United States District Court, S.D. New York
J. Epstein, Esq. Darren Jay Epstein, Esq., P.C. New York, NY
Counsel for Plaintiffs.
Matthew Finkelstein, Esq. London Fischer, LLP New York, NY
Counsel for Defendant.
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
Manuel Rugerio-Serrano ("Rugerio-Serrano") and his
wife, Hilda Juarez ("Juarez, " and collectively,
"Plaintiffs"), bring this Action against Defendant
Makita USA, Inc. ("Defendant") for damages
sustained while using a saw designed, manufactured, and
distributed by Defendant. Defendant removed the case to
federal court, and Plaintiffs now bring a Motion To Remand
(the "Motion"). (See Dkt. No. 12.) For the
reasons to follow, Plaintiffs' Motion is denied.
Factual Background & Procedural History
about October 22, 2012, while using the 5007F Makita Circular
Saw "in accordance with its intended use and pursuant to
the written instructions set forth on the [product's]
label, " Rugerio-Serrano "was caused to suffer and
sustain severe bodily injuries." (See Not. of
Removal Ex. A ("Compl.") ¶ 20 (Dkt. No. 1).)
Plaintiffs aver that the safety guard for the saw's blade
suddenly failed, causing the blade to impale
Rugerio-Serrano's left arm from his wrist nearly to his
elbow. (See Pis.' Mot. for Remand &
Incorporated Mem. of Law ("Pis.' Mem.") ¶
1 (Dkt. No. 12).) Rugerio-Serrano seeks damages in connection
with these injuries. (See Compl. ¶¶ 24,
30, 33, 39.) Juarez alleges that as a result of her
husband's injuries, she will "forever be deprived of
[the] society, services and consortium" of her husband,
and seeks damages in compensation. (Id. ¶¶
Rugerio-Serrano's injury, Plaintiffs retained counsel and
on July 21, 2014, sent a settlement package to Defendant,
comprised of a police report, accident report, medical
records, and photographs of the injury. (See
Pis.' Mem. ¶ 3; see also Pis.' Mot. for
Remand & Incorporated Mem. of Law ("First Mot. To
Remand") Ex. 3, at 1 (Dkt. No. 5).) Plaintiffs also
allege that their counsel "had conversations with . . .
[D]efendant's legal counsel . . . indicat[ing] that this
matter was worth well in excess of $75, 000.00, "
(Pis.' Mem. ¶ 4), and that counsel for Plaintiffs
"made a demand of at least $1, 000, 000, "
year later, on or about October 6, 2015, Plaintiffs filed a
Complaint in New York State Supreme Court, alleging that
Rugerio-Serrano's numerous permanent physical and
psychological injuries resulted from Defendant's
misconduct. (See Compl. ¶¶ 21-22.)
However, the Complaint did not contain an ad damnum clause
identifying a specific amount in damages. (See generally
id) On November 4, 2015, Defendant
simultaneously filed its Answer and a demand for an ad damnum
pursuant to New York Civil Practice Law and Rules
("CPLR") § 3017(c). (See Not. of
Removal Ex. C.) Plaintiffs filed their response to the ad
damnum clause on June 27, 2016, seeking $4.5 million in
damages. (See Not. of Removal Ex. D)
6, 2016, Defendant removed the Action to this Court pursuant
to 28 U.S.C. § 1332(a). (See Not. of Removal.)
On July 18, 2016, Plaintiffs filed a Motion To Remand,
(see Pis.' First Mot. To Remand), which this
Court denied the following day for failure to comply with the
Court's Individual Practices. (See Memo
Endorsement (July 19, 2016) (Dkt. No. 6).) The Court
subsequently issued a Motion Scheduling Order, (see
Order (Dkt. No. 11)), and Plaintiffs filed the instant Motion
on October 9, 2016, (see Pis.' Mem.). On
November 7, 2016, Defendant filed its opposition and
accompanying papers, (see Dkt. Nos. 13-17), and on
December 13, 2016, Plaintiffs filed their reply,
(see Dkt. No. 19).
courts are courts of limited jurisdiction' that
'possess only that power authorized by Constitution and
statute.'" Hendrickson v. United States,
791 F.3d 354, 358 (2d Cir. 2015) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994)). Among the limited categories of disputes over which
a federal court may exercise jurisdiction are those
"civil actions where the matter in controversy exceeds
the sum or value of $75, 000, exclusive of interest and
costs, and is between . . . citizens of different
States." 28 U.S.C § 1332(a)(1). Where, as here, a
case meets these requirements, but was nevertheless initiated
in state court, it "may be removed by the defendant...
to the district court of the United States for the district
and division embracing the place where such action is
pending, " at least if Congress has not provided
otherwise, 28 U.S.C. § 1441(a), and provided that the
defendant in the diversity action is not a citizen of the
state where the action was brought, id. §
1441(b)(2). "[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."
Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213
(2d Cir. 2013) (internal quotation marks omitted); see
also Commonwealth Advisors Inc. v. Wells Fargo Bank, Nat
7 Ass 'n, No. 15-CV-7834, 2016 WL 3542462, at *2
(S.D.N.Y. June 23, 2016) (same).
right to removal, however, has a shelf life, and, where the
action has been pending for a year or less, see 28
U.S.C. § 1446(c)(1), the notice of removal is to be
"filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable, " id. § 1446(b)(3).
Where, as here, "the case stated by the initial pleading
[was] not removable solely because the amount in controversy
[did] not exceed" $75, 000, "information relating
to the amount in controversy in the record of the State
proceeding, or in responses to discovery, shall be treated as
an 'other paper' under subsection (b)(3)."
Id. § 1446(c)(3)(A).
defendant fails to file such a notice within this 30-day
period, a plaintiff may subsequently move to remand the
action to state court, provided that the motion is made
within 30 days of the defendant's filing of the notice.
Id. § 1447(c). Here, the question for the Court
is whether some "other paper from which it may ... be
ascertained that the case is one which is . . . removable,
" id. § 1446(b)(3), started ...