The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JANE DOE, :
:
Plaintiff, :
:
-against- : MEMORANDUM & ORDER
: OF REMAND
BRIAN WARNER a/k/a MARILYN : 23-cv-862(DLI)(ARL)
MANSON, INTERSCOPE MUSIC :
PUBLISHING, INC., NOTHING :
RECORDS, and DOES 1-20, :
:
Defendants. :
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DORA L. IRIZARRY, United States District Judge:
On January 30, 2023, Jane Doe (“Plaintiff”) filed a verified complaint (“Complaint”) in
New York State Supreme Court, Nassau County (“state court”) pursuant to the New York Adult
Survivors Act (“ASA”), N.Y. C.P.L.R. § 214-j, against Brian Warner a/k/a Marilyn Manson
(“Defendant Warner”), his former record labels, Interscope Music Publishing, Inc. (“Defendant
Interscope”) and Nothing Records (“Defendant Nothing”), and 20 unnamed Does (“Defendant
Does 1-20”)(collectively, “Defendants”), seeking damages and other relief for injuries stemming
from alleged instances of sexual assault and abuse. See, Complaint (“Compl.”), Dkt. Entry No. 1-
1.1 Plaintiff asserts a sexual battery claim against Defendant Warner, an intentional infliction of
emotional distress (“IIED”) claim against all Defendants, and various negligence claims and a
New York General Business Law (“GBL”) § 349 claim against Defendants Interscope, Nothing,
and Does 1-20. Id.
On February 3, 2023, Defendant Warner removed the action to this Court, invoking this
Court’s diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See, Notice of Removal (“Notice”),
1 On February 24, 2023, Plaintiff disclosed her identity, revealing herself as Bianca Kyne. See, Disclosure Stmt., Dkt.
Entry No. 18.
Dkt. Entry No. 1, ¶¶ 3-6. The Notice alleges that, at the time of removal, Defendant Warner had
not been served with the Complaint, but he had received a copy of the Complaint “on or around
January 30, 2023,” the day the Complaint was filed. Id. ¶ 2. It also alleges that, while Defendant
Warner does not know whether Defendant Interscope and Defendant Nothing have been served
with the Complaint and summons, he “understands” that they both “consent to removal of the
action.” Id. ¶ 8. To date, neither Defendant Interscope nor Defendant Nothing has responded to
the Complaint or otherwise appeared in this action.
On February 14, 2023, Defendant Warner filed a premotion conference (“PMC”) request
regarding an anticipated motion to compel Plaintiff to reveal her identity. See, PMC Request, Dkt.
Entry No. 10. However, on February 17, 2023, Plaintiff filed a response letter stating that she is
willing to reveal her true name, rendering moot Defendant Warner’s PMC request and anticipated
motion to compel. See, PMC Response, Dkt. Entry No. 12; Electronic Order dated February 22,
2023 (denying PMC request as moot). On February 21, 2023, Defendant Warner filed a motion
to dismiss and strike pursuant to Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 12(f), respectively,
(the “Motion to Dismiss and Strike”), seeking to dismiss a number of claims and strike a number
of allegations. See, Mot. to Dismiss and Mot. to Strike, Dkt. Entry No. 14. To date, Plaintiff has
not filed a motion for remand. For the reasons set forth below, this case is remanded to state court
sua sponte for failure to establish subject matter jurisdiction and for failure to comply with one of
the procedural requirements for removal.2
DISCUSSION
As a threshold matter, the Court first must address whether it may remand this case to the
state court sua sponte, absent a motion from Plaintiff. The relevant statute, 28 U.S.C. § 1447(c),
2 As the Court lacks subject matter jurisdiction over this action, it has no authority to rule on Defendant Warner’s
Motion to Dismiss and Strike. Accordingly, the Motion to Dismiss and Strike is terminated.
states in pertinent part:
A motion to remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within 30 days after the filing of the notice of
removal under section 1446(a). If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.
