Vargas v. White Castle System, Inc.

Filing 16

OPINION. The motion of the Plaintiff is granted and the action is remanded to the State Court. It is so ordered. (Signed by Judge Robert W. Sweet on 5/16/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------x
NILSA VARGAS ,
Plaintiff,

16 Civ. 8565

-against-

OPINION

WHITE CASTLE SYSTEM, INC.,
Defendant.

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A P P E A R A N C E S:

Attorneys for Plaintiff
LAW OFFICES OF MICHAEL S. LAMONSOFF,
32 Old Slip, gth Flo o r
New York, NY 10005
By: Albert K. Kim, Esq.
Colin J. Mulholland, Esq.

Attorneys for Defendant
SOBEL LAW GROUP, LLC
464 New York Avenue,
Huntington, NY 11743
By:
Aaron C. Gross,
Randee H. Arem,
Sobel Pevzner,

Suite 100
Esq.
Esq.
LLC

PLLC

Sweet, D.J .

The plaintiff Nilsa Vargas

("Vargas" or the

"Plaintiff") has moved pursuant to 28 U. S . C .

§

1447(c) to remand

this slip and fall personal injury action against White Castle
System , Inc.

("White Castle" or the " Defendant " ) to the Supreme

Court of the State of New York , County of the Bronx (the " State
Court") . Based on the facts and conc l us i ons set forth below , the
motion of the Plaintiff is granted , and the action is remanded
to the State Court .

I.

Prior Proceedings

Plaintiff initiated this action by filing a Summons
and Verified Complaint with the New York State Supreme Court on
November 25 , 2015 , alleging a slip and fal l incident that
occurred on September 13 , 2015 at 1677 Bruckner Boulevard , in
the County of Bronx , City and State of New York , wh i ch is owned
by the Defendant (the "Subject Premises") . The Defendant served
a Ver i fied Answer dated February 1 , 2016 , which included a
Demand for Damages .

The Plaintiff states that she responded t o the
Defendant's Demand for Damages by way of a Supp l emental Response
1

to Combined Demands, dated August 8 , 2016. According to an
affidavit of service, the Supplemental Response to Combined
Demands was mailed to counsel for the Defendant on August 8 ,
2016.

The Defendant filed a cross-motion seeking Plaintiff
to respond to their Demand for Damages. On October 4, 2016,
Plaintiff served an Affirmation in Opposition to Defendant's
cross-motion, which included a courtesy copy of Plaintiff's
August 8 , 2016 Supplemental Response to Combined Demands.

On November 3, 2016, Defendant filed a Notice of
Removal and the action was removed to this Court.

The instant motion to remand was heard and marked
fully submitted on December 15, 20 1 6 .

II.

The Motion to Remand is Granted

Pursuant to 28 U.S.C.

§

1446(b) (1), a "notice of

removal of a civil action or proceeding shall be filed within 30
days after the receipt by the defendant, through service or
otherw is e , o f a copy of the initial pleading setting forth the
claim for relief upon which such action or proceeding is based
2

"

In Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38

(2d

Cir. 1010), the Second Circuit held "that the removal clock does
not start to run until the plaintiff serves the defendant with a
paper that explicitly specifies the amount of monetary damages
sought." Additionally, on a motion for remand, the Defendant
bears the burden of demonstrating the propriety of removal. Cal.
Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100

(2d Cir. 2004); Intelligen Power Systems, LLC v. dVentus
Technologies LLC, 73 F. Supp. 3d 378

(S.D.N.Y. 2014).

The parties do not dispute that the Supplemental
Response to Combined Demands contains the explicit specification
of monetary damages sought and serves as the initial pleading.
However, the parties contest the date on which Supplemental
Response to Combined Demands was received by the Defendant.

1

According to the Plaintiff, it was shortly after the August 8,
2016 mailing. According to the Defendant, it was October 4,
2016. Because the Defendant bears the burden of establishing the
grounds for removal, and for the reasons set forth below, it is
concluded that the Defendant has not established that its first
receipt of the Plaintiff's demand was October 4, 2016, and
service by mail on August 8, 2016 is presumed.

1

The Plaintiff concedes that diversity jurisdiction exists and
challenges only the timeliness of the Notice of Removal.
3

The evidence provided here is sparse. The Plaintiff
has not provided proof of delivery , but the Defendant has also
not provided any evidence that the Supplemental Response was not
received in August. The Notice of Removal is contradictory.
Initially , it states that the Supplemental Response of the
Plaintiff was received on October 7 , 2016 , see Notice of Removal
at

~

4 , but later , it states:
Based on the forego i ng Second Circuit dec i sion
and the fact that Plainti££'s response to the
removing de£end.ant ' s Demand £or Damages was
received on August 8 , 2016, this Notice of
Removal is timely filed within thirty (30) days
after receipt of the initial pleading , 28 U.S.C.
Section 1446b; see also Moltner , supra .

Notice of Removal, at

~

6 (emphasis added) .

The Plaintiff has submitted an affidavit of service
that the Supplemental Response was mailed on August 8 , 2016 .
"Normally , it is assumed that a mailed document is received
three days after its mailing." Sherlock v . Montefiore Med. Ctr .,
84 F . 3d 522 , 525 (2d Cir . 1996)

(citing Baldwin Cnty. Welcome

Ctr. v . Brown , 466 U. S. 147 , 148 n . 1 (1984)) . However, "[i]f a
claimant presents sworn testimony or other admissible evidence
from which it could reasonably be inferred either that the
notice was mailed later than its typewritten date or that it
took longer than three days to reach her by mail , the initial
presumption is not dispositive . " Id . at 526 (citing Smith v .
4

Local Union 28 Sheet Metal Workers,

877 F.Supp. 165, 172

(S.D.N.Y. 1995), aff'd, 100 F.3d 943 (2d Cir. 1996)).

Here, the Defendant has failed to provide any evidence
from which the Court could reasonably inf er that the
Supplemental Response was received later than August, 2016. The
best evidence provided is the Defendant's counsel's own
affidavit, in which he states that he must not have received the
Supplemental Response, because the cross-motion was filed. This
reasoning is insufficient in light of the Defendant's burden of
demonstrating the propriety of removal on a motion for remand.

In view of the presumption of the regularity of the
mail, the burden of proof, and the absence of sufficient
evidence supporting the Defendant's position, it is concluded
that the Notice of Removal was untimely and the motion to remand
is granted. 2 See, e.g.,

Persad v. Glob. Companies LLC, No. 13-CV-

3 187 SLT VMS, 2013 WL 4507076, at *5 (E.D.N.Y. Aug. 22, 2013)
(presuming that an item sent by U.S. Postal Service arrived

2

Even though the removal clock begins from the date of receipt
rather than the date of mailing, Castillejo v. BJ's Wholesale
Club, Inc., No. 16-CV-6973 (VSB), 2017 WL 1929561, at *3
(S.D.N.Y. May 9, 2017) ("The text of § 1446 makes clear that the
removal clock begins 'after receipt by the defendant.'")
(quoting 28 U.S.C. § 1446(b) (3)), the November 3, 2016 notice of
removal remains untimely because it is so long after any
reasonable mailing time period that could be presumed.
5

.

'

three days after mailing where the only counterevidence pro v ided
was the defendant' s specu l at i on that f i rs t- class mail wi th the
U. S . Postal Service could take longer than three days to arri ve )

III.

Conclusion

The mo t ion of t he Pl a i nt i ff i s granted and the action
is remanded to the Stat e Court .

I t is so ordered .

New York, NY

May/,6 '

2017

U . S.D . J .

6