The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
On February 2, 2012, defendant removed this action from the New York State Supreme Court, Washington County, alleging jurisdiction based upon diversity of citizenship . (Dkt. No. 1). Defendant filed its answer to the complaint on February 8, 2012. (Dkt. No. 5). In his complaint, plaintiff alleges that, while he was an inmate at Great Meadow Correctional Facility in 2008, a facility dental hygienist, cleaned plaintiff's teeth, using an Ultrasonic Scaler, manufactured by defendant. (Dkt. No. 1-3, Ex. A). Plaintiff claims that during the cleaning, the defendant's device emitted a surge of electricity, causing a hairline fracture in plaintiff's tooth. (Id. ¶ 22). Plaintiff claims that as a result, the plaintiff's tooth had to be extracted, and plaintiff suffered injury and pain. (Id. ¶¶ 31-35).
The complaint contains seven causes of action. (Id. ¶¶ 38-65). Plaintiff claims that the Ultrasonic Scaler was not fit for its intended purpose, was unsafe, was not of "merchantable quality," and was defective in various respects, including design. (Id. ¶¶ 38-47). Plaintiff alleges failure to warn, breach of warranty, and strict liability in tort. (Id. ¶¶ 45-51). At the end of the complaint, plaintiff states that he is asking for "judgment against the defendant on each causes [sic] of action in the amount of Seventy Thousand ($70,000.00); for a total judgment against the defendant in the sum of $70,000.00 with interest, together with the cost and disbursements of this action . . . ." (Id. at p.10) (emphasis added).
On April 12, 2012, the Honorable David N. Hurd, United States District Judge referred this case to me for all further proceedings including the entry of judgment pursuant to 28 U.S.C. § 636(c) and the consent of both parties. (Dkt. No. 12).
I. Subject Matter Jurisdiction
Removal to federal court is proper if there is federal subject matter jurisdiction over the claim being brought. See 28 U.S.C. § 1441. The diversity statute confers original jurisdiction on the federal district courts with respect to "all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . citizens of different States." Scherer v. Equitable Life Assur. Soc'y of the United States, 347 F.3d 394, 398 (2d Cir. 2003); 28 U.S.C. § 1332(a). The party asserting jurisdiction bears the burden of proving that the case is properly in federal court. United Food & Commercial Workers Union, Local 919 v. CenterMark Props. Meriden Square, 30 F.3d 298, 301 (2d Cir.1994). It must appear to a "reasonable probability" that the claim is in excess of the jurisdictional amount. Vermande v. Hyundai Motor America, Inc., 352 F. Supp. 2d 196-97 (D. Conn. 2004) (citing inter alia Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000)). The court must resolve any doubts against removability.*fn1 Lupo v. Human Affairs, Intern., Inc., 28 F.3d 269, 274 (2d Cir. 1994) (quoting Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991)).
In order to determine the jurisdictional amount, courts recognize a rebuttable presumption that the face of the complaint is a good-faith representation of the "'actual amount in controversy.'" Pollock v. Trustmark Ins. Co., 367 F. Supp. 2d 293, 296 (E.D.N.Y. 2005) (quoting Scherer, 347 F.3d at 398). When a case is removed from state court, the defendant is the party seeking federal jurisdiction. The defendant must, therefore, establish by a reasonable probability that the amount in controversy is over the threshold. Id. (citing United Feel & Comm. Workers Union, Local 919, AFLCIO, 30 F.3d at 301) (where jurisdiction is asserted by the defendant in a removal petition, the defendant has the burden of establishing that removal is proper). While the Second Circuit normally requires the party contesting the amount in controversy to establish to a "legal certainty" that the jurisdictional amount has not been met, the language of legal certainty is dropped in a case removed from state court. Id.
Defendant removed this action, believing that the jurisdictional limit was met.*fn2 However, even though each relief section requests $70,000.00, and the first sentence of the "Wherefore" clause demands judgment against defendant on "each" cause of action in the amount of $70,000.00, plaintiff then states that the "total judgment" against defendant would be the sum of $70,000.00. (Dkt. No. 1, Exh. A at p.10). Because of the confusion on this issue, the court held a telephone conference on May 1, 2012, during which the jurisdictional amount was discussed.*fn3
At the telephone conference, I ordered defendant to file supplemental papers supporting its claim of diversity jurisdiction or to consent to remand this action if diversity jurisdiction does not exist.*fn4 (Text Order dtd. May 1, 2012). On May 16, 2012, defense counsel filed a "Status Report," consenting to remand this action to New York State Court. (Dkt. No. 14). Based upon the court's findings, made during the telephone conference and upon defendant's consent to remand, this court finds that subject matter jurisdiction is lacking in this case. Because federal jurisdiction is lacking, the court must order remand to state court. See 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.").
WHEREFORE, based on the above, it is
ORDERED, that this case be REMANDED to the New York State Supreme Court, Washington County based upon a lack ...