Id. The Second Circuit has construed this statute to authorize a district court to remand sua sponte
under two circumstances: (1) “at any time, if the district court finds that it does not possess subject
matter jurisdiction;” and (2) “within 30 days of the filing of the notice of removal if the district
court remands the case on procedural grounds.” Heery v. Stop & Shop Supermarket Co., LLC.,
2017 WL 1745490, at *1 (E.D.N.Y. May 3, 2017) (citing Mitskovski v. Buffalo & Fort Erie Pub.
Bridge Auth., 435 F.3d 127, 131, 133-34 (2d Cir. 2006)). The Second Circuit has cautioned district
courts to “construe the removal statute narrowly, resolving any doubts against removability.” Lupo
v. Hum. Aff. Int’l Inc., 28 F.3d 269, 274 (2d Cir. 1994); See, Taylor v. Medtronic, Inc., 15 F.4th
148, 150-51 (2d Cir. 2021). Therefore, and “[p]ivotally, the removing party bears the burden of
demonstrating both the existence of subject matter jurisdiction and compliance with the relevant
procedural requirements[.]” Metro. Transp. Auth. v. U.S. Fid. & Guar. Co., 2015 WL 1730067,
at *7 (S.D.N.Y. Apr. 14, 2015) (collecting cases) (internal citations and quotation marks omitted).
Here, the Court finds that Defendant Warner has failed to establish subject matter jurisdiction and
demonstrate compliance with one of the procedural requirements for removal, warranting remand.
I. Subject Matter Jurisdiction
Where, as here, a defendant seeks to remove a case based on diversity jurisdiction, the
defendant bears the burden of establishing that the requirements of diversity jurisdiction have been
met. See, Brown v. Eli Lilly & Co., 654 F.3d 347, 356 (2d Cir. 2011). Pursuant to 28 U.S.C. §
1332(a), the removing party must establish that: (1) there is complete diversity of citizenship of
the parties; and (2) the amount in controversy exceeds the $75,000 jurisdictional threshold,
exclusive of costs and interest. Id. Here, the Court finds that Defendant Warner has failed to
establish that the amount in controversy requirement is met and, thus, has not established this
Court’s subject matter jurisdiction over the action, warranting remand.
To satisfy the amount in controversy requirement, a removing party must establish “that it
appears to ‘a reasonable probability’ that the claim is in excess of [$75,000],” exclusive of interest
and cost. United Food & Comm. Workers Union, Local 919, AFL-CIO v. CenterMark Properties
Meriden Square, Inc., 30 F.3d 298, 305 (2d Cir. 1994) (internal citations omitted); 28 U.S.C. §
1332(a). Indeed, “the amount in controversy must be non-speculative in order to satisfy the statute,
and conclusory allegations that the amount-in-controversy requirement is satisfied are
insufficient.” Elome v. Sva Trucking LLC, 2021 WL 4489456, at *1 (E.D.N.Y. Sept. 30, 2021)
(internal citations and quotation marks omitted). “[I]f the jurisdictional amount is not clearly
alleged in the plaintiff’s complaint, and the defendant’s notice of removal fails to allege facts
adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal
courts lack diversity jurisdiction as a basis for removing the plaintiff’s action from state court.”
Lupo, 28 F.3d at 273-74 (internal citations and quotation marks omitted).
Here, Defendant Warner relies on allegations provided in the Complaint to support his
assertion that the amount in controversy requirement is satisfied. However, Defendant Warner
“cannot meet [his] burden by relying on inferences drawn from the Complaint, because the
Complaint does not allege a damages amount.” See, Herrera v. Terner, 2016 WL 4536871, at *2
(E.D.N.Y. Aug. 30, 2016). In fact, Defendant Warner acknowledges that the Complaint does not
state “a specific amount of damages,” noting that N.Y. C.P.L.R. § 3017(c) “‘does not permit a
complaint in a personal injury case to demand a specific amount [and] allow[s] only a supplemental
demand for total damages[.]’” Notice ¶ 5 (quoting Brown v. Richer-Guinard, 2020 WL 2833867,
at *1 (S.D.N.Y. June 1, 2020)). Defendant Warner further alleges, correctly, that, given this
statutory restriction, the Notice may assert the amount in controversy. Id. (citing 28 U.S.C. §
1446(c)(2)(A)(ii)); See, Minaudo v. Sunrise at Sheepshead Bay, 2023 WL 110359, at *2 (E.D.N.Y.
