Butera v. Southwest Airlines Company

Filing 22

DECISION AND ORDER denying 8 Motion to Remand to State Court; adopting Report and Recommendation 12 . Signed by Hon. Richard J. Arcara on 9/5/2012. (JMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MELISSA BUTERA, as Mother and Natural
Guardian of Selena Zobrist,
DECISION AND ORDER
12-CV-51-A

v.
SOUTHWEST AIRLINES COMPANY,
Defendant.

This personal injury action is before the Court for review of a Report and
Recommendation of Magistrate Judge Hugh B. Scott recommending that the Court
grant a motion to remand the action to state court pursuant to 28 U.S.C. § 1447(c)
for lack of subject matter jurisdiction. The only issue is whether the amount in
controversy between the parties exceeds the $75,000 threshold for the Court’s
diversity jurisdiction in 28 U.S.C. § 1332(a).
In Luo v. Michel, 625 F.3d 772 (2d Cir. 2010), the Second Circuit held that “a
plaintiff cannot seek to deprive a federal court of jurisdiction by reducing her demand
to $75,000 or less once the jurisdictional threshold has been satisfied.” Id. at 776.
That is what plaintiff Melissa Butera has tried to do in this case. The plaintiff’s
motion to remand is therefore denied.

BACKGROUND
Plaintiff Melissa Butera commenced this action in state court on behalf of her
child and herself. Plaintiff Butera alleges that, on August 11, 2011, in Tampa,
Florida, defendant Southwest Airlines Company placed the plaintiff’s child on a flight
to Baltimore, Maryland, instead of on the non-stop flight to Buffalo, New York, that
had been purchased for the child. The child was later placed on a connecting flight
to Buffalo from Baltimore, but was traumatized.
In a five-page letter addressed to an insurance company for defendant
Southwest dated November 22, 2011, plaintiff Butera’s counsel detailed her views of
the August 11 misrouting of the child and demanded that defendant Southwest pay
special damages on behalf of the child of $149,970. No general damages were
included in the demand. No damages claimed to be due to the plaintiff herself were
included.
A summons with notice and complaint were filed in the New York State
Supreme Court on about December 6, 2011. Pursuant to New York C.P.L.R. §
3107(c), the complaint alleged injuries — without seeking a specific amount of
money — as “various injuries requiring medical treatment as a result of the trauma
caused by placing the child on the wrong flight” suffered by the minor child and “for
loss of friendship, society, and companionship” suffered by plaintiff Butera.
A notice of removal was timely filed by defendant Southwest on January 20,
2012. After the action was removed to this Court, plaintiff Butera orally offered to
settle the damages claims for $74,900.
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DISCUSSION
It is well settled that the amount in controversy for diversity jurisdiction
purposes is determined at the time of removal. See, e.g., Luo v. Michel, 625 F.3d
772 (2d Cir. 2010); Vera v. Saks, 335 F.3d 109, 116 n.2 (2d Cir. 2003). Congress
amended 28 U.S.C. § 1446, effective January, 2012, to clarify law applicable to
removal of state court actions to federal court and to lend more common sense
flexibility and efficiency to the courts’ task of determining the amount in controversy
when state court pleadings do not specify the amount in controversy. See Report of
the House Judiciary Committee, H.R. Rep. No. 112-10, 112th Cong., 2d Sess., at
15-16. The United States Supreme Court and the Second Circuit Court of Appeals
have fairly recently expressed their preferences for bright-line rules to minimize
wasteful litigation and gamesmanship during remand litigation. See, Hertz Corp. v.
Friend, 130 S.Ct. 1181, 1193 (2010); Moltner v. Starbucks, 624 F.3d 34, 38 (2d Cir.
2010).
In light of these developments, not to mention the Second Circuit’s holding in
Luo v. Michel, 625 F.3d 772, 776 (2d Cir. 2010), the Court finds that plaintiff Butera’s
five-page pre-suit demand letter for $149,970 of special damages is sufficient to
prove by a preponderance of the evidence that the plaintiff put in controversy
$149,970 when she demanded it shortly before she filed the action in state court.1 If
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Any suggestion in Boeck v. Pacific Cycle, Inc., 2011 WL 98493 (W.D.N.Y.
2011), that a pre-suit settlement letter may never be cognizable evidence of the amount
in controversy is incorrect, particularly in light of Congress’ 2012 amendment of 28
U.S.C. § 1446 adopting the preponderance of the evidence standard for proof of the
amount in controversy.
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the plaintiff proves that her child needs the expensive mental health treatment
outlined in the letter because of trauma caused by negligence of the defendant, the
jury will award it to her.
Plaintiff Butera lowered her settlement demand to $100 below the
jurisdictional threshold to $74,900 after defendant Southwest filed its removal
petition. The plaintiff’s offer to compromise did not deprive the Court of jurisdiction.
The Supreme Court long ago stated:
If the plaintiff could, no matter how bona fide his original
claim in the state court, reduce the amount of his demand to
defeat federal jurisdiction the defendant's supposed
statutory right of removal would be subject to the plaintiff's
caprice . . . . [T]he plaintiff ought not to be able to defeat
that right and bring the cause back to the state court at his
election.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 294 (1938), accord, Luo
v. Michel, 625 F.3d 772, 776 (2d Cir. 2010). Because the diversity jurisdiction
threshold of $75,000 in controversy was exceeded at the time the action was
removed from state court, the plaintiff’s motion to remand is denied.
CONCLUSION
For the reasons that are stated above, the Court finds that the claims of
plaintiff Michelle Butera against defendant Southwest Airlines Company are
within the Court’s diversity jurisdiction pursuant to 28 U.S.C. §1332 and that
removal of this action from state court pursuant to 28 U.S.C. § 1446, et seq., was

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proper. Plaintiff’s motion to remand the action is therefore denied.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: September 5, 2012

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