Opinion

Cadmen v. CVS Albany, L.L.C.

Court
District Court, E.D. New York
Filed
Jan 14, 2022
Cited by
0 cases
Authority
More cited than 26.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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SILVIA CADMEN,

Plaintiff,

MEMORANDUM & ORDER

- against - 22-CV-46 (PKC) (SJB)

CVS ALBANY, L.L.C., et al.,

Defendants.

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PAMELA K. CHEN, United States District Judge:

On January 4, 2022, Defendant CVS Albany, L.L.C. (“CVS Albany”) filed a notice of

removal from New York State court, invoking diversity jurisdiction under 28 U.S.C. § 1332(a),

which requires complete diversity of all adverse parties, despite the fact that both Plaintiff Silvia

Cadmen and Defendant 6817 Bay Parkway LLC (“6817 Bay Parkway”) are citizens of New York.

(See Dkt. 1.) CVS Albany nonetheless argued that removal was proper, noting that 6817 Bay

Parkway had not yet been served, and pointing to 28 U.S.C. § 1441(b), which states that, “[a] civil

action otherwise removable solely on the basis of jurisdiction under section 1332(a) of this title

may not be removed if any of the parties in interest properly joined and served as defendants is a

citizen of the State in which such action is brought.” (See Dkt. 1 ¶ 4.)

On January 6, 2022, Magistrate Judge Sanket J. Bulsara issued an order requiring CVS

Albany to show cause why the case should not be remanded to state court based on the lack of

complete diversity. (01/06/2022 Docket Order.) Judge Bulsara specifically pointed out that,

“[e]ven if ‘snap removal’ is permissible, it only overcomes the home-state removal bar, i.e., the

prohibition on a forum state citizen removing a case to federal court in its home state. See 28

U.S.C. 1441(b)(2). It does not establish that federal subject matter jurisdiction exists.” (Id.)

On January 11, 2022, CVS Albany submitted a letter responding to the order to show cause.

(Dkt. 6.) In it, CVS Albany relies on several cases, all of which note that the presence of an

unserved, home-state defendant does not prevent removal under 28 U.S.C. § 1441(b); but none of

which state that diversity jurisdiction exists where an unserved defendant resides in the same state

as the plaintiff. (Id. (citing, inter alia, Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d

147 (3d Cir. 2018); McCall v. Scott, 239 F.3d 808 (6th Cir.), amended on denial of reh’g, 250 F.3d

997 (6th Cir. 2001)).)

CVS Albany is either intentionally attempting to mislead the Court or fundamentally

misunderstands the relationship between 28 U.S.C. § 1332 and 28 U.S.C. § 1441(b). Complete

diversity between all plaintiffs and all defendants is required for federal jurisdiction under 28

U.S.C. § 1332. Lincoln Property Co. v. Roche, 546 U.S. 81, 89 (2005). Even where complete

diversity exists, however, removal under § 1441(b) is not appropriate where there is a home-state

defendant—that is, a defendant who resides in the forum state. 28 U.S.C. § 1441(b) (the “home-

state rule”). There is an exception to the home-state rule, in the text of § 1441(b) itself, for when

the home-state defendant has not yet been served. In other words, where there is complete diversity

and an unserved home-state defendant, the case can be removed. But that is an exception to the

§ 1441(b) home-state rule, not to the requirement of complete diversity for jurisdiction under

§ 1332. Indeed, even the cases cited by CVS Albany demonstrate that. In Encompass, removal

was sought before a home-state defendant was served pursuant to § 1441(b), where there was

complete diversity even considering the unserved home-state defendant. Encompass, 902 F.3d at

152.1 The very language from McCall that CVS Albany quotes in its response makes the very

1 Encompass dealt with the unusual situation where the home-state defendant itself sought

removal before being served.

same point: “Where there is complete diversity of citizenship . . . the inclusion of an unserved

resident defendant in the action does not defeat removal under 28 U.S.C. § 1441(b).” McCall, 239

F.3d at 813 n.2 (emphasis added). While there is an exception for unserved, home-state defendants

that might allow for removal under § 1441(b), there is no parallel exception for unserved, home-

state defendants that creates federal diversity jurisdiction under 28 U.S.C. § 1332.