Jan. 5, 2023) (“When the initial pleading seeks monetary damages but State practice…does not
permit demand for a specific sum, the notice of removal may instead assert the amount in
controversy.”) (internal citations and quotation marks omitted) (alterations in the original).
Nonetheless, and to Defendant Warner’s detriment, the Notice does not assert an amount
in controversy. Instead, it contains a regurgitation of conclusory allegations from the Complaint
stating Plaintiff’s injuries and damages in generalized, boilerplate terms. See, Notice ¶ 6 (alleging
that Defendant Warner “understands and believes that Plaintiff is seeking damages in excess of
$75,000” because “[t]he complaint alleges (albeit falsely) multiple incidents of sexual assault and
claims all the following categories of ‘past, present, and future’ damages as a result: ‘severe’
physical, emotional, and psychological injuries; pain and suffering; lost earnings; and economic
damages” as well as seeks “civil penalties, statutory damages, costs of suit, attorneys fees,
punitive/exemplary damages, and a final prayer for all such other relief”). Such allegations are
insufficient to satisfy Defendant Warner’s burden of establishing with “reasonable probability”
that the amount in controversy requirement is satisfied. See, John Wiley & Sons, Inc. v. Glass,
2010 WL 1848226, at *3 (S.D.N.Y. May 7, 2010) (finding removal notice insufficient to support
amount in controversy where it alleged that it was “facially apparent from the Complaint that
Plaintiff seeks an amount in controversy in excess of $75,000” and merely “repeat[ed] the relief
[Plaintiff] requested in its Complaint” in a conclusory manner).
The Notice also alleges that “Plaintiff is represented by high-profile plaintiffs’ counsel,
who, since filing, have unleashed a torrent of coordinated press releases, social media campaigns,
and press conferences that target defendants and seek to promote this case and recruit others,” but,
without more, it is wholly unclear how this speculative, rhetorical, and seemingly irrelevant
allegation supports any amount in controversy. See, Removal Notice ¶ 6.
Moreover, and significantly, the Complaint lacks sufficient information concerning “the
nature and extent of Plaintiff’s injuries, the treatment received, or details regarding the other losses
[s]he purportedly suffered.” Herrera, 2016 WL 4536871, at *2. As such, the Court is left to guess
at the amount in controversy based on the Complaint’s generalized and boilerplate language
concerning Plaintiff’s injuries. See, e.g., Compl. ¶¶ 5-6, 76, 99, 109, 119, 130 (alleging that
Plaintiff “has suffered severe emotional, physical and psychological distress, including shame, and
guilt, economic loss, economic capacity and emotional loss” and “severe physical, emotional, and
psychological injuries, along with pain and suffering”).
“Notwithstanding the severity of the alleged harm,” such boilerplate pleadings are too
generalized to enable the Court to “draw a reasonable inference—as opposed to speculating—that
the damages or amount in controversy exceeds $75,000.” Minaudo, 2023 WL 110359, at *3
(collecting cases remanded for failure to establish amount in controversy, even where permanent,
serious, and fatal injuries were alleged because allegations did not particularize extent of injuries
or damages); O’Neill v. Target Corp., 2021 WL 2634880, *2 (E.D.N.Y. June 25, 2021)
(remanding case involving allegations that “plaintiff suffered serious and permanent injury to
fourteen (14) different body parts” and suffered injuries that “incapacitated her from employment
and required an extensive, and ongoing, course of treatment involving nineteen (19) different
medical providers/facilities,” finding the allegations provided “nothing regarding the specific
amount or extent” of any alleged injuries or damages); See, e.g., Jean-Louis v. Amazon.com Servs.,
LLC, 2022 WL 3867668, at *2-3 (E.D.N.Y. Aug. 29, 2022) (remanding action seeking, inter alia,
back pay, front pay, and emotional distress damages where neither removal notice nor complaint
alleged facts suggesting inability to obtain other employment in support of request for front pay or
described extent and manifestation of plaintiff's injury or symptoms in support of request for
emotional distress damages); King v. J.B. Hunt Transport, Inc., 2020 WL 6545905, at *2
(E.D.N.Y. Nov. 6, 2020) (remanding case in light of boilerplate allegations that plaintiff “sustained
severe and protracted personal injuries, endured pain and suffering, were, and are, incapacitated
from their normal pursuits, incurred lost earnings and medical expenses, [and] lost the enjoyment
of life”). Accordingly, the Court finds that Defendant Warner has failed to establish with
reasonable probability that the amount in controversy requirement is met for purposes of
establishing diversity jurisdiction, warranting remand.
