Summary
identifying damages awards ranging from $250,000 to $500,000 made to plaintiffs in New Jersey state courts for cervical disc herniation
Summary of this case from Chun Hui Lin v. Mid-Century Ins. Co.Opinion
Civil Action No.: 15-cv-672 (CCC-JBC)
09-28-2015
AID A ORTIZ, Plaintiffs, v. RICHMOND ELEVATOR CO., INC. JOHN DOES [1-5]. fictitious enhlies whose names are pal presently known amd HUDSON COUNTY, Defendant.
NOT FOR PUBLICATION
OPINION
CECCHI, District Judge.
I. INTRODUCTION
This matter comes before the Court upon the objections of Defendant Riehmond Elevator Co., Inc. ("Richmond") to the Report and Rceommendation of Magistrate Judge Junes B Clark. Ill on plaintiff's motion to remand this action to state ccurt ECF No. 3. The Court decides this matter withoul oral argument pursuant to Federal Rule of Civil Procedure 78, For the reasons set forth below, the Court adnpts Judge Clark's Report and Recommcndation (ECF No. 11) grantina Plaintiff's motion remand. II. BACKGROUND
The Court "must assume as true all factuml allegutions of the complaint" uhen considering a motion fur rcmand Sted Vailev Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987) --------
On September 7, 2012, Plaintiff T Aida Ortiz, a comectional officer, sustained injuries from a malfunctioning clevator located in the Hudson County Correctional Center in Kearny. New Jersey. Compl. Count One ¶¶ 3, 7. 11, ECF No. 3-1. On August 26, 2013, Plaintiff sustained injuries when that elevator again malfunctioned, Compl. Count Two ¶¶ 7-8. 13, ECF No, 3-1
On August 5, 2014. Plaintiff sued Richmond, Hudson County, and several other unnamed defendants. in New Jersey Superior Court, to recover damages for personal injuries, loss of income, and medical expenses. See generally Compl Richmond is a corporation located in Stoten Island, New York, which performs maintenance on the elevators at the Hudson County Correctional Center, including the elevator that malfunctioned here. See Compl. Count One Hudson County is Plaintiff's empleyer. See Compl Count Three.
Plaintiff alleged thut as a result of Defendants' negligence, she sustained "severe, serious injury" including "herniations at the C5-C6 level and root compression of the Co nerve mert," Compl Count One ¶ 13; Count ¶ 13.
On September 19, 2014. Richmond Answered and made a demand lor a Statement of Damages, pursuant to New Jersey Court Rule 4:5-2. See Richmond Answer, Page 6 Hudson County answered and erass-elaimed on Oetuber 2, 2014. See Hudson County Answer. On January 6, 2015. Plaintiff served a Statement of Damagcs asserting damages in the amount of $500,000. See Statement of Damages
Defendant Richmond removed the action to this Court on January 30, 2015. based on diversity of citizenship between the parties and an amount in contruversy exceeding $75,000, pursuant lo 28 U.S.C. § 1352 and 28 U.S.C. § 1441 ECF No. 1. ¶ 5. Richmond asscrted that removal was timely under 28 U.S.C. § 1446(b). because the notice of removal was filed within 30 days after receipt of information from which Richmond could first ascertain that the case is removable, Plaintiff then filed a motion in remand, arguing that removal was untimely and that the parties do not have diversity of citizenihip ECF No. 3. Plaintiff also sought counsel fees and costs in connection with the motion.
On May 12, 2015, Judge Clark issued a Report and Recommendation that Plaintiff;s motion to remand be granted in part Report and Recommendation ("R&R"), ECF No. 11 Judge Clark concluded that Richmond should have removed the action within 30 days after service with the Complaint, pursuant to 28 U.S.C. § l446A(b)(1), because Plaintiff's allegations illustrated a severe injury from which Richmond should have reasonably concluded that the amount in controversy exceeded the jurisdictional minimum. Having concluded that the action should be remanded, Judge Clark declined to address whether Hudson County. Plaintiff's employer, was properly Joined or is a nominal defendant in the action. Last, Judge Clark denied Plaintiff's request for an award of counsel fees,
Richmond objected to Judge Clark's Report and Recommendation on Way 26, 2015 Objections to R&R ("Ohj"). ECF No. 12. Richmond argued that the Complaint's allegations of injury were insufficient to put Richmond on notice that the jurisdiction threshold had been met. Instead, Richmond argued that the 30-day lime period for removal under 28 U.S.C. § 1446(b) did not begin to run until it received Plaintiff's $5500,000 Statement of Damages, Richmond also argued that the Report and Recommendation is contrary to the legislative purpose of 28 U.S.C. § 1446, which discourages premature removal of suits.
