# Cavaleri v. Amgen Inc.

> District Court, E.D. New York · March 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10305848

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10305848

## How later opinions describe it (automated extraction)

- holding that a complaint plausibly alleges a claim when it “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged” (emphasis added)
- observing that in Moltner, the Circuit drew “a bright line rule requiring service of a document explicitly stating the amount in controversy to trigger either 30-day period in 28 U.S.C. § 1446(b)”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------x
GIANLUCA CAVALERI,

Plaintiff,
MEMORANDUM & ORDER
- against - 20-CV-1762 (PKC) (RML)

AMGEN INC. and IMMUNEX
CORPORATION,

Defendants.
-------------------------------------------------------x
PAMELA K. CHEN, United States District Judge:
On April 10, 2020, Defendants Amgen Inc. (“Amgen”) and Immunex Corporation
(“Immunex”) removed this products liability action from the Supreme Court of New York, Queens
County, to this Court, invoking diversity jurisdiction under 28 U.S.C. § 1332(a). (Notice of
Removal, Dkt. 1, ¶ 4.) On March 8, 2021, the Court sua sponte remanded the case to the state
court under 28 U.S.C. § 1447(c) for lack of subject-matter jurisdiction, finding that the allegations
in the Notice of Removal were insufficient to establish that the amount in controversy exceeded
$75,000 for purposes of diversity jurisdiction. (Remand Order, Dkt. 15, at 3–7.) Defendants
presently move to stay the mailing of a certified copy of the Remand Order to the state court (Dkt.
16) and for reconsideration of the Remand Order (Dkt. 17). The motions are dismissed because
the Court lacks jurisdiction over this matter, or alternatively, they are denied.
DISCUSSION
The Court begins by addressing its jurisdiction to consider the motions. Except for
circumstances that are not applicable here, “[a]n order remanding a case to the State court from
which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). “[T]he ‘or
otherwise’ language of section 1447(d) bars district courts from reconsidering orders remanding
cases on section 1447(c) grounds.” Shapiro v. Logistec USA, Inc., 412 F.3d 307, 312 (2d Cir.
2005). In terms of when the district court is divested of jurisdiction, however, that point, per
Shapiro, is “upon [the district court’s] mailing of a remand order based on section 1447(c) grounds
to state court.” Id. (emphasis omitted). Therefore, the district court retains jurisdiction of a matter
until a certified copy of a remand order under section 1447(c) has been mailed to the state court.

See id; see also Agostini v. Piper Aircraft Corp., 729 F.3d 350, 355–56, 356 n.2, (3d Cir. 2013)
(holding that the district court had jurisdiction to deny a motion for reconsideration of its remand
order because a certified copy of the order had not yet been mailed to the state court at the time
the court considered the motion, and noting that this holding accorded with the Second Circuit’s
decision in Shapiro). But “once a section 1447(c) remand order has been mailed to the state
court . . . , federal jurisdiction is at an end.” Shapiro, 412 F.3d at 312.
Here, the Court filed its section 1447(c) Remand Order on March 8, 2021, at 6:04 p.m.
(Dkt. 15.) Nearly a full day later, on March 9, 2021, at 5:23 p.m., Defendants filed an emergency
motion for a stay (Dkt. 16), followed by a motion for reconsideration a few hours later, at 8:14 p.m.

(Dkt. 17). The next morning, March 10, 2021, at 9:16 a.m., a certified copy of the March 8 Remand
Order was mailed to the state court. (3/10/2021 Docket Entry.) Thus, regardless of whether it was
theoretically possible for the Court to have ruled on the motions at the time that they were filed, it
is plain that at this point the Court lacks jurisdiction over this matter, and the motions must be
dismissed. See Shapiro, 412 F.3d at 312.
However, even if the Court had jurisdiction to reconsider its Remand Order, it would deny
reconsideration. A motion for reconsideration may be brought under either Rule 59(e) or Rule
60(b) of the Federal Rules of Civil Procedure. Nussbaum v. Spider, Inc., No. 09-CV-2025 (JS)
(ETB), 2009 WL 3756668, at *1 (E.D.N.Y. Oct. 30, 2009). “[T]he standard for granting [a Rule
59 motion for reconsideration] is strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the court overlooked.” Analytical
Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (alteration in original)
(quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Rule 60(b) provides
relief from a final judgment or order for—among other things—mistakes, inadvertence, excusable

