Brown

United States District Court

Eastern District of New York

-----------------------------------X

Colin Brown, suing individually on

his own behalf and representatively

on behalf of a class of plaintiffs Memorandum & Order

similarly situated,

No. 22-cv-05096(KAM)(JAM)

Plaintiff,

- against -

The Allstate Corporation, et. al.,

Defendants.

-----------------------------------X

Kiyo A. Matsumoto, United States District Judge:

Plaintiff Colin Brown (“Plaintiff” or “Brown”),

individually and on behalf of a proposed class, asserts claims

for (1) violations of New York’s Comprehensive Motor Vehicle

Reparations Act, New York Insurance Law §§ 5101 et seq. (the

“No-Fault Claims”), (2) breach of contract, and (3) violations

of New York General Business Law § 349 (“GBL § 349”) against

Defendants Allstate Insurance Company (“Allstate Insurance”),

Allstate Fire & Casualty Insurance Company (“Allstate Fire”),

Allstate Indemnity Company (“Allstate Indemnity”), and Allstate

Property & Casualty Insurance Company (“Allstate P&C”)

(collectively, “Defendants”).1 (ECF No. 23. (“Am. Compl.”) ¶¶

41-54.)

On July 29, 2024, Brown moved to certify the class. (ECF

No. 38.) Attached to Brown’s motion for class certification was

an expert report which estimated total class damages of

$2,368,763. (ECF No. 38-3 at 7.) On September 25, 2024,

Defendants requested a pre-motion conference in anticipation of

a motion to dismiss the case for lack of subject matter

jurisdiction. (ECF No. 40.) On October 2, 2024, the Court held

a pre-motion conference on Defendants’ anticipated motion to

dismiss. (Minute Entry dated Oct. 2, 2024.) In light of

concerns over whether the amount in controversy requirement was

satisfied, the Court stayed the briefing schedule on Brown’s

motion for class certification until the jurisdictional issues

were resolved. (Id.) On December 3, 2024, Judge Marutollo held

a discovery conference and permitted Brown to obtain

jurisdictional discovery from Allstate Insurance and Allstate

Fire regarding the relationship among the various Allstate

entities. (Minute entry dated Dec. 3, 2024.)

1 Pursuant to the Parties’ March 21, 2025 Stipulation of Dismissal, the

following entities were dismissed from this action leaving only Allstate

Insurance, Allstate Fire, Allstate Indemnity, and Allstate P&C: Deerbrook

Insurance Company; The Allstate Corporation; Allstate New Jersey Property &

Casualty Insurance Company; Allstate New Jersey Insurance Company; Allstate

County Mutual Insurance Company; Allstate Northbrook Indemnity Company;

Allstate Vehicle and Property Insurance Company; Encompass Holdings, LLC;

Encompass Insurance Company; Encompass Indemnity Company; Esurance Insurance

Company; Esurance Property and Casualty Insurance Company. (ECF No. 54.)

On May 30, 2025, Defendants moved to dismiss pursuant to

Fed. R. Civ. P. (“Rule”) 12(b)(1) for lack of subject matter

jurisdiction on two bases: (i) Plaintiff’s lack of standing

against all Defendants except Allstate Fire, which issued and

decided Brown’s claims under his Allstate Fire insurance policy,

and (ii) Plaintiff’s failure to meet the $5,000,000 amount-in-

controversy requirement for jurisdiction under the Class Action

Fairness Act (“CAFA”), 28 U.S.C. 1332(d)(2)(A). (ECF No. 57-1,

“Mot.” at 6-16.)

Before the Court are: (1) Magistrate Judge Marutollo's

Report and Recommendation (ECF No. 58 (“R&R”)), dated September

5, 2025, recommending that Defendants’ motion to dismiss be

granted in its entirety; (2) Brown's objections to the R&R (ECF

No. 59 (“Pl. Objs.”)); and (3) Defendants’ responses to

Plaintiff's objections (ECF No. 61 (“Defs. Resp.”).) For the

reasons stated below, upon de novo review, the Court adopts

Magistrate Judge Marutollo's thorough, meticulous and well-

reasoned R&R in its entirety.

BACKGROUND AND FACTS

The Court assumes the parties’ familiarity with the

extensive facts thoroughly recounted in the R&R. (See generally

R&R.) For present purposes, the Court reiterates only the

procedural background and facts relevant to Plaintiff’s

objections.

On September 5, 2025, Magistrate Judge Marutollo issued his

R&R to this Court. For the reasons set forth in the R&R, he

recommends that Defendants’ motion to dismiss be granted in its

entirety. (R&R at 22.)

