Castillo v. BJ's Wholesale Club

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------X

MARGARITA CASTILLO,

Plaintiff,

-against- MEMORANDUM AND ORDER

22-CV-01621(KAM)(RLM)

BJ’s Wholesale Club, BJ’s Wholesale

Club, Inc., BJ’s Wholesale Club

Holdings, Inc., Gateway Center

Properties, LLC, The Related Companies,

LP, The Related Companies, Inc.,

Defendants.

--------------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Margarita Castillo commenced this personal

injury action on September 29, 2020 in the Supreme Court of New

York, Queens County. (ECF No. 1-2 (“Compl.”).) On March 24,

2022, Defendants BJ’s Wholesale Club, BJ’s Wholesale Club, Inc.,

BJ’s Wholesale Club Holdings, Inc., Gateway Center Properties

LLC (s/h/a Gateway Center Properties I, LLC), The Related

Companies, LP, and The Related Companies, Inc. filed a notice to

remove the action to federal court, invoking this court’s

diversity jurisdiction pursuant to 28 U.S.C. § 1332. (ECF No. 1

(“Notice of Removal”).) Defendants argue that Plaintiff

fraudulently joined Defendants Gateway Center Properties, LLC,

The Related Companies, LP, and The Related Companies, Inc. to

1

the action solely to destroy the diversity of citizenship of the

parties. (Id. ¶ 4.)

Presently before the court is Plaintiff’s motion to

remand the action back to state court (See ECF No. 10 (“Pl.’s

Mot.”)). For the reasons set forth below, Plaintiff’s motion is

GRANTED.

BACKGROUND

Plaintiff alleges that on November 19, 2017, she “was

caused to trip and fall as a result of a box on the floor” in an

aisle of BJ’s Wholesale Club located at 339 Gateway Drive,

Brooklyn, New York. (Compl. ¶¶ 19, 61-62.) On September 29,

2020, Plaintiff commenced this action in the Supreme Court of

New York for Queens County, asserting a negligence claim against

BJ’s Wholesale Club, BJ’s Wholesale Club, Inc., BJ’s Wholesale

Club Holdings, Inc. (together, “BJ’s”), Gateway Center

Properties, LLC (“Gateway”), The Related Companies, LP, and The

Related Companies, Inc. (together, “Related”). (Compl. ¶¶ 63-

112.) In accordance with N.Y. C.P.L.R. § 3017(c), Plaintiff’s

complaint did not include an ad damnum clause specifying the

amount of damages sought. Instead, Plaintiff alleged that she

was damaged in a sum that “exceeds the jurisdictional limits of

the lower courts” in New York. (Compl. ¶ 113.)

2

On October 19, 2020, Defendants answered the complaint

(ECF No. 1-4 at 2-7.), and pursuant to N.Y. C.P.L.R. § 3017(c),

also requested an ad damnum from Plaintiff setting forth the total

damages to which Plaintiff claimed she was entitled. (ECF No. 1-

4 at 12-13.)1 Defendants also served a demand for a verified bill

of particulars that sought additional information about

Plaintiff’s claimed damages, such as lost earnings and hospital

expenses. (Id. at 9-11.) Plaintiff filed a Response to

Defendants’ Demand for Discovery and Inspection on December 10,

2021, setting forth the total damages to which Plaintiff claimed

she was entitled, in the amount of $5,000,000. (ECF No. 7-4 at

13-14.) In addition, Plaintiff responded to Defendants’ demand

for a bill of particulars that sought additional information about

Plaintiff’s claimed damages. (Id. at 1-9.)

Defendants collectively filed a notice of removal of

this action to federal court on March 24, 2022, invoking this

court’s diversity jurisdiction on the grounds that Gateway and

Related, both New York citizens, are “not proper and/or viable

defendants in the subject action.” (See Notice of Removal ¶ 7-

11.)2 Defendants argue that, without Gateway and Related as non-

1 All pagination pin citations refer to the page number assigned by the

court’s CM/ECF system.