neglect, newly discovered evidence, and fraud. See Fed. R. Civ. P. 60(b). This rule is a means of
“extraordinary judicial relief” and “is invoked only upon a showing of exceptional circumstances.”
Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). None of Defendants’ asserted grounds for
reconsideration convinces the Court that this is the rare case that would merit reconsideration.
To start, the Court disagrees that its Remand Order applied an incorrect legal standard.
Defendants argue that the order runs afoul of the standard set by the Supreme Court in Dart
Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014), which holds that “a defendant’s
notice of removal need include only a plausible allegation that the amount in controversy exceeds
the jurisdictional threshold” and that “[e]vidence establishing the amount is required . . . only

when the plaintiff contests, or the court questions, the defendant’s allegation.” (See Memorandum
of Law in Support of the Motion for Reconsideration (“Recon. Mot.”), Dkt. 17-1, at 1–4.) As an
initial matter, Dart Cherokee was a case “invoking CAFA [i.e., the Class Action Fairness Act],
which Congress enacted to facilitate adjudication of certain class actions in federal court.” 574
U.S. at 89 (citing S. Rep. No. 109-14, p. 43, which notes that CAFA should be read in light of “a
strong preference that interstate class actions should be heard in a federal court if properly removed
by any defendant”). It is not evident that the standard established in Dart Cherokee would be apt
in other cases relying on the general removal statute under 28 U.S.C. § 1441(a),1 which “federal

1 CAFA cases are removable under 28 U.S.C. § 1453(b).
courts construe . . . narrowly, resolving any doubts against removability.” See Platinum-Montaur
Life Sciences, LLC v. Navidea Biopharm., Inc., 943 F.3d 613, 617 (2d Cir. 2019) (quoting Somlyo
v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045–46 (2d Cir. 1991)); accord Purdue Pharma L.P.
v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (quoting Lupo v. Hum. Affs. Int’l, Inc., 28 F.3d 269,
274 (2d Cir. 1994)). Notably, the Supreme Court in Dart Cherokee decided that “no antiremoval

presumption attends cases invoking CAFA,” but expressly declined to decide the issue with respect
to “mine-run diversity cases.” See 574 U.S. at 89.
In any event, the Court’s decision here is not inconsistent with Dart Cherokee’s holding
that “a defendant’s notice of removal need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold.” See id. In alleging the jurisdictional amount,
Defendants’ Notice of Removal relies on Plaintiff’s asserted injuries—namely
CIPD [chronic inflammatory demyelinating polyneuropathy], numbness and
muscle weakness throughout his body with the worst parts being the extremities,
especially his feet, legs, left forearm and left hand, pain in legs when walking, poor
balance, loss of strength in arms, paralysis of left hand, optic neuritis, erectile
dysfunction, speech impairment, depression.
(Notice of Removal, Dkt. 1, ¶ 10 (alteration in original) (quoting Complaint, Dkt. 1-2, ¶¶ 12–13).)
But, as the Remand Order explains, “these allegations do not permit the Court to draw a reasonable
inference that the specific amount in controversy exceeds $75,000.” (Remand Order, Dkt. 15, at
4–5 (collecting cases)). In other words, the Court does not find that Defendant’s Notice of
Removal plausibly alleges the required jurisdictional amount in controversy. Cf. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (holding that a complaint plausibly alleges a claim when it “pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged” (emphasis added)). Courts in this district, both before and after Dart
Cherokee, have routinely arrived at the same conclusion in cases with similar allegations. See,
e.g., Brown v. NutriBullet, LLC, No. 19-CV-5421 (PKC) (ST), 2019 WL 5287960, at *2 (E.D.N.Y.
Oct. 18, 2019) (finding that no reasonable inference could be drawn about the amount in
controversy from allegations that plaintiff “suffer[ed] personal injuries requiring medical
treatment, including but not limited to burns to his face and body and corneal burns to his right
eye, [] was [] sick, sore and lame and . . . suffer[ed] great pain and emotional distress” (alterations
in original)); Burtis v. Samin, No. 18-CV-2789 (DLI) (VMS), 2018 WL 2304765, at *2 (E.D.N.Y.

