City of Syracuse v. Loomis Armored US, LLC
Filing
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MEMORANDUM-DECISION AND ORDER denying plaintiff's 10 Motion to Remand to State Court. The Court further ORDERS that the Clerk of the Court shall reset the response and reply deadlines relevant to Defendant's motion to dismiss (Dkt. No. 5); and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 12/15/11. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CITY OF SYRACUSE,
Plaintiff,
vs.
5:11-cv-00744
(MAD/GHL)
LOOMIS ARMORED US, LLC,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
CITY OF SYRACUSE
OFFICE OF CORPORATION COUNSEL
233 East Washington Street
City Hall
Syracuse, New York 13202
Attorneys for Plaintiff
JAMES P. McGINTY, ESQ.
JESSICA M. McKEE, ESQ.
SMITH, SOVIK, KENDRICK &
SUGNET, P.C.
250 South Clinton Street
Suite 600
Syracuse, New York 13202-1252
Attorneys for Plaintiff
SUZANNE LEHMAN FRANCIS, ESQ.
STEVEN W. WILLIAMS, ESQ.
HAYNES & BOONE, LLP
30 Rockefeller Plaza - 26th Floor
New York, New York 10112
Attorneys for Defendant
JONATHAN D. PRESSMENT, ESQ.
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On June 8, 2011, Plaintiff filed a complaint in New York State Supreme Court, Onondaga
County, alleging causes of action for breach of contract and negligence. On July 1, 2011,
Defendant removed the action to this Court pursuant to 28 U.S.C. § 1446, asserting that the Court
possesses jurisdiction over the matter pursuant to 28 U.S.C. § 1332(a) by virtue of the fact that
complete diversity exists between the parties and the amount in controversy exceeds $75,000. On
July 8, 2011, Defendant filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, arguing that the complaint is time barred and that it fails to state
any prima facie claims for relief. Thereafter, on July 21, 2011, Plaintiff filed a motion to remand
the action back to state court.
Currently before the Court is Plaintiff's motion to remand this action back to New York
State Supreme Court, Onondaga County.
II. BACKGROUND
Plaintiff is a municipal corporation duly organized under the laws of the State of New
York, with its principal place of business located at City Hall, 233 East Washington Street,
Syracuse, New York 13202. See Dkt. No. 1-3 at ¶ 1. Defendant is a limited liability company
organized under the laws of the State of Texas, with its principal place of business located at 2500
City West Boulevard, Suite 900, Houston, Texas 77042. See id. at ¶ 2.
In or about February of 1995, Plaintiff contracted with Armored Motor Service of
America, Inc. ("AMSA") for the collection of money from Plaintiff's single space parking meters
located throughout the City of Syracuse. See id. at ¶ 6. Plaintiff contracted with AMSA again in
2000 for the same services. See id. at ¶ 7. "Sometime in 2003, AMSA merged with and/or was
bought by [Defendant] and [Defendant] took over responsibility for collecting [Plaintiff's] parking
meter money." See id. at ¶ 8. According to the complaint, when Defendant and AMSA merged,
Defendant "assumed all of AMSA's liabilities under the aforementioned meter collection contracts
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with [Plaintiff]." See id. at ¶ 9. Plaintiff claims that Defendant retained the majority of AMSA's
employees after this agreement. See id. at ¶ 10.
Eventually, Defendant submitted additional bids to handle Plaintiff's parking meter
collection work in 2004, 2006 and 2010, and was awarded contracts with Plaintiff for each of
those bids. See id. at ¶ 12.
From 1998 through 2010, Plaintiff claims that Sean McGuigan, first AMSA's and then
Defendant's employee, stole coins from Plaintiff's parking meters with the assistance of a third
party, Ronald Mancuso. See id. at ¶ 15. Plaintiff claims that Mr. McGuigan was Defendant's only
or primary coin collector assigned to collect from its meters during the relevant time period. See
id. at ¶ 17. Plaintiff alleges that it lost approximately $2,900,000 in revenue as a result of Mr.
