Jimenez-Castro v. Greenwich Ins. Co.

• Decision Date: 15 December 2020
• Docket Number: 20-cv-09210 (ALC)
• Parties: ELVIS JIMENEZ-CASTRO, Plaintiff, v. GREENWICH INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

ELVIS JIMENEZ-CASTRO, Plaintiff, v. GREENWICH INSURANCE COMPANY, Defendant.

20-cv-09210 (ALC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

December 15, 2020

ORDER

ANDREW L. CARTER, JR., District Judge:

If there is a basis for federal jurisdiction, a defendant may remove a case from state to federal court. Under 28 U.S.C. 1332(a), federal jurisdiction exists by virtue of diversity of citizenship if the plaintiffs and defendants are citizens of different states and the amount in controversy exceeds $75,000. A defendant must remove the case within 30 days of receiving an initial pleading, or some other paper, from which the defendant may ascertain that federal jurisdiction exists.

In June 2020, in the Supreme Court of the State of New York, Bronx County, plaintiffs filed a personal injury action related to a motor vehicle accident. In the complaint, plaintiffs not only set forth that the plaintiff and defendant were citizens of different states, but also explicitly stated that the amount of damages sought exceeded the amount established in 28 U.S.C. 1332(a), specifically referencing the federal statute.

Although the defendants received the complaint on September 25, 2020, they waited until November 3, 2020 to file a notice to remove this action to this Court (the "Notice"). ECF No. 1. On November 12, 2020, the Court issued an Order to Show Cause why the case should not be dismissed due to Defendant's untimely removal. The Court intended and the parties understood this to be an Order to Show Cause why the case should not be remanded to state court pursuant to 28 U.S.C. § 1447(c). The plaintiff responded to the OSHOW on December 1; the defendant, December 3. Since the complaint laid out the citizenship of the parties and specifically referenced the minimum amount in 28 U.S.C. § 1332(a), as of September 25, the defendant was on notice that the case could be removed. The defendant removed too late; the Court remands this case.

BACKGROUND

Plaintiff Elvis Jimenez-Castro (hereinafter, "Plaintiff" or "Mr. Jimenez-Castro") commenced a state court action against Defendant on or after June 26, 2020 "seeking underinsured motorist benefits under a policy of insurance issued by defendant for damages arising out of a motor vehicle accident." Notice ¶¶ 2, 4. While the Notice does not explicitly state when Defendant was served with the Verified Complaint and Summons, Exhibit A attached to the Notice contains the Verified Complaint and Summons along with a letter from the Department of Financial Services ("DFS") dated September 16, 2020 stating that "Attorney for Plaintiff(s) is hereby advised of acknowledgment of service upon this Department Summons and Verified Complaint . . . on August 28, 2020." Notice, Ex. A at 2. The letter also states, "Persuant [sic] to the requirement of section 1212 of the Insurance Law, Defendant(s) is hereby notified of service as effected above. A copy of the paper is enclosed." Id. The letter includes a stamped date of September 25, 2020. Id. Thus, while it appears that Defendant was served via its statutory agent on August 28, 2020, it appears that it received the Verified Summons and Complaint on September 25, 2020 at the latest.

Defendant asserts that this action is "one of which the District Courts of the United States have original jurisdiction under 28 U.S.C. § 1332 and 28 U.S.C. § 1441." Notice ¶ 6. Defendantsallege that there "is complete diversity of citizenship between the plaintiff and the defendant," id. ¶ 6, as Plaintiff is a citizen of New York and Defendant is a corporation "created under the laws of . . . Delaware" and maintains "its principal place of business within . . . Connecticut," id ¶ 3. As to the amount in controversy, Defendant asserts that "plaintiff's complaint and addendum demand an amount in excess of the lower courts jurisdictional limits. As such, the amount in controversy in this suit is in excess . . . of $75,000 and plaintiff is unwilling to cap damages at $75,000." Notice ¶ 2. Defendant also asserts that "[t]his motion is filed within thirty (30) days of defendant-petitioner GREENWICH INSURANCE COMPANY determining that plaintiff is seeking damages in excess of $75,000 [and] [t]o date plaintiff's counsel has not agreed to cap damages to $75,000." Id. ¶ 8.

