United States District Court, N.D. New York
RICHARD F. KIDNEY, Plaintiff,
JOHN WEBSTER, et al., Defendants.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, U.S. DISTRICT JUDGE
case arises from an alleged slip and fall that took place at
a Wal-Mart Supercenter in Vestal, New York, on April 12,
2013. Dkt. No. 2 (“Complaint”) ¶¶ 3-10.
On July 7, 2016, Defendants removed this action to the
Northern District of New York pursuant to 28 U.S.C. §
1441, asserting diversity jurisdiction under 28 U.S.C. §
1332. Dkt. No. 1 (“Notice of Removal”) ¶ 13.
Presently before the Court are Defendants' motion to
dismiss for lack of personal jurisdiction, insufficient
service of process, and failure to state a claim, and pro se
plaintiff Richard F. Kidney's motion to remand. Dkt. Nos.
5 (“Motion to Dismiss”), 21 (“Motion to
Remand”). Defendants responded to the Motion to Remand,
Dkt. No. 22 (“Response”), and Kidney filed a
reply, Dkt. No. 24 (“Reply”). For the following
reasons, Defendants' Motion is granted and Kidney's
Motion is denied.
and his family live in Owego, New York. Compl. ¶ 1. The
individual defendants-John Webster, Bill Shiohira, Melissa
Fahey, Greg Foran, Doug McMillon, and David Stills-are all
residents of Arkansas. Notice of Remand ¶¶ 4-9.
Webster, Shiohira, and Fahey work for Claims Management, Inc.
(“CMI”), which is an arm of Wal-Mart Stores, Inc.
Compl. ¶ 2. Foran is the President and CEO of Wal-Mart
U.S., McMillon is the President and CEO of Wal-Mart Stores,
Inc., and Stills is Vice President of Risk Management at
Wal-Mart Stores, Inc. Id. Kidney also named the
Wal-Mart Supercenter in Vestal as a defendant, id.
at 1, but that store location is not a legal entity and so
cannot be sued. The Supercenter in question is operated by
Wal-Mart Stores East, LP, which “is a Delaware Limited
Partnership with a principal place of business in the state
of Arkansas.” Notice of Removal ¶ 10. Kidney
appears to have wanted to include Wal-Mart Stores, Inc. and
CMI as defendants as well, since one of his causes of action
is asserted against “CMI” and
“Wal-Mart.” Compl. ¶ 17. Yet neither is
named in the caption of the Complaint. Id. at 4.
Finally, Kidney included “un-named others” in the
caption, id., though the remainder of his Complaint
fails to refer to any unnamed persons (not counting Wal-Mart
Stores, Inc. and CMI) as potential defendants.
April 12, 2013, Kidney took his wife and two children to a
Wal-Mart Supercenter in Vestal, New York. Id. ¶
7. Kidney was wearing “rubber soled sneakers with
plenty of tread (traction) on them.” Id.
¶ 9. Inside the Wal-Mart there was a tax preparation
booth near the men's bathroom. Id. ¶ 7.
Kidney decided to have his taxes done while his wife went
shopping. Id. When it was Kidney's turn to have
his taxes prepared, he sat down in a chair that faced the tax
preparer's desk, “giving [him] a clear and open
view of the men[']s room.” Id. Kidney sat
there for somewhere between ninety and 150 minutes, and
during that time he did not notice anyone entering the
men's bathroom to perform cleaning. Id.
point, Kidney and his son entered the men's bathroom.
Id. ¶ 8. The sinks were covered with yellow
tape, presumably indicating that they were off-limits.
Id. “There were no other signs” in the
bathroom, and Kidney saw “toilet paper and spills on
the floor.” Id. Kidney's son used a urinal
and Kidney entered a stall. Id. ¶ 9. The floor
in the stall “had urine and toilet paper laying along
its base, ” but Kidney asserts that he did not see the
urine and toilet paper on the floor while he was sitting on
the toilet. Id. He also says he was “not
distracted and was using the bathroom for its proposed
purpose.” Id. When Kidney got up from the
toilet, he slipped and fell, “banging [his] face and
knees, while twisting [his] back.” Id. When he
tried to get up from the floor, he fell again. Id.
His next attempt at standing up was successful, and this time
he was assisted by his son, who became upset when he saw that
his father's face was bleeding. Id. ¶ 10.
Kidney left the bathroom to find the rest of his family, and
they went to customer service “to warn [customer
service] so no one else could get hurt.” Id.
The manager sent some employees into the bathroom and
“assured [Kidney] that they would take care of the
[situation].” Id. The manager then asked
Kidney to “fill out an incident report.”
Id. Kidney's wife had to fill out the form
because he had hurt his hands, but he signed it. Id.
Within twenty-four hours of the slip and fall, Kidney went to
the emergency room. Id. ¶ 11.
after the incident, “Walmart through CMI called
[Kidney] asking that he not hire an attorney.”
Id. ¶ 18. Wal-Mart told him that the case could
be settled if he submitted the appropriate paperwork, and
that Webster would be in charge of his case. Id.