McGuigan's theft. See id. at ¶¶ 33, 44. Beginning in 2005, Plaintiff began phasing out the
individual parking meters and replaced them with computerized parking stations, which allowed
Plaintiff to track the exact amount of money deposited by a customer in the parking station at any
given time. See id. at ¶¶ 34, 36. Plaintiff noticed that, as a result of phasing out the individual
meters, revenues from its parking meters began to increase in 2006. See id. at ¶ 37. Thereafter, in
February of 2010, the Federal Bureau of Investigation informed Plaintiff that Mr. McGuigan and
Mr. Mancuso had stolen money from its parking meters. See id. at ¶ 38.
Plaintiff commenced this action on June 8, 2011 in New York State Supreme Court,
Onondaga County. In its complaint, Plaintiff asserts seven causes of action against Defendant.
These causes of action include (1) breach of contract (pertaining to Defendant's purported
contractual liability for the loss or theft of the coins); (2) breach of contract (pertaining to
Defendant's contractual liability for "failing to safeguard the key used to open the coin collection
cart as required by the contract"); (3) negligence (pertaining to Defendant's failure to "implement
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and/or impose reasonable safeguards to protect the money"); (4) negligence (pertaining to
Defendant's failure to "use reasonable care in collecting, safekeeping, and/or delivering plaintiff's
money"); (5) negligence (pertaining to Defendant's failure "to properly supervise McGuigan"); (6)
negligence (pertaining to Defendant's "negligent retention of McGuigan"); and (7) negligence
(pertaining to Defendant's "negligent entrustment" of the collection cart key to Mr. McGuigan).
See id. at ¶¶ 39-78.
Although not named in the caption of the complaint, Plaintiff also asserted two breach of
contract and five negligence causes of action against AMSA, which parallel the claims asserted
against Defendant. See id. at ¶¶ 79-118. Defendant asserts, and Plaintiff does not appear to argue
otherwise, that AMSA was never "properly joined and served" with the complaint.
III. DISCUSSION
Plaintiff raises several grounds in support of its motion to remand. Specifically, Plaintiff
argues that (1) "Defendant AMSA's exclusion from the caption was a simple, clerical mistake and
not a fatal error that deprives this Court of its power to determine jurisdiction and the propriety of
removal[;]" (2) AMSA's status as an inactive corporation is irrelevant to the Court's analysis since
it last transacted business in New York State; and (3) "[a]n issue of fact exists as to whether
defendant Loomis assumed the rights and responsibilities of defendant AMSA; therefore,
defendant AMSA must remain a party to the action thereby defeating Loomis' claim of complete
diversity." See Dkt. No. 10-2 at 5-7.1 In response, Defendant argues that (1) complete diversity
exists because AMSA was never "properly joined and served;" (2) AMSA is an unnecessary and
To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
1
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dispensable party with no stake in the litigation; and (3) Plaintiff is unable to state a valid claim
against AMSA. See Dkt. No. 15 at 11-17.
A.
Standard of review
A defendant may remove to federal court "'any civil action brought in a State court of
which the district courts of the United States have original jurisdiction.'" Shapiro v. Logistec USA
Inc., 412 F.3d 307, 309-10 (2d Cir. 2005) (quoting 28 U.S.C. § 1441(a)). However, once a case
has been removed, it must be remanded "'[i]f at any time before final judgment it appears that the
district court lacks subject matter jurisdiction.'" Id. at 310 (quoting 28 U.S.C. § 1447(c)). Where,
as here, jurisdiction is asserted by a defendant in a removal petition, the defendant bears the
burden of establishing that removal is proper. See Cal. Pub. Employees' Ret. Sys. v. WorldCom,
Inc., 368 F.3d 86, 100 (2d Cir. 2004) (citations omitted). If there are any doubts as to
removability, they are resolved against removability "out of respect for the limited jurisdiction of
the federal courts and the rights of the states." In re Methyl Tertiary Butyl Ether ("MTBE") Prods.
Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (citation omitted).
B.
Substance over form
Plaintiff claims that its exclusion of AMSA "from the caption was a simple, clerical
mistake and not a fatal error that deprives this Court of its power to determine jurisdiction and the
propriety of removal." See Dkt. No. 10-2 at 5. Plaintiff claims that the body of the complaint
makes clear that it intended to sue both Defendant and AMSA. See id. at 5-6.
