Efeturk v. Amazon.com Services, LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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YASEMIN EFETURK, :

:

Plaintiff, :

:

-against- : MEMORANDUM & ORDER

: OF REMAND

AMAZON.COM SERVICES, LLC, : 23-cv-2861(DLI)(VMS)

AMAZON.COM, INC., AMAZON :

LOGISTICS, INC., and KYLE A. REAVES, :

:

Defendants. :

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DORA L. IRIZARRY, United States District Judge:

On March 21, 2023, Yasemin Efeturk (“Plaintiff”) filed a verified complaint (“Complaint”)

in New York State Supreme Court, Kings County (“state court”) against Amazon.com Services,

LLC, Amazon.com, Inc., Amazon Logistics, Inc. (together, “Amazon Defendants”), and Kyle

Reaves (“Defendant Reaves” and, collectively with the Amazon Defendants, “Defendants”),

alleging state law tort claims in connection with an auto collision. See, Complaint (“Compl.”),

Dkt. Entry No. 1-2. On April 18, 2023, the Amazon Defendants 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”), Dkt. Entry No. 1, ¶¶ 1, 12, 18.

While a review of the state court docket shows that Defendant Reaves was served with the

summons and Complaint four days before the Amazon Defendants removed the action to this

Court, Plaintiff did not file proof of such service on Defendant Reaves in state court until after

removal. See, Efeturk v. Amazon.com Svcs, LLC, et al., Index No. 508571/2023, at Dkt. Entry No.

10 (N.Y. Sup. Ct. Kings Cnty. 2023) (showing that affirmation of service, which establishes that

Defendant Reaves was served with the summons and Complaint on April 14, 2023, was filed in

state court on April 18, 2023 at 11:39 AM, 19 minutes after the Amazon Defendants removed the

action to this Court); Notice ¶ 4 (alleging, at the time of removal, that “no Affidavit of Service

ha[d] been filed with the [state court] for [Defendant] Reaves”). To date, Defendant Reaves has

not appeared in this action and there has been no indication from any party as to whether he

consents to removal.

On April 25, 2023, the Amazon Defendants filed an answer to the Complaint and asserted

cross-claims against Defendant Reaves for indemnification, contribution, and breach of contract.

See, Answer, Dkt. Entry No. 9. 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 lack of subject matter

jurisdiction.

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),

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, at any time, to

remand a case sua sponte upon a finding that it lacks subject matter jurisdiction. See, Mitskovski

v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131, 133-34 (2d Cir. 2006) (citing Bender

v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)). 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).

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) the amount in controversy exceeds the $75,000

jurisdictional threshold, exclusive of costs and interest; and (2) there is complete diversity of

citizenship of the parties. Id. Here, the Court finds that the Amazon Defendants have failed to

meet their burden of establishing either jurisdictional requirement, warranting remand.

I. 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). “[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, the

Amazon Defendants have failed to establish that the amount in controversy requirement is met

and, thus, have not established this Court’s subject matter jurisdiction, warranting remand.

The Amazon Defendants rely entirely on allegations provided in the Complaint to support

their assertion that the amount in controversy requirement is satisfied. See, Notice ¶ 18 (“Based

on Plaintiff’s allegations, the amount in controversy does exceed the jurisdictional minimum of

$75,000.00 required for diversity jurisdiction pursuant to 28 U.S.C. § 1332.”) However, the

Amazon Defendants “‘cannot meet [their] burden by relying on inferences drawn from the

Complaint, because the Complaint does not allege a damages amount.’” See, Lachmanaya v.

Rocky Towing, LLC, et al, 2023 WL 2329855, at *4 (E.D.N.Y. Mar. 2, 2023) (quoting Herrera v.

Terner, 2016 WL 4536871, at *2 (E.D.N.Y. Aug. 30, 2016)). Nonetheless, and to the Amazon

Defendants’ detriment, the Notice contains nothing more than a regurgitation of conclusory

allegations from the Complaint that state Plaintiff’s alleged injuries and damages in generalized,

boilerplate terms.

Primarily, the Amazon Defendants rely on the fact that Plaintiff alleges that she “suffered

‘serious injuries’ as defined in § 5102(d) of the Insurance Law of the State of New York” and

“sustained serious injuries and economic loss greater than the ‘basic economic loss’” as defined

by § 5102 of the Insurance Law. Notice ¶¶ 20, 22 (citing Compl. ¶¶ 62, 64). According to the

Amazon Defendants, § 5102 of the New York Insurance Law defines “basic economic loss” as

“up to fifty thousand dollars [($50,000.00)] per person” and, therefore, “Plaintiff’s Complaint

seeks economic damages in excess of $50,000.” Id. ¶¶ 23-24. They allege that, “[a]s such, the

nature of Plaintiff’s alleged injuries, and the value of her claimed economic and noneconomic

damages place more than $75,000 in controversy.” Id.

