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Abdelaziz v. AE Outfitters Retail Co.

November 29, 2007

MOHAMED ABDELAZIZ, PLAINTIFF,
v.
AE OUTFITTERS RETAIL CO., DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiff Mohamed Abdelaziz ("Abdelaziz") filed this personal injury action against defendant AE Outfitters Retail Co. ("American Eagle") in the Supreme Court of the State of New York, County of Queens, on October 9, 2007. See Docket Entry ("DE") 1 (including, among other documents, American Eagle's Notice of Removal ("Notice") and Abdelaziz's Complaint ("Complaint")). On November 27, 2007, American Eagle 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 American Eagle has not satisfied its burden of establishing that this court has original jurisdiction. Specifically, American Eagle has failed 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 Bellocchio v. Enodis Corp., 499 F. Supp. 2d 254 (E.D.N.Y. 2007).

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)). With respect to the amount-in-controversy element of diversity jurisdiction, the removing party must "prov[e] 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, 304-05 (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 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

Abdelaziz'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, the Complaint contains only a perfunctory statement of the source of injury -- specifically, that Abdelaziz was injured when a bench on which he sat in American Eagle's store collapsed, Complaint ¶ 9 -- and is devoid of any detail as to the extent of his injuries. The only allegation that even begins to describe Abdelaziz's injuries uses boilerplate language: "... this plaintiff was rendered sick, sore, lame and disabled and his injuries upon information and belief are permanent and lasting in nature." Id. ¶ 10. Although it is possible to infer from this allegation that Abdelaziz may seek a substantial recovery if American Eagle's liability is established, I cannot conclude that the amount in controversy necessarily exceeds $75,000. The complaint alone therefore provides insufficient information to "intelligently ascertain removability." See DeMarco v. MGM Transport, Inc., 2006 WL 463504, at *1 (E.D.N.Y. Feb. 24, 2006) (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 does provide an additional allegation about the amount in controversy: specifically, it recites that American Eagle's counsel has spoken to Abdelaziz's counsel and, apparently as a result of that conversation, "believe[s] that the damages that will be claimed in this action exceed $75,000." Id. ¶ 5. There is no information about what Abdelaziz's counsel said to warrant such a conclusion. Moreover, as described below, American Eagle's counsel plainly had the ability under New York law to obtain a reliable measure of the amount in controversy before seeking to remove the case to this court. Accordingly, notwithstanding counsel's stated belief that his adversary will ultimately seek an amount in damages that exceeds $75,000, I conclude that the pleadings now before the court do not satisfy American Eagle'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).

American Eagle is not without recourse. The same state law provision that prohibited Abdelaziz from including an allegation in his complaint that might support a sufficient notice of removal also provides a procedural mechanism by which American Eagle 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 Bellocchio, 499 F. Supp. 2d at 256. American Eagle 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.*fn1

Nor is American Eagle 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" that allows the defendant to seek removal within 30 days. See DeMarco, 2006 WL 463504, at *2 (citing Schultz v. Office Depot, Inc., 2004 WL 1598829 (W.D.N.Y. July 16, 2004); Gonzalez v. Rajkumar, 2005 WL 1593008, at *3 (S.D.N.Y. July 6, 2005)).

C. Remand And Review Procedures

The plain language of 28 U.S.C. ยง 1446(c)(4) requires summary remand under the facts of this case. That result is not only a statutory command; it also makes sense. Requiring American Eagle to seek supplemental information under state law before attempting to remove the case places no meaningful burden on it that it will not in any event bear. At some point in this litigation, whether it proceeds in this court or another, and whether it settles or proceeds to a judicial disposition, American Eagle will need to find out the extent of the damages that Abdelaziz claims to have sustained -- and it will need to obtain a measure of such alleged damages more precise than the belief its counsel now has after receiving unspecified information during a telephone call with opposing counsel. I decide no more than that American Eagle must seek out that information before coming to this court, not after. If American Eagle learns that Abdelaziz actually does seek damages in excess of $75,000, it may seek to reopen the case in this court and Abdelaziz will have to bear the burdens associated with the removal. On the ...


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