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Daisy Kogut v. Wal-Mart Stores

June 20, 2012


The opinion of the court was delivered by: William M. Skretny United States District Judge



Plaintiff commenced the instant action seeking damages for injuries she allegedly sustained as a result of negligence at one of Defendant's retail stores. Presently before this Court is Plaintiff's Motion to Remand and for related costs and attorneys' fees. This Court finds the matter fully briefed and oral argument unnecessary. For the reasons stated below, Plaintiff's Motion to Remand is granted and the request for costs and fees is denied.


Plaintiff filed a Complaint against Defendant Wal-Mart Stores, Inc., in New York State Supreme Court, Erie County, on November 17, 2010, in which she asserted a single cause of action for negligence. Docket No. 1 at 6-9. An Amended Complaint was filed on January 6, 2011, which added Wal-Mart Stores East, LP,*fn1 as an additional defendant. Docket No. 1 at 10-14. Plaintiff alleged that on May 19, 2008, while she "was lawfully upon the premises owned by the Defendant[] and solely through the negligence and carelessness of the Defendant[], [its] agents, servants and employees, she sustained injury due to the presence of a dangerous condition in the form of a sharp metal shelf edge without guards or warnings." Am. Compl. ¶ 6. Plaintiff alleged that she sustained permanent and serious injuries as a result of this negligence, and incurred and would continue to incur medical bills and other expenses as a result. Am. Compl. ¶¶ 9-10.

On January 20, 2011, Plaintiff responded to Defendant's initial discovery demands with, inter alia, Plaintiff's medical records from Mercy Hospital for three separate dates: May 31, 2008; July 24, 2008, and November 9, 2009. Docket No. 1 at 20-21; Affirmation of Michelle A. Hutchinson, Esq., Docket No. 7-2, ¶ 12. Plaintiff also submitted a bill of particulars,*fn2 in which she further alleged that:

Based upon the medical records obtained to date, Plaintiff[] has sustained the following injuries: 15 cm full thickness laceration to lateral aspect of right calf which required sutures. Upon information and belief, it will be claimed that all of the aforementioned injuries are permanent and progressive in nature, will require future medical care and treatment and possible further surgical intervention, together with the risks attendant thereto, as well as the development of traumatic arthritis, pain and suffering.

In addition, it will be claimed that these injuries were a substantial factor in causing subsequent falls with additional injuries on July 24, 2008, November 9, 2009, and in October of 2010. Those injuries, upon information and belief, include: subdural hematoma; right humerus fracture; and left arm fracture.

Pl's Bill of Particulars, Docket No. 1 at 22-23, ¶ 8. Each party asserts that the discovery process following this initial disclosure was contentious and delayed through the fault of the other party. Hutchinson Affirm. ¶¶ 29-45; Affidavit of R. Colin Campbell, Esq., Docket No. 9, ¶¶ 7-12. Defendant nonetheless admits that medical records from all of Plaintiff's providers except one were received by July 25, 2011. Hutchinson Affirm. ¶ 44. Records from this last provider were received on August 3, 2011, at which time Defendant undertook a review which "revealed that the records from Mercy Hospital were incomplete as they did not include any documentation for the date of the claimed incident, May 31, 2011 when Plaintiff allegedly sought initial treatment there for her claimed injury." Hutchinson Affirm. ¶¶ 45-47. Defendant asserts that "a complete set of the Mercy Hospital records containing the May 31, 2008 documents" was not obtained until September 1, 2011. Hutchinson Affirm. ¶ 51.

Defendant removed the action to this Court on September 8, 2011, arguing that jurisdiction existed by reason of diversity of citizenship. Docket No. 1. In the Notice of Removal, Defendant asserts that the notice was timely filed "because the removability of this action was not apparent to defendants until September 1, 2011, the date on which defendant['s] attorneys received medical records of the treatment of the initial injury claimed by plaintiff to have been caused by defendant from her medical provider confirming treatment for the injury alleged." Notice of Removal ¶ 5. Plaintiff moved to remand the matter back to state court on September 29, 2011.*fn3


In light of the limited jurisdiction of federal courts and out of respect for states' rights, removal jurisdiction is "strictly construed," with all doubts resolved against removal. In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007). A defendant may remove an action to federal court based upon diversity of citizenship where all adverse parties are citizens of different states and there is a reasonable probability that the amount in controversy exceeds $75,000. 28 U.S.C. §§ 1332 (a); 1446 (a); Herrick Co., Inc. v SCS Commc'ns, Inc., 251 F.3d 315, 322 (2d Cir. 2001); Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000). The removing party bears the burden of establishing proper jurisdiction. United Food & Commercial Workers Union v. Centermark Props. Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994).

Plaintiff asserts that remand, as well as an award of costs and fees, is warranted here because Defendant failed to timely file the notice of removal. A defendant is required to file a notice of removal in a civil action "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" or, if grounds for removal are not stated in that initial pleading, "within thirty days after receipt by the defendant . . . 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." 28 U.S.C. § 1446 (b)(1996)(amended Dec. 2011). Plaintiff argues that Defendant failed to file the notice of removal within 30 days of the filing of the initial Complaint, and further argues that the subsequent acquisition of medical records does not satisfy the alternative requirement of receipt of "other paper" from which the basis for removal may be ascertained. Campbell Aff., Docket No. 4, ¶¶ 4-9.

A case is removable when a pleading, amended pleading, motion, order or "other paper" first allows a defendant to intelligently ascertain the facts necessary to support the removal petition. 28 U.S.C. § 1446 (b); Whitaker v. American Telecasting, Inc., 261 F.3d 196, 205-206 (2d Cir. 2001). Here, New York's CPLR 3017 permits only a general prayer for relief in personal injury actions and prohibits a claim for a specific amount of damages, see N.Y. CPLR 3017 (c), and Plaintiff's otherwise sparse Complaint and Amended Complaint were insufficient to alert Defendant to the reasonable possibility that the amount in controversy would be greater than $75,000. Further, Defendant is correct that courts have considered discovery responses, including medical records, in determining whether a basis for removal exists. United Food & Commercial Workers Union, 30 F.3d at 305 (where pleading are inclusive, "courts may look outside those pleadings to other evidence in the record"); Vermande v. Hyundai Motor America, Inc., 352 F.Supp.2d 195, 199 (D.Conn. 2004)(same). The parties fail to acknowledge, however, that the Second Circuit has established a bright line test for determining when the amount in controversy jurisdictional threshold has been triggered for the purpose of removal. Moltner v. Starbucks Coffee Co., 624 F.3d 34, 37 (2d Cir. 2010); Noguera v. Bedard, No. 11-CV-4893, 2011 WL 5117598, *1 (E.D.N.Y. Oct. 26, 2011). Pursuant to this test, the amount in controversy is not established, and thus the removal clock does not begin to run, "until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought." Moltner, 624 F.3d at 37, citing In re Willis, 228 F.3d 896, 897 (8th Cir. 2000)(removal clock begins to run when complaint "explicitly discloses" amount of damages in excess of federal jurisdictional amount); see Noguera, 2011 WL 5117598, *1 (relying on Moltner to reject argument that amount in controversy could be conclusively based on general allegations of severe and permanent injuries). In Moltner, the Second Circuit noted that, although New York prohibits a specific claim for damages in the complaint or similar pleading, a defendant is permitted to request at any time a supplemental demand setting forth the ...

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