Corniel v. Titech
| Decision Date | 06 March 2020 |
| Docket Number | CV 17-2551 (RRM) (AKT) |
| Parties | GARY CORNIEL, Plaintiff, v. TITECH and TOMRA NY RECYCLING, LLC, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
REPORT AND RECOMMENDATION
I. PRELIMINARY STATEMENT
Plaintiff Gary Corniel ("Plaintiff") commenced the instant personal injury action against Defendants Titech and Tomra NY Recycling, LLC ("Tomra NY") (collectively, the "Defendants") alleging claims under state law for strict liability, negligence, and breach of express and implied warranties. See generally Complaint ("Compl.") [DE 1]. The Complaint charges that the Defendants "designed, manufactured, assembled, created, tested, inspected, produced, marketed, imported, distributed, marketed and sold a certain produced called a Titech Autosort Optical Sorter." Compl. ¶¶ 15, 16. While using the Titech Autosort Optical Sorter (the "Optical Sorter") in the course of his employment, Plaintiff sustained severe and permanent bodily injuries to his right hand. Id. ¶¶ 19, 26.
Defendants failed to answer or otherwise respond to the Complaint. Consequently, Plaintiff requested a Certificate of Default from the Clerk of the Court on November 22, 2017. See DE 11. On December 8, 2017, the Clerk of the Court entered a Certificate of Default against Tomra NY only, pursuant to Federal Rule of Civil Procedure ("FED. R. CIV. P." or Rule") 55(a). See DE 12. Tomra NY appeared and moved to vacate the entry of default on April 3, 2019. See Defendant Tomra's Notice of Motion to Vacate Entry of Default ("Def's Not.") [DE 16]. On April 25, 2019, the Court directed Plaintiff to file any opposition to the motion by May 13, 2019. See April 25, 2019 Electronic Order. To date, Plaintiff has neither opposed the instant motion nor taken any other steps to move this case forward.
On October 28, 2019, Judge Mauskopf referred the motion to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b), as to whether Tomra NY's motion to vacate the default should be granted. See October 28, 2019 Electronic Order. For the reasons which follow, this Court respectfully recommends to Judge Mauskopf that the case be dismissed based on a preliminary issue, namely, that the Court lacks subject matter jurisdiction. Since Plaintiff has yet to establish subject matter jurisdiction, the Court is without authority to adjudicate Tomra NY's motion to vacate the entry of default.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff brought this action against Defendants alleging negligence, breach of express and implied warranties, design defect, manufacturing defect, and failure to warn -- all arising from a workplace injury sustained by Plaintiff while he was using the Optical Sorter. See generally Compl. Plaintiff alleges that Tomra NY and Titech, among other things, designed, manufactured, sold, and distributed the Optical Sorter. Compl. ¶¶ 15-19. The Complaint states that on April 29, 2014, Plaintiff was using the Optical Sorter in the course of his employment when a safety stopping mechanism on the machine did not function properly, causing severe and permanent bodily injuries to Plaintiff's right hand. Id. ¶¶ 19, 26.
The Complaint asserts that this Court has diversity jurisdiction over Plaintiff's claims, pursuant to 28 U.S.C. § 1332, "since the parties are citizens of diverse states, and the amount in controversy exceeds the sum of [$75,000.00] dollars." Id. ¶ 7. Plaintiff is a "resident of the Stateof New York" whose citizenship is not pled. Id. ¶ 1. Defendant Tomra NY, pled as a limited liability corporation, is "organized under the laws of the State of New York" and maintains a "principal place of business in the State of New York." Id. ¶¶ 5-6. Defendant Titech is a foreign corporation "maintaining a principal place of business [in] Norway." Id. ¶ 3. Titech is "duly organized and existing under and by virtue of the laws of the Country of Norway" and "doing business in the State of New York." Id. ¶ 2. The Complaint is devoid of any allegations regarding Tomra NY or Titech's citizenship.
