Opinion
No. 04-CV-0079E(Sc).
May 21, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Setlock filed this personal injury action in the New York State Supreme Court, County of Erie, on December 18, 2003. Renwick removed the case to this Court on February 5, 2004. Setlock filed a motion to remand on March 1. This matter was argued and submitted on April 16. For the reasons set forth below, Setlock's motion will be granted.
Setlock seeks remand on the ground that the Complaint, pursuant to recently amended section 3017(c) of New York's Civil Practice Law and Rules ("CPLR"), contains no ad damnum clause from which a jurisdictional amount may be taken. Section 3017(c) now provides in relevant part,
"In an action to recover damages for personal injuries or wrongful death, the complaint * * * shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. If the action is brought in the supreme court, the pleading shall also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts which would otherwise have jurisdiction. Provided, however, that a party against whom an action to recover damages for personal injuries or wrongful death is brought, may at any time request a supplemental demand setting forth the total damages to which the pleader deems himself entitled. A supplemental demand shall be provided by the party bringing the action within fifteen days of the request. In the event the supplemental demand is not served within fifteen days, the court, on motion, may order that it be served. A supplemental demand served pursuant to this subdivision shall be treated in all respects as a demand made pursuant to subdivision (a) of this section."
See Lepkowski v. State, 1 N.Y.3d 201, 207 n. 3 (2003) ("CPLR 3017(c) for many years has provided that the complaint in a medical or dental malpractice suit or in an action against a municipality shall not state the amount of money damages sought. Just recently, the Legislature amended section 3017(c), which now prohibits the complaint in a personal injury or wrongful death action from setting forth the amount of money damages sought ( see L. 2003, ch. 694, § 1, eff. Nov. 27, 2003).").
As our Court of Appeals has noted, a removing defendant "has the burden of proving that it appears to a reasonable probability that the claim is in excess of the statutory jurisdictional amount." Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000) (citation omitted). Applying this standard here, this Court finds that there is no "reasonable probability" that Setlock's claim exceeds the jurisdictional amount of $75,000. Indeed, Setlock merely makes the amorphous allegation that she "was injured in and about her body and limbs and was rendered injured and disabled for a considerable period of time and continues to be so * * *." Compl. ¶ 5. Although Renwick construes this language as alleging eight months of total disability, such is neither the only nor the best conclusion to be drawn therefrom. Setlock's allegations could describe damages ranging from a sprained wrist to total disability. Consequently, the Complaint does not contain sufficient information that would enable Renwick to "intelligently ascertain removability." Accordingly, this action will be remanded to state court because — given the uncertainty surrounding Setlock's damages and the policy of construing federal jurisdiction narrowly — Renwick failed to carry his burden of demonstrating by a preponderance of the evidence that there is a reasonable probability that the amount in controversy exceeds the jurisdictional amount.
See also 14C Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 3725, at 89-95 (3d ed. 1998) (discussing the various tests that courts have applied when determining "the adequacy of a defendant's showing that the amount in controversy requirement is satisfied"); 14B Charles Alan Wright et al., FEDERAL PRACTICE AND PROCEDURE § 3702, at 26, 49-52 (3d ed. 1998) (same).
Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 205-206 (2d Cir. 2001) ("A case is removable when the initial pleading enables the defendant to intelligently ascertain removability from the face of such pleading, so that in its petition for removal, the defendant can make a short plain statement of the grounds for removal as required by 28 U.S.C. § 1446(a). * * * A pleading enables a defendant to intelligently ascertain removability when it provides the necessary facts to support the removal petition.") (internal quotation marks and citations omitted).
See Somlyo v. J. Lu-Rob Enters., 932 F.2d 1043, 1045-1046 (2d Cir. 1991) ("In light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statute narrowly, resolving any doubts against removability.") (citing Shamrock Oil Gas Corp. v. Sheets, 313 U.S. 100 (1941)); see also Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 176 (S.D.N.Y. 2003) ("The defendant's right to remove and the plaintiff's right to choose the forum are not equal, and uncertainties are resolved in favor of remand") (citation omitted).
