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Castillejo v. BJ's Wholesale Club, Inc.

United States District Court, S.D. New York

May 9, 2017

DISSY E. CASTILLEJO, Plaintiff,
v.
BJ'S WHOLESALE CLUB, INC., Defendant.

          Lisa Joan Ruiz Newman O'Malley & Epstein LLC New York, New York Counsel for Plaintiff.

          Aaron Christopher Gross Sobel Law Group, LLC Huntington, New York Counsel for Defendant.

          MEMORANDUM & OPINION

          VERNON S. BRODERICK, United States District Judge.

         Before 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 DENIED.

         I. Background

         Plaintiff 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.[1] 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.)

         The 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.)

         On July 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.)

         On 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. (Doc. 8.)

         II. Legal Standard

         When 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)).

         III. Discussion

         Plaintiff 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 untimely.

         A. Diversity ...


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