The Court also observes that the Complaint does not set forth a basis for federal question jurisdiction pursuant to 21 U.S.C. § 1331. Although Plaintiff's counsel states that "[t]his action was commenced pursuant to Federal Tort Claims Act" in her Affirmation seeking the entry of default against Tomra NY, this statement is not supported by the allegations set forth in the Complaint. See Affirmation of Kristen Sinnott in Support of Request For Certificate of Default ("Sinnott Aff.") [DE 11] ¶ 2 annexed to the Request for Certificate of Default. The Complaint does not contain any reference to the Federal Tort Claim Act, 28 U.S.C. § 1346 (the "FTCA"), nor does it allege any facts which would give rise to a claim under the FTCA. See generally Compl. Further, the only proper defendant in an FTCA action is the United States. See Pierre v. Napolitano, 958 F. Supp.2d 461, 487 (S.D.N.Y. 2013) (citing Spinale v. U.S. Dept. of Agriculture, 621 F. Supp. 2d 112, 117 (S.D.N.Y. 2009) (aff'd, 356 Fed. App'x 465 (2d. Cir. 2009)). Plaintiff does not allege that any of the Defendants were government officers or employees at the time of the subject accident. See Thind v. Daniel, No. 19-CV-10364, 2019 WL 6498211, at *2 (S.D.N.Y. Dec. 3, 2019) () (citing 28 U.S.C. § 1346(b)(1)).
According to the Affidavit of Service , the Summons and Complaint were served upon Tomra NY at its principal place of business located at 5923 Loomis Road, Farmington, NY 14425, on June 7, 2017. See DE 11-1. Tomra NY failed to answer or otherwise respond to the Complaint. Consequently, Plaintiff requested a Certificate of Default from the Clerk of the Court on November 22, 2017. See DE 11. The Clerk of the Court issued a Certificate of Default against Tomra NY only on December 8, 2017, pursuant to Rule 55(a). See Clerk's Entry of Default [DE 12].
There was no further action in this case until November 5, 2018 when the Court issued an Order requiring Plaintiff to submit a status report. See November 5, 2018 Electronic Order. On November 19, 2018, Plaintiff's counsel filed a status letter briefly explaining Plaintiff's efforts to serve the Summons and Complaint upon Defendant Titech, which is a foreign entity with headquarters in Norway. See DE 13. The Court granted Plaintiff's request on November 29, 2018 and directed Plaintiff to effectuate service of the Summons and Complaint on Titech by January 31, 2019. See November 29, 2018 Electronic Order. On January 29, 2019, Plaintiff filed a notice that the Summons was returned executed on Titech. See DE 15. Plaintiff's Affidavit of Service upon Titech indicates that the Summons and Complaint were served on Tomra North America -- NYC at 900 E. 136th Street, Bronx, NY 10454 -- on January 8, 2019. Id. It is unclear from either the Affidavit of Service or pleadings what this location constitutes and what relationship "Tomra North America - NYC" has with Titech. Titech has not appeared in this case.
On April 3, 2019, Tomra NY appeared and moved to vacate the default arguing that Plaintiff did not properly effectuate service on Tomra NY and that "good cause" exists to otherwise vacate the entry of default. See Def's Not.; Defendant's Memorandum of Law in Support of Motion to Vacate Entry of Default ("Def.'s Mem.") [DE 19]. On April 25, 2019, the Court directed Plaintiff to file opposition to the motion, if any, by May 13, 2019. See April 25, 2019 Electronic Order. The case was reassigned to District Judge Mauskopf on May 21, 2019. To date, Plaintiff has not filed any opposition to the instant motion.
On October 28, 2019, Judge Mauskopf referred the matter to this Court for a Report and Recommendation as to whether Tomra NY's motion to vacate entry of default should be granted. See October 28, 2019 Electronic Order.
III. LEGAL STANDARD
Federal courts are courts of limited jurisdiction and may not preside over cases if they lack subject matter jurisdiction. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). Lack of subject matter jurisdiction may not be waived and "may be raised at any time by a party or by the court sua sponte." Lyndonville, 211 F.3d at 700. There is an independent obligation for a federal court to "determine whether subject matter-jurisdiction exists, even in the absence of a challenge from any party." Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006) (internal citation omitted). "If subject matter jurisdiction is lacking, the action must be dismissed." Lydonville, 211 F.3d at 700-01; see also FED. R. CIV. P. 12(h)(3). "A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists." Fountain v. Karim, 838 F.3d 129, 134 (2d Cir. 2016) (internal quotations and citation omitted).
A federal court's subject matter jurisdiction may be predicated on federal question jurisdiction, see 28 U.S.C. § 1331, or diversity of citizenship jurisdiction, see 28 U.S.C. § 1332. Here, the Complaint asserts subject matter jurisdiction based on diversity of citizenship. See Compl. ¶ 7. "[D]iversity of citizenship should be distinctly and positively averred in the pleadings, or should appear with equal distinctness in other parts of the record." Leveraged Leasing Admin. Corp. v. PacificCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996) (internal quotation marks omitted). To establish jurisdiction based on diversity of citizenship, a plaintiff must demonstrate that the adverse parties are citizens of different states and that "the matter in controversy exceeds the sum or value of $75,000." 28 U.S.C. § 1332(a). This diversity requirement...
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