Opinion
21-cv-08870 (AJN) (SDA)
12-14-2021
Molly M. Reid, Plaintiff, v. Anthony D. Blair and Blackwater Enterprises Inc., Defendants.
TO THE HONORABLE ALISON J. NATHAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
Before the Court is a motion by Plaintiff Molly M. Reid (“Reid” or “Plaintiff”) seeking remand of this action to the Supreme Court of the State of New York, Bronx County, pursuant to 28 U.S.C. § 1447. (Pl.'s Not. of Mot. for Remand, ECF No. 10.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion be GRANTED.
BACKGROUND
On October 30, 2020, Reid filed a Verified Complaint in the Supreme Court of the State of New York, Bronx County, against Defendants Anthony D. Blair (“Blair”) and Blackwater Enterprises, Inc. (“Blackwater”, together with Blair, collectively “Defendants”), alleging that Defendants' negligence in connection with the operation of a motor vehicle owned by Blackwater caused personal injuries to Reid. (Compl., Not. of Removal Ex. A, ECF No. 1-1.) In the Verified Complaint, Reid “plaintiff demands judgment against the [D]efendants in an amount which exceeds the jurisdictional limits of the lower courts of the State of New York, and in an amount which satisfies diversity jurisdiction of the Federal Courts pursuant to 28 USCA § 1441 and 1331 ....” (Id. at PDF p. 8.)
The reference to § 1331 appears to have been a typographical error, since § 1331 relates to federal question jurisdiction, whereas § 1332 relates to diversity jurisdiction.
Defendant Blair was served with the Summons and Verified Complaint at his residence on January 14, 2021 and by mail on February 3, 2021. (Affs. of Service, Not. of Removal Ex. B, ECF No. 1-2.) Defendant Blackwater was served with the Summons and Verified Complaint by mail to the Georgia Secretary of State on March 1, 2021. (Aff. of Service, Not. of Removal Ex. C, ECF No. 1-3.)
On April 27, 2021, Defendants filed their Verified Answer in state court. (Ans., Not. of Removal Ex. D, ECF No. 1-4, at PDF pp. 2-8.) On April 29, 2021, Defendants served numerous discovery demands including a demand, pursuant to CPLR § 3017(c), that Plaintiff provide the total amount of damages to which she deemed herself entitled. (Demand for Damages, Not. of Removal Ex. D, ECF No. 1-4, at PDF pp. 32-34.) On October 18, 2021, Plaintiff filed her responses to Defendants' discovery demands, including Defendants' demand for damages, to which Plaintiff responded that she was entitled to $2,000,000.00. (Resp. to Combined Demands, Not. of Removal Ex. E, ECF No. 1-5, at PDF p. 2.)
On October 29, 2021, Defendants removed the action, pursuant to 28 U.S.C. §§ 1332, 1441 and 1446, from the Supreme Court of the State of New York, Bronx County to the United States District Court for the Southern District of New York (See Not. of Removal, ECF No. 1.) In their Petition for Removal, Defendants asserted that removal was properly based on diversity jurisdiction because Plaintiff is a citizen of New York, both Defendants are citizens are Georgia, and the amount in controversy exceeds the sum or value of $75,000.00. (Id. ¶¶ 16-17.) Defendants further asserted that removal was timely because the action was removed within thirty days of Plaintiff's response to the demand for damages. (See id. ¶ 14.)
On November 11, 2021, Plaintiff filed a motion to remand this action to the Supreme Court of the State of New York, Bronx County. (Pl.'s Not. of Mot., ECF No. 6.) On December 3, 2021, Defendants filed an attorney declaration in opposition to the motion to remand. (Lim Decl., ECF No. 8.) On December 8, 2021, District Judge Nathan referred Plaintiff's motion to this Court for a report and recommendation. (Am. Order of Ref., ECF No. 9.) On December 13, 2021, Plaintiff filed a reply declaration. (Agnotti Reply Decl., ECF No. 12.)
Due to a filing error, Plaintiff's motion later was refiled at ECF No. 10.