Rule 10(a) of the Federal Rules of Civil Procedure requires that every pleading must
"contain a caption setting forth . . . the title of the action." Fed. R. Civ. P. 10(a). The title must
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contain "the name of the first party on each side with an appropriate indication of other parties."
Id.
"The purpose of Rule 10(a) is to provide 'clear notice as to the parties in an action.'"
E.E.O.C. v. Int'l Ass'n of Bridge, Structural, & Ornamental Ironworkers, Local 580, 139 F. Supp.
2d 512, 525 (S.D.N.Y. 2001) (quoting Rosasa v. Judson River Club Rest., 1997 WL 316719, at *2
(S.D.N.Y. June 10, 1997)). "However, 'the caption itself is normally not determinative of the
identity of the parties or of the pleader's statement of claim.'" Id. (quoting Nationwide Mut. Ins.
Co. v. Kaufman, 896 F. Supp. 104, 109 (E.D.N.Y. 1995)) (other citation omitted). "'The caption,
pleadings, service of process and other indications of the intent of the pleader, are evidence upon
which a district court will decide, in cases of doubt, whether an entity has properly been made a
party to a lawsuit.'" Id. (quotation omitted).
In the present matter, although Plaintiff failed to include AMSA in the complaint's caption,
AMSA is mentioned throughout the body of the complaint. In fact, Plaintiff has asserted seven
causes of action against AMSA for both breach of contract and negligence.
As such, the Court finds that, despite AMSA's omission from the complaint's caption,
Plaintiff clearly intended to include AMSA as a defendant in this action. Therefore, this Court
will only retain jurisdiction over this matter if (1) AMSA is not a citizen of New York, (2)
Plaintiff's failure to serve AMSA with the complaint is determinative for purposes of determining
jurisdiction under 28 U.S.C. § 1441, or (3) AMSA was fraudulently joined as a party so as to
deprive the Court of jurisdiction.
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C.
Citizenship of the parties
Defendant based its removal on diversity jurisdiction pursuant to 28 U.S.C. § 1332. It is
well settled that to invoke diversity jurisdiction under 28 U.S.C. § 1332, there must be complete
diversity of citizenship. See Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89 (2005). In other words,
the court lacks diversity jurisdiction if any plaintiff is a citizen of the same state as any defendant.
See, e.g., St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir.
2005). For purposes of diversity jurisdiction, a corporation is deemed to be a citizen of any state
in which it is incorporated and the state where it has its principal place of business. See Universal
Licensing Corp. v. Paola del Lungo S.p.A., 293 F.3d 579, 581 (2d Cir. 2002) (citing 28 U.S.C. §
1332(c)(1)).
To determine whether diversity jurisdiction exists, courts look to the citizenship of the
parties at the time the action was commenced. See id. When a corporation is inactive at the time
the suit was filed, its principal place of business is considered to be the state where the
corporation last transacted business. See Circle Indus. USA. Inc. v. Parke Const. Group, Inc., 183
F.3d 105, 108 (2d Cir. 1999) (citing Pinnacle Consultants, Ltd. v. Leucadia Nat'l Corp., 101 F.3d
900, 907 (2d Cir. 1996); Wm. Passalacqua Builders, Inc. v. Resnick Developers S., Inc., 933 F.2d
131, 141 (2d Cir. 1991)).
It is undisputed that Plaintiff is a citizen of New York and that Defendant is a citizen of
Texas. Moreover, the parties do not dispute that AMSA was a New York corporation, but that it
has been "inactive" since approximately September 30, 2003, when Defendant entered into an
"Asset Purchase Agreement" with AMSA. See Dkt. No. 15 at 8 (citing Pressment Decl., Ex. A, ¶¶
8-11; Ex. D); see also NYS Department of State, Division of Corporations Entity Information,
http://www.dos.state.ny.us/corps/bus_entity_search.html (last visited December 15, 2011)
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(providing that Armored Motor Service of America, Inc. became inactive on September 30, 2003
because it "Merged Out"). Further, Defendant does not dispute that AMSA conducted business in
New York while it was an active New York corporation or that it last conducted business in New
York before becoming inactive through the execution of the 2003 agreement with Defendant. See
Dkt. No. 15 at 8-9.
