The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GARCIA CASCO, :
:
Plaintiff, : MEMORANDUM AND ORDER
: OF REMAND
-against- :
: 23-cv-885(DLI)(MMH)
DELTA AIR LINES, INC., :
:
Defendant. :
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DORA L. IRIZARRY, United States District Judge:
On December 28, 2022, Garcia Casco (“Plaintiff”) filed a verified complaint in New York
State Supreme Court, Queens County (“state court”), alleging state law claims of negligence and
an unsafe worksite in connection with injuries he sustained during a fall that occurred on or about
November 21, 2022. See, Complaint (“Compl.”), Dkt. Entry 1-1 at ¶¶ 120-126, 131-134. On
February 6, 2023, Defendant removed the action to this Court, invoking this Court’s diversity
jurisdiction pursuant to 28 U.S.C. § 1332. See, Notice of Removal (“Notice”), Dkt. Entry No. 1.
Before removal, Defendant had answered the Complaint and all other defendants named in the
Complaint had been dismissed. Ans., Dkt. Entry No. 1-2; Stip. of Discontinuance, Dkt. Entry No.
1-3.
On February 13, 2023, Plaintiff moved to remand this case back to state court. See, Pl.’s
Mot. to Remand (“Pl.’s Mot.”), Dkt. Entry No. 8. On February 27, 2023, Defendant opposed
Plaintiff’s motion to remand. See, Def.’s Mem. of Law in Opp. to Remand (“Def.’s Opp.”), Dkt.
Entry No. 10. For the reasons set forth below, Plaintiff’s motion for remand is granted and this
case is remanded to state court for further proceedings.
DISCUSSION
“It is axiomatic that federal courts are courts of limited jurisdiction and may not decide
cases over which they lack subject matter jurisdiction.” Lyndonville Sav. Bank & Trust Co. v.
Lussier, 211 F.3d 697, 700 (2d Cir. 2000). It is well established that removal statutes are construed
strictly and narrowly, “resolv[ing] any doubts against removability.” Taylor v. Medtronic, Inc., 15
F.4th 148, 150-51 (2d Cir. 2021).
A defendant seeking removal based on diversity bears the burden of establishing that the
requirements of diversity jurisdiction have been met. 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, remand is warranted
because Defendant has failed to meet its burden of establishing the threshold jurisdictional amount.
I. Diversity of Citizenship
It is well established that the question of whether the requirements for the exercise of
diversity jurisdiction have been met is determined by the facts as they existed at the time of
removal. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 295 (2d Cir. 2000). Here, there is
no dispute that diversity of citizenship between Plaintiff and Defendant existed at the time of
removal. See, Notice at ¶¶ 11-12. However, Plaintiff seeks to remand this case on the ground that
he intends to amend the complaint to add as defendants the City of New York, the New York City
Department of Transportation, and the Port Authority of New York and New Jersey (“the
Prospective Defendants”), which would defeat complete diversity of citizenship. See, Pl. Mot. at
1. Defendant counters that it has satisfied the threshold jurisdictional amount requirement and the
mere fact that a notice of claim has been filed against these municipal entities neither defeats
diversity nor warrants application of the abstention doctrine to remand this case as there is no
actual parallel judicial proceeding pending at this time.
Whether the threshold jurisdictional amount has been met will be discussed separately.
The Court concurs with Defendant that remand is not warranted based on the current posture of
this case as to the Prospective Defendants whose joinder could defeat complete diversity among
the parties, but who have not been joined as of yet.
The federal statute governing proceedings following removal from state court, 28 U.S.C.
§ 1447(e), “authorizes remand ‘[i]f after removal the plaintiff seeks to join additional defendants
whose joinder would destroy subject matter jurisdiction,’ i.e., to join non-diverse defendants in a
diversity case.” LeChase Constr. Servs., LLC v. Argonaut Ins. Co., 63 F.4th 160, 165 (2d Cir.
2023). However, “a plaintiff may not defeat a federal court's diversity jurisdiction and a
defendant's right of removal by merely joining as defendants parties with no real connection to the
controversy.” CMGRP, Inc. v. Agency for the Performing Arts, Inc., 689 F. App'x 40, 41 (2d Cir.
2017)(internal quotation marks and citation omitted). Whether to permit joinder of the additional
parties pursuant to 28 U.S.C. § 1447(e) is within the sound discretion of this Court as it must
determine whether the parties truly are indispensable to the action. LeChase Constr. Servs., LLC,
63 F.4th 160, 172-173; See also, Isaly v. Bos. Globe Media Partners, LLC, 2023 WL 144854, at
*2 (S.D.N.Y. Jan. 10, 2023).
Here, it appears that the Prospective Defendants may be indispensable to this controversy
since they own and operate the site where Plaintiff’s injuries occurred. See, Pl.’s Mot. at 1.