Due to a filing error, Defendants' attorney declaration later was refiled at ECF No. 11.
DISCUSSION
I. Legal Standards
A civil action brought in state court may be removed by the defendants to the district court of the United States for the district “embracing the place where such action is pending.” 28 U.S.C. § 1441(a). An action may be removed on the basis of diversity jurisdiction under 28 U.S.C. § 1332(a), which requires that the matter in controversy exceeds the sum or value of $75,000.00 and is between citizens of different states, as long as the defendants are not citizens of the state in which the action is brought. 28 U.S.C. §§ 1332(a), 1441(a). Section 1446(b)(1) states that a “notice of removal of a civil action . . . shall be filed within 30 days after the receipt by the defendant[s], through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1).
A case is removable when the initial pleading “enables the defendant[s] to ‘intelligently ascertain' removability from the face of such pleading[.]” Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 205-06 (2d Cir. 2001) (citations omitted). Thus, “[i]f federal jurisdiction is ascertainable from the face of the initial pleading, a defendant may not wait more than 30 days after receiving the document to remove the action.” Jimenez-Castro v. Greenwich Ins. Co., No. 20-CV-09210 (ALC), 2020 WL 7352505, at *5 (S.D.N.Y. Dec. 15, 2020).
“[R]emoval statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand.” Am. Standard, Inc. v. Oakfabco, Inc., 498 F.Supp.2d 711, 715 (S.D.N.Y. 2007) (citations omitted).
II. Analysis
In the pending motion, Plaintiff argues that this case should be remanded to the originating state court because Defendants filed their notice of removal more than 30 days after receiving the Verified Complaint and thus that removal was untimely under 28 U.S.C. § 1446(b). (Aglietti Decl. ¶ 11.) The Court agrees.
The text of the Aglietti Declaration is attached to Plaintiff's notice of motion at PDF pp. 3-9.
Defendants, from the face of the Verified Complaint, were able “to apply a reasonable amount of intelligence in ascertaining removability” based upon diversity of citizenship and the amount in controversy. See Whitaker, 261 F.3d at 205-06. Defendants already were aware that the parties were of diverse citizenship and also were aware from the ad damnum clause in the Verified Complaint that Plaintiff was seeking “an amount which satisfies diversity jurisdiction of the Federal Courts.” (See Comp. at PDF p. 8.) Thus, Defendants had 30 days from being served with the Verified Complaint on March 1, 2021 to remove the action. Since Defendants did not file the Notice of Removal until October 29, 2021, Defendants' removal of this action was untimely under 28 U.S.C. § 1446(b)(1).
Although defendant Blair was served on January 14, 2021 and February 3, 2021 and defendant Blackwater was served on March 1, 2021, the 30-day period for removal may commence from the date of service on the last-served defendant. See 28 U.S.C. § 1446(b)(2)(C).
This case is analogous to Jimenez-Castro, where District Judge Carter remanded a case to state court in circumstances where the state court complaint demanded “damages in the sum which exceeds the sum or value established by 28 USC § 1332(a) exclusive of interests and costs, ” and removal was sought more than 30 days after the defendant received a copy of the complaint. Jimenez-Castro, 2020 WL 7352505, at *2, *5. Here, as in Jimenez-Castro, “[w]hile the Verified Complaint does not state a specific amount (which is proscribed by the CPLR), Defendant can intelligently ascertain removability, including the fact that Defendant is seeking over $75,000.” See id. at *3.
In personal injury actions under New York law, the complaint “shall not state the amount of damages to which the pleader deems himself entitled.” CPLR § 3017(c).
Defendants contend that the ad damnum clause contained in Plaintiff's Verified Complaint was insufficient to start the 30-day clock for removal because the Complaint did not “explicitly specif[y] the amount of monetary damages sought.” (Lim Decl. ¶ 6 (citing Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010)).) Defendants read Moltner too expansively. To begin with, the Second Circuit in Moltner acknowledges, and does not disagree with, the prior Second Circuit decision in Whitaker, which held that “[a] case is removable when the initial pleading enables the defendant to intelligently ascertain removability from the face of such pleading.” Moltner, 624 F.3d at 37 (quoting Whitaker, 261 F.3d at 205). As set forth earlier, based upon Whitaker, this case should be remanded.
