# Myres v. Speedway LLC

> District Court, E.D. New York · September 19, 2023

URL: https://www.frixlaw.com/law-library/cases/10310569

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 19, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MALIK MYRES, :
Plaintiff, :
: MEMORANDUM & ORDER
-against- : OF REMAND
: 23-cv-5232(DLI)(MMH)
SPEEDWAY, LLC, :
Defendant. :
------------------------------------------------------x
DORA L. IRIZARRY, United States District Court Judge:
On June 15, 2023, Malik Myres (“Plaintiff”) filed this personal injury action in New York
State Supreme Court, Kings County (“state court”) against Speedway LLC (“Defendant”), alleging
state law tort claims in connection with a trip and fall accident. See, Complaint (“Compl.”), Dkt.
Entry No. 1-1. On July 10, 2023, Defendant removed the action to this Court, invoking this Court’s
diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). See, Removal Notice (“Notice”), Dkt. Entry
No. 1, ¶ 4. 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.
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).
Where, as here, a defendant removes 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). “Such requirements include
establishing that the amount in controversy exceeds the $75,000 jurisdictional threshold mandated
by 28 U.S.C. § 1332(a).” Franco v. Marina Dev. Co., 2022 WL 13685450, at *1 (E.D.N.Y. Oct.
21, 2022) (citing Lupo, 28 F.3d at 273-74). Particularly, 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 quotation
marks and citations omitted). Here, as explained below, Defendant has failed to establish that the
amount in controversy requirement is met, warranting remand.
As an initial matter, Defendant “cannot meet [its] 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) (internal quotation
marks and citations omitted). Indeed, Defendant acknowledges that “[the] Complaint does not
specify the amount of damages.” Notice ¶ 8. Instead, Defendant contends that “[the] amount in
controversy exceeds the $75,000.00 threshold” because defense counsel “spoke with [P]laintiff’s
counsel…who advised that [P]laintiff fractured his finger in the accident and underwent open
reduction internal fixation surgery” and would not “agree to cap damages at $75,000.00.” Id.
However, “the fact that a plaintiff will not stipulate to damages of less than $75,000” or
agree to “a $75,000 damages cap” does not “alone compel a conclusion that the actual amount in

controversy is more than $75,000[.]” See, Price v. PetSmart, Inc., 148 F. Supp.3d 198, 201-02 (D.
CT. 2015); CG by Georges v. Target Corp., 2022 WL 15497124, at *2 (E.D.N.Y. Oct. 27, 2022).
District courts in this Circuit repeatedly have declined to find the amount in controversy
requirement satisfied based on allegations of a plaintiff’s refusal to cap damages at $75,000 or less.
See, e.g., Ma v. United Rentals, N.A., Inc., 2023 WL 4102684, at *2-4 (S.D.N.Y. June 21, 2023)
(remanding action for failure to satisfy amount in controversy where defendant alleged that
plaintiff “refused to sign a stipulation stating that his damages were $75,000 or less” and collecting
cases finding same); CG by Georges, 2022 WL 15497124, at *2 (remanding action sua sponte for
failure to satisfy amount in controversy where defendant relied “primarily on the fact that

[p]laintiffs would not stipulate to a $75,000 damages cap”).
As such, Defendant’s allegation regarding Plaintiff’s counsel’s refusal to agree to cap
damages does not suffice to satisfy its burden. This is particularly so given that Defendant
provided no evidence in writing to substantiate the allegation, instead expecting the Court to rely
on Plaintiff’s counsel’s alleged verbal statement. See, Price, 148 F. Supp.3d at 201 (remanding
action for failure to satisfy amount in controversy requirement where “defendants d[id] no more
than characterize in the vaguest of terms what they claim plaintiff's counsel told them on the
telephone” regarding her refusal to cap damages at $75,000 ”and there remain[ed] no real
underlying evidence to support an amount in controversy that is even close to $75,000”).
Moreover, and significantly, neither the Complaint nor the Notice contains sufficient
information concerning “‘the nature and extent of Plaintiff’s injuries, the treatment received, or
details regarding the other losses he purportedly suffered’” to permit this Court to draw a
reasonable inference that the amount in controversy requirement is satisfied. See, Doe v. Warner,
2023 WL 2349914, at *4 (E.D.N.Y. Mar. 3, 2023) (quoting Herrera v. Terner, 2016 WL 4536871,

at *2 (E.D.N.Y. Aug. 30, 2016)); CG by Georges, 2022 WL 15497124, at *2 (same). As such, the
Court is left to guess at the amount in controversy based on the Complaint’s boilerplate allegation
that “[P]laintiff was caused to be seriously and severely injured” and the Notice’s bare allegation
that Plaintiff’s counsel “advised that [P]laintiff fractured his finger in the accident and underwent
open reduction internal fixation surgery.” Compl. ¶ 21; Notice ¶ 8.
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, e.g., Thurlow v. Costco Wholesale Corp., 2017 WL 387087, at *2 (W.D.N.Y.
Jan. 27, 2017) (remanding case for failure to satisfy amount in controversy even though it was
alleged that plaintiff suffered fractures to specific body parts and underwent surgery); Ma, 2023
WL 4102684, at *2-4 (finding “[a]llegations of injury themselves, without any statement of
damages,” insufficient to satisfy amount in controversy requirement, even when considered with
plaintiff’s refusal to cap damages at $75,000). Accordingly, as Defendant has failed to establish
with reasonable probability that the amount in controversy requirement has been met for purposes
of establishing diversity jurisdiction, this Court lacks subject matter jurisdiction, warranting
remand.
Significantly, Defendant 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).
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.’” See, Doe,
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, Defendant could, and
should, have availed itself 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, LLC, 2022 WL 138056, at *2 n. 2 (E.D.N.Y. Jan. 14, 2022) (same). Having failed to do
so, Defendant “‘proceed[ed] at [its own] 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)).
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. 517662/2023, for further
proceedings.

SO ORDERED.

Dated: Brooklyn, New York
September 19, 2023
/s/
DORA L. IRIZARRY
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310569. Public record. Not legal advice.