Thus, where, as here, there is no complete diversity, the fact that the home-state defendant

has yet to be served is irrelevant, and removal is improper. See Rossillo v. Becton, Dickinson &

Co., No. 21-CV-852 (LJL), 2021 WL 793916, at *3 (S.D.N.Y. Feb. 26, 2021) (“The case was not

removable under Section 1441—either before or after the home-state defendant was served—

because Plaintiffs were citizens of the same state as Defendants and thus complete diversity is

lacking.”); Galiano Constr. Custom Builder, LLC v. Brandon Sample, No. 20-CV-106 (GWC),

2020 WL 8093522, at *2 (D. Vt. Oct. 22, 2020) (“[T]he doctrine of ‘snap removal’ has no effect

on the independent jurisdictional requirement that a removed case could have been filed originally

in federal court.”); CAV Farms, Inc. v. Nicholas, No. 19-CV-6088 (CJS), 2019 WL 1438776, at

*4 (W.D.N.Y. Apr. 1, 2019) (“[R]egardless of the forum defendant rule, an action may not be

removed on the basis of diversity jurisdiction if a non-diverse defendant is named in the complaint,

even if that defendant has not yet been served.”); Kenneson v. Johnson & Johnson, Inc., No. 14-

CV-01184 (MPS), 2015 WL 1867768, at *4 (D. Conn. Apr. 23, 2015) (“[A] plaintiff’s failure to

serve process on a diversity-defeating defendant in state court generally does not permit the other

defendants to remove the case to federal court on the basis of diversity, which remains the

prevailing view in the federal courts despite . . . changes to the removal statute.”); Brooks v.

Starbucks Corp., No. 13-CV-2705 (JG), 2013 WL 4520466, at *3 (E.D.N.Y. Aug. 26, 2013) (“The

mere fact that § 1441(b)(2) did not preclude removal does not, as defendants contend, mean it

authorized it. Rather, a necessary condition to removal based on diversity jurisdiction is complete

diversity at the time of filing.”); Wright, Miller & Cooper, Fed. Prac. & Proc. Juris. § 3723 (Rev.

4th ed.) (“The language in Section 1441(b)(2) provides that diversity cases ‘may not be removed

if any of the parties in interest properly joined and served as defendants is a citizen of the State in

which such action is brought.’ This implies that a diverse but resident defendant who has not been

served may be ignored in determining removability. This should be contrasted with the rule, stated

earlier, that the presence of a non-diverse, unserved defendant will destroy removability unless

that party is dismissed from the action. This difference in practice can be justified in terms of the

non-diverse party’s presence being viewed as a more fundamental defect in removal based on

diversity-of-citizenship jurisdiction than is the presence of a local defendant, in violation of

Section 1441(b). The first is a jurisdictional defect, and the latter generally is viewed as a non-

jurisdictional, merely procedural, defect.”). For lack of complete diversity alone, this case must

be remanded.

In addition, CVS Albany has failed to establish that there is a sufficient amount in

controversy to justify jurisdiction under 28 U.S.C. § 1332. To establish diversity jurisdiction, the

removing party bears the burden of demonstrating that the $75,000 amount-in-controversy

requirement of 28 U.S.C. § 1332(a) is satisfied. Lupo v. Hum. Affs. Int’l, Inc., 28 F.3d 269, 273

(2d Cir. 1994). Given “congressional intent to restrict federal court jurisdiction” and “the

importance of preserving the independence of state governments,” the Court must “construe the

removal statute narrowly, resolving any doubts against removability.” Id. at 274 (citation omitted).