May 21, 2018) (finding that no reasonable inference could be drawn about the amount in
controversy from allegations that plaintiff “suffered serious and severe injuries to his neck, left
shoulder, right forearm, mid back, lower back, and right knee”); Palmer v. Schindler Elevator
Corp., No. 17-CV-3619 (ARR) (RLM), 2017 WL 3037411, at *2 (E.D.N.Y. July 18, 2017)
(finding as insufficient allegations that “plaintiff suffered a lumbar spine injury” that “required
surgical procedures”); Noguera v. Bedard, No. 11-CV-4893 (RRM) (ALC), 2011 WL 5117598,
at *3 (E.D.N.Y. Oct. 26, 2011) (finding allegations that the plaintiff sustained “serious and
permanent personal injuries . . . including neck trauma, back trauma, contusions, abrasions,
bruises and swelling about her body resulting in substantial and related pain” to be insufficient).

The Court also rejects Defendants’ suggestion that they were entitled to submit evidence
regarding the amount in controversy prior to the Court’s sua sponte Remand Order. Defendants
argue that “Dart Cherokee requires that a defendant be afforded a reasonable opportunity to present
evidence if the plaintiff or the district court questions the jurisdictional allegations in a notice of
removal.” (Recon. Mot., Dkt. 17-1, at 5.) Dart Cherokee, however, simply states, “Discovery
may be taken with regard to [the] question [of the jurisdictional threshold amount],” 574 U.S. at
89 (emphasis added) (quoting H.R. Rep. No. 112-10, p. 16 (2011)), just as “a district court has
discretion to order jurisdictional discovery in a removal case with improperly pleaded citizenship,”
Platinum-Montaur, 943 F.3d at 617–18. Of course, “[c]ourts often allow defendants to present
additional evidence of the amount in controversy if there is a good reason for doing so.” Macareno
v. Delta Air Lines, Inc., No. 20-CV-6323 (AMD) (RLM), 2021 WL 405878, at *2 (E.D.N.Y. Feb.
5, 2021). But in this case, the Notice of Removal provided no indication that the Court should
proceed to exercise its discretion to allow discovery or additional presentment of evidence instead
of simply remanding. As courts in this district have reiterated time and time again in sua sponte

remanding cases, the state courts provide an established and simple mechanism for ascertaining
the amount in controversy, through a supplemental demand under New York Civil Practice Law
and Rules (“CPLR”) § 3017(c),2 and defendants thus proceed at their peril in removing cases
before doing so and simply presuming that their allegations will be deemed sufficient with respect
to the required amount in controversy. See Brown, 2019 WL 5287960, at *2 n.2; Burtis, 2018 WL
2304765, at *3; Dischiavi v. St. Jude Med., No. 17-CV-4955 (DLI) (RLM), 2017 WL 3700897, at
*2 (E.D.N.Y. Aug. 24, 2017); Duncan v. Crawford, No. 16-CV-4699 (PKC) (JO), 2016 WL
4919891, at *2 n.2 (E.D.N.Y. Sept. 14, 2016); Herrera v. Terner, No. 16-CV-4610 (DLI) (JO),
2016 WL 4536871, at *2 (E.D.N.Y. Aug. 30, 2016). Defendants argue that utilizing CPLR

§ 3017(c) here was “impossible,” given that “the state court system was effectively closed” at the
time Defendants removed the case because of the COVID-19 pandemic. (Recon. Mot., Dkt. 17-
1, at 7 n.3.) This is no excuse; even assuming arguendo that the state courts were “effectively