III. LEGAI. STANDARD
When a Magistrate Judge addresses motions that are considered dispositive, such as a motion to remand, the Magistrate Judge submits a Report and Recommendation to the district court 28 U.S.C. § 636(b)1()(A); Fed. R. Civ. P 72; L Civ. R, 724(a)(2). The district court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistral Judge " 28 U.S.C. § 636(b)(1)(c); sec also L. Civ. R, 72.l(e)(2). On dispositive motions, the distriet court must make a de movo determination of the portions of the Magistrate Judge's Report and Recommendation to uhich a litigant has filed objections. 28 U.S.C. § 636(b)(l)(e); Fed R. Civ. P. 72(b); L Civ. R. 72.1(c)(2); see also Stale Farm Indem. v. Fomarn. 227 F Supp. 2d 229, 211 (D.N.J. 2002). A Report and Recommendation does not have force of law unless and until the district court enters an order accepting or rejecting United Steel workers of Amv N.J. Zinc To. Jnc., 828 F.2d 1001, 1005 (3d Cir 1987)
IV. DISCISSION
Judge Clank correctly concluded that Richmond should have sought removal withie 30 days of its receipt of the Complaint, because plaintiff's Complaint put Richmond on notice that the claim for personal injuries was more likely than no exceed $75,000. R&R. at 7*
A. Motion to Remind
The parties do not dispute that the amount in controversy actually exceeds $75,000. Rarher. the panics disagree as to whether this conclusion could have been drawn from the face of the Complaint, thus triggering the 30-day period for filing a Notice of Removal Richmond argues that Plaintiff's Complaint was insufficient to provide a good faith hasis for removal because the Complaint asserted only "general allegations regarding damages, but did not specify the amount." Obj., at 9 While it is "not necessary that the amount in controversy be stated in the initial pleading in order to trigger the running of the thirty-day period for removal[.]" the time will begin to run once the defendant "can reasonably and intelligently conclude frum the pleadings that the amount in controversy exceeds the jurisdictional minimum," Carroll v. United Air Lies, Ine.,7 F Supp. 2d 516, 521 (D.N.J. 1998).
Plaintiff's Complaint did not specify the amount of damages. The Complaint did. however, specify that the injuries included "hemiations at the C5-C6 level and root compression of the C6 nevre root." Compl Count One ¶ 13; Count Two ¶ 13. Where a complaint does not specify in amount of damages, the district court should perform in own "independent appraisal of the value of the claim" for purposes of assessing the amount in controversy, Angus v. Shiley Inc. 989 F.2d 142, 146 (3d Cir 1993); see also Valerio v. Musicbasic, No CIV A. 07-534 JLL, 2007 WL 2769636, at *3 (D.N.J. Sept, 21, 2007) (conducting independent appraisal and finding absence of evidence proffered from which to conclude that damages exceeded jurisdictional threshold.).
Here, this Court's search of case law demonstrating the sustainable amount of damages for a cervical herniation with nerve root compression reveals that the New Jersey Superior Court, Appellate Division, has sustained awards for similar injuries In the range of $250,000 to $500,000—well over the jurisdictional threshold. See, e.g., Ingrao v Concalvers, No. L-2263-08, 2011 WL 2306853 (N.J. Super. Cl App. Div. May 23, 2011) (affirming trial courts dentil of remittitur of $250,000 award for compensatory damages to plaintiff who sustained two hemiated discs, at the C3-C6 and T11-T12 levels); Almanzar-Flores v. O'Neill No. L-4392-08, 2012 WL 412172, (N.J, Super. Ct. App. Div Feb, 10, 2012) (denying reminitur application and affirming $500,000 jury award to plaintiff who sustained a disc hermation at the C5-C6 level and a bulging disc at C6 ami C6-C7); Browne v. Sempel, Nos. L-2807-05 and L-2865-05, 2010 WL 909952 (N.J. Super Ct. App. Div. Mar. 15, 2010) (affirming trial court's denial of ramitiur of $400,000 award to plaintiff who sustained multiple disc bulges in the cervical spine and a disc hernation in the lumbar spine with radiculopathy)); see also Pinto v. Morgan, Nos. L-4527-04 and L-5416-04, 2009 WL 4254439 (N.J. Super. Ct App. Div. Nov. 2, 2009) (reversing grant of remittitur and reinstating $1.5 million award to plaintiff who sustained severe herniation of cervical disc, for which fusion surgery was recommended, three bulging discs, three vertebral compression frauures. a broken rib. and labrum tear for which he underwent surgery) Accordingly, it appears that—should a jury find that Plaintiff's cervical herniations were proximately caused by the accident—the sustainable range for such injuries would meet the jurisdietion threshold of over $75,000.