Kidney claims that Webster and his coworkers at CMI then
“tried to wear [him] down . . . by [engaging in]
stalling tactics.” Id. ¶ 19. Webster
“fail[ed] to expedite litigation by repeatedly saying
required medical releases were missing.” Id.
Webster also told lies and engaged in deception, for example
by changing his address from one in Arkansas to one in
Kentucky without informing Kidney. Id. ¶ 20. As
an another example of the deceit to which he was subjected,
Kidney points to Webster or CMI's failure to respond to
his request to see a copy of the incident report his wife had
filled out for him. Id. ¶ 22. Webster
eventually made a settlement offer that Kidney considered too
small to “help with much more than a fraction of the
debt caused” by the incident. Id. ¶ 21.
another CMI employee, also worked on Kidney's case, and
Kidney appears to allege that Shiohira lied to and deceived
him as well. Id. ¶¶ 28-30. Kidney says
Shiohira sent him a letter dated October 6, 2014, which
stated that more information was needed before a settlement
offer could be made. Id. ¶ 29. This
“contradict[ed the] previous letter from Webster saying
all medicals were received and a settlement offer was
made.” Id. Fahey, who also worked for CMI,
sent another letter to Kidney on February 10, 2015.
Id. ¶ 35. Kidney had never heard of Fahey
before he received this letter. Id. ¶ 37. In
the letter, Fahey told Kidney that it appeared Wal-Mart had
exercised reasonable care, and it would typically not make a
payment on this kind of case. Id. But Fahey said the
previous settlement offer of $5, 000 would stand for twenty
days after the date of the letter. Id.; Reply Ex. B
at 3. Kidney felt this offer was inadequate; he
describes it in the Complaint as “ridiculously
low.” Compl. ¶ 37. Kidney does not explicitly say
in his Complaint that he rejected the offer, though he
implies that he did so when he asserts that “[e]ven
though defendants have not paid anything to the plaintiff
they reported . . . to Medicare that they did.”
Id. ¶ 60.
Complaint contains no indication that Foran, McMillon, or
Stills had anything to do with Kidney's case, and Kidney
appears to hold them responsible for what CMI and its
employees did to him under some kind of respondeat superior
theory. Id. ¶¶ 43-44, 49-50, 55-56.
draws several other legal conclusions from the events just
recounted. He says that “Defendants devised and
executed a scheme to defraud” him. Id. ¶
23. He also claims that he was the victim of intentional
infliction of emotional distress at the hands of each
individual defendant. Id. ¶¶ 27, 33, 41,
47, 53, 59. He accuses Defendants of engaging in
“racketeering activity, ” id. ¶ 36,
and he notes that “at a certain time during discovery
there should be enough evidence to charge some or all of the
defendants with crimes, ” id. at 20.
April 20, 2016, Kidney filed his Complaint in the Supreme
Court of the State of New York, County of Tioga. Compl. at 4.
Beginning June 7, 2016, Defendants started to receive copies
of the Complaint that Kidney had sent them. Notice of Removal
¶ 2. Then, on July 7, 2016, Defendants removed this
action to the Northern District of New York. Id.
¶ 15. Defendants moved to dismiss the Complaint on July
14, 2016, arguing that Kidney had failed to properly serve
Defendants, that the Court lacked personal jurisdiction over
the individual defendants, that any claims related to the
incident at the Wal-Mart and its aftermath are barred by the
applicable statutes of limitations, and that the remaining
allegations in the Complaint fail to state a plausible claim
for relief. Dkt. No. 5-2 (“Memorandum”) at 1. In
lieu of responding to the Motion to Dismiss, Kidney moved to
remand on the ground that diversity jurisdiction is defeated
by the manager of the Vestal Wal-Mart, an alleged defendant
residing in New York whose identity remains unknown to Kidney
because Defendants have withheld it from him. Mot. to Remand
¶¶ 6, 10.
Motion to Remand
U.S.C. § 1441(a) permits a defendant to remove
“any civil action brought in a State court of which the
district courts of the United States have original
jurisdiction” to a district court of the United States.
The Second Circuit has recognized that, “[i]n light of
the congressional intent to restrict federal court
jurisdiction, as well as the importance of preserving the
independence of state governments, federal courts construe
the removal statute narrowly, resolving any doubts against
removability.” Somlyo v. J. Lu-Rob Enters.,
Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991) (citing
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.
100, 108 (1941)). But a court “should be cautious about
remand, lest it erroneously deprive [a] defendant of the
right to a federal forum.” Contitrade Servs. Corp.
v. Eddie Bauer Inc., 794 F.Supp. 514, 516 (S.D.N.Y.
1992) (quoting Manas y Pineiro v. Chase Manhattan Bank,
N.A., 443 F.Supp. 418, 419 (S.D.N.Y. 1978)).
federal courts may not hear a case in the absence of subject
matter jurisdiction. A lack of subject matter jurisdiction
may not be waived and may be raised by motion or sua sponte
at any time. Transatlantic Marine Claims Agency, Inc. v.
