Hochreiter et al v. HP Hood LLC

Filing 12

ORDER denying 7 Motion to Remand to State Court. Signed by Hon. Michael A. Telesca on June 23, 2011. (MK)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
KARA HOCHREITER AND SCOTT HOCHREITER,
Plaintiff,

11-CV-6236
DECISION
and ORDER

v.
HP HOOD LLC,
Defendants.
________________________________________
INTRODUCTION

Plaintiffs, Kara and Scott Hochreiter (“Plaintiffs”), bring
this action against Defendant, HP Hood LLC, seeking damages for
personal

injury

resulting

from

Plaintiff,

Kara

Hochreiter’s

consumption of cheese tainted with Listeria monocytogenes, which
was allegedly produced and/or distributed by Defendant, HP Hood LLC
(“Defendant”).

See Compl. ¶¶ 4-9. Plaintiff, Scott Hochreiter,

also seeks compensation for loss of services from his wife, Kara.
Compl. ¶ 13.
State

Supreme

Plaintiffs filed the instant action in New York
Court,

Monroe

County,

on

March

28,

2011,

and

Defendant removed the case to this Court pursuant to 28 U.S.C. §
1441(a), asserting diversity of citizenship and an amount in
controversy exceeding $75,000 under 28 U.S.C. § 1332 (a)(1). See
Declaration of Tracey B. Ehlers (“Ehlers Declaration”) at ¶¶ 2, 6
(Docket #10).
Plaintiffs now move to remand the case to New York State
Supreme Court, contending that the amount in controversy does not
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exceed

$75,000.

See

Declaration

of

(“Moorman Declaration”) (Docket #7).
not

specify

the

amount

of

damages

Mary

Moorman

Penn,

Esq.

Plaintiffs’ Complaint does
sought,

but

states

that

Plaintiffs seek damages “in an amount to be determined upon the
trial of this action” for the “severe sickness,” “severe and
permanent bodily injuries,” and “great pain and suffering and
disability,” allegedly caused by the consumption of the tainted
cheese, and for Plaintiff, Scott Hochreiter’s loss of services.
See Compl. at ¶¶ 9, 13.
affidavit,

in

which

Plaintiffs now attach to their motion an

they

attest

that

“the

damages

that

are

sought...do not exceed the sum of $75,000, exclusive of interest
and costs.” See Affidavit of Kara Hochreiter and Scott Hochreiter
at ¶ 4 (Docket #7).
Defendant opposes Plaintiffs’ motion, arguing that Plaintiffs
have not sufficiently shown that the amount in controversy will not
exceed $75,000, to divest this Court of jurisdiction.
agrees.

This Court

Therefore, for the reasons set forth below, this Court

denies Plaintiffs’ Motion for Remand.
DISCUSSION
28 U.S.C. § 1332 (a)(1) confers jurisdiction upon United
States district courts where there is diversity of citizenship and
“where the matter in controversy exceeds the sum or value of
$75,000." The party invoking federal jurisdiction is required to
show, in the first instance, that “it appears to a ‘reasonable

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probability’

that

the

claim

is

in

excess

of

the

statutory

jurisdictional amount.” See Tongkook America, Inc. v. Shipton
Sportswear Co., 14 F.3d 781 (2nd Cir. 1994). Thereafter, the party
opposing federal jurisdiction may move for remand however, “[i]t
must appear to a legal certainty that the claim is really for less
than

the

jurisdictional

amount

to

justify

dismissal.”

See

id.(quoting St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S.
283, 288 (1938)).
This

district

has

previously

considered

the

question

of

whether dismissal is appropriate where the amount in controversy is
not taken from the Complaint, but from the defendant’s estimate of
the potential recoverable damages in the removal papers. See PRN
Pharmaceuticals, Inc. v. Managed Prescription Network, Inc., 933
F.Supp. 234, 235-6 (W.D.N.Y. 1996)(Curtin, J.).
Court

found

that

Defendant

established

In that case, the

to

a

“reasonable

probability” that the amount in controversy exceeded the statutory
requirement. See id. (citing Tongkook, 14 F.3d at 785, and St.
Paul, 303 U.S. at 290).
that

Plaintiff

supplied

The Court so held, in spite of the fact
an

affidavit

stating

that,

in

its

viewpoint, the amount in controversy was less than the statutory
minimum. Id. The Court held that because the plaintiff’s affidavit
did not show “to a legal certainty that the jurisdictional amount
cannot be recovered,” remand was not warranted. Id.

Page -3-

Here, Plaintiffs have not alleged a specific amount of damages
in the Complaint, but they have supplied an affidavit in which they
attest that they are seeking damages less than $75,000.

Defendant

argues that Plaintiffs’ affidavit is insufficient to establish
a

“legal

certainty”

that

the

jurisdictional

amount

is

to
not

recoverable. This Court agrees.
Plaintiffs are seeking damages for the “severe sickness,”
“severe

and

permanent

bodily

injuries,”

and

“great

pain

and

suffering and disability,” allegedly caused by the consumption of
the tainted cheese; and for Plaintiff Scott Hochreiter’s loss of
services.

See Compl. at ¶¶ 9, 13.

It is reasonably probable that

a jury could award Plaintiffs damages in excess of $75,000 for the
alleged injuries.

Further, Plaintiffs have not pointed to any

statutory or other limit on recoverable damages, which would lead
this Court to conclude that they could not legally recover more
than $75,000.

While Plaintiffs attest that they are not seeking

damages greater than the statutory amount, this fact does not
divest this Court of jurisdiction to hear the case.
CONCLUSION
Therefore, this Court finds that Defendant has established to
a reasonable probability that the amount in controversy exceeds
$75,000.

Further,

this

Court

finds

that

Plaintiff

has

not

established to a legal certainty that such an amount is not legally
recoverable. Accordingly, Plaintiffs’ Motion for Remand is denied.

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ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
June 23, 2011

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