On September 19, 2025, Brown timely filed five objections

to Magistrate Judge Marutollo's R&R. (ECF No. 59.) On October

3, 2025, Defendants timely filed their responses to the

Plaintiff’s objections. (ECF No. 61.)

LEGAL STANDARD

When a party objects to an R&R, the Court must review de

novo those recommendations in the R&R to which the party

objects. See Rule 72(b)(3); United States v. Male Juvenile, 121

F.3d 34, 38 (2d Cir. 1997). Where a party does not object to a

portion of the R&R, the Court “‘need only satisfy itself that

there is no clear error on the face of the record.’” Galvez v.

Aspen Corp., 967 F. Supp. 2d 615, 617 (E.D.N.Y. 2013) (quoting

Reyes v. Mantello, No. 00-cv-8936, 2003 WL 76997, at *1

(S.D.N.Y. Jan. 9, 2003)). The Court may “accept, reject, or

modify the recommended disposition; receive further evidence; or

return the matter to the magistrate judge with instructions.”

Rule 72(b)(3); see also 28 U.S.C. § 636(b)(1).

Objections “must be specific and clearly aimed at

particular findings in the magistrate judge's proposal.” Green

v. Dep’t of Educ. of City of N.Y., No. 18-CV-10817 (AT)(GWG),

2020 WL 5814187, at *2 (S.D.N.Y. Sept. 30, 2020) (quoting

McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009));

Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y.

Mar. 4, 2002) (“Parties filing objections to recommendations are

required to pinpoint specific portions of the report and

recommendations to which they object.”(citation modified)). If

“the [objecting] party makes only frivolous, conclusory or

general objections, or simply reiterates [the party's] original

arguments, the Court reviews the report and recommendation only

for clear error.” Velez v. DNF Assocs., LLC, No. 19-CV-11138,

2020 WL 6946513, at *2 (S.D.N.Y. Nov. 25, 2020) (quoting Chen v.

New Trend Apparel, Inc., 8 F. Supp. 3d 406, 416 (S.D.N.Y.

2014)); see also Colliton v. Donnelly, No. 07-CV-1922 (LAK),

2009 WL 2850497, at *1 (S.D.N.Y. Aug. 28, 2009), aff'd, 399 F.

App'x 619 (2d Cir. 2010) (summary order).

Even in a de novo review of a party's “specific written

objections,” however, “a district judge will nevertheless

ordinarily refuse to consider arguments, case law and/or

evidentiary material which could have been, but was not,

presented to the magistrate judge in the first instance.

Kennedy v. Adamo, No. 1:02CV01776 (ENV) (RML), 2006 WL 3704784,

at *1 (E.D.N.Y. Sept. 1, 2006), aff'd, 323 F. App'x 34 (2d Cir.

2009) (citation modified).

DISCUSSION

The Court addresses each of Brown’s objections in turn.

I. Brown’s Objection to the R&R’s Finding that Plaintiff Lacks

Standing to Sue Allstate Insurance

Brown argues that the R&R incorrectly “overlooked

stipulated facts showing that Plaintiff’s injury is directly

traceable to both Allstate Fire and Allstate Insurance.” (Pl.

Objs. at 8.) Brown relies on two facts to argue that he has

standing to sue Allstate Insurance, (Id. at 8-9): (i) Allstate

Fire’s use of a “form wage loss calculation worksheet . . .

developed by an Allstate Insurance employee,” (ECF No. 53, the

“Stip.” ¶ 8), and (ii) Allstate Insurance adjusters’

“perform[ance of] wage loss calculations for” Allstate Fire,

(Stip. ¶ 10; see also ECF No. 57-2, Ex. A, “Defs.’ Resp. to

First Interrog.” Nos. 3, 7-82.) Brown argues that Magistrate

Judge Marutollo erred in finding that Allstate Insurance and

2 Plaintiff also relies on “Defendants’ own disclosures” to

identify “Joseph Gisondi and Noe Urglies-Diaz as the ‘file

handler[s] at Allstate for Mr. Brown’s claim for First Party

Benefits.’” (Pl. Objs. at 9, 9 n.4 (quoting ECF No. 59-1,

“Defs.’ Initial Disclosures” at 4-5).) The Court does not

consider Defs.’ Initial Disclosures because the disclosures were

not before Magistrate Judge Marutollo and the Court “ordinarily

refuse[s] to consider . . . evidentiary material which could

have been, but was not, presented to the magistrate judge in the

first instance.” Kennedy v. Adamo, 2006 WL 3704784, at *1.

