Sutraban v. Worsley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LLOYD SUTRABAN, :

:

Plaintiff, :

:

-against- :

: MEMORANDUM

JOHN WORSLEY and CLEAN HARBORS : AND ORDER

ENVIRONMENTAL SERVICES, INC. D/B/A :

CLEAN HARBORS ENVIRONMENTAL : 22 Civ. 5293 (VMS)

SERVICES INC, :

: :

Defendants. :

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Vera M. Scanlon, United States Magistrate Judge:

Plaintiff Lloyd Sutraban moved to remand this action to the Supreme Court of the State

of New York, Queens County. See ECF No. 9.1 Defendants John Worsley and Clean Harbors

Environmental Services, Inc. (“Clean Harbors”) opposed the motion. See ECF No. 12. Plaintiff

replied. See ECF No. 14. For the following reasons, the Court denies Plaintiff’s motion.

I. Background

This action arises out of a motor vehicle accident in Manhattan. See Compl., ECF No. 1-

1 ¶ 15-17. According to the Complaint, Plaintiff was a lawful pedestrian when a vehicle driven

by Defendant Worsley and owned by Defendant Clean Harbors struck him. See id. ¶ 17. As a

result of the collision, Plaintiff

was rendered sick, sore, lame and disabled; was caused to suffer great pain and

mental anguish; sustained serious injuries to his head, body, arms and limbs; and

will be for a long time confined to his bed and home; was caused to and did

expend large sums of money for medical care and attention; was caused to lose

wages and to miss time from work; in addition plaintiff has sustained severe

1 Plaintiff also filed his motion to remand at ECF No. 8, labeled on ECF as both a motion for

release of funds and a motion to remand. That filing appears to have been in error.

shock to his nervous systems which has detracted considerably from his general

health and has sustained a resultant loss therefrom.

See id. ¶ 22. Plaintiff alleges that Defendants’ negligence caused the collision. See id. ¶¶ 23-32.

On April 26, 2022, Plaintiff, a Queens County, New York resident, filed this action in the

Supreme Court of the State of New York, Queens County, under Index Number 709036/2022.

See ECF No. 1 ¶ 1; ECF No. 1-1 ¶ 1. Plaintiff served the summons and complaint on Defendant

Worsley, a New Jersey resident, on May 23, 2022. See ECF No. 1 ¶¶ 2, 4-5. Plaintiff served the

summons and complaint on the New York Secretary of State, which in turn mailed the summons

and complaint to CT Corporation System on August 10, 2022. See ECF No. 12-3 at 3 (ECF

Pagination). CT Corporation System served the summons and complaint on Defendant Clean

Harbors, a foreign corporation authorized to conduct business in New York, on August 17, 2022.

See id. at 1 (ECF Pagination); ECF No. 2 ¶ 5.

On September 6, 2022, 20 days after Defendant Clean Harbors received the pleadings,

Defendants filed a notice of removal, removing the action to this Court on the ground of alleged

diversity jurisdiction. See id. ¶¶ 15, 17-20. The notice of removal states that Defendant Worsley

“consents to removal pursuant to 28 U.S.C. § 1446(b)(2)(C).” See id. ¶ 13. Plaintiff filed his

motion to remand on the grounds that the notice of removal was untimely and procedurally

defective, that the Defendants have failed to establish that the amount in controversy exceeds

$75,000, and that the doctrine of forum non conveniens warrants remand. See ECF No. 9-1.

II. Legal Standards

a. Removal Generally

“[A]ny civil action brought in a State court of which the district courts of the United

States have original jurisdiction, may be removed by the defendant or the defendants, to the

district court of the United States for the district and division embracing the place where such

action is pending.” 28 U.S.C. § 1441(a). District courts “construe the removal statute narrowly,

resolving any doubts against removability.” Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213

(2d Cir. 2013) (quoting Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)). The

removing party has the burden of proving that jurisdiction is timely and proper. See

Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000); Winter v. Novartis

Pharm. Corp., 39 F. Supp. 3d 348, 350 (E.D.N.Y. 2014).

The notice of removal must contain “a short and plain statement of the grounds for

removal, together with a copy of all process, pleadings, and orders served upon such defendant

or defendants in such action.” 28 U.S.C. § 1446(a). Most courts hold that the failure to include

documents from the state court record is a mere procedural defect, not a jurisdictional defect

requiring remand. See Vitiello v. Contracting, No. 15 Civ. 4635 (RRM) (CLP), 2016 WL

1239259, at *3 (E.D.N.Y. Mar. 29, 2016); Osmose Utilities Servs., Inc. v. Hish, No. 13 Civ.

