Cohen v. Werner Co.
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. 151491/2017. The Clerk of the Court is directed to close this case. SO ORDERED by Chief Judge Dora Lizette Irizarry on 8/3/2017. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DORA L. IRIZARRY, Chief Judge:
SUMMARY ORDER OF REMAND
17-CV-4491 (DLI) (RER)
On July 31, 2017, defendant Werner Co. (“Defendant”) filed a petition to remove this
action from the Supreme Court for the State of New York, Richmond County to this Court (the
“Petition,” Dkt. Entry No. 1). For the reasons set forth below, this case is remanded to the state
court, sua sponte.
On July 3, 2017, plaintiff Jason Cohen (“Plaintiff”) commenced this action in state court
alleging claims relating to his fall from an attic ladder allegedly manufactured and sold by
Defendant. (Complaint (“Compl.”).) On July 31, 2017, Defendant 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)(1). Specifically, Defendant argues that there is complete diversity of
citizenship between the parties and that “[a] demand was made by Plaintiff, pre-lawsuit, in excess
of $75,000.00.” (Petition at ¶¶ 8-9.) Beyond that, neither the Petition nor the Complaint contains
any allegations of fact establishing the amount in controversy. Thus far, 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.
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.”
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 jurisdictional amount element of 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, AFL-CIO 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, Defendant fails to meet its
burden to show that the jurisdictional amount has been satisfied, as it relies solely on an
unsubstantiated assertion that Plaintiff made a demand, pre-lawsuit, in excess of $75,000.00.
Defendant’s assertion does not come close to meeting the “reasonable probability”
threshold necessary to satisfy the amount in controversy element of diversity jurisdiction. First,
even accepting Defendant’s assertion as true, Plaintiff’s demand pre-lawsuit does not mirror
necessarily what Plaintiff will seek at trial. Plaintiff may have reassessed the amount of damages
sought between his pre-lawsuit demand and instituting suit. See Burg v. Primal Vantage Co., 2014
WL 448519, at *5 (W.D.N.Y. Feb. 4, 2014), report and recommendation adopted, No. 13-CV1121S, 2014 WL 1609658 (W.D.N.Y. Apr. 22, 2014) (“Pre-suit settlement demand letters can be
unreliable as a gauge of an amount in controversy because, coming before any suit and thus before
any ‘controversy,’ they may contain any number of motives and negotiating tactics that have
nothing to do with assessing the value of a formally pled case.”)
Second, Defendant provides no documentation substantiating its assertion, such as written
evidence of Plaintiff’s demand. Third, Defendant does not allege any details of Plaintiff’s prelawsuit demand. Defendant does not apprise the Court of whether this was an oral or a written
demand, nor does Defendant specify how much Plaintiff demanded. Finally, Defendant’s counsel
has not filed a sworn affidavit attesting to Plaintiff’s alleged demand. Defendant’s bare allegation
that “[a] demand was made by Plaintiff, pre-lawsuit, in excess of $75,000.00” is not reasonably
probable to warrant removal. See also Branford Paint Ctr., Inc. v. PPG Architectural Finishes,
Inc., 2007 WL 329115, at *2 (D. Conn. Feb. 1, 2007) (“Although some courts have considered
settlement demands in determining the amount in controversy, they have done so with caution. A
settlement demand does not conclusively resolve the ambiguity regarding the amount in
The Complaint itself is silent as to damages. Plaintiff’s reference to damages “in an amount
that exceeds the jurisdictional limits of all lower courts,” clearly refers to the lower courts of New
York State, which may not entertain actions seeking to recover more than $25,000. 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). That Plaintiff chose to
file his case in the state court with no jurisdictional limit does not support, in any way, Defendant’s
assertion that Plaintiff seeks more than $75,000.
Moreover, neither the Complaint nor the Petition provides any information concerning the
nature and extent of Plaintiff’s injuries, the treatment received, or details regarding the other losses
he purportedly suffered. As such, the Court is left to guess at the amount in controversy based on
the Complaint’s boilerplate allegations that Plaintiff “was caused to sustain serious injuries and to
have suffered pain, shock and mental anguish . . . these injuries and their effects will be permanent;
and as a result of said injuries Plaintiff has been caused to incur, and will continue to incur,
expenses for medical care and attention.” (Compl. at ¶ 23.) Such boilerplate pleadings do not
suffice to establish that this action involves an amount in controversy adequate to support federal
diversity jurisdiction. See Noguera 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.”)
The Court notes that Defendant was 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, Defendant should have availed itself 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 Petition, Defendant has 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.
For the reasons set forth above, this case is remanded to New York State Supreme Court,
Richmond County, under Index No. 151491/2017.
Dated: Brooklyn, New York
August 3, 2017
Dora L. Irizarry
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