Even if the Court were to consider Defs. Initial Disclosures, it

would not affect the analysis because Judge Marutollo considered

and correctly determined that shared claims adjusters were

insufficient to establish that Plaintiff has standing to sue

Allstate Insurance. (See R&R 10-12.)

Allstate Fire have “nothing more than a passive parent-

subsidiary relationship.” (Pl. Objs. at 9.) Defendants respond

that the R&R correctly determined that the use of a form

worksheet and shared claims adjusters was insufficient to show

that Allstate Insurance had any determinative or coercive effect

on Allstate Fire such that Brown had standing to sue Allstate

Insurance. (Defs. Resp. 10-13.)

On de novo review, the Court finds that Brown's arguments

are unavailing because the Court agrees with the R&R’s careful

and well-reasoned determination that Plaintiff’s allegations of

Allstate Insurance’s involvement do not allege sufficient facts

to meet the “determinative or coercive effect” standard required

for Brown to establish standing to sue Allstate Insurance. (See

R&R at 9-12.)

“‘[P]laintiff[] must demonstrate standing for each claim

that [he] press[es] against each defendant.” Murthy v. Missouri,

603 U.S. 43, 61, (2024) (quoting TransUnion LLC v. Ramirez, 594

U.S. 413, 431 (2021)); see also NECA-IBEW Health & Welfare Fund

v. Goldman Sachs & Co., 693 F.3d 145 159 (2d Cir. 2012)

(“Indeed, we have said that, to establish Article III standing

in a class action . . . for every named defendant there must be

at least one named plaintiff who can assert a claim directly

against that defendant, and at that point standing is satisfied

and only then will the inquiry shift to a class action

analysis.” (citation modified)). To establish standing to

pursue claims against Allstate Insurance, Brown must show (i)

“an injury in fact”; (ii) “that the injury was likely caused by

[Allstate Insurance]”; and (iii) that the injury is redressable.

TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). At issue

here is whether Brown sufficiently alleged that his injury was

caused by and traceable to Allstate Insurance.3

Whether Brown’s injury was caused by and traceable to

Allstate Insurance turns on whether acts by Allstate Insurance

had a “‘determinative or coercive effect’” on Allstate Fire,

“who directly caused the claimed injury.” Carver v. City of

New York, 621 F.3d 221, 226 (2d Cir. 2010) (quoting Bennett v.

Spear, 520 U.S. 154, 169 (1997)). Here, Brown’s alleged injury

is the “premature exhaustion and consequent denial of a

statutory and contractual right” under Brown’s insurance policy

with Allstate Fire. Lanzillotta v. Gov't Emps. Ins. Co., No.

19-CV-1465(DLI)(JRC), 2023 WL 2652265, at *2 (E.D.N.Y. Mar. 25,

2023) (quoting Pryce v. Progressive Corp., No. 19-CV-

1467(RJD)(RER), 2022 WL 969740, at *4 (E.D.N.Y. Mar. 31, 2022)).

The Parties do not dispute that Allstate Fire issued the

relevant policy and disbursed Brown’s benefit payments. (Mot.

at 11; Opp. at 7.) Because Allstate Fire is the final actor in

3 Defendants only move to dismiss against Allstate Insurance on standing

grounds based on the traceability requirement. (ECF No. 57-5, “Opp.” at 10

n.7; Mot. 11-16.)

the chain of causation, whether Brown has standing to sue

Allstate Insurance “turns on the degree to which [Allstate

Insurance]'s actions constrained or influenced the decision of

the final actor[, Allstate Fire,] in the chain of causation.”

Carver, 621 F.3d at 226–27.

To show that a plaintiff has standing to sue a defendant

who is not the “final actor in the chain of causation,” courts

have required a showing that the “final actor” is left little

discretion or control because of the defendant’s actions. See

Carver, 621 F.3d at 226-27 (comparing Bennett, 520 U.S. at 169

with Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 28, 42–43

(1976)). In Bennett, petitioners had standing to seek judicial

review of the Fish and Wildlife Service’s “administrative

advisory opinion” even though the Bureau of Reclamation was the

“final actor” that chose to adhere to restrictions in the

Service’s advisory opinion. 520 U.S. at 168-71. The Bureau of

Reclamation was required to articulate its reasons for any

disagreement with the Service’s advisory opinion and “r[a]n[] a

substantial risk if its . . . reasons [for any disagreement]

turn[ed] out to be wrong.” Id. at 169. The Supreme Court thus

held that the Service’s advisory opinion had a “powerful

coercive effect” and played a “central role” in the Bureau’s

decision. Id.

