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Messina v. Stevens Appliance Truck Co.

April 13, 2006

ALEXANDER MESSINA, ET AL., PLAINTIFF,
v.
STEVENS APPLIANCE TRUCK CO., DEFENDANT.



The opinion of the court was delivered by: James Orenstein, Magistrate Judge

ORDER

Plaintiffs Alexander and Lori Messina (collectively, the "Messinas") filed this personal injury action against defendants Stevens Appliance Truck Co. ("Stevens") and New Haven Moving Equipment Corporation ("NHMEC") in the Supreme Court of the State of New York, County of Queens, on November 21, 2005. See Docket Entry ("DE") 1 (including Notice of Removal ("Notice"), Summons, and the plaintiffs' Complaint). On April 12, 2006, Stevens alone filed a notice of removal pursuant to 28 U.S.C. § 1446 seeking to remove the case to this court. For the reasons set forth below, I find that Stevens has not satisfied its burden of establishing that this court has original jurisdiction, and in particular has failed to sufficiently demonstrate that the amount in controversy exceeds $75,000. I therefore order the action summarily remanded to the state court in which it was filed pursuant to 28 U.S.C. § 1446(c)(4). See generally DeMarco v. MGM Transport, Inc., 2006 WL 463504 (E.D.N.Y. Feb. 24, 2006).

A. Removal Procedures

Generally A defendant may remove from state court to federal court any civil action of which the federal court has original jurisdiction. 28 U.S.C. § 1441(a). Upon such removal, the federal court in which the notice is filed must "promptly" examine it. Id. § 1446(c)(4). "If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." Id.

Where, as in this case, a defendant relies on 28 U.S.C. § 1332 as the source of the receiving court's purported original jurisdiction, it must establish that the requirements of the statute have been met. Specifically, it must demonstrate that the parties are citizens of diverse states and that the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332(a). The removing party bears the burden "of proving that it appears to a 'reasonable probability' that the claim is in excess of [$75,000]." United Food & Commercial Workers Union, Local 919, AFLCIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 304-305 (2d Cir. 1994). A federal court considering the propriety of such a removal should first look to the allegations of the complaint and then to the notice of removal to determine whether the amount in controversy requirement is met. See Davenport v. Procter & Gamble, 241 F.2d 511, 514 (2d Cir. 1957).

B. The Effects Of New York's Procedural Law On Removal To Federal Court

The Messinas' complaint does not specify the amount of damages they seeks, and for good reason: New York law now forbids the inclusion of such an ad damnum clause in a personal injury action like this one. See N.Y. C.P.L.R. § 3017(c). As a result, the complaint uses boilerplate language to assert only that Mr. Messina sustained certain injuries; that his wife has been deprived of his services, society, companionship, and consortium; and that the resulting damages to each plaintiff exceed the relevant jurisdictional limit of the lower courts. See Complaint ¶¶ 69-70, 76, 79, 88 (an apparently misnumbered paragraph that appears between paragraphs 85 and 87, hereafter referred to as ¶ 86), 88, 91-92. The jurisdictional requirement to which the plaintiffs refer is no more than $25,000. See N.Y. Const., art. VI.

In describing Mr. Messina's injuries, the Complaint's most specific allegation, repeated in each of the first three counts, is that he was "rendered sick, sore, lame and disabled, and has sustained serious, severe and disabling injuries of a permanent and lasting nature." Complaint ¶¶ 69, 76, 86. Although I can infer from the latter description that the Messinas may seek a substantial recovery if they can establish Stevens' liability, I cannot conclude from their boilerplate allegations that the amount in controversy necessarily exceeds $75,000. The complaint alone therefore provides insufficient information to "intelligently ascertain removability." See DeMarco, 2006 WL 463504 at *1 (citing Setlock v. Renwick, 2004 WL 1574663 (W.D.N.Y. May 21, 2004) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 205-206 (2d Cir. 2001))).

The Notice provides no additional detail about the specific damages sought; it merely makes the conclusory assertion that "[u]pon information and belief, the amount in controversy exceeds $75,000 exclusive of costs." Notice at 2. Such pleading cannot satisfy the removing party's burden to establish the amount in controversy. See DeMarco, 2006 WL 463504 at *2 (citing United Food & Commercial Workers Union, 30 F.3d at 304-305). As there is no other evidence in the record, Stevens has not met its burden of establishing to a reasonable probability that the claim is in excess of the jurisdictional minimum.

Stevens is not without recourse. The same state law provision that prohibited the Messinas from including an allegation in their complaint that might support a sufficient notice of removal also provides a procedural mechanism by which Stevens can ascertain the existence of facts necessary to invoke federal diversity jurisdiction:

A party against whom an action to recover damages is brought, may at any time request a supplemental demand setting forth the total damages to which the pleader deems himself entitled. A supplemental demand shall be provided by the party bringing the action within fifteen days of the request.

N.Y. C.P.L.R. § 3017(c); see DeMarco, 2006 WL 463504 at *2 (citing Whitaker, 2004 WL 1574663 at *2).

Nor is Stevens prejudiced by the necessity of making such a "supplemental demand" with respect to the timing of a removal notice. A defendant must normally file a notice of removal within 30 days of receiving the "initial pleading." 28 U.S.C. § 1446(b).*fn1 The same subsection provides, however, that "[i]f the case as stated by the initial pleadings is not removable," which is true here and presumably in all personal injury actions filed consistent with the current version of C.P.L.R. § 3017(c), the 30-day period for seeking removal only begins when the defendant receives "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.; see DeMarco, 2006 WL 463504 at *2 (citing Whitaker, 2004 WL 1574663 at *2). Where the response to a supplemental demand under C.P.L.R. § 3017(c) asserts damages in excess of $75,000, that response is a "paper" ...


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