Opinion
17-cv-2524 (LDH) (RLM)
2017-07-20
Dionne CHARLES and McKennie Charles, Plaintiffs, v. COSTCO WHOLESALE CORPORATION, Defendant.
ORDER
:
On May 3, 2017, United States Chief Magistrate Judge Roanne L. Mann issued a sua sponte Report and Recommendation recommending that this action be remanded to the Supreme Court of New York, Kings County. (See R. & R., ECF No. 5.) The parties were afforded fourteen (14) days to file objections. On May 17, 2017, Defendant filed a timely objection. (See Def.'s Obj., ECF No. 11.) When a timely objection has been made to any portion of a report and recommendation on a dispositive matter, the district court reviews the report and recommendation de novo . 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b).
At the time Chief Magistrate Mann issued the Report and Recommendation, the Court had before it only Defendant's Notice of Removal (ECF No. 1), attached to which were Plaintiffs' Verified Complaint (ECF No. 1-2), Defendant's Answer (ECF No. 1-3), and a series of emails between defense counsel and Plaintiffs' counsel, in which Plaintiffs' counsel indicated that it was "fine with [him]" if Defendant wanted to remove to federal court (ECF No. 1-4). Notably, the Complaint did not contain an ad damnum . Based on the information before the Court at the time of Chief Magistrate Judge Mann's Report and Recommendation, there was no apparent basis for diversity jurisdiction. (See R. & R. 3 (quoting Lupo v. Human Affairs Int'l, Inc. , 28 F.3d 269, 273-74 (2d Cir. 1994) ) ("Where, as here, ‘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.").) Subsequent to Chief Magistrate Mann's issuance of the Report and Recommendation, Plaintiffs supplied the Court with a written damages demand in the amount of $10,000,000 (see Response to Request for Ad Damnum, ECF No. 6-1), which Defendant in turn affixed to its objection (see Def.'s Obj. 2).
Plaintiffs' written damages demand was also filed separately by Plaintiffs on May 17, 2017. (See Response to Request for Ad Damnum, ECF No. 6-1.)
To satisfy the amount-in-controversy requirement, a defendant must show a "reasonable probability" that the claim is for more than the jurisdictional amount. Tongkook Am., Inc. v. Shipton Sportswear Co. , 14 F.3d 781, 784 (2d Cir. 1994) ; Foschi v. United States Swimming, Inc. , 916 F. Supp. 232, 241 (E.D.N.Y. 1996). Only where it "appear[s] to a legal certainty that the claim is really less than the jurisdictional amount" can the court dismiss an action for lack of subject matter jurisdiction. Saint Paul Mercury Indem. Co. v. Red Cab. Co. , 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ; see A.F.A. Tours, Inc. v. Whitchurch , 937 F.2d 82, 87 (2d Cir. 1991) ; see also Certain Underwriters at Lloyd's London v. Art Crating, Inc. , No. 12-CV-5078, 2014 WL 123488, at *7 (E.D.N.Y. Jan. 10, 2014) ("Exceptions exist where a court might consider jurisdictional facts not alleged in pleadings served at the time of removal"). "Where the pleadings themselves are inconclusive as to the amount in controversy ... federal courts may look outside those pleadings to other evidence in the record." United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc. , 30 F.3d 298, 305 (2d Cir. 1994). This is all the more appropriate when plaintiffs are prohibited from including a monetary demand in their complaint. See Yong Qin Luo v. Mikel , 625 F.3d 772, 775 (2d Cir. 2010) (citing N.Y. C.P.L.R. § 3017(c) ) ("New York's rules of civil procedure prohibit a plaintiff from pleading a specific monetary demand in [cases] where the complaint alleges personal injury.").