Ace Shipping Corp., 109 F.3d 105, 107 (2d Cir. 1997);
see also Fed.R.Civ.P. 12(h)(3) (“If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”). In
the absence of subject matter jurisdiction, federal courts
must remand a removed case to state court. 28 U.S.C. §
argue that remand is inappropriate because the Court has
diversity jurisdiction over the case. Resp. at 2. Diversity
jurisdiction requires “complete” diversity among
the parties-that is, no adverse parties may be citizens of
the same state. Herrick Co. v. SCS Commc'ns,
Inc., 251 F.3d 315, 322 (2d Cir. 2000) (citing Owen
Equip. & Erection Co. v. Kroger, 437 U.S. 365,
373-74 (1978)); accord St. Paul Fire & Marine Ins.
Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d
Cir. 2005) (“Diversity is not complete if any plaintiff
is a citizen of the same state as any defendant.”). For
purposes of diversity jurisdiction, a corporation is a
citizen of any state in which it is incorporated, as well as
the state where it maintains its principal place of business.
28 U.S.C. § 1332(c)(1); Lincoln Prop. Co. v.
Roche, 546 U.S. 81, 94 (2005).
jurisdiction also requires that there be more than $75, 000
in controversy. 28 U.S.C. § 1332(a). A removing
defendant need show only “a ‘reasonable
probability' that the claim is in excess of the statutory
jurisdictional amount.” United Food &
Commercial Workers Union v. Centermark Props. Meriden Square,
Inc., 30 F.3d 298, 304-05 (2d Cir. 1994) (quoting
Tongkook Am., Inc. v. Shipton Sportswear Co., 14
F.3d 781, 784 (2d Cir. 1994)). The burden of meeting the
amount-in-controversy requirement is “hardly onerous .
. . for we recognize a rebuttable presumption that the claim
is in excess of the statutory jurisdictional amount.”
Scherer v. Equitable Life Assurance Soc'y of the
U.S., 347 F.3d 394, 397 (2d Cir. 2003).
amount-in-controversy requirement has been met here, because
Kidney seeks at least $2, 050, 000 in damages from
Defendants. Compl. ¶ 60. Kidney is a New York citizen,
and every named defendant is either an Arkansas or Delaware
citizen. Id. ¶¶ 1-2; Resp. at 2. But
Kidney argues that complete diversity is lacking because
“one defendant, ” the manager of the Vestal
Wal-Mart, is “also a resident from New York.”
Mot. to Remand at 4. Kidney describes the manager as “a
witness and a critical part of the occurrences of the day of
my injuries, ” and he claims that Defendants are
preventing him from obtaining the manager's identity.
1441(b)(1) provides that “[i]n determining whether a
civil action is removable on the basis of the jurisdiction
under section 1332(a) of this title, the citizenship of
defendants sued under fictitious names shall be
disregarded.” In other words, “the citizenship of
a fictitious defendant . . . may be ignored in determining
whether the requisite diversity exists. So as long as there
is complete diversity between each plaintiff and each of the
known and named defendants, the case may be removed.”
Bowen v. Home Depot, No. 01-CV-2411, 2001 WL 920263,
at *1 (E.D.N.Y. Aug. 1, 2001); see also Lederman v.
Marriott Corp., 834 F.Supp. 112, 113 (S.D.N.Y. 1993)
(“So-called ‘Doe' defendants are disregarded
for purposes of determining diversity of citizenship
jurisdiction under 28 U.S.C. § 1332 in cases removed to
United States district courts pursuant to 28 U.S.C. §
included “un-named others” in the caption of his
Complaint, Compl. at 4, and he appears to argue that one of
the unnamed defendants is the manager of the Vestal Wal-Mart.
One problem with this argument is that the Complaint does not
contain any indication that Kidney regards the manager as a
defendant. The manager makes only a brief appearance, sending
a team of employees into the men's bathroom and asking
Kidney to fill out an incident report. Id. ¶
10. Further, none of the causes of action in the Complaint is
directed at the manager. Id. ¶¶ 19-60. So
while the caption includes a reference to “un-named
others, ” there is really nothing in the Complaint to
give Defendants notice that Kidney views the manager as a
defendant. And Kidney's Motion to Remand refers to the
manager as a “vital witness, ” Mot. to Remand at
4, lending further support to the idea that Kidney does not
intend the manager to be a defendant in this case. In any
event, since § 1441(b)(1) forbids consideration of
fictitious defendants in determining whether removal was
proper, and since all the named defendants are diverse from
Kidney, removal to this Court was indeed proper, and
Kidney's Motion must be denied.
suggests that Defendants are improperly maintaining diversity
jurisdiction by withholding the identity of the manager from
him. Mot. to Remand at 4. But again, the most plausible
reading of Kidney's filings is that he considers the
manager a witness with important information rather than a
defendant. And the Court is aware of no authority requiring
Defendants to disclose the identity of someone such as the
manager before discovery begins. See Newcombe v. Adolf
Coors Co., 157 F.3d 686, 690 (9th Cir. 1998) (finding,
in the removal context, that “the defendants were under
no legal obligation to disclose the [potential
defendant's] identity prior to ...