Opinion
04 Civ. 3019 (RMB)(DFE).
May 19, 2004
DECISION AND ORDER
I. Background
Plaintiffs Evelyn Vasquez and Maria Piris filed the complaint ("Complaint") in this personal injury and product liability action in the Supreme Court of the State of New York, New York County, on February 11, 2004 against Defendants J.M. Products, Inc. ("J.M. Products"), Summit Packaging Systems, Inc. ("Summit Packaging") and Berry Plastics Corporation ("Berry Plastics").See Complaint, attached as Exh. A to Notice of Removal By Summit Packaging, dated April 19, 2004. The Complaint "alleges four causes of action on behalf of plaintiffs . . . in negligence and strict products liability, and one derivative cause of action on behalf of plaintiff Maria Piris for loss of services," arising out of the explosion of an aerosol can allegedly resulting in injury to Plaintiffs. Letter from Manuel A. Romero to Court of 5/6/04 ("Pl.'s 5/6/04 Letter") at 2.
Plaintiffs allege that Berry Plastics was served with process on February 17, 2004, that J.M. Products was served with process on February 20, 2004, and that Summit Packaging was served with process on February 24, 2004. Id. Service upon all three defendants was allegedly made through the Office of the Secretary of State of the State of New York (far from the most direct method of service). Id.
On March 26, 2004, Berry Plastics filed a notice of removal to this Court on the grounds of diversity jurisdiction. See Notice of Removal By Berry Plastics, dated 3/26/04 at ¶ 10. This Court remanded the case to state court on April 14, 2004, tentatively concluding, among other things, that Berry Plastics had appeared to have removed the case without the unanimous agreement of all defendants. Vasquez v. J.M. Prods., Inc., 04-CV-2476 (S.D.N.Y. remanded Apr. 14, 2004).
On April 19, 2004, Summit Packaging filed a separate Notice of Removal also asserting diversity of citizenship. See Notice of Removal By Summit Packaging, dated 4/19/04 at ¶ 2. And, attached to the Summit Packaging Notice of Removal is a "Stipulation of Removal to Federal Court," dated April 19, 2004, executed by all three Defendants. See id. at Exh. C.
Plaintiffs have objected to the filing of the Summit Packaging Notice of Removal and have applied for a remand to the state court by letter to the Court dated May 6, 2004 ("Pls.' 5/6/04 Letter"). Summit Packaging responded with a letter to the Court dated May 11, 2004 ("Summit's 5/11/04 Letter"). A conference before the Court was held on May 18, 2004, and the parties submitted additional papers to the Court. For the reasons set forth below, Plaintiffs' Application for a Remand is denied.
Astonishingly, Plaintiffs submitted a "Memorandum of Law in Support in Support of Plaintiffs' Motion to Remand" to the Court at the conference on May 18 without prior notice to Defendants and without serving Defendants at the same time. Plaintiffs are advised carefully to consult the Federal Rules of Civil Procedure as this case progresses in Federal Court.
II. Legal Standard
The petition for removal must be filed "within thirty days after the receipt by the defendant, 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). A case only becomes removable when the initial pleading "enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal, the defendant can make a short and plain statement of the grounds for removal as required by 28 U.S.C. § 1446(a)." Whitaker v. American Telecasting, Inc., 261 F.3d 196, 205-06 (2d Cir. 2001) (quoting Richstone v. Chubb Colonial Life Ins., 988 F. Supp. 401, 403 (S.D.N.Y. 1997)). "A pleading enables a defendant to intelligently ascertain removability when it provides the necessary facts to support [the] removal petition." Whitaker, 261 F.3d at 206. "In cases where removal is based upon diversity, the facts required to support the removal petition include the amount in controversy and the address of each party." Id. (citing Day v. Zimmer Inc., 636 F. Supp. 451, 453 (N.D.N.Y. 1986)). "While this standard requires a defendant to apply a reasonable amount of intelligence in ascertaining removability, it does not require a defendant to look beyond the initial pleading for facts giving rise to removability." Id.