2 Plaintiff does not dispute that Gateway and Related were “citizens of New

York State at commencement of this action and so remain[],” nor that BJ’s

defendants are “incorporated in Delaware with [a] corporate office in

Massachusetts.” (Pl.’s Mot. at 3.) For the purposes of assessing diversity

jurisdiction, a limited liability company such as Gateway has the imputed

3

diverse defendants in the action, the controversy is between

Plaintiff, a citizen of New York, and BJ’s, a citizen of Delaware

(via incorporation) and of Massachusetts (as its principal place

of business). (Id. ¶ 8.)

On April 22, 2022, Plaintiff requested a pre-motion

conference, seeking to move to remand this action back to state

court. Plaintiffs argued that because Defendants Gateway and

Related are “New York residents,” complete diversity is lacking

between parties, as required by 28 U.S.C. § 1332. (ECF No. 7.)

Defendants responded in opposition, arguing that under the

doctrine of fraudulent joinder, Gateway and Related

(“Gateway/Related”) were improperly joined to defeat federal

diversity jurisdiction. (ECF No. 8 at 1.) The court held a pre-

motion conference on May 11, 2022. (05/11/2022 Minute Entry.)

Plaintiff’s motion is now fully briefed and ripe for decision.

LEGAL STANDARD

I. Diversity Jurisdiction and Removal

Pursuant to 28 U.S.C. § 1332(a), federal district

courts have original jurisdiction over all civil actions (a)

between citizens of different states; and (b) where the amount

citizenship of its members. See Handelsman v. Bedford Vill. Assocs. Ltd.

P’ship, 213 F.3d 48, 51-52 (2d Cir. 2000). The record before the court is

devoid of information regarding the members of Gateway, nor does the record

reveal their respective citizenships. The court notes, however, that

Gateway’s status as a citizen of New York State is undisputed by Plaintiff.

4

in controversy exceeds $75,000. See 28 U.S.C. § 1332(a)(1).

“Complete” diversity is required — all parties on one side of

the action must be citizens of a different state from each of

the parties on the other side. See St. Paul Fire & Marine Ins.

Co. v. Universal Builders Supply, 409 F.3d 73, 80 (2d Cir. 2005)

(“Diversity is not complete if any plaintiff is a citizen of the

same state as any defendant.”) (citations omitted).

In turn, when removal is based upon the court’s

diversity jurisdiction, the removing party must show that there

is complete diversity between all plaintiffs and all defendants.

See Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 295-96

(2d Cir. 2000) (stating that, because the defendant sought

removal to federal court, defendant “bore the burden of

establishing that the requirements for diversity jurisdiction

were met”).

II. Fraudulent Joinder

A. Standard and Defendants’ Burden

Under the doctrine of fraudulent joinder, “courts

overlook the presence of a non-diverse defendant if from the

pleadings there is no possibility that the claims against that

defendant could be asserted in state court.” Briarpatch Ltd.,

L.P, v. Phoenix Pictures, Inc., 373 F.3d 296, 302 (2d Cir.

2004); see also Whitaker v. Am. Telecasting, Inc., 261 F.3d 196,

5

207 (2d Cir. 2001) (“Joinder will be considered fraudulent when

it is established that there can be no recovery [against the

defendant] under the law of the state on the cause alleged.”)

(internal quotations and citation omitted). The doctrine is

designed to prevent plaintiffs from defeating a federal court’s

diversity jurisdiction or a defendant’s right to removal by

joining parties with no genuine connection to the controversy as

defendants. See Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459,

460-61 (2d Cir. 1998) (collecting cases); see also Brown v. Eli

Lilly and Co., 654 F.3d 347, 356-57 (2d Cir. 2011).3

Defendants bear the “heavy burden” of establishing by

“clear and convincing evidence” that a non-diverse defendant was

fraudulently joined to defeat diversity. See, e.g., Butler v.

