Opinion
24 Civ. 3604 (AT)
07-15-2024
SHERRY D. HERBERT and MELVON E. HERBERT, Plaintiffs, v. CHRISTOPH ESPINAL and ARS CARGO LOGISTIC, LLC, Defendants.
ORDER
ANALISA TORRES, DISTRICT JUDGE.
Plaintiffs, Sherry D. Herbert and Melvon E. Herbert, bring this action against Defendants, Christoph Espinal and Ais Cargo Logistic, LLC, seeking to recover for personal injuries from a June 20, 2023 motor vehicle accident on the Bronx-Whitestone Bridge. See Compl., ECF No. 4-1. On September 12, 2023, Plaintiffs filed this action in Supreme Court, Bronx Comity. Id. On May 17, 2024, Defendants removed this case on the basis of diversity jurisdiction under 28 U.S.C. § 1332. Notice, ECF No. 4. Plaintiffs now move to remand the action to state court on the ground that Defendants' notice of removal is defective. Pl. Mot., ECF No. 9; Pl. Mem., ECF No. 11. For the reasons stated below, Plaintiffs' motion is DENIED without prejudice to renewal.
A defendant may remove “any civil action brought in a State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). Federal district courts have original jurisdiction over cases between citizens of different states in which the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a)(1). An individual is a citizen of any state in which he or she is domiciled. Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000). An LLC is a citizen of every state of which any of its members is a citizen. Handelsman v. Bedford Vill. Assocs. Ltd. P'Ship, 213 F.3d 48, 51-52 (2d Cir. 2000).
“On a motion to remand, the burden of showing complete diversity falls on the party seeking to sustain the removal, not the party seeking remand.” Derrica v. Turn, Inc., No. 21 Civ. 8820, 2022 WL 1421452, at *1 (S.D.N.Y. May 5, 2022) (quotation marks and citation omitted). “When considering whether to remand a case to state court, the com! may consider materials outside the pleadings, including docrunents appended to a notice of removal that convey information essential to the court's jurisdictional analysis, since remand places subject-matter jurisdiction at stake.” Caicedo v. Sabovics, No. 23 Civ. 4645, 2024 WL 1719635, at *1 (E.D.N.Y. Apr. 22, 2024) (cleaned up); accord Roman v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010).
Plaintiffs first argue that Defendants have failed to meet the amount-in-controversy threshold. But, in response to Defendants' request for a supplemental demand of relief pursuant to N.Y. C.P.L.R. § 3017(c), Plaintiffs stated that they sought damages not to exceed $5 million for each Plaintiff. See ECF No. 4-3 at 2-3. “[T]he sum claimed by the plaintiff controls if the claim is apparently made in good faith.” Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 115 (2d Cir. 2002) (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938)); Moltner v. Starbucks Coffee Co., 624 F.3d 34, 36-37 (2d Cir. 2010) (holding that a plaintiff's response to a Section 3017(c) demand started the removal clock). Accordingly, the notice of removal is not defective as to the amount-in-controversy requirement.
Plaintiffs next contend that Defendants have failed to adequately plead diversity of citizenship. The notice of removal alleges that Defendants are both citizens of New Jersey. Notice ¶ 5; see ECF No. 4-4. However, Defendants include no allegations as to the citizenship of Plaintiffs. See generally Notice.
Defendants contend that they have included allegations of residence, which “is an important factor in determining citizenship.” Def. Opp. at 4, ECF No. 13. However, an individual's citizenship “is determined by his domicile,” which is “the place where a person has his true fixed home and principal establishment, and to which, whenever he is absent, he has the intention of returning.” Palazzo, 232 F.3d at 42 (cleaned up). “Domicile is not synonymous with residence; a party can reside in one place and be domiciled in another.” Kennedy v. Trs. of the Testamentary Trust, 633 F.Supp.2d 77, 81 (S.D.N.Y. 2009). “[I]t is well-established that allegations of residency alone cannot establish citizenship.” Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997). Plaintiffs' verified complaint, which is attached as an exhibit to the notice of removal, alleges that both Sherry D. Herbert and Melvon E. Herbert are “resident[s] of the State of New York, maintaining a residence” in the Bronx. Compl. ¶¶ 1-2. And, the notice of removal itself includes no further allegations about residence. See generally Notice. These allegations are insufficient to adequately assert diversity of citizenship as to the Plaintiffs, and the notice of removal is therefore defective.
Once the thirty-day removal period has lapsed, “courts will typically permit the removing party to amend its notice of removal only to set forth more specifically grounds for removal which were imperfectly stated in the original petition.” Caicedo, 2024 WL 1719635, at *2 (cleaned up). “[A] defendant may correct an imperfect statement of citizenship, state the previously articulated grounds more fully, or clarify the jurisdictional amount.” Beter v. Baughman, No. 24 Civ. 79, 2024 WL 1333570, at *4 (S.D.N.Y. Mar. 13, 2024), R. & R. adopted, 2024 WL 1329066 (S.D.N.Y. Mar. 28, 2024) (cleaned up). “[I]ncluding allegations in the petition for removal of the parties' ‘residency' as opposed to their ‘citizenship' is merely a technical defect that could be cured, even with an untimely amendment.” Id. (collecting cases).
Accordingly, by July 29, 2024, Defendants shall file an amended notice of removal that remedies the defects identified in this order. If they do not, this case shall be remanded to state court. The Clerk of Court is directed to terminate the motion at ECF No. 9.
SO ORDERED.