In Moltner, the plaintiff's complaint did not state a numerical amount of damages or reference federal diversity jurisdiction. Rather, in support of remand in Moltner, the plaintiff “point[ed] to a number of district court cases from other circuits that . . . held that the removal clock runs from the service of the complaint, even where the complaint does not specify the amount of monetary damages sought, when the defendant can reasonably discern from the complaint that the damages sought will meet the amount-in-controversy requirement of 28 U.S.C. § 1332.” Moltner, 624 F.3d at 37. Instead of following those cases, the Second Circuit decided to follow the Eighth Circuit. See id. at 38 (citing In re Willis, 228 F.3d 896, 897 (8th Cir. 2000) (per curiam) (“We find the thirty-day time limit of section 1446(b) begins running upon receipt of the initial complaint only when the complaint explicitly discloses the plaintiff is seeking damages in excess of the federal jurisdictional amount.”)). In the present case, as in Willis, the Verified Complaint explicitly discloses that Plaintiff is seeking damages in “an amount which satisfies diversity jurisdiction of the Federal Courts.” (See Comp. at PDF p. 8.)
In deciding to follow the Eighth Circuit, the Second Circuit stated: “We join the Eighth Circuit, as well as all of the district courts in this Circuit to have addressed the issue, in holding that the 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, 624 F.3d at 37. As Judge Carter noted in Jimenez-Castro, the phrase “explicitly specifies the amount of damages sought” creates “confusion.” See Jimenez-Castro, 2020 WL 7352505, at *4. “The phrase could mean that the paper served on the defendant must explicitly state a specific amount of damages sought, or it could mean that the paper must explicitly identify damages sought (rather than leaving defendants to guess if federal jurisdiction applies), understanding that ‘damages sought' does not require reporting any specific number, as long as plaintiff seeks damages establishing federal jurisdiction.” See id. The Court agrees with Judge Carter's conclusion that “Moltner stands for the proposition that the plaintiff's request for damages, satisfying the minimum required for federal jurisdiction, should be explicitly stated by the plaintiff, instead of divined by the defendant. While the Second Circuit used different words, in context, Moltner's language is simply an elegant variation of the Eighth Circuit's language-the holding is the same.” See id. at *5.
Defendants also argue that the 30-day clock only started to run when Plaintiff responded to Defendants' discovery demands with a specific amount of damages sought by Plaintiff. (Lim Decl. ¶ 10.) In support of this argument, Defendants cite to two cases, Remy v. Savoie, No. 17-CV-00663 (DLI) (RER), 2017 WL 639251 (E.D.N.Y. Feb. 16, 2017) and Oakes v. Cheesecake Factory Restaurants, Inc., No. 20-CV-00269 (FJS) (ML), 2020 WL 2850149 (N.D.N.Y. June 2, 2020). (Lim Decl. ¶¶ 7-8.) Both cases consider the defendant's burden to establish in the notice of removal that the amount in controversy exceeds the jurisdictional amount; however, as alluded to by both courts, this issue need not be reached if the jurisdictional amount is clearly alleged in the plaintiff's complaint. See Remy, 2017 WL 639251, at *1 (“[I]f the jurisdictional amount is not clearly alleged in the plaintiff's complaint, and the defendant's notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiff's action from state court.”) (citations omitted); Oakes, 2020 WL 2850149, at *2 (same). In this case, the ad damnum clause clearly alleged that the damages sought satisfied the jurisdictional amount; thus, Plaintiff's response to Defendants' demand for damages was not necessary for Defendants to ascertain removability.
Accordingly, I recommend that the District Court remand this action to the Supreme Court of the State of New York, Bronx County.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion be GRANTED.
SO ORDERED.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Nathan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).