310S, 2013 WL 1625408, at *4 (W.D.N.Y. Apr. 15, 2013); Rocha v. Brown & Gould, LLP, 61

F. Supp. 3d 111, 113 (D.D.C. 2014) (collecting cases).

The notice of removal must be filed “within thirty days after the receipt by the defendant,

through service or otherwise, of a copy of the initial pleading setting forth the claim for relief

upon which such action or proceeding is based.” 28 U.S.C. § 1446(b). “[I]f the case stated by

the initial pleading is not removable, a notice of removal may be filed within 30 days after

receipt by the defendant, through service or otherwise, of a copy of an amended pleading,

motion, order or other paper from which it may first be ascertained that the case is one which is

or has become removable.” 28 U.S.C. § 1446(b)(3)). In the Second Circuit, “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); Artists Rights Enf’t Corp. v. Jones, 257 F. Supp. 3d 592, 595-96 (S.D.N.Y. 2017)

(“the specified time for removability begins to run upon the serving of a pleading stating the

exact monetary value in damages”) (emphasis added).

“When service of process is made upon a statutory agent rather than on the defendant

personally, the thirty-day period during which the defendant may remove the case does not begin

with service upon the agent, but rather, when the defendant receives personal service of the

summons and complaint.” Fernandez v. Hale Trailer Brake & Wheel, 332 F. Supp. 2d 621, 624

(S.D.N.Y. 2004); see Boone v. Thane, No. 07 Civ. 4358 (SLT) (VVP), 2009 WL 910556, at *3

(E.D.N.Y. Mar. 31, 2009) (removal timely where defendants removed the case more than 30

days after plaintiffs served the Secretary of State, but less than 30 days after defendants received

the pleadings from the Secretary of State).

Within the 30-day window, “‘all defendants who have been properly joined and served

must join in or consent to the removal of the action’ [under] the so-called rule of unanimity.”

Taylor v. Medtronic, Inc., 15 F.4th 148, 150 (2d Cir. 2021) (citing 28 U.S.C. § 1446(b)(2)(A)

and 28 U.S.C. § 1446(b)(2)(B)). “[T]o comply with the rule of unanimity, ‘each defendant must

submit written consent unambiguously agreeing to removal.’” Doe v. Warner, No. 23 Civ. 862

(DLI) (ARL), 2023 WL 2349914, at *4 (E.D.N.Y. Mar. 3, 2023). “If defendants are served at

different times, and a later-served defendant files a notice of removal, any earlier-served

defendant may consent to the removal even though that earlier-served defendant did not

previously initiate or consent to removal.” 28 U.S.C. §1446(b)(2)(C). The unanimity rule is

satisfied where defendants who did not initiate the removal “either sign the notice of removal or

subsequently provide the Court with their unambiguous written consent to removal within the

thirty-day period.” Warner, 2023 WL 2349914, at *4 (quoting Metro. Transp. Auth. v. U.S. Fid.

& Guar. Co., No. 14 Civ. 9059 (PAE), 2015 WL 1730067, at *4 (S.D.N.Y. Apr. 14, 2015)).

b. Diversity Jurisdiction

District courts have original jurisdiction where there is diversity of citizenship between

the parties and an amount in controversy exceeding $75,000. 28 U.S.C. § 1332. “A party

invoking the jurisdiction of the federal court has the burden of proving that it appears to a

‘reasonable probability’ that the claim is in excess of the statutory jurisdictional amount.”

Tongkook Am. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (quoting Moore v.

Betit, 511 F.2d 1004, 1006 (2d Cir. 1975)). “Where the pleadings themselves are inconclusive as

to the amount in controversy, however, federal courts may look outside those pleadings to other

evidence in the record.” United Food & Commercial Workers Union, Local 919 v. Centermark

Props. Meriden Square, 30 F.3d 298, 305 (2d Cir. 1994).

Although a plaintiff’s refusal to stipulate damages of less than $75,000 does not alone

satisfy the defendant’s burden to establish the adequate amount in controversy, see Feliciano v.

Target Corp., No. 19 Civ. 2706 (DLI) (RLM), 2019 WL 2210739, at *2 (E.D.N.Y. May 21,

2019), such a refusal may weigh in favor of finding federal jurisdiction. See Yong Qin Luo v.

Mikel, 625 F.3d 772, 776 (2d Cir. 2010). In Yong Qin Luo, the plaintiff’s complaint did not

specify the amount of damages sought, and the plaintiff did not serve the defendant with any

other paper specifying her damages. Id. at 775. At an initial conference before the district court,

the plaintiff declined to limit her damages to $75,000 or less, and shortly after the conference,

the plaintiff made an oral settlement demand of $600,000. Id. The Second Circuit accepted the

plaintiff’s refusal to limit damages, coupled with the $600,000 settlement demand, sufficient to

find that the amount in controversy requirement was met at the time of removal. Id. at 775-76;

see Felipe v. Target Corp., 572 F. Supp. 2d 455, 459 (S.D.N.Y. 2008) (by refusing to stipulate to

damages of less than $75,000 and by representing to the court during a conference that damages

would exceed $75,000, the plaintiff effectively conceded that the amount in controversy satisfied