As such, based on the parties representations, the Court finds that AMSA is a citizen of
New York for diversity jurisdiction purposes.
D.
Failure to serve AMSA
Defendant claims that, "[b]ased on the affidavit of service filed with the court, the only
defendant properly 'joined and served' as of the date of removal was – and continues to be –
Loomis." See Dkt. No. 15 at 11. Therefore, Defendant claims that, since AMSA was not properly
"served and joined," the Court should not consider it when determining if diversity of citizenship
exists. See id.
In Pullman Co. v. Jenkins, 305 U.S. 534 (1939), the Supreme Court held that the presence
of a local defendant, whether served with the complaint or not, defeats removal jurisdiction. See
Pullman Co., 305 U.S. at 539-41. In 1948, however, Congress amended the removal statute relied
on in Pullman. Pursuant to the current removal statute found at 28 U.S.C. § 1441(b), "[a]ny other
such action shall be removeable only if none of the parties in interest properly joined and served
as defendants is a citizen of the State in which such action is brought." 28 U.S.C. § 1441(b)
(emphasis added). Defendant contends that, under the "properly joined and served" language of
the amended statute, a defendant seeking removal need only establish that those defendants who
have been properly joined and served are not citizens of the state in which the action is brought.
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Thus, Defendant claims that the presence of AMSA as an unserved defendant does not prevent
removal.
Contrary to Defendant's assertions, the Court may not ignore an unserved defendant when
determining whether removal was proper. In Pecherski v. General Motors Corp., 636 F.2d 1156
(8th Cir. 1981), the Eighth Circuit held that, "[d]espite the 'joined and served' provision of section
1441(b), the prevailing view is that the mere failure to serve a defendant who would defeat
diversity jurisdiction does not permit a court to ignore that defendant in determining the propriety
of removal." Pecherski, 636 F.2d at 1160 (citations omitted). The courts in the Second Circuit to
have addressed this question have generally reached the same conclusion. See, e.g., Gee Chan
Choi v. Jeong-Wha Kim, No. 04-CV-4693, 2006 WL 3535931, *10 n.8 (E.D.N.Y. Dec. 7, 2006)
(citations omitted); Worthy v. Schering Corp., 607 F. Supp. 653, 655-56 (E.D.N.Y. 1985) (citing
Allied Programs Corp. v. Puritan Ins. Co., 592 F. Supp. 1274, 1276 (S.D.N.Y. 1984); Sands v.
Geller, 321 F. Supp. 558, 562 (S.D.N.Y. 1971)).2
Accordingly, the Court finds that Plaintiff's failure to serve AMSA does not permit the
Court to ignore this unserved defendant in determining the propriety of removal. Since Defendant
and AMSA are both New York citizens for diversity purposes, this matter must be remanded
unless Defendant has established that AMSA was fraudulently joined in order to defeat diversity.
The Court notes that some courts in this Circuit have reached the opposite conclusion and
held that "removal of a diversity case is permissible 'where an in-state defendant has not been
served by the time the removal petition is filed.'" Deveer v. Government Employees Ins. Co., No.
07-CV-4437, 2008 WL 4443260, *4 (E.D.N.Y. Sept. 26, 2008) (quotation and other citations
omitted). For purposes of the present motion, however, the Court has assumed that an unserved
defendant must be considered for purposes of determining the propriety of removal.
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E.
Fraudulent joinder
"To demonstrate that a non-diverse defendant has been fraudulently joined to defeat
diversity, a defendant must show, by clear and convincing evidence, either that there has been
outright fraud committed in the plaintiff's pleadings (a claim not made here), or that there is no
possibility, based on the pleadings, that a plaintiff can state a cause of action against the
non-diverse defendant in state court." MBIA Ins. Corp. v. Royal Bank of Canada, 706 F. Supp. 2d
380, 393 (S.D.N.Y. 2009) (citing Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296,
302 (2d Cir. 2004); Whitaker, 261 F.3d at 207; Pampillonia, 138 F.3d at 461). "'Even if
non-diverse defendants are joined solely to prevent removal to federal court, fraudulent joinder is
not shown if the plaintiff does in fact have a valid claim against the non-diverse defendants.'" Id.
