The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Sharon Narinesingh, No. 2:22-cv-05235-NM-AYS
Plaintiff, Memorandum and Order
v.
FedEx Ground Package
System Inc.,
Defendant.
NINA R. MORRISON, United States District Judge:
On October 21, 2022, Plaintiff Sharon Narinesingh’s cause of action—
in which she seeks damages arising out of alleged aged-based workplace
discrimination during her employment with Defendant FedEx Ground
Package System, Inc.—was remanded to the Supreme Court of the State of
New York, Nassau County. See Order dated Oct. 21, 2022 (Brown, J.). Two
days earlier, Plaintiff had consented to the district court’s remand order
under certain terms and conditions later agreed to by the Court, to wit:
(1) that the Court’s prior rulings in the federal proceeding would have no
preclusive effect on plaintiff’s state-court claims, except that (2) her “potential
recovery” in state court “is capped at $75,000.” Id.; see also Pl.’s Mot. to
Remand to State Court, ECF No. 14.
Five days after the entry of Judge Gary R. Brown’s remand order, this
case was administratively transferred to the undersigned pursuant to a
random reassignment by the Clerk of Court.
On November 4, 2022, Plaintiff filed a letter requesting clarification as
to one aspect of the conditions set forth in Judge Brown’s Order of Remand:
namely, whether the “cap[]” imposed on Plaintiff’s “potential recovery” in
state court is inclusive or exclusive of attorney’s fees and costs.
Plaintiff’s request was prompted by a position regarding her potential
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recovery that Defendant asserted on remand. Defendant contends that the
cap on damages agreed to by the parties, and which provided the
jurisdictional basis for the Court’s remand order, is inclusive of potential
attorney’s fees. Defendant asks that the Court either order that Plaintiff is
bound by a prior agreement to cap her total recovery in state court at
$75,000—inclusive of both damages and attorney’s fees—or rescind the
remand order. Plaintiff disagrees, arguing that while her recovery of
damages may not exceed $75,000, she may—if she prevails in state court—
seek an award of additional attorney’s fees and costs, without running afoul
of Judge Brown’s Order of Remand.
It is undisputed that the basis for the remand previously agreed to by
the parties and ordered by the Court was premised on Plaintiff’s stipulation
as to the total amount in controversy in this action. Plaintiff’s concession
that the “amount in controversy” does not exceed $75,000 deprived the
federal district court of jurisdiction under 28 U.S.C. § 1332(a). The question
posed by the parties’ request for “clarification” of Judge Brown’s order, then,
may properly be reframed as whether the “amount in controversy” referenced
in 28 U.S.C. § 1332(a) necessarily includes the sum total not only of a
plaintiff’s estimated damages, but also any attorney’s fees a plaintiff may
seek to recover if she is the prevailing party. This Court concludes that it
does not.
For that reason, as well as others related to the facts and procedural
history of this case as set forth below, the Court declines to enter an order
limiting Plaintiff’s total recovery in state court to $75,000 inclusive of fees
and costs. Nor will this Court revoke the earlier Order of Remand. Instead,
the Court holds that the Order of Remand does not bar Plaintiff from seeking
damages in state court up to, but not exceeding, $75,000; and, if she
ultimately prevails on her state-court claim, she may then ask the state court
to award her additional attorney’s fees and/or costs. Similarly, the Order of
Remand does not prevent Plaintiff from seeking a settlement of this action in
which the total amount paid by Defendant pursuant to the settlement
exceeds $75,000, provided that any amount over that threshold be allocated
solely to attorney’s fees and/or costs.
BACKGROUND
Plaintiff, who worked at a FedEx Ground sorting facility for
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approximately one-and-a-half years, alleges that her two managers made
derogatory comments about her age. See Compl., ECF No. 1-1, at 3-4. In
June 2022, she filed suit in the Supreme Court of the State of New York,
County of Nassau, alleging “unlawful discriminatory workplace harassment”
under the New York State Human Rights Law. Id. at 3. While Plaintiff’s
counsel requested judgment in her favor “in the amount of $100,000 together
with costs and fees,” her complaint did not include a specific allegation as to
the damages she had incurred from the claimed violation of her rights. See
id. at 3-4, 8. On September 1, 2022, Defendant removed this case to federal
court. See Notice of Removal, ECF No. 1. On September 22, 2022, Defendant
requested a pre-motion conference to present a proposed motion to dismiss.
See Mot. for Pre-Mot. Conference, ECF No. 10, at 1.
