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Jattan v. Farm Dap Inc.

April 19, 2007


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


Plaintiff Mohan Jattan ("Jattan") filed this personal injury action against defendants Farm Dap Inc. ("Farm Dap"), Parkinson Transports, Inc. ("Parkinson"), and Glenn A. Price ("Price") in the Supreme Court of the State of New York, County of Kings, on December 14, 2006. Docket Entry ("DE") 1 (including, among other documents, Parkinson and Price's Notice of Removal ("Notice") and the Jattan's Verified Complaint ("Complaint")). On April 17, 2007, defendants Parkinson and Price filed a notice pursuant to 28 U.S.C. § 1446 seeking to remove the case to this court. For the reasons set forth below, I find that the removing defendants have not satisfied their burden of establishing that this court has original jurisdiction, that all defendants have consented to the removal, and that the amount in controversy in this case 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 Transp., 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 examine it "promptly." 28 U.S.C. § 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 here, 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, such a defendant 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); Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006) ("It is well-settled that the party asserting federal jurisdiction bears the burden of establishing jurisdiction.") (citing R.G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979)). In addition, all defendants must consent to removal, although such consent is not required from defendants who have not been served with process at the time the removal notice was filed. See, e.g., Anglada v. Roman, 2006 WL 3627758, at *2 (S.D.N.Y. Dec. 12, 2006).*fn1

With respect to the amount-in-controversy element of diversity jurisdiction, the removing party must carry that burden by "proving that it appears to a 'reasonable probability' that the claim is in excess of [$75,000]." United Food & Commercial Workers Union v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 303-04 (2d Cir. 1994). A federal court considering the propriety of the removal should generally evaluate the existence of the amount in controversy, like any jurisdictional fact, "on the basis of the pleadings, viewed at the time when the defendant files the notice of removal." Blockbuster, Inc., 472 F.3d at 57 (citing Vera v. Saks & Co., 335 F.3d 109, 116 n.2 (2d Cir. 2003) (per curiam)); see also Davenport v. Procter & Gamble, 241 F.2d 511, 514 (2d Cir. 1957) (if complaint does not establish amount in controversy, "the court may look to the petition for removal").

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

Jattan's complaint does not specify the amount of damages sought, and for good reason. New York law now forbids the inclusion of such an ad damnum clause in a personal injury case like this one. See N.Y. C.P.L.R. § 3017(c). As a result, other than a perfunctory statement of the source of injury -- specifically, that a motor vehicle owned by the defendants and operated by Price came "in contact" with Jattan's motor vehicle, causing him to sustain "injuries and damages," Complaint ¶¶ 18-19 -- the Complaint employs boilerplate language to assert the extent of Jattan's injuries and that the damages exceed the relevant jurisdictional limits of lower state courts. Id. ¶¶ 19-24.

In describing Jattan's injuries, the Complaint's most specific allegation is that Jattan "was seriously injured." Id. ¶ 22. Although I can infer from these allegations that Jattan may seek a substantial recovery if the defendants' liability is established, I cannot conclude from the boilerplate 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, 205-06 (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 interest and costs." Notice ¶ 3(g). This conclusion is presumably based on the Complaint's allegations that Jattan sustained "injuries and damages" as a result of the crash. Complaint ¶ 19. Even assuming these assertions to be true, however, neither the Notice nor the Complaint provides any indication that the amount actually in controversy -- that is, the amount that the Jattan seek as a result of his injuries -- exceeds $75,000.

Accordingly, I conclude that the pleadings now before the court do not satisfy the corporate defendants' burden to establish the existence of federal jurisdiction. See DeMarco, 2006 WL 463504, at *2 (citing United Food & Commercial Workers Union, 30 F.3d at 304-05).

The removing defendants are not without recourse. The same state law provision that prohibited Jattan from including an allegation in his complaint that might support a sufficient notice of removal also provides a procedural mechanism by which the corporate defendants 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 ...

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