Butko v. Chipotle Mexican Grill, Inc.
Order of Remand to State Court - NYS, Kings County, case number 524274/2017. So Ordered by Judge Nicholas G. Garaufis on 4/12/2018. (certified copy of Order mailed to NYS, Kings County) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ALEXANDER BUTKO,individually and as parent and
natural guardian of S.B., an infant,
CHIPOTLE MEXICAN GRILL,INC.; and ANTHONY
NICHOLAS G. GARAUFIS,United States District Judge.
Plaintiff alleges that his child, S.B., was attacked by Defendant at a Chipotle Mexican
Grill, Inc.("Chipotle")location in Brooklyn. (See Compl.(Dkt. 1 at ECF p.9).) Plaintiff
initially filed this suit in the Supreme Court ofthe State ofNew York,Kings County, naming as
defendants Chipotle and one John Doe. (Id.) Chipotle then removed the case to federal court,
invoking this court's diversity jurisdiction. (Notice of Removal(Dkt. 1 at ECF p.l).)
Chipotle's removal ofthis case to federal court was proper. Both when the complaint
was filed and when the case was removed.Plaintiff was a citizen ofNew Jersey(Compl. If 8)and
was suing both on his own behalf and on behalf of his minor child, a resident ofNew York(id
f 9). For purposes of diversity jurisdiction. Plaintiff was therefore a citizen of both New Jersey
and New York.
28 U.S.C. § 1332(c)(2)(stating that "the legal representative of an infant...
shall be deemed to be a citizen only ofthe same State as the infant"); Shuler v. EmeriCare Inc.,
No. 17-CV-2684(JAK),2017 WL 3193647, at *3(C.D. Cal. July 27,2017)(holding that,
because the plaintiff was suing both individually and on behalf of an estate, it was proper to
consider her citizenship as well as that ofthe decedent); D'Addario v. D'Addario. No. 16-CV-99
(JBA),2017 WL 1086772, at *20(D. Conn. Mar. 22,2017)(same). Defendant Chipotle was
incorporated in Delaware and had its "principal place of business" in Colorado. See 28 U.S.C.
§ 1332(c)(1); Portillo v. Chipotle Mexican Grill. Inc.. No. 17-CV-1497,2018 WL 637386, at *23(C.D. Cal. Jan. 31,2018); Patterson v. Chipotle Mexican Grill. Inc.. No. 12-CV-2872,2012
WL 6733085, at *1 (N.D. Ohio Dec. 28,2012). The citizenship ofthe John Doe defendant was
irrelevant, because defendants sued under fictitious names are disregarded when determining
whether a civil action is removable on the basis of diversity jurisdiction. 28 U.S.C. § 1441(b)(1).
Plaintiffthereafter filed an amended complaint substituting Defendant Anthony Medley
for the John Doe defendant named in the initial complaint. (Am. Compl.(Dkt. 14).) Plaintiff
had already given the court notice that the joinder ofthis defendant would "most certainly break
complete diversity of... the parties, because upon Plaintiffs belief and knowledge,[Medley] is
a citizen ofthe State ofNew York,same as the infant defendant." (PI. Pre-Mot. Conf. Appl.
(Dkt. 11)at 1.) The parties thereafter informed the court oftheir agreement that the matter
should be remanded to state court "based on the lack of diversity jurisdiction"(Joint Status
Letter(Dkt. 15)) and filed joint stipulations to remand the case (Joint Stip. of Dismissal(Dkts.
The court agrees that this case should be remanded to state court. For purposes of
determining diversity jurisdiction. Plaintiffis a citizen ofNew York insofar as he asserts claims
on behalf of S.B. S^28 U.S.C. § 1332(c)(2). Plaintiff and Chipotle agree that Medley is a
citizen ofNew York as well, and nothing in the record suggests that he is not. (PI. Pre-Motion
Conf. Appl. at 1; Joint Status Ltr.(Dkt. 15); see also Aff. of Service(Dkt. 17)(stating that
Plaintiff served a copy ofthe amended complaint on Medley's co-tenant at Medley's place of
residence in New York).) The presence of opposing parties who are both citizens ofNew York
destroys complete diversity, which is the only suggested basis for federal jurisdiction over this
28 U.S.C. § 1331. And when "after removal the plaintiff seeks to join additional
defendants whose joinder would destroy subject matter jurisdiction, the court may ...permit
joinder and remand the action to the State court." Id § 1447(e). The record contains nothing to
suggest that substituting Medley—^who is alleged to be the individual actually responsible for
assaulting S.B.(Am. Compl. H 11), and from whom Plaintiff seeks damages for assault and
battery(id fli 19-21)—for the John Doe defendant was improper. S^ McGee v. State Farm
Mut. Auto. Ins. Co.. 684 F. Supp. 2d 258,261-65(E.D.N.Y. 2009)(stating a two-part test for
deterniining whether to dismiss xmder Rule 21 ofthe Federal Rules of Civil Procedure nondiverse defendants added after a case is removed to federal court).
Accordingly,the parties'joint motion to remand this case to the Supreme Court ofthe
State ofNew York, Kings County(Case Number 524274/2017)is GRANTED. S^ Herrero v.
Sears. Roebuck & Co.. No. 15-CV-2162,2015 WL 6159141, at *4-6(E.D. La. Oct. 20,2015)
(granting a motion to remand a case in which plaintiffs substituted a non-diverse defendant for a
John Doe defendant).
s/Nicholas G. Garaufis
Dated: Brooklyn,New York
NICHOLAS G. GARAUF^
United States District Judge*
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