Notably, Defendant Warner was not without recourse to determine the amount of damages
Plaintiff seeks. “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 [N.Y. C.P.L.R.] § 3017(c)[.]”
Cavaleri v. Amgen Inc., 2021 WL 951652, at *3 (E.D.N.Y. Mar. 12, 2021) (collecting cases).
Indeed, Defendant Warner could have availed himself of this procedural mechanism that permits
a defendant in “an action to recover damages for personal injuries” to “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); See, Jean-Louis, 2022 WL 3867668, at *3, n. 5 (confirming
that “personal injuries” has been interpreted to include emotional distress) (internal citations
omitted). Under this mechanism, a plaintiff is required to provide the supplemental demand within
fifteen days of the request and failure to provide the information allows a defendant to move in the
state court for an order directing the production of that information. N.Y. C.P.L.R. § 3017(c).
Additionally, “the removal clock 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). Thus, rather than prematurely removing the action to
this Court, Defendant Warner could, and should, have availed himself of this procedural
mechanism. See, Herrera, 2016 WL 4536871, at *2.
Curiously, in the Notice, Defendant Warner acknowledged that N.Y. C.P.L.R. § 3017(c)
allows “a supplemental demand for total damages[.] See, Notice ¶ 5 ((citing Brown, 2020 WL
2833867, at *1) (discussing instance where a defendant utilized N.Y. C.P.L.R. § 3017(c)’s
mechanism)). However, having failed to avail himself of this mechanism, Defendant Warner
“proceed[ed] at [his] peril” in removing this case and “simply presuming that [his] allegations
[would] be deemed sufficient with respect to the required amount in controversy.” Cavaleri, 2021
WL 951652, at *3 (collecting cases); See, Cadmen v. CVS Albany, L.L.C., 2022 WL 138056, at *2
n. 2 (E.D.N.Y. Jan. 14, 2022) (finding removal of state action "premature" where defendant failed
to use N.Y. C.P.L.R. § 3017(c) to determine the amount of damages sought by plaintiff before
removing).
II. Procedural Defect
While Defendant Warner’s failure to establish that he met the jurisdictional amount in
controversy requirement alone is sufficient to warrant remand, the Court notes that remand is
warranted for the additional reason that Defendant Warner also has failed to establish compliance
with a critical procedural requirement for removal, known as the “rule of unanimity.”
A party seeking to remove a case based on diversity jurisdiction shall file the notice of
removal “‘within 30 days after the receipt by the defendant’ of the initial pleading or summons,
‘whichever period is shorter.’” Taylor, 15 F.4th at 150 (citing 28 U.S.C. § 1446(b)(1)). Notably,
“within that thirty-day window, ‘all defendants who have been properly joined and served must
join in or consent to the removal of the action,’” a procedural requirement known as “the rule of
unanimity.” Id. (citing 28 U.S.C. § 1446 (b)(2)(A)). In this Circuit, “it is well-established that
defendants ‘must independently express their consent to removal.’” Id. at 151 (quoting
Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012)) (emphasis added).
