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Bowers v. SMC Corp.

April 9, 2008


The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge



This case was referred to the undersigned by Honorable Richard J. Arcara on November 19, 2007 for all pretrial matters. The matter is presently before the court on Plaintiffs' motion to remand (Doc. No. 9), filed December 11, 2007.*fn1


Plaintiffs Jessica Bowers ("Bowers"), an infant, and her mother, Lori Hoover ("Hoover") (together, "Plaintiffs"), commenced this action in New York Supreme Court, Niagara County ("New York Supreme Court, Niagara County" or "state court"), on October 1, 2007, seeking monetary damages for personal injuries arising out of an October 2, 2004 accident ("the accident") in which Bowers was injured while using a Ford New Holland Post Hole Digger ("the digger"). Defendants to this action include the manufacturer of the digger, SMC Corporation ("SMC"), and R.G. Rob Stanek ("Stanek"), either doing business as, or as successor in interest to, SMC (together, "Defendants"). It is undisputed that Plaintiffs are New York residents, whereas Defendants are residents of Illinois.

Prior to commencing the instant action, Plaintiffs had separately filed, also in New York Supreme Court, Niagara County, three lawsuits arising out of the same accident, including (1) a February 8, 2005 action against New Holland North America, Inc., f/k/a Ford New Holland, Inc., Case New Holland Inc., NEAPCO, LLC, United Components, Inc., and Niagara Frontier Equipment Sales, Inc., f/k/a Niagara Ford New Holland, Inc. ("the February 8, 2005 action"); (2) a June 3, 2005 action against Peter A. Smith ("the June 3, 2005 action"); and (3) a March 21, 2007 action against Alamo Inc., 121 F.R.D. 26 (W.D.N.Y. 1988). See Mahl Bros. Ins. Co. v. St. Paul Fire & Marine Ins. Co., 307 F.Supp.2d 474 478 (W.D.N.Y. 2004) (Arcara, C.J.) (denying under 28 U.S.C. § 636(b)(1)(A), plaintiff's objections to undersigned's decision denying motion to remand as not "clearly erroneous or contrary to law."). Should, however, the District Judge disagree, see, e.g., In re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir. 1998) (holding motion to remand action to state court was dispositive as such motion conclusively determines whether a federal forum is available to address the dispute), then the undersigned's finding regarding the motion to remand should be treated as a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

Group (SMC), Inc., Individually and as Successor in Interest to SMC Corporation ("the March 21, 2007 action") (together, "the state court actions"). By stipulation filed May 11, 2006, in New York Supreme Court, Niagara County, the June 3, 2005 action was consolidated with the February 8, 2005 action, and such consolidation was confirmed by stipulation filed May 15, 2007 in the state court.

On November 7, 2007, Defendants removed the action to this court (Doc. No. 1) ("Removal Notice") asserting diversity of citizenship under 28 U.S.C. § 1332 as the basis for subject matter jurisdiction. On December 11, 2007, Plaintiffs filed the instant motion (Doc. No. 9) ("Plaintiffs' motion") seeking to join the defendants from the three state court actions, thereby destroying diversity jurisdiction, and remand the action to state court. The motion is supported by the attached Affidavit of Laraine Kelley, Esq. ("Kelley Affidavit"), exhibits A through I ("Plaintiffs' Exh(s). __"), and Plaintiffs' Memorandum of Law is Support of Motion to Join Defendants and Remand Action to State Court ("Plaintiffs' Memorandum").

In opposition to remand, Defendants filed on January 11, 2008, the Affidavit of Elizabeth M. Bergen, Esq. (Doc. No. 13) ("Bergen Affidavit"), and a Memorandum of Law (Doc. No. 14) ("Defendants' Memorandum"). In further support of remand, Plaintiffs filed, on January 15, 2008, the Reply Affidavit of Laraine Kelley, Esq. (Doc. No. 16) ("Kelley Reply Affidavit"). Oral argument was deemed unnecessary. Based on the following, Plaintiffs' motion is GRANTED, and the matter is remanded to state court.


1. Remand

Removal of a state court proceeding to federal court is provided for under 28 U.S.C. § 1441(a) ("§ 1441(a)") which states in pertinent part any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Thus, actions asserting only claims arising under federal law are removable regardless of a defendant's citizenship because 28 U.S.C. § 1331 grants federal courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." District courts also have original jurisdiction of civil actions where, as here, the amount in controversy exceeds $75,000 and is allegedly between citizens of different states. 28 U.S.C. § 1332(a)(1).

Because federal courts are courts of limited jurisdiction, and as removal of a case raises issues of federalism, removal statutes are narrowly construed and doubts are resolved against removal. Somlyo v. J. Lu-Rob Enterprises, Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991). The removal statute is construed according to federal law. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 104 (1941); Somlyo, supra, at 1047. Upon remanding a removed action to state court, the district court is permitted to "require payment of just costs ...

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