Section 1332(a)(1)).

c. Forum Non Conveniens

“The doctrine of forum non conveniens is a discretionary device permitting a court in rare

instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over

the claim.” Carey v. Bayerische Hypo-Und Vereinsbank AG, 370 F.3d 234, 237 (2d Cir. 2004)

(internal quotation marks omitted). The defendant, not the plaintiff, is the proper party to assert

forum non conveniens in the context of motions to dismiss. See Iragorri v. United Techs. Corp.,

274 F.3d 65, 71 (2d Cir. 2001) (holding that “a court reviewing a motion to dismiss for forum

non conveniens should begin with the assumption that the plaintiff’s choice of forum will stand”

unless the defendant meets its burden under the forum non conveniens doctrine).

III. Analysis

Defendants have met their burden of establishing that removal is proper. First,

Defendants timely filed their notice of removal. Defendants have put forth evidence that

Defendant Clean Harbors received the initial pleadings from the Secretary of State on August 17,

2022. See ECF No. 12-3. Defendants’ September 6, 2022 removal was therefore timely,

because it was filed within 30 days of receipt of the pleadings. See Boone, 2009 WL 910556, at

*3; 28 U.S.C. § 1446(b).

Second, there are no procedural or jurisdictional defects necessitating remand.

Defendants satisfied the rule of unanimity because the notice of remand was filed on behalf of

both Defendant Worsley and Defendant Clean Harbors, who are represented by the same

counsel. See ECF No. 12-2 at 1, 5; Warner, 2023 WL 2349914, at *4 (unanimity rule satisfied

where non-initiating defendant signs the notice of removal). The joint filing is a statement of

joint consent to the removal. Further, any failure on Defendants’ part to include affidavits of

service with the notice of removal does not warrant remand. The statute requires only that the

notice of removal include “a copy of all process, pleadings, and orders served upon” the

defendant. See 28 U.S.C. § 1446(a) (emphasis added). Plaintiff does not argue that he served

the affidavits of service on Defendants and has not demonstrated any procedural deficiency

arising from their omission. Even if he had, an omission of state court papers does not constitute

a jurisdictional defect necessitating remand and is instead a procedural defect that can be cured

in the federal court. See Vitiello, 2016 WL 1239259, at *3.

Third, diversity jurisdiction is present. Plaintiff does not dispute that diversity of

citizenship exists, but challenges diversity jurisdiction on the basis that Defendants have not

established that the amount in controversy exceeds $75,000. See ECF No. 9-1 at 8-12.

Defendants have carried their burden of establishing a reasonable probability that the amount in

controversy exceeds $75,000. During a telephone conference before this Court, Plaintiff’s

counsel confirmed on the record both (1) that Plaintiff refused to stipulate to cap damages at

$75,000 in exchange for Defendants’ withdrawal of the notice of removal; and (2) that Plaintiff’s

initial settlement demand would exceed $75,000. 10/4/2022 Conf. Transcript, ECF No. 15 at

4:12-20; 7:18-23. Although Plaintiff did not trigger the removal clock by serving Defendants

with a paper “explicitly [specifying] the amount of monetary damages sought,” Moltner, 624

F.3d at 38, Plaintiff’s statements on the record are sufficient to satisfy the amount-in-controversy

requirement notwithstanding the absence of an express written calculation of damages. See

Yong Qin Luo, 625 F.3d at 776; Felipe, 572 F. Supp. 2d at 459.

Moreover, Plaintiff alleges, inter alia, that he suffered serious injuries, causing him to “be

for a long time confined to his bed and home”; that he expended “large sums of money for

medical care and attention”; and that he lost wages and missed time from work. ECF No. 1-1

¶ 22. Plaintiff’s counsel represented that Plaintiff has already received a lumbar epidural

injection, and “is still undergoing medical treatment here and there.” ECF No. 15 at 15:12-19.

The Court finds that the record shows a reasonable probability that the amount in controversy

exceeds $75,000.

Finally, Plaintiff’s forum non conveniens argument fails. Forum non conveniens is not

properly asserted by a plaintiff on a motion to remand, but by a defendant on a motion to

dismiss. See Iragorri, 274 F.3d at 71. Regardless, Plaintiff has not argued that it would be more

convenient for him to litigate in the Supreme Court of New York, Queens County than this

Court.2 See ECF No. 9-1 at 13.

IV. Conclusion

For the foregoing reasons, Plaintiff’s motion to remand is denied.

Dated: Brooklyn, New York

March 30, 2023

Vera M. Scanlon

VERA M. SCANLON

United States Magistrate Judge

2 Plaintiff has not responded to Defendants’ arguments related to forum non conveniens in his

reply. See ECF No. 14.