Marroquin v. Jenkins et al

Filing 12

MEMORANDUM AND ORDER re 4 Motion to Remand to State Court - For the reasons stated above (SEE ATTACHED ORDER for details), Plaintiff's motion seeking remand of this action is DENIED. So Ordered by Judge Joan M. Azrack on 7/29/2022. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DANIEL E. MARROQUIN,

FILED 
CLERK 

7/29/2022 11:18 am

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

For Online Publication Only

Plaintiff,
MEMORANDUM AND ORDER
22-CV-2558 (JMA) (ARL)

-againstMICHELLE JENKINS, and
GNW TRANSPORT, INC.
Defendant.
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AZRACK, United States District Judge:

Plaintiff Daniel E. Marroquin (“Plaintiff”) filed a complaint in New York State Supreme
Court on March 4, 2022, asserting state law tort claims. Defendants Michelle Jenkins and GNW
Transport, Inc. (“GNW,” and collectively, “Defendants”) removed the case to federal court on
May 4, 2022. Plaintiff now seeks to remand this action back to state court on the ground that
Defendants' removal was untimely. For the reasons stated below, Plaintiff's motion is denied.
I. BACKGROUND
A. Factual Background
Plaintiff’s complaint alleges that Defendant Jenkins operated a truck for GNW. (See
Compl. ¶¶ 4-18, ECF No. 1-1.) Plaintiff alleges that, on March 9, 2021, Jenkins’ vehicle struck a
vehicle operated by the Plaintiff. (See id. at ¶¶ 19-23.) Plaintiff’s complaint alleges that, as a
result of Defendants’ “negligence, carelessness and recklessness,” he sustained a serious injury as
defined by Section 5102(d) of the Insurance Law of the State of New York, and/or economic loss
greater than basic economic loss as defined in Section 5102(a). (See id. at ¶¶ 25-26.) The
complaint alleges that Plaintiff sustained damages “in an amount which exceeds the jurisdictional
limits of all lower courts which would otherwise have jurisdiction over this matter.” (See id. at ¶
29.)
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On October 11, 2021, Plaintiff underwent a cervical discectomy and annuloplasty. (See
Exhibit A Operative Report, ECF No. 4-3.) On December 6, 2021, Plaintiff’s counsel faxed
Defendants’ insurer, Nationwide Insurance Company, a packet of medical records with a demand
that the insurer “tender” the policy limit of $1,000,000.00. (See Affidavit Certification of
Counsel., ECF No. 4-2; Exhibit B Ltr. to Nationwide w/o enclosure., ECF No. 4-4.) Plaintiff’s
counsel subsequently contacted Nationwide on February 21, 2022 and learned that outside counsel,
Lorne M. Ritter, Esq., had been retained on the matter. (See Ltr. to Affidavit Certification of
Counsel, ECF No. 4-2.)
B. Procedural History
On March 4, 2022, Plaintiff filed the instant complaint in New York State Supreme Court,
Nassau County, alleging tort claims for the injuries Plaintiff allegedly sustained as a result of the
collision. (See Compl., ECF No. 1-1.) On March 12, 2022, Plaintiff served the complaint on
GNW’s statutory agent, the New York Secretary of State. (See Exhibit Affidavits of Service, ECF
No. 4-7.) On April 5, 2022, Defendants served an ad damnum demand on Plaintiff’s counsel. (See
Exhibit Ex. C, ECF No. 8-3.) On April 22, 2022, Plaintiff provided a response to the demand
indicating that he was seeking damages in the amount of $5,000,000. (See Exhibit Ex. D, ECF
No. 8-4.)
On May 4, 2022, Defendants removed the case to federal court on diversity grounds,
pursuant to 28 U.S.C. §§ 1332(a)(1) and 1441. (See Notice of Removal, ECF No. 1.) Plaintiff
then filed a timely a motion to remand this case back to state court. (ECF No. 4.)

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II. DISCUSSION
A. Legal Standards
1. Relevant Provisions of 18 U.S.C. § 1446
A district court has diversity jurisdiction over civil actions where the amount in controversy
exceeds $75,000 and there is diversity of citizenship. 28 U.S.C. § 1332(a)(1). A defendant seeking
to remove a civil action from state court must file a notice of removal “within 30 days after the
receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1).
However, “if the case stated by the initial pleading is not removable,” the 30-day clock does not
begin to run until the defendant receives “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.” Id. § 1446(b)(3).
2. Parties’ Arguments
Plaintiff seeks remand on the ground that Defendants failed to remove this action within
the prescribed 30-day limit set forth in 28 U.S.C. § 1446(b). (See ECF No. 4.) Plaintiff asserts
that his December 6, 2021 pre-suit demand qualifies as an “other paper” under 28 U.S.C.
§1446(b)(3), and that, as such, Defendants should have reasonably ascertained that Plaintiff was
claiming damages over $75,000.00. (Id.) Thus, Plaintiff argues that the 30-day removal clock
began when Defendants were served the complaint on March 21. (Id.)
Defendants counter that removal was timely, contending that the “other paper” referenced
in 28 U.S.C. § 1446(b) must post-date the initial pleading. (See ECF No. 8.) Defendants argue
that removal was timely because the notice of removal was filed on May 4, within 30 days of
Plaintiff’s April 22 response to the ad damnum demand. (See id.)

