United States District Court, E.D. New York
SUMMARY ORDER OF REMAND
L. IRIZARRY, Chief United States District Judge
March 15, 2017, defendant Crown Equipment Corporation
(“Defendant”), filed a Notice of Removal to
remove this action from the Supreme Court for the State of
New York, Queens County, to this Court. See Not. of
Removal by Def. (“Not. of Rem.”), Dkt. Entry No.
1. For the reasons set forth below, this case is remanded
sua sponte to the state court.
January 31, 2017, plaintiff Samuel Gowerie
(“Plaintiff”) commenced this action in the state
court alleging that he was injured while operating a
forklift. See Verified Complaint (“Ver.
Compl.”), Dkt. Entry No. 1-2 at ¶¶ 5-14.
Plaintiff, an employee of the New York City Transit
Authority, was operating the forklift in the scope of his
employment at a depot in Brooklyn, New York, on January 15,
2016. Id. at ¶¶ 5-6, 8-9. Defendant had
performed repairs and maintenance on the subject forklift and
installed a plastic shield around the operator's cab to
protect the operator from the weather. Id. at
¶¶ 8-10. While operating the forklift on that day,
“Plaintiff was . . . struck in the face with the
aforesaid plastic shield, [and] he was caused to sustain
serious and permanent injuries.” Id. at ¶
March 15, 2017, Defendant removed the case to this Court,
asserting that there was federal subject matter jurisdiction
pursuant to the diversity statute, 28 U.S.C. § 1332.
Not. of Rem. at ¶¶ 3-8. For citizenship, Defendant
asserts that it is a citizen of Ohio and Plaintiff is a
citizen of New York. Id. ¶¶ 3-4; see
also Ver. Compl. at ¶¶ 1-3. As to the amount
in controversy, while the Verified Complaint does not state
an amount of damages, Defendant insists that the allegations
of injuries permit it to “reasonably ascertain that
[P]laintiff seeks recovery in an amount in excess of $25,
000.00, exclusive of interest and costs . . . .”
Id. at ¶ 8. Neither the Notice of Removal nor
the Verified Complaint contain any allegations of fact
establishing the amount in controversy. Plaintiff has not
filed a motion for remand.
threshold matter, the Court first must address whether it may
remand this case to the state court sua sponte,
absent a motion from Plaintiff. The relevant statute, 28
U.S.C. § 1447(c), states in pertinent part:
A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under
section 1446(a). If at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.
statute as authorizes a district court, at any time, to
remand a case sua sponte upon a finding that it
lacks subject matter jurisdiction. See Mitskovski v.
Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127,
131, 133-34 (2d Cir. 2006) (internal citations omitted).
as in all cases removed to the federal courts, the removing
party has the burden of establishing that the amount in
controversy exceeds the $75, 000 jurisdictional threshold
mandated by 28 U.S.C. § 1332(a). See Lupo v. Human
Affairs Intern., Inc., 28 F.3d 269, 273-74 (2d Cir.
1994). “[I]f the jurisdictional amount is not clearly
alleged in the plaintiff's complaint, and the
defendant's notice of removal fails to allege facts
adequate to establish that the amount in controversy exceeds
the jurisdictional amount, federal courts lack diversity
jurisdiction as a basis for removing the plaintiff's
action from state court.” Id. The Second
Circuit has cautioned district courts to “construe the
removal statute narrowly, resolving any doubts against
removability.” Stemmle v. Interlake Steamship
Co., 198 F.Supp.3d 149, 156 (E.D.N.Y. 2016) (quoting
Lupo, 28 F.3d at 274).
respect to the amount in controversy requirement for
diversity jurisdiction, the removing party must
“prov[e] that it appears to ‘a reasonable
probability' that the claim is in excess of [$75,
000].” United Food & Commercial Workers Union,
Local 919, AFL-CIO v. CenterMark Props. Meriden Square,
Inc., 30 F.3d 298, 305 (2d Cir. 1994) (quoting
Tongkook Am., Inc. v. Shipton Sportswear Co., 14
F.3d 781, 784 (2d Cir. 1994)). Here, Defendant fails to meet
its burden to show that the jurisdictional amount has been
satisfied, as it relies solely on Plaintiff's conclusory
assertion that he was injured, has suffered “pain,
shock and mental anguish, ” and that he is unable to
“perform [his] normal activities and duties.”
Compare Ver. Compl. at ¶ 17, with Not.
of Rem. at ¶¶ 6-8. Defendant concedes that the
Verified Complaint does not specify an amount in controversy.
Not. of Rem. at ¶ 6. The Notice of Removal does not
describe any attempt by Defendant to ascertain an amount of
damages. See generally, Id.
Defendant cannot meet its burden by relying on the face of
the Verified Complaint because it neither alleges an amount
of damages or provides any specific information concerning
the nature and extent of Plaintiff's injuries or the
treatment received. Accordingly, the Court is left to guess
at the amount in controversy based on the boilerplate
allegation that as a result of being hit with the plastic
was caused to sustain serious injuries and to have suffered
pain, shock and mental anguish; that these injuries and their
effects will be permanent; and as a result of said injuries
[he] has been caused to incur, and will continue to incur,
expenses for medical care and attention; and, as a further
result, Plaintiff was, and will continue to be, rendered
unable to perform [his] normal activities and duties and has
sustained a resultant loss therefrom.
Id. at ¶ 17. Based upon these allegations,
Plaintiff simply claims that he “was damaged in a sum
which exceeds the jurisdictional limits of all lower courts
which would otherwise have jurisdiction.” Id.
at ¶ 18. Such a barebones, general pleading does not
suffice to establish that this action involves an amount in
controversy adequate to support federal diversity
jurisdiction. SeeNoguera v. Bedard, No.
11-CV-4893 (RRM) (ALC), 2011 WL 5117598, at *3 (E.D.N.Y. Oct.
26, 2011) (remanding personal injury action where neither the
complaint nor the notice of removal “particularize[d]
or ampifie[d] in any way the extent of ...