Cigarette Realty Co., 2015 WL 7568645, at *2 (E.D.N.Y. Nov. 24,

2015) (citing Briarpatch, 373 F.3d at 302). The defendant must

demonstrate either that “there has been outright fraud in

3 The court notes that 28 U.S.C. § 1441(b)(2) would ordinarily bar this action

from being removed to federal court. Under that statutory provision, a civil

action removable solely on the basis of diversity jurisdiction “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.” 28

U.S.C. § 1441(b)(2). In the instant case, the parties do not dispute that

Gateway/Related are citizens of New York. As such, Defendants would normally

be barred from removing the case to a federal court in New York. The court

notes, however, that it would be logically inconsistent to find that forum

defendants Gateway/Related are immediately barred from removal, when the

issue is whether they were fraudulently joined in the first place. Cf.

Mallek v. Allstate Indem. Co., 2018 WL 3635060, *2 (E.D.N.Y. Mar. 12, 2018),

report and recommendation adopted, 2018 WL 3629596 (E.D.N.Y. July 31, 2018)

(stating that the fraudulent joinder doctrine “determines whether a party is

properly ‘joined’ for the purposes of determining diversity jurisdiction” and

“serves the same function in the context of removal”).

6

plaintiff’s pleadings, or that there is no possibility, based on

the pleadings, that a plaintiff can state a cause of action

against the non-diverse defendant in state court.” Id. (citing

Pampillonia, 138 F.3d at 461); see also Mallek v. Allstate

Indem. Co., 2018 WL 3635060, *2 (E.D.N.Y. Mar. 12, 2018), report

and recommendation adopted, 2018 WL 3629596 (E.D.N.Y. July 31,

2018).

Importantly, “[a]ny possibility of recovery, even if

slim, militates against a finding of fraudulent joinder; only

where there is no possibility of recovery is such a finding

warranted.” Ehrenreich v. Black, 994 F. Supp. 2d 284, 289

(E.D.N.Y. 2014) (citation omitted); see also DNJ Logistics Grp.

Inc., v. DHL Exp. (USA), Inc., 727 F. Supp. 2d 160, 165

(E.D.N.Y. 2010) (“[E]ven if there is doubt as to whether a

complaint would survive a motion to dismiss in state court, this

doubt does not preclude remand. To the contrary, given the heavy

burden on a party advocating removal on the ground of fraudulent

joinder, it is only in the situation where ‘state case law or

legislation removes all reasonable possibility that the

plaintiff would be permitted to litigate the claim’ that remand

should be denied.”). When there is no allegation of outright

fraud, as is the case here, the fraudulent joinder inquiry

“focuses on whether recovery is per se precluded.” Battaglia v.

7

Shore Parkway Owner LLC, 249 F. Supp. 3d 668, 672 (E.D.N.Y.

2017) (citing Segal v. Firtash, 2014 WL 4470426, at *3 (S.D.N.Y.

Sept. 9, 2014)). If a removing defendant successfully proves

that non-diverse parties were fraudulently joined, the federal

court will retain jurisdiction so long as the other requirements

of diversity jurisdiction are met. See Sonnenblick-Goldman Co.

v. ITT Corp., 912 F. Supp. 85, 88 (S.D.N.Y. 1996).

Alternatively, if a removing defendant cannot prove fraudulent

joinder, the federal court does not have proper subject matter

jurisdiction over the matter, and the case must be remanded to

state court.

When subject matter jurisdiction is contested, as when

assessing fraudulent joinder, courts may consider materials

outside the pleadings. See, e.g., Romano v. Kazacos, 609 F.3d

512, 520 (2d Cir. 2010) (“Such materials can include documents

appended to a notice of removal or a motion to remand that

convey information essential to the court’s jurisdictional

analysis.”). In the specific context of fraudulent joinder,

documents outside of pleadings can be considered “to determine

if the pleadings can state a cause of action.” MBIA Ins. Corp.

v. Royal Bank of Canada, 706 F. Supp. 2d 380, 395 (S.D.N.Y.

2009) (citations omitted). All factual and legal issues and

ambiguities must be resolved in the plaintiff’s favor. See

8

Pampillonia, 138 F.3d at 461; see also Butler, 2015 WL 7568645,

at *2.

