United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. Chief Judge United States District Court
14, 2015, while at a Costco store in Rochester, New York,
Jennifer Thurlow slipped on wet concrete and injured her left
elbow as she fell to the ground. Thurlow sued Costco in the
Supreme Court of the State of New York, County of New York,
alleging that Costco's negligence caused her injuries.
Costco, citing the diversity jurisdiction of federal courts
under 28 U.S.C. § 1332, removed the case to this
Court. However, Costco has failed to meet its
burden of proving “to a reasonable probability”
that the amount in controversy in this case is over $75,
000-which is a prerequisite for jurisdiction under §
1332. Absent subject matter jurisdiction, this case must be
remanded to the New York State Supreme Court.
courts are courts of limited jurisdiction whose power is
limited strictly by Article III of the Constitution and
congressional statute.” United Food &
Commercial Workers Union, Local 919, AFL-CIO v. CenterMark
Props. Meriden Square, Inc., 30 F.3d 298, 303 (2d Cir.
1994) (citing Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 541 (1986)). Judicial scrutiny is
particularly important where, as here, the defendant has
removed the case from state court. DiPonzio v. Bank of
Am. Corp., No. 11-CV-06192, 2011 WL 2693912, at *2
(W.D.N.Y. July 11, 2011) (noting that “removal
implicates both state court independence and the federal
docket”); see also Houston v. Scheno, No.
06-CV-2901, 2007 WL 2230093, at *2 (E.D.N.Y. July 31, 2007).
The Second Circuit has cautioned district courts to
“construe the removal statute narrowly, resolving any
doubts against removability.” Lupo v. Human Affairs
Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994) (citing
Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043,
1045-46 (2d Cir.1991)). Thus, with respect to the amount in
controversy requirement under § 1332, the removing party
bears the burden of proving “to a reasonable
probability” that the amount in controversy is over
$75, 000. Mehlenbacher v. Akzo Nobel Salt, Inc., 216
F.3d 291, 296 (2d Cir. 2000); Uddin v. Mamdani, No.
16CV4385, 2016 WL 4536870, at *2 (E.D.N.Y. Aug. 30, 2016).
Costco has failed to meet that burden. In its notice of
removal, Costco asserted that “[o]n the face of
plaintiff's complaint, the amount in controversy exceeds
$75, 000.” But in accordance with New York civil
procedure, Thurlow's complaint does not indicate the
amount of damages she is seeking. See N.Y. C.P.L.R.
§ 3017(c). The complaint also does not provide any
detail regarding the injuries Thurlow allegedly suffered as a
result of her fall. Therefore, this Court issued an Order to
Show Cause requiring Costco to demonstrate why the case
should not be remanded to state court. See ECF No.
response to the Order to Show Cause, Costco submitted a
transcript of a recorded statement Thurlow gave regarding the
incident, medical records obtained from Thurlow's medical
providers, and a signed statement that Thurlow sent to Costco
in an attempt to settle her claim. Thurlow explains in her
recorded statement that she went to the Costco store on June
14, 2015 to buy a membership. As she stepped inside the
entrance, which was locked open despite the fact that it had
been raining all day, she slipped on wet concrete in the
space between the door frame and a welcome mat. She tried to
catch herself but fell and hit her left elbow on the door
frame. The medical records demonstrate that Thurlow suffered
a non-displaced fracture of the left radial head and a
rupture of the lateral ulnar collateral ligament. She had
surgery to repair the collateral ligament on August 14, 2015.
In Thurlow's signed statement, which she sent to Costco
in November of 2015, she states that she has been slow to
recover and continues to experience pain and suffering. She
also describes the collateral effects the injury has had on
her future career plans and her family life.
these documents do provide more detail about Thurlow's
fall and her alleged injuries, they are insufficient to
demonstrate “to a reasonable probability” that
the amount in controversy exceeds $75, 000. In particular,
the Court notes that these documents demonstrate that Thurlow
is right-handed, was not employed at the time of the
incident, and has private health insurance. Costco did not
reference or attach any medical bills in response to the
Court's Order to Show Cause. Given the record before the
Court at this time, as well as the fact that it is
Costco's burden to show that the requirements for
jurisdiction are satisfied, the Court concludes that it does
not have subject matter jurisdiction in this case.
reasons stated above, this case is remanded to the Supreme
Court of the State of New York, County of New York. The Clerk
of Court is directed to close this case and to transmit this
Order to the Clerk of the Supreme Court of the State of New
York, County of New York.
 Because the County of New York is in
the Southern District of New York, removal directly to the
Western District of New York was improper. See 28
U.S.C. § 1441(a) (providing for the removal of a civil
action “to the district court of the United States
for the district and division embracing the place where
such action is pending”) (emphasis added).
 N.Y. C.P.L.R. § 3017(c) allows
defendants to “request a supplemental demand setting
forth the total damages to which the [plaintiff] deems
[herself] entitled.” However, Costco did ...