At the October 13, 2022, conference, Judge Brown told Plaintiff’s
counsel that if this were a case where the damages were “likely to be $75,000
or under,” the Court would “not have jurisdiction to proceed.” See Tr. dated
Oct. 13, 2022 (“Oct. 13 Tr.”), ECF No. 16-1, at 3. Judge Brown then
dismissed the case without prejudice and allowed Plaintiff to either file an
amended complaint or move to remand. Id. at 9. Eight days later, upon
Plaintiff’s motion, Judge Brown remanded the case to state court, ordering
that his rulings in this matter “shall have no collateral estoppel or other
preclusive effect on plaintiff’s claims except that her potential recovery is
capped at $75,000.” See Order dated Oct. 21, 2022.
Plaintiff and Defendant now seek clarification from this Court on
whether Plaintiff’s stipulated and court-ordered “cap[]” on her recovery in
state court includes not just an award of damages, but also any claim
Plaintiff might make for attorney’s fees if she prevails. See generally Letter
re Damages Cap (“Pl. Letter”), ECF No. 15; Letter re damages cap and
remand to State Court (“Def. Letter”), ECF No. 16.
Neither party disputes that a district court may remand a matter if a
plaintiff stipulates that the plaintiff will not seek more than $75,000 in
damages. See Def. Letter, ECF No. 16, at 2 (citing Luce v. Kohl’s Dept.
Stores, Inc., 23 F. Supp. 3d 82, 85 (D. Conn. 2014)). Yet Defendant’s counsel
argues that if Plaintiff seeks to recover $75,000 and additional attorney’s
fees, then the “amount in controversy” under 28 U.S.C. § 1332(a) exceeds
$75,000 and remand was improper. Id. Defendant further contends that this
issue should be resolved before this case proceeds any further in state court,
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to determine whether the case should remain remanded. See id.
For her part, Plaintiff assures the Court that she is not seeking to
“back out” of her agreement to cap her total recovery at $75,000. See Pl.
Letter, ECF No. 15. She also offers that she could find no “definitive legal
authority” addressing the specific issue of whether such a cap includes or
excludes potential attorney’s fees. Id. However, Plaintiff declines to
stipulate to any fee-inclusive cap on her total recovery at $75,000 at this
time. Id. Instead, Plaintiff asks this Court to either resolve the issue in her
favor now, or—in the alternative—to direct the parties to continue their
state-court litigation on the merits, while deferring the question of whether
Plaintiff may recover a total award (inclusive of attorney’s fees) in excess of
$75,000 until the litigation advances to that point, since she may or may not
recover a damages-plus-fees judgment in excess of $75,000. Id.
The Court is mindful of the fact that the parties’ present dispute could
be entirely moot at some future point in their state-court litigation. For
example, the question upon which the parties now seek clarification would be
a non-issue if Plaintiff's state-court action is dismissed before a settlement or
trial; if she prevails on the merits, but the state court declines to award
attorney’s fees; or if she prevails on the merits, and the state court awards
attorney’s fees, but the combination of her damages and fees still proves to be
below $75,000.
On the other hand, in each of those scenarios, Defendant would still
need to litigate some or all of the underlying action in state court without any
certainty as to the maximum amount of potential exposure it faces—a
certainty that Defendant apparently believed it had when the federal district
court “capped” the total amount of Plaintiff’s recovery as a condition of
remand. Thus, the resolution of this question may impact Defendant’s
litigation strategy or settlement position as the matter proceeds. This Court
concludes that Defendant—as the party who removed this action to federal
court, and in light of the conditions of the district court’s grant of Plaintiff’s
motion to remand—is entitled to resolution of this outstanding issue before
the state-court litigation proceeds.
On the merits, however, the Court does not agree with Defendant’s
interpretation of 28 U.S.C. § 1332(a) as it applies to the “cap[]” on Plaintiff’s
total recovery set forth in the prior district judge’s Order of Remand. Thus,
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while this Court grants Defendant’s request to resolve the issue without
further delay, it declines to interpret or apply a $75,000 limit on Plaintiff’s
ultimate recovery that includes both damages and attorney’s fees.
ANALYSIS
A federal court does not have diversity jurisdiction over a civil action
unless the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).
However, when considering whether a federal court has such jurisdiction,
“attorney’s fees only calculate into the jurisdictional amount in controversy if
they are ‘recoverable as a matter of right.’” Suarez v. Mosaic Sales Sols. US
Operating Co., LLC, 720 F. App’x 52, 55 (2d Cir. 2018) (quoting Givens v.