Nonetheless, Richmond also argues that the Complaint's allegations of "herniations at the C5-C6 level and root compression of the C6 nerve root" did not provide Richmond with a good faith basis fur rawnal, as such allegations are too general to satisfy the amount in controvesy by the requisite preponderance of the evidence. For support, Richmond cites to Penn. v. Wal-Mart Stores, Inc., 116 F. Supp. 2d 557 337 (D.N.J. 2000), where the Court concluded that Wal-Mart did not show, by a preponderance of evidence, that the plaintiff's complaint alleging "a tear in her knee llgaments that hold the joint together, as well as severe sprains and other injuries" exceeded the $75,000 amount in controversy requirement. There, the Court adopted the prepixulerancc of evidence standard for coses where a plaintiff seeks unspecified damages, explaining that this standard requires "the defendant to prove that the amount in controversy more likely than not exceels $75,000 . . . ." Id. at 567. In Penn, the Court also noted that the plaintiffs did not "refer to any pain and suffering, less of work, lost wages, or any other factor that might demonstrate a greater chance of recovery." Id. at 568.
Here, however, Plaintiff's Complaint alleged "severe, serious injury causing permanent disahility. a loss of income and time from work, and [past and] future expenses For treatment of said injuries" us well as "lots of income, great pain and suffering, and emotional distress . . . ." Compl. Count One ¶ 13; Count Two ¶ 13. Although Plaintiff generally listed injuries to her "neck, left leg, lower back and coeeyx." Compl. Count One ¶ 11, she also specified "herntions at the C5-C6 level and root compression of the C6 nerve root." Compl Count One ¶ 13; Count Two ¶ 13 Accordingly, Plaintiff's allegations raised several factors that demonstrated a greater chance of recovery.
This Court also agrees with Judge Clark's analysis of Carroll v. United Air Lines. Inc., 7 F. Supp. 2d 516, 521 (D.N.J. 1998) and Weiderspahn v Wing Enters., Inc., No. 09-2441, 2009 WL 2070353 (July 10, 2009). In Carroll, the plaintiffs allegations of "injuries causing disability, impairment, loss of enjoyment of life, pain and suffering, and . . . future [pain and suffering]" were sufficient to give the defendant notice, upon receipt of the complaint, that the damages could reasonably exceed $75,000, 7 F Supp. 2d at 521 (citing the plaintiffs complaint). Similarly, Weiderspahn's allegations of "severe personal injuries to his body" which prevented him from "attend[ing] his normal duties and occupations," and caused him "great pain, physical disability, and metal anguish" were sutfieient Weiderspahn, No. 09-2441, 2009 WL 2070353, at *1 (citing the plaintiff's complaint). Here, Plaintiff's Complaint contained allegations more specific than those of Carroll and Weiderspahn, and these allegations should have signaled that Plaintiff's claims exceeded the junsdiction threshold. Moreover, the fact that Plaintiff's Complaint did not allege a punitive damages claim or a spouse's loss of consortium claim, as in Weiderspahn, is not dispositive.
Contrary to Richmond's argument. Judge Clark's recommendation does not conflict with (he legislative intent of 28 U.S.C. § 1446, as Richmond did not "lack[] information with which to remove within the 30 days after the commencement of the action . . . ." See H.R Rep. No. 112-10, at 16 (2011), reprinted in 2011 U.S.C.C.A.N .576, 580.
Finally, as this Court agrees with Judge Clark's recommendation that the action should be remanded because the notice of removal was untimely, this Court declines to address whether Hudson County is a nominal defendant in this action
B. Counsel Fees
Judge Clark decimal to order counsel fees in his Report and Recommendation, finding that they were unwarranted Richmond did not appear in object to this portion of Judge Clark's Report and Recommendation, This Court adopts Judge Clark's Report and Recommendation.
V. CONCLUSION
Having thoroughly reviewed Judge Clark's Report and Recommendation and Defendant's objections thereto, and for the reasons stated above, this Court hereby adopts Judge Clark's Report and Recommendation in full and grants Plaintiff's motion to remand. An appropriate order accompanies this Opinion. Dated: September 28, 2015
/s/ _________
CLAIRE C. CECCHI, U.S.D.J.