Likewise, in Carver, the Second Circuit held Carver had

standing to sue New York City over the withholding of a portion

of his lottery winnings even though the New York State Office of

Temporary Disability Assistance (OTDA) was the final actor who

withheld half of Carver’s $10,000 lottery winnings. 621 F.3d at

225, 227. Carver had previously received public assistance from

New York City. Id. “New York law affords the State OTDA no

discretion in obtaining reimbursement of public-assistance

funds; if a public-assistance recipient wins the lottery, the

OTDA must intercept his winnings.” Id. at 227. Other than the

City’s prior provision of public assistance, there was “no other

relevant basis for State interception” of Carver’s lottery

winnings; thus, the City’s actions were a sufficient cause of

Carver’s injury to establish standing against the City. Id.

By contrast, in Simon, the Supreme Court held that

plaintiffs did not have standing to contest an IRS Revenue

Ruling “allowing favorable tax treatment to a nonprofit hospital

that offered only emergency-room services to indigents” because

“[i]t is purely speculative whether the denials [of non-

emergency-room services]... fairly can be traced to [the Ruling]

or instead result[ed] from decisions made by the hospitals

without regard to the tax implications.” 426 U.S. at 42-43. In

sum, a plaintiff does not have standing to sue a defendant who

was not the “final actor in the chain of causation,” if there

was some other reason or cause for the final actor’s alleged

commission of the relevant injury that is not attributable to

the defendant’s actions. Carver, 621 F.3d at 226-27; see also

Bennett, 520 U.S. at 169; Simon, 426 U.S. at 28, 42–43.

Plaintiff only has standing to sue Allstate Insurance if

Allstate Fire, the “final actor,” is left little discretion or

control because of the actions of Allstate Insurance. See id.

Brown relies on two facts to assert that he meets this

“determinative or coercive” standard to establish standing to

sue Allstate Insurance, (see Pl. Objs. at 8-10): (1) an Allstate

Insurance employee created a “form wage loss calculation

worksheet . . . generally used by [Allstate Fire] . . . to

calculate First Party Benefit Claims,” (Stip. ¶ 8); and (2)

adjusters employed by Allstate Insurance were involved in

adjusting Brown’s claims, (see Defs.’ Resp. to First Interrog.

Nos. 3, 7-8.)4

On de novo review, the Court agrees with the R&R’s well-

reasoned analysis that these facts are “not enough support for a

determination that Allstate Fire’s conduct was constrained or

influenced” by Allstate Insurance such that Brown has standing

4 In deciding the Defendants’ motion to dismiss pursuant to Rule

12(b)(1), the Court may consider stipulations and interrogatory

answers. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167,

170 (2d Cir. 2008), aff'd, 561 U.S. 247, (2010) (“In resolving a

motion to dismiss for lack of subject matter jurisdiction under

Rule 12(b)(1) a district court may consider evidence outside the

pleadings.”)

to sue Allstate Insurance. (R&R at 10-12.) Brown fails to

allege or provide support for the proposition that it was

Allstate Insurance’s actions that required or coerced Allstate

Fire to injure Brown. On the contrary, Brown’s contract with

Allstate Fire governs. The relevant worksheet is just a “tool

used to calculate First Party Benefit claims.” (Stip. ¶ 8.)

“Each First Party Benefit Claim is adjusted on an individualized

basis . . . under the specific policyholder’s policy,” so

“Allstate Fire adjusts claims submitted by Allstate Fire

insureds pursuant to the terms and conditions of the policies of

insurance issued by Allstate Fire.” (Stip. ¶ 6, 15.) Unlike in

Carver, Allstate Insurance does not “constrain[] or influenc[]”

Allstate Fire but instead, Allstate Fire’s policy with Brown

“constrain[s]” any adjuster utilizing the worksheet to calculate

a claim. See 621 F.3d at 226.

Allstate Fire’s general and non-mandatory use of a

worksheet created by an Allstate Insurance employee does not

change the analysis. The Parties acknowledge that the worksheet

was “generally used” to calculate First Party Benefit Claims but

was not used in various situations including when “the claimant

is self-employed,” “there is an extended delay in obtaining

employment verification and wage loss data,” or “the claimant is

awarded social security benefits.” (Stip. ¶ 8.) The Court

agrees with the R&R’s well-reasoned finding that the “permissive

language of the stipulation” undermines Brown’s argument that

Allstate Insurance “constrained or influenced” Allstate Fire

such that Brown has standing to sue Allstate Insurance. (R&R at

12.)