B. New York State’s Pleading Standards

Because Defendants do not allege there was outright

fraud in Plaintiff’s pleadings, the instant case turns on

whether Plaintiff has a possibility of stating a viable cause of

action against Gateway/Related in state court. In answering

this question, the district court should apply the state’s

pleading standard. See MBIA, 706 F. Supp. 2d at 394; see also

Gensler v. Sanolfi-Aventis, 2009 WL 857991, at *3 n.3 (E.D.N.Y.

Mar. 30, 2009) (noting that “state procedural rules apply in

evaluating a claim of fraudulent joinder . . . because the

question is whether an action could be maintained against the

allegedly nominal party in state court”).

Under New York’s liberal pleading rules, a plaintiff

need only provide “at least basic information concerning the

nature of a plaintiff’s claim and the relief sought.” See MBIA,

706 F. Supp. 2d at 394 (citing Parker v. Mack, 460 N.E.2d 1316,

1317 (N.Y. 1984)). In assessing fraudulent joinder, all

uncertainties in state law are resolved in the plaintiff’s

favor, and the complaint is subjected to even “less searching

scrutiny than on a motion to dismiss for failure to state a

claim.” Campisi v. Swissport Cargo Servs., LP, 2010 WL 375878,

9

at *2 (E.D.N.Y. Jan. 26, 2010) (citation omitted); see also

Sherman v. A.J. Pegno Constr. Corp., 528 F. Supp. 2d 320, 328-29

(S.D.N.Y. 2007) (“[I]t is not even enough for [the defendants

asserting fraudulent joinder] to show that Plaintiffs’ cause of

action against [the non-diverse defendant] would not survive a

motion to dismiss.” (internal citations omitted)).

DISCUSSION

I. Diversity Jurisdiction

The parties do not dispute that (a) Plaintiff is a

citizen of New York; (b) BJ’s is and was at the time the action

was commenced, a corporation incorporated in Delaware with its

principal place of business in Massachusetts; and (c) Gateway

and Related are and were citizens of New York at the time the

action was commenced. Per Plaintiff’s Response to Demand for

Discovery and Inspection, she is seeking $5,000,000 in damages,

thus satisfying the $75,000 requirement of 28 U.S.C. § 1332(a).

(ECF No. 7-4 at 14.) Thus, the only question for this court in

assessing subject matter jurisdiction is whether Gateway/Related

are properly joined parties.

II. Fraudulent Joinder

A. Liability of an Out-of-Possession Property Owner/Landlord

Under New York Law

The central issue before the court is whether

Plaintiff could state a viable cause of action against

10

Gateway/Related as an out-of-possession property owner and

landlord under New York State law. More specifically, the

Defendants bear the heavy burden of proving — with clear and

convincing evidence — that Plaintiff could not assert a claim

against Gateway/Related in state court because there is “no

possibility” that Gateway/Related could be liable to Plaintiff

under New York state law. See Briarpatch, 373 F.3d at 302

(explaining that, under the fraudulent joinder doctrine, there

must be no possibility that the claims against that defendant

could be asserted in state court). Considering New York’s

pleading standards only require “at least basic information

concerning the nature of a plaintiff’s claim and the relief

sought,” this court cannot find that Defendants have satisfied

their burden under the Second Circuit’s “no possibility” test.

See MBIA, 706 F. Supp. 2d at 394; see also Schlackman v. Robin

S. Weingast & Assocs., Inc., 18 A.D.3d 729, 729-30 (“A pleading

attacked for insufficiency must be accorded a liberal

construction, and if it states, in some recognizable form, any

cause of action known to our law, it cannot be dismissed.”

(internal quotations and citation omitted)).

Under New York state law, an “out-of-possession

property owner is not liable for injuries that occurred on the

property unless the owner ‘retained control over the property or

11

is obligated by contract to perform repairs or maintenance.’”

Battaglia v. Shore Parkway Owner LLC, 249 F. Supp. 3d 668, 671

(E.D.N.Y. 2017) (citing Grippo v. City of New York, 45 A.D.3d

639, 640 (2d Dep’t 2007)).4 For such an exception to apply,

however, the property owner “must have completely parted with

the control of the building.” Id.; see also Siemion v. BJ’s

Wholesale Club et al., 2019 WL 3561896, at *2 (E.D.N.Y. Aug. 6,

2019) (“A landlord has sufficient control to impose liability if

the landlord maintains the building, makes necessary repairs, or

retains the right to re-enter to examine the premises.”).