Where the complaint does not clearly state the amount in controversy, the removing party must

“allege facts adequate to establish that the amount in controversy exceeds the jurisdictional

amount,” otherwise the Court lacks jurisdiction. Id. at 273–74.

CVS Albany notes that Plaintiff’s Complaint does not state an amount in controversy, and

correctly points out that, under N.Y. C.P.L.R. § 3017(c), “a plaintiff in a personal injury matter

filed in the Supreme Court of the State of New York is not permitted to assert the damages amount

in the Complaint.” (Dkt. 1 ¶ 8.) In support of its argument that more than $75,000 are at issue,

CVS Albany thus points to Plaintiff’s allegations that Plaintiff “suffered certain and severe

injuries,” “incur[red] and continues to incur expenses for medical care,” and, upon “CVS’s

understanding,” Plaintiff will undergo an unspecified surgery “allegedly related to the above

referenced accident.” (Id.) Such generalized allegations, however, “do not permit the Court to

draw a reasonable inference—as opposed to speculating—that the damages or amount in

controversy exceeds $75,000.” O’Neill v. Target Corp., No. 21-CV-3262 (PKC) (ARL), 2021 WL

2634880, at *2 (E.D.N.Y. June 25, 2021) (collecting cases).

In another attempt to establish the amount-in-controversy requirement, CVS Albany notes

that “Plaintiff further claims that she has been damaged in an amount in excess of the jurisdictional

limits of all other Courts that could otherwise have jurisdiction.” (Dkt. 1 ¶ 7.) That language,

however, refers to the lower courts of New York, which may not entertain actions seeking to

recover more than $25,000, well below the $75,000 threshold required for federal diversity

jurisdiction. See Brown v. NutriBullet, LLC, No. 19-CV-5421 (PKC) (ST), 2019 WL 5287960, at

*2 (E.D.N.Y. Oct. 18, 2019). In addition, identical ad damnum clauses pled to establish

jurisdiction in New York courts “have been repeatedly found too vague and ambiguous to enable

an intelligent assessment of whether the amount-in-controversy requirement of diversity

jurisdiction has been satisfied.” Woodley v. Massachusetts Mut., No. 08-CV-949 (NRB), 2008

WL 2191767, at *2 n.3 (S.D.N.Y. May 23, 2008) (collecting cases). Accordingly, neither the

Complaint nor CVS Albany’s allegations “establish that the amount in controversy exceeds the

jurisdictional amount.” Lupo, 28 F.3d 269, 273.2

For the reasons explained above, CVS Albany has failed to demonstrate that this Court has

jurisdiction over this case. Accordingly, this case is remanded to the New York Supreme Court,

Kings County, under Index No. 532872/2021, for lack of subject matter jurisdiction.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: January 14, 2022

Brooklyn, New York

2 With respect to sufficiently alleging the amount-in-controversy, CVS Albany was not

without recourse. While N.Y. C.P.L.R. § 3017(c) prohibits plaintiffs from specifying a particular

amount of damages in the complaint, the same statute provides a mechanism for defendants to

ascertain the amount in controversy: a defendant “may at any time request a supplemental demand

setting forth the total damages to which the pleader deems himself [or herself] entitled.” N.Y.

C.P.L.R. § 3017(c). If diversity jurisdiction were otherwise proper, CVS Albany should have

availed itself of that procedure before “prematurely removing the action to this Court.” Cavaleri

v. Amgen Inc., No. 20-CV-1762 (PKC) (RML), 2021 WL 878555, at *2 (E.D.N.Y. Mar. 8, 2021),

reconsideration denied, 2021 WL 951652 (E.D.N.Y. Mar. 12, 2021) (quoting Herrera v. Terner,

No. 16-CV-4610 (DLI) (JO), 2016 WL 4536871, at *2 (E.D.N.Y. Aug. 30, 2016)). However, as

discussed, that possibility is immaterial here, given the lack of complete diversity.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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