That Allstate Insurance employees were involved in

adjusting Brown’s claims also does not change the analysis. (See

Defs.’ Resp. to First Interrog. Nos. 3, 7-8.) The Parties

stipulated that Allstate Insurance adjusters “routinely perform

wage loss calculations for other Allstate [entities including

Allstate Fire].” (Stip. ¶ 10.) Defendants also represented

that “Allstate Fire adjusted all of its New York no-fault claims

itself during the relevant time period.” (ECF No. 57-3, Ex. B,

“Defs.’ Resp. to Second Interrog.” at 6.) The Court agrees with

the R&R’s analysis that this Circuit generally respects distinct

corporate forms, requires contractual privity, and has held that

“share[d] resources” between corporate entities is generally

insufficient to establish standing. Mahon, 683 F.3d at 59, 61,

64-66 (2d Cir. 2012); (see also R&R at 9-12, 12 n.5.) Brown has

no business relationship or contractual privity with Allstate

Insurance, nor has Brown shown that Allstate Insurance so

constrained or coerced Allstate Fire to cause Brown’s alleged

injury.

Although Brown is correct that unlike in Lanzilotta, Pryce

and Mahon,5 Brown has established that (i) Allstate Insurance

created a worksheet that Allstate Fire used in calculating

claims, and (ii) Allstate Insurance employees played a role in

adjusting Brown’s claim, in the instant case and upon Brown’s

pleadings, these facts are insufficient to establish that

Allstate Insurance had a “determinative and coercive” effect on

Allstate Fire. (See Pl Objs. at 9 n.6; Stip. ¶¶ 6, 8, 10, 15;

Defs.’ Resp. to First Interrog. Nos. 3, 7-8.)

Brown asserts that “any doubt” over whether these facts are

sufficient to satisfy Article III’s traceability requirements

“must be resolved” in his favor. (Pl. Objs. at 10.) But “[a]s

the party invoking federal jurisdiction, [Brown] bear[s] the

burden of demonstrating that [he] ha[s] standing,” TransUnion

LLC, 594 U.S. at 430–31 (2021). This Court does “accept[] as

5 In finding that plaintiffs did not have standing to sue certain

defendants, these courts noted that plaintiffs had failed to

show what defendant was responsible for any allegedly improper

formula or that a defendant had required others to use such

formulas. See Mahon, 683 F.3d at 61 (Plaintiff had no standing

to sue affiliate entities merely on the basis that all entities

used the same policy and “share[d] resources.”); Lanzillotta,

2023 WL 2652265, at *4 (“Plaintiff presents no evidence to show

which entity was responsible for creating the allegedly improper

formula or for requiring [the insurance subsidiary] to utilize

it.”); Pryce, 2022 WL 1085489, at *11, report and recommendation

adopted as modified, 2022 WL 969740 (E.D.N.Y. Mar. 31, 2022)

(“Plaintiff has not adduced any facts to establish that it is

more likely than not that [the parent c]orporation was directly

responsible for the creation or implementation of that formula,

or that it directed its subsidiaries to implement the formula on

its behalf.”).

true all well-pleaded material allegations of the complaint,”

Mahon, 683 F.3d at 62, but Brown made no allegations regarding

Allstate Insurance’s influence over Allstate Fire in the

complaint. (See generally Am. Compl.) Although “these fact[ual

circumstances] do not entirely preclude the possibility that

[Allstate Insurance] . . . directed [Allstate Fire] to

implement the [worksheet and allegedly improper] formula on its

behalf, such a conclusion would be based solely on speculation

and would be inappropriate at this stage.” Pryce, 2022 WL

1085489, at *11 (quoting Baur v. Veneman, 352 F.3d 625, 637 (2d

Cir. 2003) (“[A] plaintiff cannot rely solely on conclusory

allegations of injury or ask the court to draw unwarranted

inferences in order to find standing.”)). As such, contrary to

Brown’s assertion, there is thus no “doubt” that “must be

resolved” in his favor because Brown’s complaint failed to

allege any facts regarding Allstate Insurance’s determinative or

coercive role vis-à-vis Allstate Fire.

Accordingly, because Brown’s policy with Allstate Fire

governs, the Court agrees with the R&R that the use of shared

resources, through a shared worksheet or claims adjusters, is

not enough, without more, for Brown to establish that Allstate

Insurance’s actions had a “determinative and coercive effect” on

Allstate Fire. (R&R at 10-12.) Brown's objection to the R&R's

finding that Brown does not have standing to sue Allstate

Insurance is respectfully overruled.

