Rugerio-Serrano et al v. Makita U.S.A. Inc.

Filing 20

OPINION & ORDER re: 12 FIRST MOTION to Remand to State Court New York County filed by Manuel Rugerio-Serrano. For the foregoing reasons, Plaintiffs' Motion To Remand is denied. The Clerk of Court is respectfully requested to terminate the pending Motion. (See Dkt. No. 12.) (As further set forth in this Opinion & Order.) (Signed by Judge Kenneth M. Karas on 5/24/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MANUEL RUGERIO-SERRANO and
HILDA JUAREZ,
Plaintiffs,

No. 16-CV-5391 (KMK)
OPINION & ORDER

-vMAKITA USA, INC.,
Defendant.
Appearances:
Darren J. Epstein, Esq.
Darren Jay Epstein, Esq., P.C.
New York, NY
Counsel for Plaintiffs
Matthew Finkelstein, Esq.
London Fischer, LLP
New York, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:

Plaintiffs Manuel Rugerio-Serrano (“Rugerio-Serrano”) and his wife, Hilda Juarez
(“Juarez,” and collectively, “Plaintiffs”), bring this Action against Defendant Makita USA, Inc.
(“Defendant”) for damages sustained while using a saw designed, manufactured, and distributed
by Defendant. Defendant removed the case to federal court, and Plaintiffs now bring a Motion
To Remand (the “Motion”). (See Dkt. No. 12.) For the reasons to follow, Plaintiffs’ Motion is
denied.
I. Factual Background & Procedural History
On or about October 22, 2012, while using the 5007F Makita Circular Saw “in
accordance with its intended use and pursuant to the written instructions set forth on the

[product’s] label,” Rugerio-Serrano “was caused to suffer and sustain severe bodily injuries.”
(See Not. of Removal Ex. A (“Compl.”) ¶ 20 (Dkt. No. 1).) Plaintiffs aver that the safety guard
for the saw’s blade suddenly failed, causing the blade to impale Rugerio-Serrano’s left arm from
his wrist nearly to his elbow. (See Pls.’ Mot. for Remand & Incorporated Mem. of Law (“Pls.’
Mem.”) ¶ 1 (Dkt. No. 12).) Rugerio-Serrano seeks damages in connection with these injuries.
(See Compl. ¶¶ 24, 30, 33, 39.) Juarez alleges that as a result of her husband’s injuries, she will
“forever be deprived of [the] society, services and consortium” of her husband, and seeks
damages in compensation. (Id. ¶¶ 41–42.)
Following Rugerio-Serrano’s injury, Plaintiffs retained counsel and on July 21, 2014,
sent a settlement package to Defendant, comprised of a police report, accident report, medical
records, and photographs of the injury. (See Pls.’ Mem. ¶ 3; see also Pls.’ Mot. for Remand &
Incorporated Mem. of Law (“First Mot. To Remand”) Ex. 3, at 1 (Dkt. No. 5).) Plaintiffs also
allege that their counsel “had conversations with . . . [D]efendant’s legal counsel . . . indicat[ing]
that this matter was worth well in excess of $75,000.00,” (Pls.’ Mem. ¶ 4), and that counsel for
Plaintiffs “made a demand of at least $1,000,000,” (id.).
Over a year later, on or about October 6, 2015, Plaintiffs filed a Complaint in New York
State Supreme Court, alleging that Rugerio-Serrano’s numerous permanent physical and
psychological injuries resulted from Defendant’s misconduct. (See Compl. ¶¶ 21–22.)
However, the Complaint did not contain an ad damnum clause identifying a specific amount in
damages. (See generally id.) 1 On November 4, 2015, Defendant simultaneously filed its

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New York state law prohibits the inclusion of such an ad damnum clause in personal
injury suits. See N.Y. C.P.L.R. § 3017(c) (“In 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.”).
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Answer and a demand for an ad damnum pursuant to New York Civil Practice Law and Rules
(“CPLR”)

§ 3017(c). (See Not. of Removal Ex. C.) Plaintiffs filed their response to the ad

damnum clause on June 27, 2016, seeking $4.5 million in damages. (See Not. of Removal Ex.
D.)
On July 6, 2016, Defendant removed the Action to this Court pursuant to 28 U.S.C.
§ 1332(a). (See Not. of Removal.) On July 18, 2016, Plaintiffs filed a Motion To Remand, (see
Pls.’ First Mot. To Remand), which this Court denied the following day for failure to comply
with the Court’s Individual Practices. (See Memo Endorsement (July 19, 2016) (Dkt. No. 6).)
The Court subsequently issued a Motion Scheduling Order, (see Order (Dkt. No. 11)), and
Plaintiffs filed the instant Motion on October 9, 2016, (see Pls.’ Mem.). On November 7, 2016,
Defendant filed its opposition and accompanying papers, (see Dkt. Nos. 13–17), and on
December 13, 2016, Plaintiffs filed their reply, (see Dkt. No. 19).
II. Discussion
A. General Principles
“‘Federal courts are courts of limited jurisdiction’ that ‘possess only that power
authorized by Constitution and statute.’” Hendrickson v. United States, 791 F.3d 354, 358 (2d
Cir. 2015) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
Among the limited categories of disputes over which a federal court may exercise jurisdiction are
those “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.” 28 U.S.C
§ 1332(a)(1). Where, as here, a case meets these requirements, but was nevertheless initiated in
state court, it “may be removed by the defendant . . . to the district court of the United States for
the district and division embracing the place where such action is pending,” at least if Congress

