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Rachel Moltner v. Starbucks Coffee Company

November 2, 2010

RACHEL MOLTNER, PLAINTIFF-APPELLANT,
v.
STARBUCKS COFFEE COMPANY, ALSO KNOWN AS STARBUCKS CORPORATION, DEFENDANT-APPELLEE.



Per curiam.

09-4943-cv

Rachel Moltner v. Starbucks Coffee

Argued: October 25, 2010

Before MINER, KATZMANN, Circuit Judges, COTE, District Judge.*fn1

Plaintiff-appellant Rachel Moltner appeals from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.) entered on October 27, 2009, granting defendant's motion for summary judgment. Moltner also challenges an order of the district court entered on February 27, 2009, denying her motion to remand the case to state court. For reasons stated below and in the accompanying summary order, the judgment of the district court is AFFIRMED.

Plaintiff-appellant Rachel Moltner appeals from a judgment of the United States District Court for the Southern District of New York (Preska, C.J.) entered on October 27, 2009, granting the motion of defendant-appellant Starbucks Coffee Company ("Starbucks") for summary judgment. On this appeal, Moltner also challenges an order of the district court entered on February 27, 2009, denying her motion to remand the case to state court. Moltner sought to remand the case on the ground that Starbucks' removal of the case under 28 U.S.C. § 1446 was untimely. Moltner's motion to remand presented the question whether, where a plaintiff's complaint does not specify the amount of monetary damages sought, the time for removal under 28 U.S.C. § 1446(b) begins with service on the defendant of the complaint or with the service of the first paper that explicitly states the facts establishing removability. We review here the district court's order finding that the time for removal runs from the service of the first paper stating on its face the amount of damages sought, and we agree. We address in a separate summary order Moltner's challenges to the district court's decision granting Starbucks' motion for summary judgment. For the reasons stated herein and in the accompanying summary order, the judgment of the district court is AFFIRMED. The facts of this case are largely undisputed. On February 19, 2008, Moltner, a 76-year- old New York resident, purchased a "Venti"-sized cup of tea at the Starbucks Coffee Shop at 80th Street and York Avenue. Her tea was served to her double-cupped and lidded. She took it back to a table and proceeded to try to remove the lid to add sugar. She had difficulty removing the lid, and in the course of her attempts to pry it off, the tea spilled onto her left leg and foot. Moltner suffered severe enough burns to require a skin graft. Her hospital stay also occasioned a number of secondary injuries, including bed sores and a fractured sacrum and herniated discs caused by a fall out of bed.

Moltner filed a personal injury action on July 31, 2008 in New York State Supreme Court. Pursuant to New York C.P.L.R. § 3017(c), her complaint described her injuries but did not state the amount of monetary damages sought.*fn2 Starbucks served its answer on August 26, 2008, and on the same date it served a Request for Supplemental Demand for Relief, in accordance with New York C.P.L.R. § 3017(c).*fn3 Moltner responded to this Demand by letter dated October 21, 2008, stating that she sought damages not to exceed $3 million. On October 29, 2008, Starbucks filed a notice of removal. On November 12, 2008, Moltner moved to remand pursuant to 28 U.S.C. § 1447(c), asserting that Starbucks' removal had been untimely. By order dated March 13, 2009, the district court denied Moltner's motion. Under 28 U.S.C. § 1446(b), [t]he notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . .

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

Starbucks' notice of removal was not filed within 30 days of its receipt of Moltner's complaint. Moltner argues that removal was therefore untimely, while Starbucks argues that the removal clock did not begin to run until it received the first paper from which it could ascertain that the case was removable -- specifically, Moltner's October 21, 2008 letter stating that she sought damages not to exceed $3 million. If Starbucks is correct and the time for removal began to run on October 21, 2008, then removal was timely under § 1446(b).

Our holding in Whitaker v. American Telecasting, Inc., 261 F.3d 196 (2d Cir. 2001),

lends strong support to Starbucks' position. In Whitaker, the plaintiff had served the defendant with a summons with notice pursuant to New York C.P.L.R. § 304(a). The summons with notice did not provide the address of one of the defendants, although it specified the states of incorporation of the two other defendants. Whitaker, 261 F.3d at 206. The complaint, served about six weeks later, did give on its face sufficient information to determine the citizenship of all defendants. Id. The defendant served its notice of removal 27 days after service of the complaint. Id. at 199. The plaintiff subsequently moved to remand on the ground that removal was untimely. The district court held that removal was not untimely because only service of the complaint could start the removal clock under 28 U.S.C. § 1446(b) and, in the alternative, that the summons with notice did not start the clock because it did not state, on its face, facts sufficient to determine that the action was removable. Id. at 200.

We disagreed with the district court's holding that only the complaint can trigger the start of the 30-day window for removal. Noting that § 1446(b) uses the term "initial pleading" rather than complaint, id. at 203, we held that "a summons with notice may serve as an initial pleading under section 1446(b)," id. at 205. We affirmed the district court's denial of the motion to remand, however, because we agreed that the 30-day period did not begin to run until the defendant received the first document from which all of the facts giving rise to removability were evident -- i.e., the complaint. Id. at 206. Therefore, removal had been timely. Id. We explained:

A case is removable when the initial pleading enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal, the defendant can make a short and plain statement of the grounds for removal as required by 28 U.S.C. ยง 1446(a). A pleading enables a defendant to intelligently ascertain removability when it provides the necessary facts to support the removal petition. In cases where removal is based upon diversity, the facts required to support the removal petition include the amount in controversy and the address of each party. While this standard requires a defendant to apply a ...


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