2 CPLR § 3017(c) provides that “a party against whom an action to recover damages for
personal injuries or wrongful death is brought, may at any time request a supplemental demand
setting forth the total damages to which the pleader deems himself entitled.” N.Y. C.P.L.R.
§ 3017(c). In this Circuit, “the removal clock [under 28 U.S.C. § 1446(b)] does not start to run
until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary
damages sought.” Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010) (per curiam);
see also Cutrone v. Mortg. Elec. Registration Sys., Inc., 749 F.3d 137, 143 (2d Cir. 2014)
(observing that in Moltner, the Circuit drew “a bright line rule requiring service of a document
explicitly stating the amount in controversy to trigger either 30-day period in 28 U.S.C.
§ 1446(b)”).
closed” for a period of time, this did not prevent defense counsel from simply mailing or emailing
a CPLR § 3017(c) damages demand to Plaintiff’s counsel. Furthermore, the time and place for
Defendants to make their argument was at removal in their Notice of Removal, not now in a motion
for reconsideration.
That all being said, however, the Court appreciates the seeming unfairness of the Court’s

sua sponte remand, when, as it turns out and unbeknownst to the Court, after removal of this
matter, Plaintiffs did serve a written settlement offer of $100,000 on Defendants. But, even though
the timing of events has produced a result that is unfortunate from Defendants’ perspective,3 the
fact remains that, at the time the Court issued its Remand Order, it was not obligated to allow
Defendants to introduce evidence regarding the jurisdictional amount.
Finally, Defendants’ prejudice argument is similarly unavailing. Defendants contend that
they will be “severely prejudiced” by a remand of their case because over a year has passed since
this case was commenced in state court in December 2019, and thus, upon remand, Defendants are
barred from re-removing it because of the one-year limit in 28 U.S.C. § 1446(c)(1). (Recon. Mot.,

Dkt. 17-1, at 6 (citing 28 U.S.C. § 1446(c)(1)); see also Complaint, Dkt. 1-2.) While the Court
acknowledges that almost a year passed before it sua sponte identified the jurisdictional defect and
issued its Remand Order, the Court is nonetheless bound to follow the command of 28 U.S.C.
§ 1447(c): “If at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c) (emphasis added). Indeed, the
Court could have made this determination earlier, but Defendants cannot claim prejudice based on
their failure to sufficiently allege the requisite jurisdictional amount or take the statutorily

3 It is worth noting that Defendants obviously are not being denied or impaired in their
ability to defend themselves; they simply have to do so in state court, which the Court does not
view as “severe prejudice.”
authorized and readily available step of making a supplemental damage demand on Plaintiff to
ensure that they could do so before removing. Contrary to Defendants’ suggestion, that the Court
found the Notice of Removal’s amount-in-controversy allegations wanting should come as no
surprise; as discussed, many courts in this district have made the same finding under similar
circumstances. See supra (citing Brown, 2019 WL 5287960, at *2; Burtis, 2018 WL 2304765, at

*2; Palmer, 2017 WL 3037411, at *2; Noguera, 2011 WL 5117598, at *3); see also Daversa v.
Cowan Equip. Leasing LLC, No. 20-CV-163 (WFK) (RLM), 2020 WL 967436, at *2 (E.D.N.Y.
Feb. 28, 2020) (“In this Circuit, a case filed in state court does not become removable [on the basis
of diversity jurisdiction] until the plaintiff serves the defendant with a paper that explicitly
specifies the amount of monetary damages sought.” (internal quotation marks and citation
omitted)).
For all the reasons set forth in the Remand Order and herein, remand for lack of subject-
matter jurisdiction was proper, and reconsideration of that decision, even assuming the Court still
has jurisdiction, is not warranted.

CONCLUSION
Defendants’ motions for a stay and for reconsideration are dismissed because the Court
lacks jurisdiction, or in the alternative, are denied. This case remains closed.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: March 12, 2021
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10305848. Public record. Not legal advice.