Furthermore, to comply with the rule of unanimity, “each defendant must submit written
consent unambiguously agreeing to removal.” Metro. Transp. Auth., 2015 WL 1730067, at *4
(internal citations and quotation marks omitted); See, Jean-Jacques v. Uber Technologies, Inc.,
2022 WL 17095036, at *1 (E.D.N.Y. Oct. 21, 2022) (collecting cases), report & recommendation
adopted, 2022 WL 17092835 (E.D.N.Y. Nov. 21, 2022); Gold Town Corp. v. United Parcel Svcs.,
Inc., 519 F. Supp.3d 169, 175-76 (S.D.N.Y. 2021) (collecting cases). Therefore, and of particular
relevance here, “[i]t is well established in this Circuit that it is not sufficient for a non-removing
defendant to merely advise the removing defendant that it consents to removal and that the
removing defendant may represent such consent to the Court on its behalf.” Jean-Jacques, 2022
WL 17095036, at *1; See, Margaritis v. Mayo, 2021 WL 3472695, at *6 (E.D.N.Y. Aug. 6, 2021);
Metro. Transp. Auth., 2015 WL 1730067, at *4. “Instead where, as here, the removing defendant
represents to the Court that the other defendants have consented to removal, the rule of unanimity
is not satisfied unless the other defendants either sign the notice of removal or subsequently
provide the Court with their unambiguous written consent to removal within the thirty-day period.”
Metro. Transp. Auth., 2015 WL 1730067, at *4 (internal citations and quotation marks omitted).
“The rule [of unanimity] is strictly interpreted and enforced. If it is not satisfied, then the
petition is defective and the case must be remanded.” Margaritis, 2021 WL 3472695, at *6-7
(analyzing unanimity requirement sua sponte and noting that failure to comply therewith “provides
an independent basis for remand”) (internal citations and quotation marks omitted); See, Jean-
Jacques, 2022 WL 17095036, at *1 (explaining that noncompliance with rule of unanimity is a
“fatal procedural defect that warrants remand” and remanding sua sponte for, inter alia, failure to
comply with rule of unanimity); Donovan v. Barrero Aguero, 2022 WL 3588008, at *2 (E.D.N.Y.
Aug. 1, 2022) (same), report & recommendation adopted, 2022 WL 3586569 (E.D.N.Y. Aug. 22,
2022); Nasir v. HD Supply Facilities Maint., Ltd., 2021 WL 5356746, at *2 (E.D.N.Y. Nov. 17,
2021) (same).
Here, there is no evidence that Defendant Interscope and Defendant Nothing have
consented to Defendant Warner’s removal of this action unambiguously or in writing. Defendant
Warner removed this action alone. Neither Defendant Interscope nor Defendant Nothing joined
or signed Defendant Warner’s Notice or otherwise stated their consent in writing at the time of
removal or any time thereafter. Defendant Warner alleges in the Notice that he “understands that”
Defendant Interscope and Defendant Nothing “consent to removal of the action,” but, as mentioned
above, it is not sufficient for a removing defendant to represent consent to removal on a non-
removing defendant’s behalf. See, Notice ¶ 8; See, e.g., Jean-Jacques, 2022 WL 17095036, at *1.
Moreover, even if such an allegation made on a non-removing defendant’s behalf could suffice,
which it cannot, Defendant Warner failed to state the basis for his alleged “understanding,”
rendering the allegation far from “unambiguous.” See, Notice ¶ 8. Additionally, Defendant
Warner did not attach to his Notice any written evidence of consent from Defendant Interscope or
Defendant Nothing. Fatally, to date, no written confirmation of consent has been provided from,
or on behalf of, Defendant Interscope or Defendant Nothing and, in fact, neither one has appeared
in this action.