III. Analysis
Plaintiffs allege that: "[1] the notice of removal filed by Summit was improperly and untimely filed since the controlling date for removal is the date codefendant Berry Plastics . . . received a copy of the initial pleading. . . . [2] Summit failed to effectively obtain the consent of its codefendants prior to the application for removal [and] [3] all defendants are presently in default in State Court [and] are precluded from filing for removal and waived their rights to same." Pls.' 5/6/04 Letter. The Court respectfully disagrees.
Plaintiffs' first claim is that the "First-served Defendant [Rule] is the rule in the Southern District;" that service was made on Defendant Berry Plastics on February 17, 2004; and that Defendants had until March 18, 2004 to file a notice of removal. Pls.' 5/18/04 Letter. It is apparently also Plaintiffs' contention that, while the Complaint is silent as to the amount of damages, their claims are and always have been for more than $75,000.
Summit Packaging argues (persuasively) that although it is now aware that alleged damages exceed $75,000, "the initial pleading in this action . . . does not put defendants on notice that the matter in controversy exceeds $75,000.00 since no specific monetary claim is made in the complaint and plaintiffs' injuries are not set forth with any significant detail." Summit's 5/11/04 Letter at 2. Summit Packaging also states that it has made several attempts to ascertain the amount of damages, but that "Plaintiffs' counsel has deliberately and intentionally ignored the obligation to respond." Id. And, Summit Packaging states that on April 14, 2004, Plaintiffs' counsel finally showed Summit "photographs depicting scarring on large portions of plaintiff's body which he claimed was permanent, and therefore it became clear that the amount in controversy exceeded $75,000.00."
Plaintiffs fail to state the amount of damages they are seeking in the Complaint. In describing their claims, Plaintiffs state only that they "sustained serious personal injuries" and that each of the Plaintiffs "was severely and permanently burned and injured, has sought medical care and treatment, has . . . sustained pain and suffering and has been damaged in a sum which exceeds the jurisdictional limitations of all lower courts which would otherwise have jurisdiction over this action." Complaint at ¶ 109, 123, 140. Such general allegations are insufficient to "enable a defendant to intelligently ascertain removability" with respect to whether the Federal $75,000 jurisdictional amount has been reached. Whitaker, 261 F.3d at 206; see also Soto v. Apple Towing, 111 F. Supp.2d 222 (E.D.N.Y. 2000) (removal period did not begin to run upon defendants' receipt of complaint because defendants could not have ascertained removability from face of complaint and defendants did not have duty to investigate).
Defendants point out that "[u]nder New York law, that amount would be $25,000." Defs.' Mem. at 2.
The Summit Packaging Notice of Removal was filed within thirty days of April 16, 2004, the date Summit Packaging acknowledges it became aware that the damages in this action exceeded $75,000. The filing of the Notice of Removal is, therefore, timely. See Rosenthal v. Life Fitness Co., 977 F. Supp. 597, 599 (E.D.N.Y. 1997) (summons not "initial pleading" and does not provide notice of removability where "it does not specify the amount of damages sought in the action," although case remanded to state court on other grounds).
The Court also rejects Plaintiffs' contention that consent was not obtained from all Defendants prior to the application for removal. Summit Packaging has, as noted, attached an executed "Stipulation of Removal to Federal Court," dated April 19, 2004, to its Notice of Removal at Exhibit C. And, J.M. Products has also indicated its intention separately to file a notice of removal. Letter from Steven H. Rosenfeld to Court of 5/18/04 at 1.
Plaintiffs' claim that "since all defendants are presently in default in State Court they are precluded from filing for removal," Pls.' 5/6/04 Letter at 2, is unsupported by either the facts or the law presented to this Court.
IV. Conclusion and Order
For the reasons stated herein, Plaintiff's Application for a Remand is denied. The parties are directed to appear at a conference on June 2, 2004 at 9:00 a.m. in Courtroom 706, Thurgood Marshall Courthouse, 40 Centre Street, New York, N.Y. 10007, and to complete a case management plan at that time. They are further directed to engage in good faith settlement efforts prior to the conference.