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Harries v. Caterpillar

September 7, 2007

STEVEN HARRIES, PLAINTIFF,
v.
CATERPILLAR, INC., DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff Steven Harries ("Harries") filed this personal injury action against defendant Caterpillar, Inc. ("Caterpillar") in the Supreme Court of the State of New York, County of Queens, on August 1, 2007. See Docket Entry ("DE") 1 (including, among other documents, Caterpillar's Notice of Removal ("Notice") and Harries's Verified Complaint ("Complaint")). On September 5, 2007, Caterpillar 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 Caterpillar has not satisfied its burden of establishing that this court has original jurisdiction, and in particular that it has failed sufficiently to 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 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, the 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)).

Caterpillar argues that a federal court may satisfy itself as to this jurisdictional requirement by resort to a "reasonable reading of the value of the rights being litigated." Notice ¶ 11. As authority for this proposition, Caterpillar cites Angus v. Shiley, Inc., 989 F.2d 142, 146 (3d Cir. 1993). Even if that decision were not from another circuit, it would not advance Caterpillar's cause for two reasons. First, subsequent case law suggests that even within its own jurisdiction, Angus does not establish the legal rule for which Caterpillar now cites it. See Penn et al v. Wal-Mart Stores, Inc. et al, 116 F. Supp 2d. 557, 566 (D. N.J. 2000) (noting that the court that decided Angus "has not determined what the proper standard ought to be"). Second, the rule for which Caterpillar cites Angus is decidedly not the standard in this circuit; instead, the law of this jurisdiction is clear that a party seeking to remove a case to federal court on the basis of its diversity jurisdiction must show "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), and must justify its allegations by a preponderance of the evidence. Gilman v. BHC Secour, 104 F.3d 1418, 1421 (2d Cir. 1997). 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 a 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 Harries's complaint does not specify the amount of damages sought, and for good reason. New York law forbids the inclusion of 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 on March 15, 2006, Harries was crushed by the boom of a lift truck, manufactured and sold by Caterpillar, Complaint ¶ 10, when the truck was put in neutral and the boom began to move violently, id. ¶ 16 -- the Complaint employs boilerplate language to assert the extent of his injuries and that the damages exceed the relevant jurisdictional limits of lower state courts. Id. ¶¶ 22, 30, 33.

In describing Harries's injuries, the Complaint's most specific allegations are that he "was caused to be seriously, severely and permanently injured," id. ¶ 16, and that he "suffered pain, shock, [and] mental anguish." Id. ¶ 18.*fn1 Although I can infer from this allegation that Harries may seek a substantial recovery if Caterpillar's 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 "[t]he total amount of a potential recovery under these claims clearly exceeds $75,000." Notice ¶ 22. Thus, neither the Notice nor the Complaint provides any indication that the amount actually in controversy -- that is, the amount that Harries seeks as a result of his injuries -- exceeds $75,000. Accordingly, I conclude that the pleadings now before the court do not satisfy the defendant's 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).

Caterpillar is not without recourse. The same state law provision that prohibited Harries from including an allegation in his complaint that might support a sufficient notice of removal also provides a procedural mechanism by which Caterpillar 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 Setlock, 2004 WL 1574663, at *2). The defendant was free to take advantage of that provision before seeking to remove the case, and it will of course be free to do so if and when this remand order takes effect and the case is once again governed by New York State's discovery rules.*fn2

Nor is Caterpillar 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). 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 Setlock, 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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