II. Brown’s Objection to the R&R’s Calculation of the Amount in

Controversy

Brown argues that the R&R violated the rule that the

jurisdictional amount in controversy is determined at the “time-

of-filing,” by re-calculating the amount in controversy before

determining whether an exception, either “bad faith” or a

“mistake” applies. (Pl. Objs. at 10-12.) Brown asserts that

the “mistake” exception only applies if the defendant can show

with a legal certainty that there was mistake on the face of the

complaint. (Id. at 10.) Brown ignores that the R&R’s well-

reasoned decision indeed found with a “legal certainty” that the

amount in controversy “was actually below the threshold amount

when the complaint was filed” such that there was a “mistake in

the complaint with respect to the amount in controversy.” Hall

v. EarthLink Network, Inc., 396 F.3d 500, 507 (2d Cir. 2005);

(see also R&R 13-19).

Brown objects to the R&R’s recalculation of the amount in

controversy” (Pl. Objs at 11-12), but it is well-established

that a Court may do so to assess the merits of a Rule 12(b)(1)

motion to dismiss for lack of subject matter jurisdiction for

failure to plead facts establishing that aggregate claims exceed

the amount in controversy threshold. See e.g., Metcalf v.

TransPerfect Translations Int'l, Inc., 632 F. Supp. 3d 319, 326

(S.D.N.Y. 2022) (engaging in calculations to assess whether

amount in controversy was met).

Moreover, the Second Circuit is clear. The amount-in-

controversy is established as of the date the complaint is

filed, but a court may dismiss the case if it is later revealed

that as of the date the complaint was filed, the required

jurisdictional amount was not satisfied at the time of filing.

See Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781,

784 (2d Cir. 1994) (holding that the District Court should have

dismissed the case when discovery made clear that there was

never $75,000 in controversy.) Courts have understood Tongkook

to state that revelations in discovery about the amount in

controversy that existed at the time of filing can require

dismissal. See, e.g., Gucciardo v. Reliance Ins. Co., 84 F.

Supp. 2d 399, 403 (E.D.N.Y. 2000) (citing Tongkook for the

proposition that when “facts developed during discovery . . .

reveal that the Plaintiff’s claim could not reach the

jurisdiction threshold at the time of filing the complaint, the

suit must be dismissed”). This is because “with mounting

federal case loads, ... it has become doubly important that the

district courts take measures to discover those suits which do

not belong in a federal court and to dismiss them when the court

is convinced to a legal certainty that the plaintiff cannot

recover an amount in excess of the minimum statutory

jurisdictional amount.” Tongkook, 14 F.3d at 784 (citation

modified).

Based on the record and on de novo review, the Court finds

that the R&R did not violate the time-of-filing rule by

calculating the amount in controversy at the time of filing to

determine, with a “legal certainty,” that Brown failed satisfy

the CAFA amount in controversy. (See R&R at 13-19.) The amount

in controversy is not satisfied.

III. Brown’s Objection to the R&R’s Exclusion of Future Damages

in Calculating the Amount in Controversy

Brown asserts that the R&R should have accounted for

damages that continued to accrue more than a year after the

amended complaint was filed in November 2024. (Pl. Objs. at 12-

13.) But Brown’s assertion is in direct contradiction to his

argument regarding the “time-of-filing” rule that “the amount in

controversy standard is analyzed at the time the action is

commenced, not periodically as damages continue to mount.”

Gucciardo, 84 F. Supp. 2d at 403 (citing Tongkook, 14 F.3d at

784-85) (citation modified)). Looking to “continuing damages to

establish the jurisdictional amount” is also improper here

because “[g]enerally, an insured who sues its insurer for

failure to pay benefits under a policy may only recover benefits

that have already accrued.” Pollock v. Trustmark Ins. Co., 367

F. Supp. 2d 293, 299 (E.D.N.Y. 2005).

None of Brown’s cited authority states otherwise. (Pl.

Objs. at 13.) Plaintiff’s reliance on Cain v. Hartford Life &

Accident Insurance Co., 890 F. Supp. 2d 1246, 1250 (C.D. Cal.

2012) is misplaced because there, the plaintiff brought a claim

for long term disability insurance benefits and “ongoing

benefits into the future.” The court in Cain found that federal

removal jurisdiction was proper because, based on plaintiff’s

claims, future damages were “permitted under California law,”

and the defendant-insurance company “presented evidence to show

that plaintiff’s claim for ongoing benefits into the future . .

. would far surpass the $75,000 jurisdictional limit.” Id.6

In Beacon Construction Co. v. Matco Electric Co., 521 F.2d

392, 395 (2d Cir. 1975), the language that “the amount in

controversy is not necessarily the money judgment sought or

recovered, but rather the value of the consequences which may

result from the litigation,” (see Pl. Objs. at 13), refers to

valuing claims that are equitable in nature. See also DiTolla

v. Doral Dental IPA of New York, 469 F.3d 271, 276 (2d Cir.