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As explained below, Plaintiff’s remand motion must be denied.
B. Analysis
On a motion to remand, the defendant bears the burden of establishing that removal was
proper. See Cal. Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004).
In the complaint, Plaintiff claimed damages “in an amount which exceeds the jurisdictional
limits of all lower courts which would otherwise have jurisdiction over this matter.” (ECF No. 11.) This language is insufficient, standing alone, to establish that the case involved over $75,000
and, thus, was removable.1 Plaintiff does not argue otherwise. The complaint, on its face, only
establishes that the amount in controversy exceeds $25,000, not $75,000, and consequently, it did
not trigger that 30-day removal clock under 28 U.S.C. § 1446(b)(1).
In Plaintiff’s April 22 response to the ad damnum demand, Plaintiff explicitly demanded
$5,000,000 in total damages. This response is an “other paper” under § 1446(b)(3), which
explicitly established that Plaintiff’s claim satisfied the $75,000 jurisdictional threshold for
removal. Thus, the 30-day removal clock under 28 U.S.C. § 1446(b)(3) began to run on April 22,
2022 and Defendants’ removal of the case on May 4, 2022—12 days after receipt of the response—
is therefore timely.
Plaintiff’s reliance on his December 6, 2021 pre-suit letter is unavailing. Plaintiff contends
that the December 6 pre-suit demand—which sought $1,000,000—is an “other paper” under 28
U.S.C. § 1446(b)(3). (See ECF No. 4.) According to Plaintiff, Defendants should have ascertained
that Plaintiff was claiming at least $75,000 in damages based on the December 6 letter and that, as
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New York CPLR requires that “[i]n an action to recover damages for personal injuries . . . the complaint . . . shall
contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself
entitled.” N.Y. C.P.L.R. § 3017(c). Additionally, “[i]f the action is brought in the supreme court, the pleading shall
also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts which
would otherwise have jurisdiction.” Id. The jurisdictional limit of all the lower courts in New York is $25,000.00
exclusive of interest and costs. See N.Y. Const. Art. VI, § 11(a).

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such, the 30-day removal clock began to run when Defendants were served the complaint on March
21. (Id.)
Decisions from district courts in the Second Circuit and decisions from other circuits have
held that a pre-suit demand letter does not constitute an “other paper” under § 1446(b)(3) to trigger
the 30-day removal clock. See Davis v. Espinal-Vazquez, No. 21-CV-7819, 2022 WL 2720731,
at *4-5 (S.D.N.Y. June 22, 2022); Kuxhausen v. BMW Fin. Servs. NA LLC, 707 F.3d 1136, 114042 (9th Cir. 2013). The reasoning of these decisions is compelling. As the Ninth Circuit has
explained:
If the second paragraph of section 1446(b) were meant to include as “other paper”
a document received by the defendant months before receipt of the initial pleading,
the requirement that the notice of removal “be filed within thirty days after receipt
by the defendant” of the “other paper” would be nonsensical. Moreover, that the
second paragraph lists “an amended pleading, motion, order”—all documents
which logically cannot predate the initial pleading—before “or other paper” leads
us to conclude that “other paper” does not include any document received prior to
receipt of the initial pleading.
Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 885–86 (9th Cir. 2010); see also Davis, 2022
WL 2720731, at *4.
This interpretation of § 1446 is also buttressed by the Second Circuit’s decision in Cutrone
v. Mortgage Electronic Registration Systems, Inc., 749 F.3d 137 (2d Cir. 2014). While Cutrone’s
specific holding concerned a different, but related, question under § 1446, Cutrone indicates that
the 30-day removal clock is only triggered by “an initial pleading or subsequent document,” id. at
143 (emphasis added), and explicitly relies on the Ninth Circuit’s decision in Kuxhausen, which
is cited above.
Plaintiff cites Butera v. Southwest Airlines Co., No. 12-CV-51, 2012 WL 3860802
(W.D.N.Y. Sept. 5, 2012), for the proposition that “a pre-suit settlement demand can constitute
proof of the amount in controversy.” (ECF No. 9). Butera, however, is clearly distinguishable.

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Butera concerned a motion to remand filed by a plaintiff who argued that the amount in controversy
requirement of § 1332(a) was not satisfied. While Butera held that a pre-suit letter can constitute
evidence of the amount in controversy for purpose of such a challenge, Butera did not involve
§ 1446(b)(3) or address whether a pre-suit letter constitutes an “other paper.” See Davis, 2022
WL 2720731, at *4 (distinguishing Butera); see
also -----Cutrone, 749 F.3d at 146 (explaining that
- --“whether a basis for removal exists and whether removal is timely are two separate questions”).
Defendants’ notice of removal was clearly timely.
III. CONCLUSION
For the reasons stated above, Plaintiff’s motion seeking remand of this action is DENIED.
SO ORDERED.
Dated: July 29, 2022
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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