(quoting Brown ex rel. Brown v. Noxubee Gen. Hosp. (In re Zyprexa Prods. Liab. Litig.), No.
08-CV-3249, 2008 WL 4561628, *3 (E.D.N.Y. Oct. 10, 2008)). "'The defendant seeking removal
bears a heavy burden of proving fraudulent joinder, and all factual and legal issues must be
resolved in favor of the plaintiff.'" Id. (quoting Pampillonia, 138 F.3d at 461) (other citation
omitted).
"'[T]he test of whether or not there has been fraudulent joinder is uniformly whether the
plaintiff can establish a claim under state, not federal law.'" Id. at 393-94 (quoting Fed. Ins. Co. v.
Tyco Int'l Ltd., 422 F. Supp. 2d 357, 378 (S.D.N.Y. 2006)) (other citation omitted). "That is,
'[e]ven though federal law applies to the question of fraudulent joinder, the ultimate question is
whether . . . state law might impose liability on the facts involved.'" Id. at 394 (quoting16 James
Wm. Moore, et al., Moore's Federal Practice § 107.14[2][c][iv][C] (3d ed. 2003)). "Furthermore,
courts apply the state pleading rules relevant to the particular pleading at issue in deciding
whether a plaintiff could have asserted a viable claim in state court based on that pleading." Id.
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(citations omitted); see also Kuperstein v. Hoffman-Laroche, Inc., 457 F. Supp. 2d 467, 471-72
(S.D.N.Y. 2006) (holding that, "[b]ecause the purpose of fraudulent joinder analysis is to
determine whether a state court might permit a plaintiff to proceed with his claims, [the court] will
refer to the state pleading standards as they have been applied by state courts to similar claims").
As such, a plaintiff's motion to remand should be denied where "there is no possibility, based on
the pleadings, that [the] plaintiff can state a cause of action against the non-diverse defendant in
state court." Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1998);
Sonnenblick-Goldman Co. v. ITT Corp., 912 F. Supp. 85, 88-90 (S.D.N.Y. 1996) (denying remand
where the inclusion of the non-diverse defendant was due to fraudulent joinder).
In the present matter, Plaintiff filed its complaint in New York State Supreme Court on
June 6, 2011. Plaintiff admits in the complaint that, "in 2003, AMSA merged with and/or was
bought by [Defendant] and [Defendant] took over responsibility for collecting [Plaintiff's] parking
meter money." See Dkt. No. 1-3 at ¶ 8. Further, Plaintiff admits that when AMSA and Defendant
merged, "[Defendant] assumed all of AMSA's liabilities under the aforementioned meter
collection contracts with [Plaintiff]." See id. at ¶ 9; see also Dkt. No. 1-3 at ¶ 11 (claiming that
"[w]hen AMSA merged with and/or was bought by [Defendant], [Defendant] assumed all of
AMSA's rights and responsibilities under the aforementioned meter collection contracts with
[Plaintiff]"). The complaint also makes clear that, subsequent to this merger, Defendant
submitted bids in 2004, 2006 and 2010 to continue to handle Plaintiff's parking meter collections
and was subsequently awarded contracts based on those bids. See id. at ¶ 12. As such, it is clear,
based on the face of the complaint, that AMSA was no longer performing under its contract
relating to Plaintiff's parking meters as of 2003.
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Although Plaintiff appears to argue otherwise, the case law makes clear that a court may
consider a statute of limitations defense in determining whether a defendant has been fraudulently
joined in order to destroy complete diversity. See, e.g., Brown v. Jevic, 575 F.3d 322, 327 (3d Cir.