To be sure, there is an exception to the rule of unanimity for a defendant who has not been
served at the time the removal petition is filed. See, e.g., Metro. Transp. Auth., 2015 WL 1730067,
at *4. In this regard, it bears noting that Defendant Warner alleges that, “pursuant to [Local Rule
(“LR”)] 81.1(5),” he “does not know whether [Defendant Interscope or Defendant Nothing] has
been served with the complaint and summons.” Notice ¶ 8. However, to the extent this disclaimer
of knowledge is intended to implicate the exception to the rule of unanimity for unserved
defendants, it does not and cannot do so. As an initial matter, an allegation that “disclaims
knowledge as to whether [other defendants] had been served at the time of removal” is insufficient
to “implicate any exception to the rule of unanimity.” Metro. Transp. Auth., 2015 WL 1730067,
at *7. It is Defendant Warner’s burden, as the proponent of removal, to “‘affirmatively set forth’”
the grounds for removal and demonstrate that removal is proper. See, Margaritis, 2021 WL
3472695, at *5 (quoting 28 U.S.C. § 1446(a)) (emphasis added). In the face of this burden, the
absence of an affirmative allegation as to whether Defendant Interscope and Defendant Nothing
have been served is fatal to the invocation of any exception to the rule of unanimity and, as such,
is fatal to his ability to demonstrate compliance with the rule of unanimity. Additionally, the Court
finds it puzzling, and suspect, that Defendant Warner apparently was able to ascertain from
Defendant Interscope and Defendant Nothing their consent to removal, but was unable to, or did
not bother to, ascertain from them whether they had been served in this action.
That Defendant Warner made his disclaimer of knowledge pursuant to LR 81.1 does not
change this calculus. See, Notice ¶ 8. Under LR 81.1, a removal notice based on diversity
jurisdiction must include certain information, including, as relevant here, “the date on which each
party that has been served was served.” See, LR 81.1. The last sentence of the rule provides that,
if any required information is “unknown to the removing party, the removing party may so state”
and “plaintiff within twenty-one (21) days after removal shall file…a statement of the omitted
information.” Id. However, as discussed in the astutely well reasoned decision issued by the
Honorable Brian M. Cogan, United States District Judge of this Court, in Ocean Units LLC v.
Illinois Union Insurance Co., “the last sentence of [LR 81.1] is unenforceable.” Ocean Units LLC
v. Illinois Union Ins. Co., 528 F. Supp.3d 99, 101-03 (E.D.N.Y. 2021) (finding that the rule, which,
inter alia, permits removal of cases over which a court lacks jurisdiction, is contrary to the
fundamental requirements set forth by Congress, and is inconsistent with the rule that a removal
notice must set forth the grounds for removal affirmatively and should be construed narrowly).
Thus, to the extent Defendant Warner’s citation to LR 81.1 is intended to excuse his failure to
allege affirmatively whether his co-defendants were served prior to removal, the Court finds that
it does not do so. Moreover, even if the Court were to find the mechanism set forth in the last
sentence of LR 81.1 to be valid, Defendant Warner has failed to enforce Plaintiff’s compliance
with the rule’s requirement that, where, as here, a removing party invokes the rule’s mechanism
for ascertaining unknown information, the plaintiff must file a statement providing such
information within 21 days of removal. See, LR 81.1. Here, February 24, 2023 marked 21 days
from the date of removal. However, to date, Plaintiff has not filed a statement of omitted
information pursuant to LR 81.1 and Defendant Warner has taken no action to enforce or request
compliance therewith.
In sum, it was incumbent on Defendant Warner, as the removing party, to ensure
compliance with the requirements for removal and his failure to do so is fatal to his case.
Accordingly, remand is warranted for the additional reason that Defendant Warner has failed to
establish compliance with the rule of unanimity. See, e.g., Nasir, 2021 WL 5356746, at *2 (“The
failure to comply with the unanimity requirement is fatal to the removal of this action and remand
is required.”).
CONCLUSION
For the reasons set forth above, this case is remanded for lack of subject matter jurisdiction
and on procedural grounds to New York State Supreme Court, Nassau County, under Index No.
900001/2023, for further proceedings and all motions before this Court are terminated.
SO ORDERED.
Dated: Brooklyn, New York
March 3, 2023
/s/
DORA L. IRIZARRY
United States District Judge