Rosario v. Target Corporation et al

Filing 47

MEMORANDUM OPINION & ORDER re: 12 FIRST MOTION to Remand to State Court Bronx County. filed by Doris Rosario, 32 CROSS MOTION to Dismiss Plaintiff's Complaint and All Cross-Claims. filed by Kingsbridge Associates, Kingsbridge Associates II, LLC. For the foregoing reasons, defendants' motion for summary judgment is GRANTED as to Kingsbridge Associates and Kingsbridge Associates II, LLC, and plaintiff's motion to remand is DENIED. The Clerk of Court is directed to close the motions at ECF Nos. 12 and 32. (As further set forth in this Order), Kingsbridge Associates and Kingsbridge Associates II, LLC terminated. (Signed by Judge Katherine B. Forrest on 7/30/2015) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------------- X
:
DORIS ROSARIO,
:
:
Plaintiff,
:
:
-v:
:
TARGET CORPORATION et al.,
:
:
Defendants.
:
:
---------------------------------------------------------------------- X
KATHERINE B. FORREST, District Judge:

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: July 30, 2015

15-cv-3724 (KBF)
MEMORANDUM
OPINION & ORDER

Plaintiff Doris Rosario commenced this personal injury action on March 30,
2015 in New York State Supreme Court, Bronx County, naming as defendants
Target Corporation, Target Stores, Kingsbridge Associates and Kingsbridge
Associates II, LLC (“Kingsbridge II”). (Amended Notice of Removal, ECF No. 3.)
Plaintiff alleges that she was injured on September 3, 2014, after falling on some
liquid at or near the frozen goods section inside a Target store located at 40 West
225th Street, Bronx, New York. (ECF No. 3.) On or about May 15, 2015, defendant
Target Corporation removed the action to this Court on the basis of diversity
jurisdiction. (ECF No. 3.) Presently before the Court are defendants’ Kingsbridge
Associates and Kingsbridge II’s (collectively, “Kingsbridge”) motion for summary
judgment1 (ECF No. 32) and plaintiff’s motion to remand the action to state court

Although Kingsbridge styles its motion as a “Motion to Dismiss,” its briefing addresses the
standards applicable to summary judgment and Kingsbridge has submitted a Rule 56.1 statement,
to which plaintiff has responded. (ECF Nos. 34, 37.) Because plaintiff has not moved or made a
specific objection under Rule 56(d), and this Court would reach the same result whether the motion
1

(ECF No. 12). For the reasons set forth below, defendants’ motion for summary
judgment is GRANTED, and plaintiff’s motion to remand is DENIED.
I.

LEGAL STANDARDS
A.

Motion for Summary Judgment

Summary judgment may not be granted unless all of the submissions taken
together “show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The
moving party bears the burden of demonstrating “the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In making that
determination, the Court must “construe all evidence in the light most favorable to
the nonmoving party, drawing all inferences and resolving all ambiguities in its
favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010).
To sustain a negligence cause of action under New York law, a plaintiff must
demonstrate that “the defendant owed the plaintiff a cognizable duty of care; (2) the
defendant breached that duty; and (3) the plaintiff suffered damage[ ] as a
proximate result.” Singh v. Home Depot U.S.A., Inc., 580 F. App’x 24, 25 (2d Cir.
2014) (summary order) (quoting Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d
112, 116 (2d Cir. 2006)).
B.

Removal Jurisdiction

Removal of an action filed in state court to federal court is proper in “any civil
action . . . of which the district courts of the United States have original

is analyzed as one to dismiss or as one for summary judgment, the Court construes defendants’
motion as one for summary judgment.

2

jurisdiction.” 28 U.S.C. § 1441(a). Generally, removal jurisdiction must be “strictly
construed,” Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002), and any
doubts should be resolved against removability “out of respect for the limited
jurisdiction of the federal courts and the rights of states.” In re Methyl Tertiary
Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007). Thus, a “party
seeking removal bears the burden of showing that federal jurisdiction is proper.”
Montefiore Med. Ctr. v. Teamsters Local 272, 642 F.3d 321, 327 (2d Cir. 2011). A
case removed from state court shall be remanded “[i]f at any time before final
judgment it appears that the district court lacks subject matter jurisdiction.” 28
U.S.C. § 1447(c).
Defendants’ amended notice of removal asserts that the Court has diversity
jurisdiction over this action under 28 U.S.C. § 1332. (See ECF No. 3 ¶ 5.) Under
section 1332(a)(1), a federal district court has diversity jurisdiction only if the
parties to the suit are “citizens of different states.” 28 U.S.C. § 1332(a)(1). “‘[A]
plaintiff may not defeat a federal court’s diversity jurisdiction and a defendant’s
right of removal merely by joining as defendants parties with no real connection
with the controversy.’” CMS Volkswagen Holdings, LLC v. Volkswagen Grp. Of
Am., Inc., No. 13-cv-03929 (NSR), 2013 WL 6409487, at *3 (S.D.N.Y. Dec. 6, 2013)
(quoting Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 460-61 (2d Cir. 1998)). “In
order to show that naming a non-diverse defendant is a ‘fraudulent joinder’ effected
to defeat diversity, the defendant must demonstrate, by clear and convincing
evidence, either that there has been outright fraud committed in the plaintiff's