In Plaintiff's Verified Complaint, Plaintiff alleged as follows:

[T]he defendants are liable to the plaintiff in an amount which exceeds the monetary jurisdictional limits of any and all lower Courts which would otherwise have jurisdiction herein, in an amount to be determined upon the trial of this action.¹

[P]laintiff is entitled to damages in the sum which exceeds the sum or value established by 28 USC § 1332(a) exclusive of interests and costs.

Notice, Ex. A at 18.

DISCUSSION

The Court will first address the threshold question of whether it may remand the case absent a motion from Plaintiff. The Second Circuit has held that a court can remand a case sua sponte under two circumstances pursuant to 28 U.S.C. § 1447(c). A district court can remand sua sponte on procedural grounds within thirty (30) days of the filing of the notice of removal. See Mitskovski v. Buffalo & Fort Erie Pub. Bridge Auth., 435 F.3d 127, 131 (2d Cir. 2006) (citingHamilton v. Aetna Life & Cas. Co., 5 F.3d 642, 644 (2d Cir. 1993)). A district court can also remand sua sponte at any time if the district court finds that it lacks subject matter jurisdiction. Id. In this case, the Court finds that remand is proper on procedural grounds, as Defendant did not remove the case until 39 days after Defendant received the Verified Complaint and Summons. Since the Court issued its Order to Show Cause within thirty (30) days of the filing of the notice of removal, the Court can remand the case for untimely removal, a procedural ground. See, e.g., JP Morgan Chase Bank, N.A. v. Caires, 768 F. App'x 73, 75 (2d Cir. 2019) (summary order)("Although [grounds for remand] are both undoubtedly procedural . . . and thus fall within § 1447(c)'s 30-day limit, we conclude that requirement was satisfied" because "[t]he district court asked [defendant] to show cause why his case should not be remanded to the district court one day after his notice of removal was filed.") (emphasis in original); see also Cassara v. Ralston, 832 F. Supp. 752, 753 (S.D.N.Y. 1993) (Sotomayor, D.J.) (noting that the motion for remand had been brought sua sponte by Order to Show Cause).

I. Removal is Untimely Under 28 U.S.C. § 1446(b).

Section 1446(b) states that "[t]he notice of removal of a civil action . . . shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." 28 U.S.C. § 1446(b)(1). However,

if the case stated by the initial pleading is not removable, a notice of removal may be filed 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). It is well established that a case is removable and the 30-day removal clock begins to run when a defendant can "intelligently ascertain removability from the face of [the initial] pleading." Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 205-206 (2d Cir. 2001)(quoting Richstone v. Chubb Colonial Life Ins., 988 F. Supp. 401, 403 (S.D.N.Y. 1997) (internal quotation marks omitted). In a diversity case, "[a] pleading enables a defendant to intelligently ascertain removability when it provides the necessary facts to support the removal petition" including "the amount in controversy and the address of each party." Id. (internal citations and quotation marks omitted). The Second Circuit has expounded upon the rule in Whitaker and joined the Eighth Circuit in holding that "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) (citing In re Willis, 228 F.3d 896, 897 (8th Cir. 2000) (per curiam)).

While Defendant was served through DFS pursuant to N.Y. Insurance Law § 1212 on August 28, 2020, Notice, Ex. A at 2, the removal clock did not begin to run until September 25, 2020, when Defendant received Plaintiff's Summons and Verified Complaint. See Moran v. Trans States Airlines, LLC, 20-cv-6155, 2020 WL 5912391, at *3 (S.D.N.Y. Oct. 6, 2020) (service on defendant's statutory agent does not trigger the 30-day removal period); 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3731 (4th ed. 2020) (noting that time for removal begins to run when defendant or designated agent receives notice via service). Thus, Plaintiff had until October 26, 2020 to file a notice of removal pursuant to 28 U.S.C. § 1446(b), and its removal over a week later was untimely.²

In Defendant's response to this Court's Order to Show Cause, Defendant argues that "the verified complaint on its face is ambiguous and fails to establish grounds for removal." ECF No. 7 at 1. More specifically, Defendant asserts that the allegations in the Verified Complaint relatedto damages quoted above are "contrary to each other as the jurisdictional limit of lower courts is different from the sum established by 28 U.S.C. § 1332(a)." Id.

Defendant's argument is without merit. As a preliminary matter, the New York CPLR requires that "[i]n an action to recover damages for personal injuries . . . the complaint . . . shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled." N.Y. C.P.L.R. § 3017(c). Furthermore, "[i]f 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 cou...