B. Application

Here, Defendants argue that Plaintiff could not state

a cause of action against Gateway/Related in state court because

Gateway/Related “was an out-of-possession landlord that owed no

duty of care to plaintiff on the date of the alleged accident.”

(Defs.’ Mot. ¶¶ 4-5.) For the reasons set forth below, the

court finds that Defendants have failed to demonstrate that

there is “no possibility” for Plaintiff to assert a claim

against Gateway/Related in state court.

Defendants rely primarily on the Affidavit of Norma

Bang, property manager of Gateway Center Mall where BJ’s

4 The court notes that both plaintiff and defendants refer to Gateway/Related

as both “property owner/owner” and “landlord” interchangeably. (Compl. ¶¶

23-26, 30-33, 37-42; ECF. 11-1 (“Defs.’ Opp.”) ¶ 5, n.3.)

12

Wholesale Club is located, (“Aff.”) and the Lease (“Lease”)

between BJ’s Wholesale Club, Inc. and Gateway Center Properties,

LLC, dated February 9, 2011, which was in effect on the date of

the alleged incident.5 (ECF Nos. 1-5.) Section 17.14 of the

Lease states:

Landlord and its designees shall have the

right to enter the Demised Premises with

reasonable prior notice, at reasonable hours

accompanied by an employee of Tenant to

inspect the Demised Premises, and to make

any repairs required of Landlord under this

Lease[.]6

(Lease at 59.) (emphasis added)

Pursuant to Section 17.14, Gateway has maintained the

right to enter the premises for inspection with the Tenant and

for making required repairs under the Lease. Under New York

law, this provides at least a possibility that Gateway/Related

may have retained sufficient control to be found liable, and

cannot support the notion that Gateway/Related has “completely

parted with the control of the building.” See Battaglia, 249 F.

Supp. 3d at 371. As such, the exception that may allow an out-

of-possession landlord to escape liability under New York law

cannot definitively apply here.

5 Defendants describe Norma Bang as “Property Manager for Gateway/Related.”

(ECF 11 (“Defs.’ Affirmation in Opp’n”) ¶ 4.)

6 The Lease defines “Demised Premises” as: “The land and the Building and

other improvements, thereon, including, without limitation, the sidewalks

adjacent to the Building and the other Service Areas, shown on the Site Plan

as ‘BJ’s Premises.’” (Lease at 10.)

13

Defendants also argue that the Affidavit and Lease

“clearly establish[] that Gateway and Related did not operate,

control, or otherwise have any obligation over the stocking of

products and/or inspection, cleaning or removal of boxes from

the floors within the interior of the subject BJ’s Club prior to

and including the date of plaintiff’s alleged incident.”

(Defs.’ Mot. ¶ 4.) The court disagrees. Whether or not the

Affidavit and Lease “clearly establish[]” Gateway/Related’s

alleged lack of control over the premises is ultimately a

factual question, one that would require this court to

adjudicate the merits of the underlying suit. Such adjudication

is inappropriate at the pleadings stage. See, e.g., Ruiz v.

Forest City Enterprises, 2010 WL 3322505, at *3 (E.D.N.Y. Aug.