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has not provided otherwise, 28 U.S.C. § 1441(a), and provided that the defendant in the diversity
action is not a citizen of the state where the action was brought, id. § 1441(b)(2). “[I]n light of
the congressional intent to restrict federal court jurisdiction, as well as the importance of
preserving the independence of state governments, federal courts construe the removal statute
narrowly, resolving any doubts against removability.” Purdue Pharma L.P. v. Kentucky, 704
F.3d 208, 213 (2d Cir. 2013) (internal quotation marks omitted); see also Commonwealth
Advisors Inc. v. Wells Fargo Bank, Nat’l Ass’n, No. 15-CV-7834, 2016 WL 3542462, at *2
(S.D.N.Y. June 23, 2016) (same).
This right to removal, however, has a shelf life, and, where the action has been pending
for a year or less, see 28 U.S.C. § 1446(c)(1), the notice of removal is to be “filed within 30 days
after receipt by the defendant, through service or otherwise, of 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). Where, as here, “the case stated by the initial
pleading [was] not removable solely because the amount in controversy [did] not exceed”
$75,000, “information relating to the amount in controversy in the record of the State
proceeding, or in responses to discovery, shall be treated as an ‘other paper’ under subsection
(b)(3).” Id. § 1446(c)(3)(A).
If the defendant fails to file such a notice within this 30-day period, a plaintiff may
subsequently move to remand the action to state court, provided that the motion is made within
30 days of the defendant’s filing of the notice. Id. § 1447(c). Here, the question for the Court is
whether some “other paper from which it may . . . be ascertained that the case is one which is
. . . removable,” id. § 1446(b)(3), started the clock early enough that those 30 days had lapsed by
the time Defendant removed this Action to federal court.

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B. Analysis
Plaintiffs contend “[D]efendant[] w[as] aware that . . . [P]laintiff[s] w[ere] alleging that
the matter in controversy was worth well over $75,000.00 prior to and at the time they were
served the . . . [C]omplaint, (Pls.’ Mem. ¶ 5), because “[i]t [wa]s clear from the medical records,
photographs, authorizations and other information sent to . . . [D]efendant[] prior to the filing of
the lawsuit that this matter was worth well over $75,000.00,” (id. ¶ 3). Plaintiffs assert that in
addition to the documentation listed above, “conversations with . . . [D]efendant’s legal counsel”
and “a settlement packet” would have similarly made Defendant aware that the amount in
controversy was in excess of $75,000. (Id. ¶ 4.) 2 Defendant responds that pursuant to
§ 1446(b)(3) and Second Circuit precedent, “[t]he first ‘paper’ received by Defendant which
stated that the amount in controversy exceed[ed] $75,000 was the [r]esponse to Defendant’s
demand for an [a]d [d]amnum.” (Def.’s Mem. of Law in Opp’n to Pls.’ Mot. To Remand 4 (Dkt.
No. 16) (italics omitted).) The Court agrees with Defendant.
In Moltner v. Starbucks Coffee Company, the Second Circuit made clear 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.” 624 F.3d 34, 38 (2d Cir. 2010)
(per curiam) (emphasis added); see also id. (“[T]he time for removal runs from the service of the
first paper stating on its face the amount of damages sought.” (emphasis added)); Suttlehan v.
MidFirst Bank, 205 F. Supp. 3d 366, 372 (S.D.N.Y. 2016) (“[T]o genuflect to the strength of

