Opinion

Brown v. Richer-Guinard

Court
District Court, S.D. New York
Filed
Jun 1, 2020
Cited by
0 cases
Authority
More cited than 27.1%

The opinion

Se

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT DOC #: □□

SOUTHERN DISTRICT OF NEW YORK DATE FILED: 6/1/2020

Shana L. Brown,

Plaintiff,

19-CV-5914 (AJN)

~ MEMORANDUM

Samuel Richer-Guinard, et al., AND ORDER

Defendants.

ALISON J. NATHAN, District Judge:

Plaintiff Shana L. Brown brings this personal injury action against Defendants Samuel

Richer-Guinard and Government Employees Insurance Company (“GEICO”). Now before the

Court is Plaintiff's motion to remand this case back to state court. Dkt. No. 5. For the reasons

articulated below, Plaintiff's motion to remand is denied.

I. BACKGROUND

This personal injury action arises out of a car accident that allegedly occurred on July 21,

2016. See Amended Complaint, Dkt. No. 1-2, 4 11. It was originally filed in New York

Supreme Court on June 25, 2018. See Affirmation in Opposition to Plaintiff's Motion for

Remand (Def. Aff-”), Exh. A, Dkt. No. 13-1. On September 19, 2018, it was removed to

federal court, but all parties stipulated to remand a few months later. See Def. Aff., Exh. F, Dkt.

No. 13-6. Back in state court, Defendant Richer-Guinard served a demand for ad damnum

pursuant to N.Y. C.P.L.R. § 3017(c). See Def. Aff., Exh. H, Dkt. No. 13-8. After being

compelled to do so by the state court, Plaintiff responded to the ad damnum demand on June 19,

2019. See Def. Aff., Exh. W, Dkt. No. 13-23. The response stated: “Plaintiff's best estimate of

her demand for damages at this time is $74,999.” Id. Defendant Richer-Guinard again filed a

notice of removal on June 24, 2019, asserting diversity jurisdiction. See Dkt. No. 1.

II. DISCUSSION

The removal statute establishes jurisdiction for civil actions “brought in a State court of

which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a).

Removal jurisdiction is “strictly construed” with “any doubts” resolved “against removability.”

In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007)

(quotation omitted). Defendants may file a notice of removal “within thirty 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). Here, the underlying basis for jurisdiction is diversity.

There are two requirements: that the parties be “citizens of different States” and that the amount

“in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.” 28 U.S.C.

§ 1332(a). Plaintiff first argues that the amount in controversy requirement is not met in this

case.

Defendants, as the proponents of jurisdiction, must “prov[e] that it appears to a

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

United Food & Commercial Workers Union, Local 919, AFL-CIO v. Center Mark Props.

Meriden Square, Inc., 30 F.3d 298, 305 (2d Cir. 1994) (quotation omitted). Furthermore,

Defendants must “justify [their] allegations by a preponderance of evidence.” Id. (quotation

omitted). In a case seeking monetary damages, when “the State practice either does not permit

demand for a specific sum [in the initial pleading] or permits recovery of damages in excess of

the amount demanded,” then “the notice of removal may assert the amount in controversy.” 28

U.S.C. § 1446(c)(2)(A)(ii). This is the case for New York personal injury actions. See Yong Qin

Luo v. Mikel, 625 F.3d 772, 775 (2d Cir. 2010) (citing N.Y. C.P.L.R. § 3017(c)). New York law

does not permit a complaint in a personal injury case to demand a specific amount, allowing only

a supplemental demand for total damages, which itself does not limit the potential recovery. See

N.Y. C.P.L.R. § 3017(a), (c).

Here, Plaintiff’s own supplemental demand for damages “estimate[s]” that, “at this time,”

she is seeking “$74,999.” See Def. Aff., Exh. W, Dkt. No. 13-23. Even when a plaintiff’s

demand is not controlling, see 28 U.S.C. § 1446(c)(2)(A)(ii), it can still be relevant in

determining the amount in controversy. See Yong Qin Luo, 625 F.3d at 775-76. In a personal

injury action, whenever Plaintiff estimates damages to be $74,999, there will usually be a

reasonable probability that the amount in controversy in fact exceeds $75,000. Damages in

personal injury actions typically cannot be approximated with precision. This is not a case where

the plaintiff limited herself by binding stipulation to seeking less than $75,000. See, e.g.,

Lippmann v. Wells Fargo Bank, N.A., , No. 3:17-cv-918, 2019 U.S. Dist. LEXIS 32826, at *4-*5

(D. Conn. Mar. 1, 2019); Poole v. J B Hunt Transp., Inc., No. 18-cv-1354, 2018 U.S. Dist.

LEXIS 89194, at *3 (E.D.N.Y. May 25, 2018). That the reasonable probability that the amount

in controversy exceeds $75,000 is reinforced by Defendants’ own estimation of the possible

recovery in this case. See United Food, 30 F.3d at 305. Based on the Plaintiff’s earnings and

bill of particulars, there is certainly a reasonable probability that the amount in controversy

exceeds $75,000. See Def. Aff., Exhs. P, Z, Dkt. Nos. 13-16 , 13-26. Accordingly, Defendants

have carried their burden on the amount in controversy.

Defendants have also proved that the requirement of complete diversity is satisfied. In

her motion, Plaintiff claims “on information and belief” that Defendant GEICO is, like her, a

citizen of New York. However, based on the declaration attached to GEICO’s opposition,

Defendants have proven that GEICO is a Maryland corporation with a principal place of business

in Maryland, therefore making it a citizen of Maryland for diversity purposes. See Declaration

of William C.E. Robinson, Dkt. No. 11-1. Because Plaintiff is a citizen of New York and

Defendant Richer-Guinard is a citizen of Canada, there is complete diversity in this case.

CONCLUSION

For the reasons articulated above, Plaintiff's motion to remand is denied. The Court

hereby reschedules the initial pre-trial conference for July 10, 2020 at 3:15 p.m. One week in

advance of the conference, the parties should submit the joint letter and proposed case

management plan described in the Court’s August 28, 2019 order. See Dkt. No. 10.

This resolves Dkt. No. 5.

SO ORDERED.

Dated: June _1 __, 2020 AM i i

New York, New York

ALISONJ.NATHAN

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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