20, 2010) (holding that whether a non-diverse property owner

“controls or is obligated to repair the premises is a question

of fact that cannot be resolved at the pleading stage”); see

also Sherman v. A.J. Pegno Constr. Corp., 528 F. Supp. 2d 320,

328-29 (S.D.N.Y. 2007) (“[D]efendants seek to have this Court

improperly review the merits of plaintiffs’ claims [] upon

consideration of a motion to remand. For this Court to conduct

such an inquiry would run counter to the well-settled standard

for reviewing a fraudulent joinder claim in opposition to a

motion to remand[.]”). At most, the court concludes that the

14

Affidavit and Lease do not clearly establish a lack of operation

or control by Gateway and Related.7

The court is not persuaded by Defendants’ attempts to

distinguish Siemion and Battaglia. First, defendants argue

that, in contrast to Siemion and Battaglia, there is no legal

possibility that Plaintiff can recover from Gateway/Related

because “Gateway/Related did not retain control over the

premises.” (Defs.’ Mot. ¶ 14.) This argument is, at best,

conclusory. The central question in this motion to remand

involves whether Gateway/Related in fact retained control over

the premises; it is insufficient to simply state that

Gateway/Related “did not” retain control. Second, Defendants

argue that “Gateway/Related was not contractually obligated to

stock, maintain, clean, move and/or remove boxes from the floor

and/or store shelves within the interior of the subject BJ’s

Club.” (Id.) The court agrees with Siemion - where defendant

BJ’s Wholesale Club, Inc. made a very similar argument - that

“the requirements for ‘retaining control’ are not so narrowly

7 Though it is true that Siemion involved a “different property owner” and “a

completely different BJ’s location,” the court is unpersuaded by Defendants’

contention that it is “unavailing” for the analysis in Siemion to be

“similarly applied” here. (Defs.’ Mot. ¶ 14.) This is especially so when

the language of the specific lease provisions discussed in Siemion bear

significant resemblance to those in the instant Lease. See 2019 WL 3561896,

at *3 (explaining how provisions §§ 7.2 and 17.14 in BJ’s lease demonstrate

that the non-diverse landlord was not an out-of-possession landlord under New

York law).

15

drawn.” Siemion, 2019 WL 3561896, at *3.8 Finally, Defendants

argue that Plaintiff does not allege “that the subject accident

arose out of a structural or design defect.” (Defs.’ Mot. ¶

14.) The court does not believe that this fact distinguishes

the instant case substantively from Siemion or Battaglia.9 The

Battaglia court previously noted that the right to enter the

premises “may constitute sufficient retention of control to

impose liability” on the property owner/landlord if the

dangerous condition on the premises “represents a significant

structural or design defect that violates a specific statutory

provision.” Battaglia, 249 F. Supp. 3d at 671 (internal

quotations and citation omitted). In the instant case,

Plaintiff alleged “she was caused to trip and fall as a result

of a box on the floor.” (Compl. ¶ 62.) Defendants seek to

differentiate the instant case by relying on the following

language in Battaglia:

The complaint does not allege the specific

circumstances of plaintiff's fall.

Therefore, although it is unlikely that her

fall was the result of some structural or

design defect, the complaint leaves that

possibility open, and I cannot conclude at

8 In Siemion, defendant BJ’s Wholesale Club, Inc. argued that the property

owner/landlord “did not operate, control, or otherwise have any obligation to

inspect, clean, and/or maintain the floor of the interior.” 2019 WL 3561896,

at *3.

9 The plaintiff in Siemion alleged that she “slipped and fell down ‘due to a

defective, dangerous, and trap-like condition at the Premises.’” 2019 WL

3561896 at *1. Neither that allegation nor the allegation made by instant

Plaintiff regarding the incident’s circumstances foreclose the possibility

that the injury was caused by a structural or design defect.

16

this time that there are no set of facts on

which plaintiff could recover from [non-

diverse landlord/property owner].

Battaglia, 249 F. Supp. 3d at 672 (emphasis

added).

Although Defendants appear to rely on Plaintiff’s

allegation in the Complaint about the circumstances of her

alleged fall, that is not sufficient. The essence of the

fraudulent joinder inquiry is whether all possibility of a cause

of action against the non-diverse defendant has been foreclosed.

That is not the case here, particularly when the court is bound

to resolve all factual issues and ambiguities in the plaintiff’s

favor.10 See Pampillonia v. RJR Nabisco, Inc., 138 F.3d 459, 461

(2d Cir. 1998). Even if “it is unlikely” that Plaintiff’s fall

was the result of a structural or design defect, so long as that

possibility remains open, this court “cannot conclude at this

time that there are no set of facts on which plaintiff could

recover” from Gateway/Related. See Battaglia, 249 F. Supp. 3d

at 672.