In the instant case, consistent with New York's rules of civil procedure, Plaintiffs' complaint does not make a specific monetary demand. Plaintiffs' subsequent written damages demand clarifies, however, that Plaintiffs seek damages in the amount of $10,000,000. (See Def.'s Obj. 2.) "The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by plaintiff controls if the claim is apparently made in good faith." Ocean Ships, Inc. v. Stiles , 315 F.3d 111, 115 (2d Cir. 2002). There has been no evidence presented to the Court to suggest that Plaintiffs' damages demand is not made in good faith. As such, Defendant has shown by a preponderance of the evidence that there is a reasonable probability that Plaintiffs' claim exceeds $75,000. Accordingly, the Court declines to adopt Chief Magistrate Judge Mann's recommendation that this action be remanded to the state court.
SO ORDERED. REPORT AND RECOMMENDATION
ROANNE L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE
Defendant Costco Wholesale Corporation ("defendant") removed this personal injury action to this Court on April 27, 2017, on the ground that the parties are citizens of different states and the amount in controversy exceeds $75,000. Under 28 U.S.C. § 1447(c), a federal court may sua sponte remand an action at any time for a lack of subject matter jurisdiction. See Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 133 (2d Cir. 2006) ; Hamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 643-44 (2d Cir. 1993) ; 28 U.S.C. § 1447(c). The party seeking removal to federal court bears the burden of establishing that the requirements for diversity jurisdiction are met. See Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000).
Pursuant to 28 U.S.C. § 1446(b), the notice of removal must be filed within thirty days after the defendant has received a copy of the complaint or within thirty days after receipt by the defendant of a document "from which it may first be ascertained" that the action is removable. See 28 U.S.C. § 1446(b). In the instant action, while the complaint served on defendant does not contain an ad damnum , defendant's Notice of Removal relies on written correspondence from plaintiffs' counsel stating that plaintiffs consent to removal. See Notice of Removal (Apr. 27, 2017) ¶ 5, Electronic Case Filing Docket Entry ("DE") #1. Defendant argues that by so consenting, plaintiffs have implicitly admitted that the amount in controversy exceeds $75,000. See id. However, a plaintiff may not waive a lack of subject matter jurisdiction. See Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000) ; cf. Remy v. Savoie, No. 17-CV-00663 (DLI)(RER), 2017 WL 639251, at *2 (E.D.N.Y. Feb. 16, 2017) (remanding to state court because plaintiff's failure to respond to Notice to Admit is insufficient to satisfy amount-in-controversy requirement); Valente v. Garrison from Harrison LLC, No. 15-cv-6522 (DLI)(MDG), 2016 WL 126375, at *2 (E.D.N.Y. Jan. 11, 2016) (remanding to state court because plaintiff's refusal to stipulate to cap on damages does not establish that jurisdictional amount is satisfied).
Nor are the allegations contained in plaintiffs' complaint sufficient to establish that the amount in controversy exceeds the jurisdictional threshold. In the complaint, plaintiffs allege that Dionne Charles "has sustained serious permanent physical, emotional and financial injuries." Complaint (attached as Ex. A to Notice of Removal) ("Compl.") ¶ 17, DE #1-2. Such boilerplate allegations do not establish that the amount in controversy suffices to support diversity jurisdiction. See Remy, 2017 WL 639251, at *3 ; Valente, 2016 WL 126375, at *2. Similarly, the allegation that Dionne Charles has "been damaged in an amount that exceeds the jurisdictional limits of all lower courts," Compl. ¶ 18, does not satisfy the monetary threshold for diversity jurisdiction since the jurisdictional limitation of the lower civil courts of New York is $25,000. See Valente, 2016 WL 126375, at *1.
Where, as here, "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." Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 273-74 (2d Cir. 1994). Therefore, this Court respectfully recommends that the action be remanded to the Supreme Court of New York, Kings County.
Any objections to this Report and Recommendation must be filed with the Honorable LaShann DeArcy Hall on or before May 17, 2017 . Failure to file objections in a timely manner may waive a right to appeal the District Court order. See 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 6(a)(1), 72(b)(2) ; Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).