As an initial matter, “courts do not assume that ‘a personal injury claim alleging damages

in an unspecified amount over $50,000…exceed[s] the $75,000 statutory jurisdictional

threshold[.]’” Burrell-Hamilton v. Oden, 2018 WL 11449490, at *4, n.5 (S.D.N.Y. Feb. 12, 2018)

(quoting Kaur v. Levine, 2007 WL 210416, at *2 (E.D.N.Y. Jan. 26, 2007)); See, Johnson-Kamara

v. W. Chacon Trucking, 2006 WL 336041, at *2 (S.D.N.Y. Feb. 9, 2006) (explaining, in the context

of analyzing allegations made pursuant to the New York Insurance Law, that a demand for

“damages somewhere in excess of $50,000…does not get us to $75,000.01”). Moreover, 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.’” See, Doe

v. Warner, 2023 WL 2349914, at *4 (E.D.N.Y. Mar. 3, 2023) (quoting Herrera, 2016 WL

4536871, at *2); Islam v. Hertz Vehicles, 2020 WL 5893965, at *2 (E.D.N.Y. Oct. 5, 2020)

(collecting cases). As such, the Court is left to guess at the amount in controversy based on the

Complaint’s boilerplate language concerning Plaintiff’s injuries and damages, which the Amazon

Defendants merely repeat in the Notice. See, Notice ¶ 19 (repeating Plaintiff’s allegations that she

“‘was caused to suffer severe and serious personal injuries[,]…was subjected to great physical

pain and mental anguish[,]…was ‘severely injured, bruised and wounded, some of which injuries

are permanent[,]…suffers and will continue to suffer for some time physical pain and bodily

injuries[,] and became sick, sore, lame and disabled’”) (quoting Compl. ¶¶ 57, 61); Id. ¶ 20-22

(repeating allegations regarding Article 51 of the New York Insurance Law) (quoting Compl. ¶¶

62, 64).

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. Jan. 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, Islam, 2020 WL 5893965, at *2 (finding general allegations that plaintiff

“sustained serious injuries and economic loss greater than basic economic loss” as defined by New

York Insurance Law insufficient to support amount in controversy); Valente v. Garrison From

Harrison LLC, 2016 WL 126375, at *2 (E.D.N.Y. Jan. 11, 2016) (remanding case because

“[c]omplaint’s boilerplate allegations that [p]laintiff ‘sustained severe personal injuries, was

rendered sick, sore, lame and disabled, required medical attention, suffered pain, will continue to

suffer and will require medical attention in the future’” were insufficient to establish amount in

controversy).

It bears noting that Plaintiff also alleges that she “is entitled to damages in the sum which

exceeds the sum or value established by 28 USC § 1332(a) exclusive of interests and costs.” See,

Compl. ¶¶ 72, 112. However, to the extent Plaintiff is alleging that she is entitled to damages in

excess of the $75,000 jurisdictional threshold established by 28 USC § 1332(a), this allegation is

wholly conclusory. Accordingly, it does not provide the Court with any additional basis for

determining whether there is a reasonable probability that the amount in controversy exceeds

$75,000. Accordingly, the Court finds that the Amazon Defendants have failed to establish with

reasonable probability that the amount in controversy requirement is met for purposes of

establishing diversity jurisdiction, warranting remand.

Significantly, the Amazon Defendants were 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). The Amazon Defendants “could have availed [themselves] 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.’” See, Warner, 2023 WL 2349914, at *4 (quoting N.Y. C.P.L.R. § 3017(c)). 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, instead of removing the action to this Court prematurely, the Amazon Defendants

could, and should, have availed themselves of this mechanism. See, e.g., Warner, 2023 WL

2349914, at *4 (finding removal of state action "premature" where defendant “failed to avail

himself of” N.Y. C.P.L.R. § 3017(c) to determine the amount of damages plaintiff sought before

removing); Cadmen v. CVS Albany, L.L.C., 2022 WL 138056, at *2 n. 2 (E.D.N.Y. Jan. 14, 2022)

(same); Herrera, 2016 WL 4536871, at *2 (same). Having failed to do so, the Amazon Defendants

“‘proceed[ed] at [their] peril’ in removing this case and ‘simply presuming that [their] allegations

[would] be deemed sufficient with respect to the required amount in controversy.’” See, Warner,

2023 WL 2349914, at *4 (quoting Cavaleri, 2021 WL 951652, at *3 (collecting cases)).

II. Diversity of Citizenship Requirement

While the Amazon Defendants’ failure to establish the amount in controversy alone is

sufficient to warrant remand, the Court notes that the Amazon Defendants also have failed to

establish diversity of citizenship because they did not allege adequately Plaintiff’s citizenship.