2006) (“The Supreme Court has held that, in actions for

declaratory or injunctive relief, which . . . are equitable in

6 Schwenk v. Cobra Manufacturing. Co., 322 F. Supp. 2d 676, 679 (E.D. Va.

2004) is also inapposite because there the Court found that plaintiff was

acting in bad faith to avoid federal removal jurisdiction by alleging only

$74,000 in damages in his complaint, but “admit[ing] that he intended to

amend . . . at some future date to an amount in excess of $75,000, as much as

six million dollars.”

nature, the amount in controversy is measured by the value of

the object of the litigation.” (citing Hunt v. Washington State

Apple Advertising Commission, 432 U.S. 333, 347 (1977))).

Neither of these factual circumstances exist here. Brown

does not allege that he has any future, ongoing damages against

the Defendants and abandoned his request for declaratory and

injunctive relief when Brown amended the complaint. (See R&R at

11 n.4); (compare also ECF No. 1 ¶¶ 54-58, with ECF. No. 23.) On

de novo review, the Court is, therefore, unconvinced that the

R&R erred in failing to account for future damages and

respectfully overrules Brown's objection.

IV. Brown’s Objection to the R&R’s Exclusion of Discretionary

Attorneys’ Fees from the Amount in Controversy Calculation

Brown argues that there is no binding Second Circuit

authority for the proposition that attorneys’ fees can only be

included in the amount in controversy calculation if they are

“recoverable as a matter of right pursuant to statute or

contract.” (R&R at 17 (quoting Melendez v. R.W. Garcia Co.

Inc., No. 24-CV-9500 (JAV), 2025 WL 1220903, at *4 (S.D.N.Y.

Apr. 28, 2025)); see also Pl. Objs. at 13-14.) Thus, Brown

argues that the R&R erred in failing to add potential

discretionary attorneys’ fees from the GBL § 349 claims to the

amount in controversy. Id. But in Givens, the Second Circuit

held that “it is settled that [attorneys’] fees may not properly

be included in determining the jurisdictional amount unless they

are recoverable as a matter of right.” Givens v. W. T. Grant

Co., 457 F.2d 612, 614 (2d Cir.), vacated on other grounds, 409

U.S. 56 (1972). Although Givens was vacated on other grounds,

“the Second Circuit, in several unpublished decisions, has

continued to cite Givens as setting the relevant test for the

consideration of attorney[s'] fees [in calculating the amount in

controversy], see Suarez v. Mosaic Sales Solutions US Operating

Co., LLC, 720 F. App'x 52, 55 (2d Cir. 2018); Kimm v. KCC

Trading, Inc., 449 F. App'x 85, 86-87 (2d Cir. 2012).”

Melendez, 2025 WL 1220903, at *4.

Brown’s reliance on Pollock is misplaced. See 367 F. Supp.

2d at 297–98; (Pl. Objs. at 14). In Pollock, the court did not

include potential discretionary GBL § 349(h) attorney fees in

finding federal subject matter jurisdiction but instead remanded

the case to state court because plaintiff alleged damages of

$55,000 and “to reach the jurisdictional amount fees would have

to be $20,000,” which “would be unreasonable for th[e] action

and would not be awarded.” 367 F. Supp. 2d at 298.

Accordingly, on de novo review, the Court agrees with the R&R’s

reliance on the analysis in Melendez to include only mandatory

fees in the amount in controversy calculation. (R&R at 17-18.)

Moreover, even if discretionary attorneys’ fees were

included in the amount in controversy calculation, Brown would

still fail to satisfy CAFA’s amount in controversy requirement.

Brown’s objection relates only to the R&R’s exclusion of

attorneys’ fees for Brown’s GBL § 349 claims. (See Pl. Objs. at

13-14; R&R at 17-19.) GBL § 349(h) provides for damages

recovery of $50 or triple actual damages up to a maximum of

$1,000. Given a maximum damages recovery of $1,000 for every

potential class member against Allstate Fire, total class

damages recovery would be $590,000. (See id; ECF No. 57-4 at

49.) Even assuming a district court awarded the total amount of

GBL § 349 damages to attorneys’ fees, Brown would still be over

$300,000 short from the CAFA $5,000,000 requirement. (See R&R

18-19; ECF Nos. 57-4 at 49.) After adding $590,000 in

discretionary GBL § 349 fees to the R&R’s generous $802,400

attorneys’ fees calculation for Brown’s No-Fault Claims and the

$3,303,290 damages total proffered by Plaintiff’s expert

attributable to Allstate Fire, the amount in controversy would

total only $4,695,690. (Id.) Moreover, this Court agrees with

the R&R’s well-reasoned concerns regarding Brown’s experts’

apparent methodological overestimations and inconsistencies in

assessing damages attributable to Allstate Fire. (R&R at 15-

16.) Thus, it is likely that Brown is even more than $300,000

short of the CAFA jurisdictional requirement.

