Verified Bill of Particulars contain any substantive
allegations establishing the amount in controversy. 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.
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 Int’l, 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
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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).
To establish 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 because it relies solely on Plaintiff’s
conclusory assertions in the Verified Bill of Particulars that he suffered injuries, an infection that
“may require future surgery,” and was confined to a hospital and nursing rehabilitation center from
May 12, 2016 to July 1, 2016. Compare BOP at ¶¶ 8, 23, with Not. of Rem. at ¶¶ 6-7. Notably,
Plaintiff states that, aside from the impact of the “serious injury” he suffered, he only can indicate
that he “has, or will in the future, incur medical, hospital[,] and other necessary expenses that have
or will exceed Fifty Thousand Dollars.” BOP at ¶ 23.
Defendant cannot meet its burden by relying on the face of the Verified Bill of Particulars,
as it merely alleges that Plaintiff’s economic damages either are, or will be, in excess of fiftythousand dollars. Id. Indeed, the Verified Bill of Particulars does not offer any substantive insight
into the nature and extent of Plaintiff’s injuries, and the Court is left to guess at the ultimate amount
in controversy based on boilerplate allegations that, as a result of the alleged accident:
Plaintiff sustained a serious injury . . . in that he sustained a fracture and an injury
which has resulted in a permanent loss of use of a body organ, member, function or
system; a permanent consequential limitation of use of a body organ or member; a
significant limitation of use of a body function or system; and a medically
determined injury of impairment of a non-permanent nature which prevented him

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from performing substantially all of the material acts which constituted him [sic]
usual and customary daily activities . . . .
BOP at ¶ 23. Beyond this, while Plaintiff seemingly presents an itemized list of damages for
medical expenses, each entry is generally labeled “to be provided.” See Id. at ¶¶ 15(A)-(J). 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 Keenan v. Macy’s, Inc., No. 10CV-4672 (HB), 2010 WL 3167731, at *2 (S.D.N.Y. Aug. 9, 2010) (finding that a Bill of Particulars
describing injuries but failing to explicitly state that damages exceed the jurisdictional amount fails
to provide the basis for removal). As Defendant has failed to meet its burden, the Court lacks
subject matter jurisdiction over this case.
The Court notes that Defendant attempted to avail itself of N.Y. C.P.L.R. § 3017(c), but it
failed to do so properly. Defendant served Plaintiff with a Demand for a Statement of Damages
(“Demand”) pursuant to § 3017(c) on March 16, 2017. See Demand for Statement of Damages
(“Dem.”), Dkt. Entry No. 1-4. As of the filing of the Notice of Removal, Plaintiff had not
responded. Not. of Rem. at ¶ 8 n.2. Under § 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. Accordingly, rather than prematurely removing the action to this Court,
Defendant should have moved the state court for an order directing Plaintiff to respond to a demand
for total damages. Noguera v. Bedard, No. 11-CV-4893 (RRM) (ALC), 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 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

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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 upon the information contained in the Verified
Complaint, Verified Bill of Particulars, and Notice or Removal, Defendant has failed to show that
a reasonable probability exists that Plaintiff’s claim is in excess of $75,000. Therefore, remand to
state court is proper.
CONCLUSION
For the reasons set forth above, this case is remanded to New York State Supreme Court,
Queens County, under Index No. 701993/2017.
SO ORDERED.
Dated: Brooklyn, New York
July 24, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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