Plaintiff filed a Notice of Claim with each of the prospective defendants on January 4, 2023
pursuant to New York General Municipal Law § 50-H, a condition precedent to commencing a
lawsuit. Id. A § 50-H hearing was scheduled for April 6, 2023.1 Id. The purpose of this hearing
is to “supplement to the notice of claim and provides an investigatory tool to the public corporation,
with a view toward settlement[.]” A. R. v. Urrutia, 212 A.D.3d 670, 671 (1st Dept. 2023)(emphasis
1 It is unknown to the Court at this time whether the hearing was held.
added). To date, Plaintiff neither has requested leave to file an amended complaint pursuant to
Federal Rule of Civil Procedure 15(a) nor informed the Court that it has initiated a separate lawsuit
against the Prospective Defendants and seeks to consolidate the two actions. Under these
circumstances, particularly since Plaintiff has not sought to amend the complaint in this case, it
would be premature to remand this action pursuant to 28 U.S.C. § 1447(e).
II. Amount in Controversy
Notwithstanding the foregoing analysis as to the citizenship requirement, the Court finds
that Defendant has failed to satisfy the amount in controversy requirement. Thus, remand is
warranted. 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 v. Hum. Aff. Int’l Inc., 28 F.3d 269, 274 (2d Cir. 1994).
Defendant relies on the allegations in the Complaint to support its assertion that the amount
in controversy requirement is satisfied, Defendant “cannot meet [its] 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). Defendant also relies
on the Notice of Claim filed by Plaintiff against the Prospective Defendants, but the Notice of
Claim suffers from the same deficiency as the Complaint because it contains only general
allegations of damages. Notably, the Complaint only alleges that Plaintiff “has been damaged in
a sum which exceeds the jurisdictional limits of all lower courts.” Courts within this circuit
consistently have held that that this type of allegation fails to satisfy the jurisdictional threshold
under 28 U.S.C. § 1332(a). See, De Garcia v. Tropicana Ent. Inc., 2022 WL 375996, at *2
(E.D.N.Y. Feb. 8, 2022). The mention of “lower [c]ourts” in the Complaint is a reference to the
lower civil courts of New York, which may not entertain actions seeking to recover more than
$25,000. See, Woodley v. Mass. Mutual, 2008 WL 2191767, at *2 (S.D.N.Y. May 23, 2008)
(remanding case for failure to satisfy jurisdictional amount where defendants relied solely on ad
damnum clause in complaint stating that plaintiff was seeking damages in excess of the “monetary
jurisdiction of all lower [c]ourts”). That Plaintiff chose to file his case in the state court with no
jurisdictional limit does not support, in any way, Defendant’s assertion that Plaintiff seeks more
than $75,000.
Furthermore, none of the documents relied upon by Defendant provide any information
concerning the nature and extent of Plaintiff’s injuries. The Court is left to guess at the amount in
controversy based on Defendant’s speculation that: (1) “upon information and belief, Plaintiff will
allege that he suffered personal injuries to his neck, back, right arm, right shoulder, right leg, and
right knee at [Defendant’s] construction site at LaGuardia Airport on November 21, 2022, when
he was caused to trip and fall[;]” and (2) “[i]t is anticipated that he will claim lost wages as well.”
Notice at ¶ 5. 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 v. Sunrise at Sheepshead Bay, 2023 WL 110359, at *3 (E.D.N.Y.
January 5, 2023) (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); See also, 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); 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,” and “endured pain
and suffering, were, and are, incapacitated from their normal pursuits, incurred lost earnings[.]”).
Notably, Defendant was not without recourse to determine the damages sought prior to
removal. “As courts in this district have reiterated time and time again [when] 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 could have availed itself 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).
Under this mechanism, Plaintiff would have been required to provide the supplemental
demand within fifteen days of the request and, if he failed to do so, Defendant could have moved
before the state court for an order directing the production of that information. N.Y. C.P.L.R. §
3017(c). Importantly, “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 could and should have availed itself of this procedural
mechanism. See, Herrera, 2016 WL 4536871, at *2; See also, 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). Defendant “should have availed [himself] of the state’s procedures
rather than removing the action to this Court without the proper basis on which to do so.” Bader
v. Costco Wholesale Corp., 2018 WL 6338774, at *2 (E.D.N.Y. Dec. 4, 2018) (internal quotation
marks and citations omitted). Accordingly, as the Court lacks subject matter jurisdiction under 28
U.S.C. § 1332, remand to state court is proper.
CONCLUSION
For the reasons set forth above, Plaintiff’s motion to remand this case to state court is
granted, albeit not for the ground raised by Plaintiff, but because the requisite threshold
jurisdictional amount has not been met and, as such, the Court lacks subject matter jurisdiction.
This matter is remanded to New York State Supreme Court, Queens County, under Index No.
727219/2022, for further proceedings.
SO ORDERED.
Dated: Brooklyn, New York
April 14, 2023
/s/
DORA L. IRIZARRY
United States District Judge