W.T. Grant Co., 457 F.2d 612, 614 (2d Cir. 1972)); see also Kimm v. KCC
Trading, Inc., 449 F. App’x 85, 85-86 (2d Cir. 2012) (same); Brandon v.
O’Mara, No. 10 Civ. 5174 (RJH), 2011 WL 4478492 (S.D.N.Y. Sept. 28, 2011)
(finding that the “plain text” of 28 U.S.C. § 1332(a) required the Court to
consider a $70,000 amount in controversy exclusive of a $50,000 request for
attorney’s fees and costs); Kim v. Trulia, LLC, 19-CV-06733 (DLI) (RER),
2021 WL 8743946, at *5 (E.D.N.Y. Mar. 31, 2021) (noting, in remanding a
case brought under the Class Action Fairness Act of 2005 on jurisdictional
grounds, that “[w]hen a court has discretion to award attorney’s fees under a
state statute, attorney’s fees cannot be included in the jurisdictional amount”
(citation omitted)).
Under the New York State Human Rights Law, when a plaintiff seeks
relief in court for an unlawful discriminatory practice, a court has discretion
over whether to award reasonable attorney’s fees to a prevailing party. See
N.Y. Exec. Law §§ 296; 297(9)-(10). Plaintiff has alleged the unlawful
discriminatory practice of age discrimination under the state human rights
law and sought relief in court. See Compl., ECF No. 1-1, at 3-4. Since any
award of attorney’s fees in Plaintiff’s underlying state court action were she
to prevail would be a matter of discretion and not a matter of right, any
potential fee award could not be used to satisfy the amount-in-controversy
requirement, were this case in federal court.
Defendant nevertheless contends that since Plaintiff refused to
stipulate to a cap on total “damages and fees in an amount less than
$75,000,” the amount in controversy exceeds $75,000 and Plaintiff has
essentially reduced her demand to “defeat federal diversity jurisdiction.” See
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Def. Letter, ECF No. 16, at 3.
To support this contention, Defendant cites a singular case in which a
federal district court declined to remand an insurance dispute to state court.
See id. at 2-3 (citing Ventilla v. Pac. Indem. Co., No. 1:20-cv-08462 (MKV),
2021 WL 1894276 (S.D.N.Y. May 11, 2021)). In Ventilla, the court noted only
that if the plaintiff had offered to stipulate to “damages and fees less than
$75,000,” it “largely would [have] defeat[ed] any argument” that the amount
in controversy exceeded $75,000. Ventilla, 2021 WL 1894276, at *2.
However, the plaintiff in Ventilla made no such stipulation. Instead, that
court declined to remand after concluding that there was more than a
reasonable probability that the amount of actual damages in controversy was
in excess of $75,000, because, among other reasons, the plaintiff had
represented to the defendant in pre-filing communications that plaintiff had
suffered a loss of $256,000, and had filed a federal complaint pleading
damages “exceed[ing] $75,000, exclusive of interests and costs.” See id. at *1-
2. In other words, Ventilla did not actually pose—much less resolve—the
question of whether the amount-in-controversy requirement of § 1332(a) is
satisfied where a plaintiff’s damages do not exceed $75,000, but an
additional, discretionary award of attorney’s fees could make the total
judgment exceed $75,000.
Simply put, Defendant is correct that 28 U.S.C. § 1332(a)’s amount-in-
controversy provision is the appropriate framework through which to
interpret the terms of Plaintiff's stipulated remand in this case, and to
understand the terms of the court-ordered “cap[]” on “total recovery” that
Plaintiff is bound to accept. But Defendant is incorrect that this provision
should be interpreted to bar her from seeking a total judgment, inclusive of
any fees she may be awarded, that may exceed $75,000. As long as Plaintiff
does not seek or obtain an award of damages in excess of $75,000—which she
has unequivocally represented she will not—this order does not preclude her,
under either 28 U.S.C. § 1332(a) or her earlier agreement, from seeking a
discretionary award of attorney’s fees on top of any such judgment.
CONCLUSION
This Court declines to rescind the October 21, 2022, Order of Remand
to Supreme Court of the State of New York, County of Nassau, case number
607467/2022. Under that order and Plaintiff’s prior agreement, Plaintiff may
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not seek or recover damages in excess of $75,000. Thus, if Plaintiff prevails
or settles, this Court’s order shall not be construed to limit the recovery of
costs and attorney’s fees in addition to any damages recovered—even if those
amounts, in the aggregate, exceed $75,000.
SO ORDERED.
/s/ NRM
NINA R. MORRISON
United States District Judge
Dated: December 8, 2022
Brooklyn, New York
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