Thurlow v. Costco Wholesale Corporation
DECISION AND ORDER remanding this case to the Supreme Court of the State of New York, County of New York. The Clerk of Court is directed to close this case and to transmit this Order to the Clerk of the Supreme Court of the State of New York, County of New York. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 01/27/2017. (ZS)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
COSTCO WHOLESALE CORPORATION,
On June 14, 2015, while at a Costco store in Rochester, New York, Jennifer Thurlow
slipped on wet concrete and injured her left elbow as she fell to the ground. Thurlow sued
Costco in the Supreme Court of the State of New York, County of New York, alleging that
Costco’s negligence caused her injuries. Costco, citing the diversity jurisdiction of federal courts
under 28 U.S.C. § 1332, removed the case to this Court. 1 However, Costco has failed to meet its
burden of proving “to a reasonable probability” that the amount in controversy in this case is
over $75,000—which is a prerequisite for jurisdiction under § 1332. Absent subject matter
jurisdiction, this case must be remanded to the New York State Supreme Court.
“Federal courts are courts of limited jurisdiction whose power is limited strictly by
Article III of the Constitution and congressional statute.” United Food & Commercial Workers
Union, Local 919, AFL-CIO v. CenterMark Props. Meriden Square, Inc., 30 F.3d 298, 303 (2d
Cir. 1994) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). Judicial
scrutiny is particularly important where, as here, the defendant has removed the case from state
court. DiPonzio v. Bank of Am. Corp., No. 11-CV-06192, 2011 WL 2693912, at *2 (W.D.N.Y.
July 11, 2011) (noting that “removal implicates both state court independence and the federal
Because the County of New York is in the Southern District of New York, removal directly to the Western
District of New York was improper. See 28 U.S.C. § 1441(a) (providing for the removal of a civil action “to the
district court of the United States for the district and division embracing the place where such action is pending”)
docket”); see also Houston v. Scheno, No. 06-CV-2901, 2007 WL 2230093, at *2 (E.D.N.Y. July
31, 2007). The Second Circuit has cautioned district courts to “construe the removal statute
narrowly, resolving any doubts against removability.” Lupo v. Human Affairs Int’l, Inc., 28 F.3d
269, 274 (2d Cir. 1994) (citing Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46 (2d
Cir.1991)). Thus, with respect to the amount in controversy requirement under § 1332, the
removing party bears the burden of proving “to a reasonable probability” that the amount in
controversy is over $75,000. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir.
2000); Uddin v. Mamdani, No. 16CV4385, 2016 WL 4536870, at *2 (E.D.N.Y. Aug. 30, 2016).
Here, Costco has failed to meet that burden. In its notice of removal, Costco asserted that
“[o]n the face of plaintiff’s complaint, the amount in controversy exceeds $75,000.” But in
accordance with New York civil procedure, Thurlow’s complaint does not indicate the amount of
damages she is seeking. See N.Y. C.P.L.R. § 3017(c). 2 The complaint also does not provide any
detail regarding the injuries Thurlow allegedly suffered as a result of her fall. Therefore, this
Court issued an Order to Show Cause requiring Costco to demonstrate why the case should not
be remanded to state court. See ECF No. 3.
In response to the Order to Show Cause, Costco submitted a transcript of a recorded
statement Thurlow gave regarding the incident, medical records obtained from Thurlow’s
medical providers, and a signed statement that Thurlow sent to Costco in an attempt to settle her
claim. Thurlow explains in her recorded statement that she went to the Costco store on June 14,
2015 to buy a membership. As she stepped inside the entrance, which was locked open despite
the fact that it had been raining all day, she slipped on wet concrete in the space between the
door frame and a welcome mat. She tried to catch herself but fell and hit her left elbow on the
door frame. The medical records demonstrate that Thurlow suffered a non-displaced fracture of
N.Y. C.P.L.R. § 3017(c) allows defendants to “request a supplemental demand setting forth the total
damages to which the [plaintiff] deems [herself] entitled.” However, Costco did not take advantage of this
the left radial head and a rupture of the lateral ulnar collateral ligament. She had surgery to
repair the collateral ligament on August 14, 2015. In Thurlow’s signed statement, which she sent
to Costco in November of 2015, she states that she has been slow to recover and continues to
experience pain and suffering. She also describes the collateral effects the injury has had on her
future career plans and her family life.
Although these documents do provide more detail about Thurlow’s fall and her alleged
injuries, they are insufficient to demonstrate “to a reasonable probability” that the amount in
controversy exceeds $75,000. In particular, the Court notes that these documents demonstrate
that Thurlow is right-handed, was not employed at the time of the incident, and has private health
insurance. Costco did not reference or attach any medical bills in response to the Court’s Order
to Show Cause. Given the record before the Court at this time, as well as the fact that it is
Costco’s burden to show that the requirements for jurisdiction are satisfied, the Court concludes
that it does not have subject matter jurisdiction in this case.
For the reasons stated above, this case is remanded to the Supreme Court of the State of
New York, County of New York. The Clerk of Court is directed to close this case and to
transmit this Order to the Clerk of the Supreme Court of the State of New York, County of New
IT IS SO ORDERED.
Dated: January 27, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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