Defendants also assert that the Lease requires BJ’s to

indemnify Gateway/Related from liability. (Defs.’ Mem. ¶¶ 6-7,

10 BJ’s Incident Report regarding the alleged accident describes the incident

as “Member bent down to pick up a 4 pack of Welch’s Sparkling Grape Juice,

tripped and fell on her knees. Medical treatment sought.” (ECF No. 8-1 at

1.) The court’s analysis remains unchanged, to the extent this Incident

Report may “clarify or amplify the claims actually alleged.” See MBIA Ins.

Corp. v. Royal Bank of Canada, 706 F. Supp. 2d 380, 395 (S.D.N.Y. 2009).

17

10.) District courts in this Circuit and others, however, have

repeatedly held that “the mere fact that a defendant is

indemnified by another defendant does not transform the

indemnified defendant into a nominal party.” See, e.g.,

Mieschberger v. Dana Corp., 2011 WL 4916926, *2 (E.D.N.Y. Oct.

11, 2021) (collecting cases). The court does not find a

sufficiently persuasive reason — nor was one offered by

defendants — to depart from those cases here.

This court remains bound by the fraudulent joinder

standard as established by the Second Circuit. The district

court’s role in assessing fraudulent joinder is not to assess

the strength of plaintiff’s claims, but rather to assess whether

plaintiff could assert such a claim against the non-diverse

defendants in state court. Here, the court finds that Plaintiff

could. See MBIA, 706 F. Supp. 2d at 396 (“[T]he inquiry remains

whether Plaintiffs have a possibility of asserting such claims,

not whether Plaintiffs are likely to succeed on these claims on

the merits.”). The Second Circuit’s “no possibility” standard

is a high one, and the court does not find that Defendants here

have met it.

It is true that courts vary as to “how restrictive or

permissive they want to be” when fraudulent joinder is alleged.

Battaglia, 249 F. Supp. 3d at 673. In a case such as this,

18

however, (a) that bears such relevant similarities to recent

cases involving motions to remand in this very district, see

Siemion; Battaglia, and (b) where defendants have failed to cite

a case denying a motion to remand on similar factual grounds—in

this district or otherwise—the court finds that defendants have

failed to proven there is “no possibility” that “plaintiff can

state a cause of action against the non-diverse defendant in

state court.” Pampillonia, 138 F.3d at 461.

III. Attorney’s Fees

Plaintiff seeks costs and actual expenses resulting

from the defense of this removal, including attorneys’ fees.

(Pl.’s Mot. at 11; Pl.’s Reply at 5.). A district court may

“require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the removal.”

28 U.S.C. § 1447(c); see Morgan Guar. Trust Co. of New York v.

Republic of Palau, 971 F.2d 917, 924 (2d Cir. 1992) (“The

statute as a whole . . . affords a great deal of discretion and

flexibility to the district courts in fashioning awards of costs

and fees.”). The standard for awarding such fees hinges on the

“reasonableness” of removal. See Martin v. Franklin Cap. Corp.,

546 U.S. 132, 136 (2005) (“[A]bsent unusual circumstances,

attorney’s fees should not be rewarded when the removing party

has an objectively reasonable basis for removal.”) Though

19

Defendants’ removal petition was unsuccessful, the court finds

that they had an objectively reasonable basis for removal,

because this court’s lack of jurisdiction was not obvious “from

the face of the [removal] petition.” Sherman v. A.J. Pegno

Constr. Corp., 528 F. Supp. 2d 320, 328-29 (S.D.N.Y. 2007)

(citing Arseneault v. Congoleum, 2002 WL 472256, at *9 (S.D.N.Y.

Mar. 26, 2022)). As such, the court will not grant costs or

attorney’s fees to Plaintiff. See, e.g., B.N. ex rel. Novick v.

Bnei Levi, Inc., 2013 WL 168698 (E.D.N.Y. Jan. 15, 2013).

CONCLUSION

Because the court finds that Defendants Gateway/Related were

not fraudulently joined, Plaintiff’s motion to remand is granted.

The Clerk of Court is respectfully directed to remand the matter

to New York State Court.

SO ORDERED.

Dated: November 29, 2022

Brooklyn, New York

Kiyo A. Matsumoto

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

20