3

pleadings, or that there is no possibility, based on [the record before the court], that
a plaintiff can state a cause of action against the non-diverse defendant in state
court.” Pampillonia, 138 F.3d at 461. “The defendant seeking removal bears a
heavy burden of proving fraudulent joiner, and all factual and legal issues must be
resolved in favor of the plaintiff.” Id.
When the removal of an action to federal court is challenged, “the burden
falls squarely upon the removing party to establish its right to a federal forum by
‘competent proof.’” R. G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655
(2d Cir. 1979) (citations omitted), abrogated on other grounds by Hertz Corp. v.
Friend, 559 U.S. 77 (2010); see also Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d
Cir. 2006). Whether on a motion to dismiss or a motion for summary judgment, a
district court may “look[] outside the pleadings to the submissions” to determine
whether it has subject matter jurisdiction, and “[b]efore arriving at its legal
conclusion regarding the existence vel non of subject matter jurisdiction, the district
court should resolve the disputed factual matters by means of findings of fact.”
Filatech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998), overruled on
other grounds by Lotes Co., Ltd. v. Hon Hai Precision Indus. Co., 753 F.3d 395 (2d
Cir. 2014). In doing so, a district court may properly consider evidence including
“sworn affidavits from both parties, correspondence between the parties and other
relevant documents.” King's Gym Complex, Inc. v. Phila. Indem. Ins. Co., 314 F.
App’x 342, 343 (2d Cir. 2008) (summary order).

4

II.

DISCUSSION
A.

Kingsbridge II

Kingsbridge does not dispute that, as a citizen of New York, if it is a proper
party to the action, its presence destroys diversity citizenship, thereby depriving
this Court of removal jurisdiction under 28 U.S.C. § 1441(a). At the outset, plaintiff
does not contest that defendant Kingsbridge II never owned any portion of the
shopping center in which the subject Target store is located, (Rule 56.1 statement,
ECF No. 37), and in her opposition to defendants’ motion to dismiss, she expressly
“takes no position” with respect to the dismissal of Kingsbridge II from the action,
(ECF No. 38). In light of these concessions, plaintiff presents no basis upon which
to justify her joinder of Kingsbridge II to this action. Dismissal of all claims against
Kingsbridge II is therefore proper.
B.

Kingsbridge Associates

As to defendant Kingsbridge Associates, plaintiff merely speculates that it
had responsibility over the premises in which she slipped. In response, Kingsbridge
proffered evidence in the form of an affidavit by Jeffrey Bernstein, Controller for
Kingsbridge Associates, establishing that it does not own any part of the premises
where the subject Target store is located. (Bernstein Aff. ¶ 3, ECF No. 43-2.)
Kingsbridge also submitted affidavits from two Target employees, Shawn Welk and
Jose Gonzalez, a real estate negotiator for Target and a property maintenance
technician at the subject Target store, respectively, which provide further
confirmation that Kingsbridge does not own, maintain or repair any part of the
interior of the subject Target store and has had no obligation to do so since
5

February 5, 2002. (Welk Aff. ¶ 3, ECF No. 29-3; Gonzalez Aff. ¶¶ 8-10, ECF No. 292.) These affidavits carry significant weight as Target has no conceivable interest
in absolving Kingsbridge of potential liability for plaintiff’s claims.
In response, plaintiff has sought no discovery that might challenge
Kingsbridge’s evidence, has not filed a Rule 56(d) motion indicating that she cannot
present facts essential to justify her opposition, and her complaint contains only
vague assertions that Kingsbridge bore responsibility for maintaining the property
in question, (ECF No. 3 ¶¶ 40-61.). Plaintiff has thus provided no good faith basis
to bring any claim against Kingsbridge and it appears likely that plaintiff joined
Kingsbridge as a defendant to this action solely to defeat this Court’s removal
jurisdiction. Even taking the evidence in the light most favorable to plaintiff,
because Kingsbridge has demonstrated by clear and convincing evidence that “there
is no possibility, based on [the record before the Court on this motion], that . . .
plaintiff can state a cause of action against [Kingsbridge] in state court,”
Pampillonia, 138 F.3d at 461, the Court also dismisses Kingsbridge Associates from
the action on the basis of fraudulent joinder.2
C.

Motion to Remand

Because Kingsbridge Associates and Kingsbridge II are properly dismissed as
fraudulently joined parties, the Court has subject matter jurisdiction over this

2 In the alternative, because plaintiff has failed to show that Kingsbridge owed her a duty of care
under New York law, see Singh, 580 F. App’x at 25, the Court also grants defendants’ motion for
summary judgment on the basis that plaintiff failed to raise a genuine issue of fact as to whether
Kingsbridge was negligent.

6

action on the basis of diversity. Because plaintiff has presented no other ground for
remand to state court, plaintiff’s motion to remand is denied.
III.

CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is

GRANTED as to Kingsbridge Associates and Kingsbridge Associates II, LLC, and
plaintiff’s motion to remand is DENIED.
The Clerk of Court is directed to close the motions at ECF Nos. 12 and 32.
SO ORDERED.
Dated:

New York, New York
July 30, 2015

KATHERINE B. FORREST
United States District Judge

7