United States District Court, E.D. New York
NICHOLAS G. GARAUFIS, United States District Judge.
18, 2017, Plaintiff Esther Feder commenced this personal
injury action in New York state court against Defendants
Costco Wholesale Corp. and Costco Wholesale Warehouse #318.
(See Compl. (Dkt. 1 at ECF p.6); Summons (Dkt. 1 at
ECF p.5).) Plaintiff alleges that she was injured at
a Costco warehouse in Brooklyn on February 11, 2016, and, as
a result of that accident, she has been "damaged, in an
amount in excess of the jurisdictional limits of all lower
courts in which this action could otherwise have been
brought." (Compl. ¶ 39.)
20, 2017, Defendants removed the action to this court
pursuant to 28 U.S.C. § 1441. (See Not. of
Removal (Dkt. 1 at ECF p.l).) The Notice of Removal states
that this court has original jurisdiction over the action
pursuant to 28 U.S.C. § 1332. (Id. ¶ 13.)
Defendants submit that the parties are diverse and that the
amount in controversy exceeds the jurisdictional threshold of
$75, 000, as evidenced by the fact that Plaintiff made a
settlement demand "in excess of$75,
000." (Id. ¶¶7-11.)
27, 2017, Magistrate Judge Roanne L. Mann issued a sua
sponte Report and Recommendation ("R&R"),
recommending that the court remand the action to the state
court. (R. & R. (Dkt. 4).) Judge Mann
determined that Defendants' removal was premature and
thus procedurally defective. (Id. at 1-2.) Pursuant
to 28 U.S.C. § 1446(b)(3),
if the case stated by the initial pleading is not removable,
a notice of removal may be filed within thirty 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.
30-day removal clock "does not start to run until the
plaintiff serves the defendant with a paper that explicitly
specifies the amount of monetary damages sought."
Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d
Cir. 2010) (per curiam). "[A]n oral demand is not a
pleading or other paper that meets the requisites of 28
U.S.C. § 1446(b)." Abbas v. Kienzler, No.
10-CV-5100 (RRM) (WP), 2010 WL 5441663, at *1 (E.D.N.Y. Dec.
23, 2010).Accordingly, Judge Mann reasoned that
because the Complaint does not include an ad damnum
clause and Defendants rely exclusively on an oral settlement
demand to establish the amount in controversy, "the
removal clock never started to run." (R&R at 2.)
"[Defendants' removal is premature, and thus
untimely." (Id.) Judge Mann further determined
that the court lacks subject matter jurisdiction over the
action, as neither the allegations in Plaintiffs Complaint
nor the facts alleged in Defendants' Notice of Removal
are sufficient to establish that the amount in controversy
exceeds the jurisdictional threshold. (Id. at 3.)
Costco Wholesale Corp. timely objected to the R&R,
arguing that the action was properly removed and that the
court has diversity jurisdiction. (See Costco
Wholesale Objs. to R. & R. (Dkt. 5).) Costco Wholesale
Corp. asserts that the amount in controversy exceeds $75,
000, as evidenced by (1) Plaintiffs settlement demand; and
(2) the fact that Plaintiff refused to cap damages at $74,
999. (Id at 1-2.) It further asserts that Defendants
removed the action when they first ascertained that the case
was removable, i.e. when Plaintiff informed Defendants that
Plaintiff would not cap damages at $74, 999. (Id. at
2.) Costco Wholesale Corp. appears to suggest-without any
citation to case law-that the parties' discussion about a
damages cap meets the requirements of § 1446(b)(3),
which requires receipt by the defendant of "a copy of
amended pleading, motion, order, or other paper from
which it may first be ascertained that the case [is
removable]." 28 U.S.C. § 1446(b)(3) (emphasis
Defendant Costco Wholesale Corp. makes only conclusory and
general objections to the R&R, the court reviews the
R&R for clear error. See Pall Corp. v. Entegris,
Inc., 249 F.R.D. 48, 51 (E.D.N.Y.2008) (holding that if
a party "makes only conclusory or general objections ...
the Court reviews the [R&R] only for clear error"
(citation omitted)). Finding no clear error, the court
OVERRULES Defendant Costco Wholesale Corp.'s objections
(Dkt. 5) and ADOPTS the R&R (Dkt. 4) IN FULL.
action is REMANDED to the Supreme Court of New York, Kings
County pursuant to 28 U.S.C. § 1447(c), as removal was
premature and Defendants have not met their burden of
establishing that the requirements for diversity jurisdiction
have been met. See Mitskovski v. Buffalo & Fort
Erie Pub. Bridge Auth.. 435 F.3d 127, 133 (2d Cir. 2006)
(holding that § 1447(c) "authorizes a remand for
either a procedural defect asserted within 30 days of the
filing of notice of removal or a lack of subject matter
jurisdiction" (citing Hamilton v. Aetna Life &
Cas. Co., 5 F.3d 642, 644 (2d Cir. 1993) (per curiam)).
The Clerk of Court is respectfully DIRECTED to send a
certified copy of this Order to the Clerk of Court of Supreme
Court of New York, Kings County, 360 Adams Street, Brooklyn,
New York 11201, and to close this case.
 Defendant filed multiple documents
together as Document 1.
 There is no evidence that Plaintiff
made her settlement demand in ...