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Plaintiffs also appear to suggest that the very nature of the claims would have made
Defendant aware that Plaintiffs’ “injuries are worth well in excess of $75,000.00.” (Pls.’ Mem.
¶ 23; see also id. ¶ 24 (“The injuries were and are so severe that . . . [D]efendant[] knew there
was no question that the amount demanded on this case would be in excess of $75,000.00”).)
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[the] [p]laintiffs’ factual argument rather than insist on a statement of the amount in controversy
in a writing as required by the text of the rule would subvert the clear effort of the Second Circuit
and numerous courts to subjugate the § 1446(b) clock to an easily applied, predictable, brightline rule.”); Santamaria v. Krupa, No. 15-CV-6259, 2015 WL 6760140, at *3 (E.D.N.Y. Nov. 5,
2015) (concluding that “the ‘removal clock’ never began to run” where “the [c]ourt . . .
conclude[d] that [the] [p]laintiffs [did] not serve[] [the] [d]efendants with any paper that
specifie[d] the amount of damages sought”); Salinas v. Mirfakhraie, No. 12-CV-4483, 2012 WL
3642419, at *1 (S.D.N.Y. Aug. 24, 2012) (finding “[the plaintiffs’ other] ‘papers . . . explicitly
specify the amount of monetary damages’ sought by the plaintiff as required by the Second
Circuit”).
Plaintiffs’ proffered case law stating otherwise is unhelpful. Among the factors Plaintiffs
claim as sufficient to trigger the 30-day clock are the defendant’s “kn[o]w[ledge] of possible
grounds for removal,” (Pls.’ Mem. ¶ 13), the “serious and permanent nature of . . . alleged
injuries mak[ing] it readily apparent . . . that damages could easily exceed $75,000,” (id. ¶ 15),
and the “complaint ma[king] it more likely than not that [the] case would exceed [the]
jurisdictional threshold for diversity jurisdiction,” (id. ¶ 17). None of these has been adopted by
the Second Circuit and to the extent such factors involve the knowledge of the defendant in
establishing the grounds for removal, the Second Circuit has rejected this approach. See Cutrone
v. Mortg. Elec. Registration Sys., Inc., 749 F.3d 137, 143 (2d Cir. 2014) (noting that in Moltner,
the Second Circuit “dr[ew] a bright line rule requiring service of a document explicitly stating
the amount in controversy to trigger either 30-day period in 28 U.S.C. § 1446(b)”). To the extent
Plaintiffs cite cases discussing a “reasonable probability” or “preponderance of the evidence”
standard, (see Pls.’ Mem. ¶ 18 (italics omitted) (citing Gilman v. BHC Secs., Inc., 104 F.3d 1418,

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1421 (2d Cir. 1997)); United Food & Comm. Workers Union v. CenterMark Properties Meriden
Square, Inc., 30 F.3d 298, 303–04 (2d Cir. 1994)), these cases predate Moltner.
Plaintiffs’ reliance on the disclosure of medical records or bills to Defendant as support
for their position that Defendant was aware that the amount in controversy exceeded $75,000 is
unavailing. Courts in the Second Circuit repeatedly have held that medical records are typically
insufficient to establish the required jurisdictional amount. See, e.g., Steele v. Charles George
Cos., No. 15-CV-281, 2015 WL 2069895, at *2 (S.D.N.Y. Apr. 27, 2015) (holding that medical
records are insufficient when 12 out of 103 pages of records contained dollar figures);
Kunstenaar v. Hertz Vehicles, LLC, No. 14-CV-1101, 2014 WL 1485843, at *2 (S.D.N.Y. Apr.
14, 2014) (noting that “an oblique reference to medical bills, standing alone, is not the explicit
statement of ‘monetary damages sought’ required by the Second Circuit” (citing Moltner, 624
F.3d at 35)); Salinas, 2012 WL 3642419, at *1–2 (denying motion to remand where the plaintiff
argued the medical records “reflected that the amount in dispute on this matter [wa]s in excess of
$75,000” and citing Moltner); Noguera v. Bedard, No. 11-CV-4893, 2011 WL 5117598, at *1
(E.D.N.Y. Oct. 26, 2011) (finding that the amount in controversy could not be based on general
allegations of severe and permanent injuries and citing Moltner); Battaglia v. Penske Truck
Leasing Co., L.P., No. 08-CV-2623, 2008 WL 2946009, at *2 (E.D.N.Y. July 29, 2008)
(“Although this [c]ourt may consider the medical records . . . and infer that plaintiff may seek a
substantial recovery, this information is insufficient to demonstrate that the amount in
controversy exceeds $75,000.” (citation omitted)). Thus, Rugerio-Serrano’s medical records are
insufficient to establish removability.
Additionally, “discussions” between legal counsel, Plaintiffs’ counsel’s “recollection of
the conversation [he] had,” or his “belie[f]” as to the nature of demands, likewise do not qualify

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as "other paper" for the purposes of§ 1446(b)(3). (Pis.' Mem.

ii 4 (emphasis added).) See, e.g.,

Quintana v. Werner Enters., Inc., No. 09-CV-7771, 2009 WL 3756334, at* 1 (S.D.N.Y. Nov. 2,
2009) ("Under [§] I 446(b) ... , an oral assertion is insufficient to start the 30-day clock for a
defendant's removal petition, as the text of the statute refers to a pleading, motion, order, 'or
other paper."'); see also I 4C Charles Alan Wright & Arthur R. Miller, Federal Practice &

Procedure§ 3731 (4th ed. 2008) ("Courts ordinarily hold that oral statements do not trigger
removability under the second paragraph of[§] I 446(b )(3) because such statements do not
qualify as an ' other paper."').
Simply put, Plaintiffs' arguments are foreclosed by Second Circuit precedent. And while
Plaintiffs may disagree with the level of precision required of a plaintiff to identify the amount in
controversy and thus trigger the 30-day removal clock, the Court notes that "a bright line rule is
preferable to the uncertainties faced by defendants in determining removability." Cutrone, 749
F.3d at 145 (internal quotation marks omitted)).
III. Conclusion
For the foregoing reasons, Plaintiffs' Motion To Remand is denied. The Clerk of Court
is respectfully requested to terminate the pending Motion. (See Dkt. No. 12.)
SO ORDERED.
DATED:

May~,2017
White Plains, New York

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