“[A]n individual’s citizenship for diversity purposes is determined by his or her domicile, not his

or her residence.” Century Metal Recycling, Pvt. Ltd. v. Dacon Logistics, LLC, 2013 WL 5929816,

at *2 (D. CT. Nov. 4, 2013) (citing Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir. 2000)). Indeed,

“[a]llegations of residency alone cannot establish citizenship.” Canedy v. Liberty Mutual Ins. Co.,

126 F.3d 100, 103 (2d Cir. 1997); See also, Adrian Family Partners I, L.P. v. ExxonMobil Corp.,

79 F. App’x 489, 491 (2d Cir. 2003) (“It is well established that [a] statement of residence, unlike

domicile, tells the court only where the parties are living and not of which state they are citizens.”)

(internal citations and quotation marks omitted). Here, the Amazon Defendants allege that

“[c]omplete diversity of citizenship exists” because “Plaintiff alleges that she is an individual

residing in the State of New York” and “the properly joined Amazon defendants are citizens of a

different state than Plaintiff.” Notice ¶¶ 12, 13. These allegations are insufficient to establish

Plaintiff’s citizenship.

First, as noted above, allegations of residence alone are insufficient to establish citizenship

and the allegations in the Notice and Complaint are otherwise silent as to Plaintiff’s citizenship or

domicile. Second, “allegations that a party is a citizen of a different state, or that none of the

[defendants] are citizens of the same state as the plaintiff,” are “entirely conclusory” and “[d]istrict

courts in this Circuit regularly hold” that such allegations “are insufficient to invoke diversity

jurisdiction.” See, Carter v. HealthPort Techs., LLC, 822 F.3d 47, 60 (2d Cir. 2016); Ocean Units

LLC v. Illinois Union Ins. Co., 528 F. Supp.3d 99, 102-03 (E.D.N.Y. 2021) (collecting cases)

(“‘The decisions of [the Supreme Court] require, that the averment of jurisdiction shall be

positive[.]’”) (quoting Brown v. Keene, 33 U.S. 112, 114 (1834)). Thus, this Court lacks subject

matter jurisdiction for the additional reason that the Amazon Defendants have failed to establish

Plaintiff’s citizenship, warranting remand.1 See, Hines v. Azoth Investment SPC Ltd., 2022 WL

683996, at *2 (SDNY March 8, 2022) (remanding action where removing party failed to

demonstrate complete diversity of citizenship and explaining that Second Circuit law clearly

permits a district court to do so).

It bears noting that the Amazon Defendants also failed to comply with the recently enacted

1 While, as mentioned above, Defendant Reaves neither has appeared in this action nor indicated whether he consents

to removal, it bears noting that the Amazon Defendants also failed to establish Defendant Reaves’ citizenship. The

Amazon Defendants allege that Defendant Reaves, who is an individual, “is a resident of the State of New Jersey”

and “is therefore not a citizen of New York.” Notice ⁋ 17 (citing Compl. ⁋ 2). However, for the reasons set forth

above, these allegations are insufficient to establish an individual’s citizenship. See, Canedy, 126 F.3d at 103

(explaining that “[a]llegations of residency alone cannot establish citizenship”); Carter, 822 F.3d at 60 (explaining

that an allegation that defendant “is a citizen of a different state” than plaintiff “is insufficient to show that the diversity

requirement is met”).

Fed. R. Civ. P. 7.1(a)(2), which states that “[i]n an action in which jurisdiction is based on diversity

under 28 U.S.C. § 1332(a),” a party “must, unless the court orders otherwise, file a disclosure

statement” which “must name[,] and identify the citizenship of[,] every individual or entity whose

citizenship is attributed to that party” at the time the action is “filed in or removed to federal court.”

Fed. R. Civ. P. 7.1(a)(2). Furthermore, a party must file the disclosure statement “with its first

appearance, pleading, petition, motion, response, or other request addressed to the court[.]” Fed.

R. Civ. P. 7.1(b). While the Amazon Defendants filed a disclosure statement pursuant to Fed. R.

Civ. P. 7.1(a)(1), which requires a corporate party to file a disclosure statement identifying “any

parent corporation and any publicly held corporation owning 10% or more of its stock,” they did

not file a disclosure statement in compliance with Fed. R. Civ. P. 7.1(a)(2). See, Corp. Discl.

Stmt., Dkt. Entry No. 4.

CONCLUSION

For the reasons set forth above, this case is remanded for lack of subject matter jurisdiction

to New York State Supreme Court, Kings County, under Index No. 508571/2023, for further

proceedings.

SO ORDERED.

Dated: Brooklyn, New York

May 2, 2023

/s/

DORA L. IRIZARRY

United States District Judge