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Diane Dougherty v. Sears Holdings Corporation

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


December 17, 2012

DIANE DOUGHERTY, PLAINTIFF,
v.
SEARS HOLDINGS CORPORATION, SEARS ROEBUCK AND CO. AND KMART CORPORATION,
DEFENDANTS.

The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

MEMORANDUM and ORDER

This negligence action was commenced in the New York State Supreme Court, Bronx County; thereafter, it was removed to this court by the defendants, pursuant to 28 U.S.C. § 1441. In their notice of removal, the defendants maintain that the action "is one of which the District Courts have original jurisdiction under 28 U.S.C. § 1332." According to the defendants, "[t]here is complete diversity between Defendant . . . Kmart and Plaintiff. In addition, upon information and belief, the amount in controversy exceeds $75,000. [Defendants' counsel] requested that plaintiff's counsel cap damages at that amount. Plaintiff's counsel has refused to sign the stipulation."

The verified complaint the plaintiff filed in the state court does not identify the amount in controversy. However, on November 30, 2012, the plaintiff filed a document in this court styled, "Plaintiff's Initial Disclosure Pursuant to Rule 26(1)(A)," in which she computes her damages and reports that they total $70,000. A telephonic conference was held with counsel to the respective parties on December 11, 2012. During that conference, counsel to the plaintiff confirmed that the damages sought by the plaintiff, through this action, are $70,000.

"The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interests and costs, and is between -- (1) citizens of different states." 28 U.S.C. § 1332(a). Furthermore, "[i]t is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the Constitution or by Congress, must be neither disregarded nor evaded." Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S. Ct. 2396, 2403 (1978). Moreover, "[t]he Supreme Court has held that the party asserting diversity jurisdiction in federal court has the burden of establishing the existence of the jurisdictional amount in controversy." Lupo v. Human

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