See United Food Local 919 v. Centermark Props., 30 F.3d 298, 305 (2d Cir. 1994) (requiring removing defendant to demonstrate jurisdictional facts with "competent proof * * * by a preponderance of the evidence"); In re Rezulin Prods. Liability Litig., 133 F. Supp. 2d 272, 298 (S.D.N.Y. 2001) ("Because the defendants have failed to meet [the] burden [of supporting removal] here, this Court is bound to resolve the issue in favor of the plaintiffs."); see also Concorde Fin. Corp. v. Value Line, Inc., 2004 WL 287658, at *2 (S.D.N.Y. 2004) ("The Second Circuit adheres to a rule which ascertains the amount in controversy from the perspective of the plaintiff alone, and applies that approach to removed actions as well.").
Cf. Lupo v. Human Affairs Inter., Inc., 28 F.3d 269, 273-274 (2d Cir. 1994) ("[W]e hold that if 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."); Hoffman v. Vulcan Materials Corp., 19 F. Supp. 2d 475, 479 n. 3 (M.D.N.C. 1998) ("[P]laintiffs' complaint only shows that the damages for each plaintiff exceeds $30,000. Defendant did not file a motion * * * to ascertain the exact amount in controversy as to each plaintiff. It, therefore, becomes incumbent on defendant to point to some evidence in the record or to submit independent evidence which would show that the plaintiffs' damage claims exceed $75,000. Defendant fails to do this."). Unlike the plaintiffs in Lupo, Renwick alleged that the amount in controversy was in excess of $75,000. Nonetheless, Renwick's Notice of Removal did not contain any facts establishing such as the amount in controversy.
Nonetheless, this Court is aware of the dilemma posed by section 3017(c) to defendants who are uncertain as to whether an action is removable. The solution, however, is found in section 3017(c), which permits a defendant to "request a supplemental demand setting forth the total damages to which the pleader deems himself entitled." CPLR § 3017(c). Plaintiff must supply such a supplemental demand within fifteen days. Ibid. Because this Court has determined that the Complaint did not contain all the facts necessary to support removal, Setlock's response to a request for a supplemental demand would — assuming arguendo that it demonstrates an amount-in-controversy that satisfies the jurisdictional requirement — constitute an "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). Under section 1446(b), Renwick will have thirty days from receipt of Setlock's supplemental demand to remove this action.
See also David D. Siegel, When Does 30-day Period Start in Diversity Case When State Procedure Doesn't Require Allegation of Amount Sought?, 147 SIEGEL'S PRAC. REV. 2 (2004) ("[S]uppose the complaint does not allege a specific sum. Under recent amendments of New York CPLR 3017(c) * * * inclusion of a sum has been explicitly barred from the complaint in personal injury and wrongful death actions * * *. How in that situation does a defendant gauge whether the case seeks more than $75,000 so as to support removal? One way is for the defendant to take advantage of another part of CPLR 3017(c), which allows the defendant to serve a supplemental demand on the plaintiff, to which the plaintiff must respond with a specific monetary demand within 15 days. The 30 days for removal should not start until the defendant receives the response, and to accelerate it the defendant with any aspiration at all for federal jurisdiction should serve the demand promptly."); Hoffman, supra note 7, at 478-479 nn. 2-3 (discussing a North Carolina statute that prohibits ad damnum clauses and concluding that the "better construction of Section 1446(b) would require defendants, within the thirty-day removal period, to use the state rules of civil procedure to compel plaintiff to set out the amount of monetary relief in negligence actions").
Whether or not such a request for a supplemental demand tolls the time for removal is an issue left for future consideration.
Accordingly, it is hereby ORDERED that plaintiff's motion to remand is granted and that the Clerk of this Court shall remand this case to the New York State Supreme Court, County of Erie.