Vidal v. Dentsply International Preventative Care Division, L.P.

Filing 15

DECISION AND ORDER remanding the case to the Washington County Supreme Court. Signed by US Magistrate Judge Andrew T. Baxter on 5/23/2012. (amt) [Pltf served via reg. mail]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________
JOSEPH VIDAL,
Plaintiff,
-v.-

1:12-CV-0221
(ATB)

DENTSPHY INTERNATIONAL
PREVENTATIVE CARE DIVISION, L.P.,
Defendant.
_____________________________________________________
JOSEPH VIDAL, Plaintiff pro se
JUDI ABBOTT CURRY, ESQ., Attorney for Defendant
ANDREW T. BAXTER, United States Magistrate Judge
DECISION and ORDER
On February 2, 2012, defendant removed this action from the New York State
Supreme Court, Washington County, alleging jurisdiction based upon diversity of
citizenship . (Dkt. No. 1). Defendant filed its answer to the complaint on February 8,
2012. (Dkt. No. 5). In his complaint, plaintiff alleges that, while he was an inmate at
Great Meadow Correctional Facility in 2008, a facility dental hygienist, cleaned
plaintiff’s teeth, using an Ultrasonic Scaler, manufactured by defendant. (Dkt. No. 1-3,
Ex. A). Plaintiff claims that during the cleaning, the defendant’s device emitted a
surge of electricity, causing a hairline fracture in plaintiff’s tooth. (Id. ¶ 22). Plaintiff
claims that as a result, the plaintiff’s tooth had to be extracted, and plaintiff suffered
injury and pain. (Id. ¶¶ 31-35).
The complaint contains seven causes of action. (Id. ¶¶ 38-65). Plaintiff claims
that the Ultrasonic Scaler was not fit for its intended purpose, was unsafe, was not of
“merchantable quality,” and was defective in various respects, including design. (Id.

¶¶ 38-47). Plaintiff alleges failure to warn, breach of warranty, and strict liability in
tort. (Id. ¶¶ 45-51). At the end of the complaint, plaintiff states that he is asking for
“judgment against the defendant on each causes [sic] of action in the amount of
Seventy Thousand ($70,000.00); for a total judgment against the defendant in the
sum of $70,000.00 with interest, together with the cost and disbursements of this
action . . . .” (Id. at p.10) (emphasis added).
On April 12, 2012, the Honorable David N. Hurd, United States District Judge
referred this case to me for all further proceedings including the entry of judgment
pursuant to 28 U.S.C. § 636(c) and the consent of both parties. (Dkt. No. 12).
I.

Subject Matter Jurisdiction
Removal to federal court is proper if there is federal subject matter jurisdiction

over the claim being brought. See 28 U.S.C. § 1441. The diversity statute confers
original jurisdiction on the federal district courts with respect to “all civil actions
where the matter in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs, and is between . . . citizens of different States.” Scherer v. Equitable
Life Assur. Soc'y of the United States, 347 F.3d 394, 398 (2d Cir. 2003); 28 U.S.C.
§ 1332(a). The party asserting jurisdiction bears the burden of proving that the case is
properly in federal court. United Food & Commercial Workers Union, Local 919 v.
CenterMark Props. Meriden Square, 30 F.3d 298, 301 (2d Cir.1994). It must appear
to a “reasonable probability” that the claim is in excess of the jurisdictional amount.
Vermande v. Hyundai Motor America, Inc., 352 F. Supp. 2d 196-97 (D. Conn. 2004)
(citing inter alia Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir.

2

2000)). The court must resolve any doubts against removability.1 Lupo v. Human
Affairs, Intern., Inc., 28 F.3d 269, 274 (2d Cir. 1994) (quoting Somlyo v. J. Lu-Rob
Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991)).
In order to determine the jurisdictional amount, courts recognize a rebuttable
presumption that the face of the complaint is a good-faith representation of the
“‘actual amount in controversy.’” Pollock v. Trustmark Ins. Co., 367 F. Supp. 2d 293,
296 (E.D.N.Y. 2005) (quoting Scherer, 347 F.3d at 398). When a case is removed
from state court, the defendant is the party seeking federal jurisdiction. The defendant
must, therefore, establish by a reasonable probability that the amount in controversy is
over the threshold. Id. (citing United Feel & Comm. Workers Union, Local 919, AFLCIO, 30 F.3d at 301) (where jurisdiction is asserted by the defendant in a removal
petition, the defendant has the burden of establishing that removal is proper). While
the Second Circuit normally requires the party contesting the amount in controversy to
establish to a “legal certainty” that the jurisdictional amount has not been met, the
language of legal certainty is dropped in a case removed from state court. Id.
Defendant removed this action, believing that the jurisdictional limit was met.2
However, even though each relief section requests $70,000.00, and the first sentence
of the “Wherefore” clause demands judgment against defendant on “each” cause of
action in the amount of $70,000.00, plaintiff then states that the “total judgment”

1

The court recognizes and has considered the competing interest that pro se pleadings are to
be interpreted liberally and to raise the strongest arguments they suggest. Ortiz v. McBride, 323 F.3d
191, 194 (2d Cir. 2003) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
2

There is no dispute regarding diversity of citizenship, and that basis for subject matter
jurisdiction is met.
3

against defendant would be the sum of $70,000.00. (Dkt. No. 1, Exh. A at p.10).
Because of the confusion on this issue, the court held a telephone conference on May
1, 2012, during which the jurisdictional amount was discussed.3
At the telephone conference, I ordered defendant to file supplemental papers
supporting its claim of diversity jurisdiction or to consent to remand this action if
diversity jurisdiction does not exist.4 (Text Order dtd. May 1, 2012). On May 16,
2012, defense counsel filed a “Status Report,” consenting to remand this action to
New York State Court. (Dkt. No. 14). Based upon the court’s findings, made during
the telephone conference and upon defendant’s consent to remand, this court finds that
subject matter jurisdiction is lacking in this case. Because federal jurisdiction is
lacking, the court must order remand to state court. See 28 U.S.C. § 1447(c) (“If at any
time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.”).
WHEREFORE, based on the above, it is
ORDERED, that this case be REMANDED to the New York State Supreme
Court, Washington County based upon a lack of subject matter jurisdiction.
Dated: May 23, 2012

3

Given the nature of plaintiff's injuries, even $70,000.00 appears to be an unusually high
estimate of the damages incurred. While plaintiff may have had some pain and discomfort, as an
inmate, he had no medical expenses and lost no meaningful legitimate income as a result of the
problems with his tooth.
4

At the conference, plaintiff did not object to being in either state or federal court.
4