Brown also appears to argue that because “courts routinely

assume an attorney[s’] fee[s] award of roughly one-third of

actual damages” we should do so here and add that fee amount to

the damages calculation. (Pl. Objs. at 15.) But Brown ignores

that in his only cited case, a non-binding Eastern District of

Missouri case Schott v. Overstock.com, Inc., the plaintiff’s

over-taxation claims were brought under a state tax law that

“expressly authorizes an award of attorney’s fees” subsumed

within and as a portion of the overall recovery for punitive

damages. No. 4:20-CV-00684-MTS, 2021 WL 148875, at *4 (E.D. Mo.

Jan. 15, 2021). In other words, Schott, does not support the

proposition that this Court should add 33% of Brown’s damages

recovery to Brown’s amount in controversy calculation because

statutorily authorized attorneys’ fees under Missouri state law

in Schott were considered part of the recoverable damages. See

id.

On de novo review, the Court is thus unconvinced that the

R&R erred in failing to account for discretionary attorneys’

fees or a “one-third of actual damages” attorneys’ fees award in

calculating the amount in controversy and respectfully overrules

and denies Brown’s objection.

V. Brown’s Objection to Excluding Allstate Insurance, Allstate

P&C and Allstate Indemnity in Calculating the Amount in

Controversy

Brown argues that the R&R improperly resolved merits

defenses in a jurisdictional motion by excluding Allstate

Insurance, Allstate P&C, and Allstate Indemnity from the amount

in controversy calculation. (Pl Objs. at 15-16.) But by

definition, a decision that a plaintiff lacks standing to sue is

not a decision on the merits because standing is “a necessary,

non-waiv[]able prerequisite to subject matter jurisdiction.”

Zanotti v. Invention Submission Corp., No. 18-CV-5893 (NSR),

2020 WL 2857304, at *10 (S.D.N.Y. June 2, 2020); see also

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 354 (2006)

(“Because plaintiffs have no standing . . . , the lower courts

erred by considering their claims against it on the merits.”)

On de novo review, the Court thus finds that the R&R did

not err in excluding from the amount in controversy analysis

damages as to defendants that Brown lacks standing to sue.

VI. The Court Lacks Subject Matter Jurisdiction over

Plaintiff’s Individual Claim

The Court reviews for clear error the R&R’s unobjected

recommendation that the Court lacks subject matter jurisdiction

over Brown’s individual claim. Galvez, 967 F. Supp. 2d at 617

(Where a party does not object to a portion of the R&R, the

Court “‘need only satisfy itself that there is no clear error on

the face of the record.’” (quoting Reyes, 2003 WL 76997, at

*1)). This Court agrees with the R&R’s well-reasoned finding

that Brown’s individual damages in the sum of $1,707.99 plus

attorneys’ fees are insufficient to establish subject matter

jurisdiction because the amount is well short of the $75,000

jurisdictional requirement. (See R&R at 21-22.) Accordingly,

Brown’s individual claim is dismissed for lack of subject matter

jurisdiction.

VII. Brown Lacks Standing to Sue Allstate Indemnity and Allstate

P&C

Brown does not object to Magistrate Judge Marutollo’s

finding that Plaintiff lacks standing to sue Allstate Indemnity

and Allstate P&C. (See Pl. Objs. at 8-10.) On clear error

review, this Court agrees with the R&R’s well-reasoned finding

that Brown lacks standing to sue Allstate Indemnity and Allstate

P&C because Brown does not allege any injury caused by either

entity nor shown how Allstate Indemnity or Allstate P&C played

any role in Allstate Fire’s disbursement of Brown’s claim. (See

R&R at 10-11; see generally Am. Compl.)

CONCLUSION

Based on the foregoing reasons and upon de novo review,

Brown's objections are respectfully overruled, and the Court

adopts in its entirety Magistrate Judge Marutollo's thorough and

well-reasoned recommendations. Accordingly, Defendants’ motion

to dismiss for lack of subject matter jurisdiction is GRANTED in

its entirety, and the Clerk of the Court is directed to close

this case.

So ordered.

Dated: February 26, 2026 bE “? ‘YA;

Brooklyn, New York “V4 ee et ole

Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

26