2009) (holding that "[w]e, along with our sister circuits, have recognized that a statute of
limitations defense is properly considered in connection with a fraudulent joinder inquiry"
(citations omitted)); Hunter v. Philip Morris USA, 582 F.3d 1039, 1045 (9th Cir. 2009) (holding
that "the statute of limitations defense is a permissible means by which to establish fraudulent
joinder in order to remove an action on diversity grounds" and noting that this defense does not go
to the merits of the plaintiff's claims, "[i]nstead, it 'virtually admits the validity of the cause of
action and the plaintiff's right to collect upon it, but asserts that the plaintiff waited too long to
pursue the cause of action'" (quotation omitted)).
It is well-settled that a six-year limitations period governs breach of contract claims in
New York and that this statute of limitations begins to run from the day the contract was allegedly
breached, not the day that the breach was discovered or should have been discovered. See ABB
Indus. Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 360 (2d Cir. 1997) (citing
Ely-Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402-04, 599 N.Y.S.2d 501, 502-04, 615
N.E.2d 985, 986-88 (1993); National Life Ins. Co. v. Frank B. Hall & Co. of New York, 67
N.Y.2d 1021, 1023-24, 503 N.Y.S.2d 318, 319, 494 N.E.2d 449, 450 (1986)). In the present
matter, Plaintiff's contract with AMSA was breached, if at all, while AMSA was still an active
corporation, i.e., prior to its 2003 sale/merger with Defendant. As such, the statute of limitations
for Plaintiff's breach of contract claim against AMSA would have expired at some point in 2009,
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making this claim untimely.3 Even if the Court were to assume that AMSA had some obligation
under the contract after it was purchased by Defendant, any such obligations would have ended in
2004 when Plaintiff entered into a new contract with Defendant.
Similarly, Plaintiff's negligence claims against AMSA are also time barred. Negligence
claims in New York are governed by a three-year statute of limitations. See McCormick v.
Favreau, 82 A.D.3d 1537, 1539 (3d Dep't 2011) (citation omitted). "It is well established that a
tort claim accrues when it 'becomes enforceable, i.e., when all elements of the tort can be
truthfully alleged in a complaint.'" Bond v. Progressive Ins. Co., 82 A.D.3d 1318, 1320-21 (3d
Dep't 2011) (quotation omitted). "Accordingly, when damage is an essential element of a tort, the
claim does not accrue at the time of the defendant's wrongful act or the plaintiff's discovery of the
injury, but when the harm is sustained." Id. at 1321 (citations omitted). For example, several
courts in New York have previously held that, in a cause of action arising out of an insurance
broker's breach of its duty to procure the coverage requested by an insured, the claim "did not
accrue at the time of the broker's breach, but when the insured's vehicle was involved in an
accident for which the coverage was inadequate." Id. at 1320 (citations omitted).
In the present matter, Plaintiff allegedly sustained injuries from AMSA's negligence from
1998 through 2003. Unlike the example provided above where the damage did not become
realized until after the insured was involved in the automobile accident for which the insurance
broker procured inadequate coverage, Plaintiff's injuries were realized upon each alleged theft;
The Court notes that Plaintiff did not plead facts which would support a fraud claim
against AMSA. Therefore, Plaintiff cannot avail itself of New York's six-year statute of
limitations for fraud causes of action, which "must be brought within six years from the date of
the fraud or two years from the time that a plaintiff discovered or could have, with reasonable
diligence, discovered the fraud." Adams Book Co. v. Ney, No. 97-CV-4418, 2002 WL 31946713,
*6 (E.D.N.Y. Dec. 3, 2002) (citations omitted); see also ABB Indus. Systems, Inc., 120 F.3d at 360
(citing N.Y. Civ. Prac. L. § 213(8)).
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and, therefore, its claims accrued against AMSA between 1998 and 2003. As such, Plaintiff's
negligence claims against AMSA are clearly precluded by New York's three-year statute of
limitations.
Based on the foregoing, the Court finds that Plaintiff's motion to remand should be denied
because "there is no possibility, based on the pleadings, that [the] plaintiff can state a cause of
action against the non-diverse defendant in state court." Pampillonia, 138 F.3d at 460-61.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion to remand (Dkt. No. 10) is DENIED; and the Court
further
ORDERS that the Clerk of the Court shall reset the response and reply deadlines relevant
to Defendant's motion to dismiss (Dkt. No. 5); and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: December 15, 2011
Albany, New York
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