United States District Court, S.D. New York
August 15, 2005.
TANA JUARBE, Plaintiff,
KMART CORPORATION, Defendant.
The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
This is a negligence action in which plaintiff seeks damages
for injuries allegedly suffered while in defendant's store.
Plaintiff Tana Juarbe is a citizen of the state of New York.
Defendant Kmart is a corporation incorporated in the state of
Michigan with its principle place of business in the state of
The action was originally filed on January 31, 2005 in New York
Supreme Court, Bronx County, where plaintiff claims to have been
Defendant timely filed a notice on February 2, 2005 removing
the case to the Southern District of New York.
Plaintiff now moves under 28 U.S.C. § 1447(c) to remand the
case, on the ground that defendant has not met its burden to show
that the amount in controversy exceeds $75,000.
The motion is denied. PLAINTIFF'S CLAIM
Although the complaint alleges personal injury, it does not in
fact specify what injury plaintiff suffered and how it occurred.
However, there are numerous allegations about defendant's
responsibility for the escalators in its store. Thus, the injury
presumably had something to do with the escalators, although the
complaint does not claim precisely what transpired.
However, there are allegations about serious injuries. In her
complaint plaintiff asserts that she suffered "severe and serious
personal injuries to mind and body" and was subjected to "great
physical pain and mental anguish" as a result of the defendant's
negligence, carelessness and recklessness. The complaint also
alleges that plaintiff was "severely injured and damaged,
sustained severe nervous shock, and emotional upset, some of
which injuries are believed to be permanent in nature and
duration." It is also alleged that plaintiff will be "permanently
caused to suffer pain, inconvenience and other effects of such
injuries." Furthermore, the complaint states that plaintiff has
incurred and "in the future will necessarily incur further
hospital and/or medical expenses in an effort to be cured of said
injuries" and that she will be unable to pursue her "usual duties
with the same degree of efficiency as prior to this accident."
The complaint contains no request for any specific dollar
amount of damages and merely alleges in paragraph 25 that "due to
defendant's negligence, plaintiff is entitled to damages in an
amount that exceeds the jurisdiction of all lower courts." The prayer for relief repeats this formulation.
Defendant offered to stipulate to remand the case to state
court if plaintiff would agree to limit her total recovery to
$75,000. A stipulation was sent to plaintiff's attorney but was
not executed or returned.
Where the pleadings do not establish the amount in controversy
and "where . . . jurisdictional facts are challenged, the party
asserting jurisdiction must support those facts with `competent
proof' and justify its allegations by a preponderance of the
evidence." United Food Commercial Workers' Union v. CenterMark
Properties Meridian Square, Inc., 30 F.3d 298, 305 (2d Cir.
1994). A defendant need not prove the amount in controversy to an
absolute certainty. Instead, defendant "has the burden of proving
that it appears to a reasonable probability that the claim is in
excess of the statutory jurisdictional amount." Mehlenbacher v.
Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000).
Plaintiff's complaint alleges severe and serious personal
injuries to mind and body, great physical pain and mental
anguish, and severe nervous shock. Plaintiff alleges that some of
these injuries are believed to be permanent in nature and
duration, and that her ability to earn her living will be
impaired. Furthermore, the complaint states that plaintiff has
incurred hospital expenses and will continue to incur such
hospital and medical expenses in the future with further
treatment. These allegations indicate a likelihood that the
$75,000 threshold will be met. supported by the fact that defendant sent plaintiff an offer to
stipulate to remand the case to state court if plaintiff would
agree to limit her total recovery to $75,000 and the offer was
not executed or returned.
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