United States District Court, S.D. New York
DISSY E. CASTILLEJO, Plaintiff,
BJ'S WHOLESALE CLUB, INC., Defendant.
Joan Ruiz Newman O'Malley & Epstein LLC New York, New
York Counsel for Plaintiff.
Christopher Gross Sobel Law Group, LLC Huntington, New York
Counsel for Defendant.
MEMORANDUM & OPINION
S. BRODERICK, United States District Judge.
me is Plaintiff Dissy Castillejo's motion to remand this
action to the New York State Supreme Court for Bronx County
pursuant to 28 U.S.C. § 1447. (Doc. 4.) Because there is
diversity between the parties and Defendant's Notice of
Removal was timely filed, Plaintiffs motion to remand is
commenced this negligence action on May 11, 2016 by filing a
Summons and Complaint in the Supreme Court of the State of
New York, Bronx County. (Doc. 1-2.) Plaintiff served
Defendant on May 23, 2016. (Doc. 5-1.) According to the
Complaint, Plaintiff was injured on Defendant's business
property located at 610 Exterior Street, Bronx, New York.
(Doc. 1-2 ¶¶ 9-10, 29-31.) Plaintiff was allegedly
“struck by the flow of shopping carts converging,
” which caused her to “be propelled to the
ground.” (Doc. 1-2 ¶ 29.) Pursuant to N.Y.
C.P.L.R. § 3017(c), the Complaint described the injuries
she suffered but did not state the amount of money damages
sought. As stated in her Complaint, the accident
caused the following injuries: “comminuted nasal
fractures requiring reduction under general anesthesia, a
chipped tooth, a cranial hematoma, among other severe
permanent injuries, ” which caused Plaintiff to
“incur medical expenses” and become
“incapacitated.” (Doc. 1-2 ¶ 31.)
Complaint also states that Plaintiff is a resident of New
York City and that Defendant is both “a domestic
corporation duly licensed and incorporated under and by
virtue of the laws of the State of New York, ” and
“a foreign corporation licensed to do business in the
State of New York.” (Doc. 1-2 ¶¶ 1-3.)
21, 2016, Defendant answered the Complaint and served
Plaintiff with discovery demands, including a demand for
damages. (Doc. 1-3.) On August 4, 2016, Plaintiff served
Defendant's counsel, by mail, a copy of Plaintiff's
Verified Bill of Particulars and Response to Notice to
Produce (“Response”). (Doc. 8, at 11.) According
to Defendant's counsel's records, its office received
Plaintiff's Response on August 8, 2016. (Doc. 7-3.)
Plaintiff's Response claimed damages in the amount of $1,
500, 000. (Doc. 1-1, at 3.)
September 6, 2016, Defendant filed the Notice of Removal.
(Doc. 1.) On September 9, 2016, Plaintiff filed the motion to
remand, (Doc. 4), supporting memorandum of law, (Doc. 5), and
affirmation of Lisa Ruiz with exhibits, (Docs. 4-1, 4-2). On
October 6, 2016, Defendant filed the affirmation of Aaron
Gross, with exhibits, in opposition. (Doc. 7.) Plaintiff
filed a reply affirmation on October 21, 2016 with exhibits.
removal of an action to federal court is challenged, the
removing party “has the burden of establishing that
removal is proper.” United Food & Commercial
Workers Union, Local 919, AFL-CIO v. CenterMark Props.
Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994);
Stan Winston Creatures, Inc. v. Toys “R” Us,
Inc., 314 F.Supp.2d 177, 179 (S.D.N.Y. 2003)
(“[T]he burden falls squarely upon the removing party
to establish its right to a federal forum by ‘competent
proof” (quoting RG. Barry Corp. v. Mushroom Makers,
Inc., 612 F.2d 651, 655 (2d Cir. 1979))). Therefore, on
a motion to remand “the party seeking to sustain the
removal, not the party seeking remand, bears the burden of
demonstrating that removal was proper.” Wilds v.
United Parcel Serv., Inc., 262 F.Supp.2d 163, 171
(S.D.N.Y. 2003) (quoting Hodges v. Demch U.K., 866
F.Supp. 730, 732 (S.D.N.Y. 1994)). Unless that burden is met,
“the case must be remanded back to state court.”
Bellido-Sullivan v. Am. Int'l Grp., Inc., 123
F.Supp.2d 161, 163 (S.D.N.Y 2000). “[O]ut of respect
for the limited jurisdiction of the federal courts and the
rights of states, we must ‘resolve any doubts against
removability.'” In re Methyl Tertiary Butyl
Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d
112, 124 (2d Cir. 2007) (quoting Somlyo v. J. Lu-Rob
Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991)).
argues that this case should be remanded to state court for
two reasons: (1) this Court lacks subject matter jurisdiction
because there is not diversity of citizenship between the
parties; and (2) Defendants' Notice of Removal is