Johnson v. Cnty. of Suffolk

• Decision Date: 04 December 2017
• Docket Number: No 17–CV–3986 (JFB)(AYS),17–CV–3986 (JFB)(AYS)
• Citation: 280 F.Supp.3d 356
• Parties: In the Matter of the Application of Gregory JOHNSON, Petitioner, v. The COUNTY OF SUFFOLK, The Suffolk County Police Department, and Costco Wholesale Corporation, Respondents.
• Court: U.S. District Court — Eastern District of New York

280 F.Supp.3d 356

In the Matter of the Application of Gregory JOHNSON, Petitioner,

v.The COUNTY OF SUFFOLK, The Suffolk County Police Department, and Costco Wholesale Corporation, Respondents.

No 17–CV–3986 (JFB)(AYS)

United States District Court, E.D. New York.

Signed December 4, 2017

Petitioner is represented by Skip Alan LeBlang, 325 Broadway, Suite 402, New York, New York 10007.

Respondent Costco is represented by Allison C. Leibowitz and Sal F. DeLuca of Simmons Jannace DeLuca L.L.P., 43 Corporate Drive, Hauppauge, New York 11788.

MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

Petitioner Gregory Johnson ("Johnson" or "petitioner") commenced this proceeding via verified petition (the "petition") in the Supreme Court of the State of New York, County of Suffolk, pursuant to N.Y. C.P.L.R. §§ 403 and 3102(c), seeking an order for pre-action disclosure from Suffolk County and the Suffolk County Police Department (the "SCPD," and, together, the "Suffolk County respondents") and Costco Wholesale Corporation ("Costco," and, collectively, "respondents").¹ (Verified Pet. ("Pet."), ECF No. 1–1 at 2–8.) Petitioner, who was injured in a trip and fall accident at a Costco warehouse, sought discovery of video surveillance and photographs of the scene of his injury, as well as the 911 recordings made following his injury, in order to, in part, identify potential defendants to a future lawsuit.

The New York Supreme Court issued an order to show cause on June 21, 2017, instructing respondents to appear before the court on July 6, 2017 to show cause why an order should not be entered pursuant to § 3102(c). (Order to Show Cause ("O.S.C."), ECF No. 13–3 at 2–4.)

On July 5, 2017, respondent Costco filed a notice of removal pursuant to 28 U.S.C. § 1441, premised on diversity jurisdiction. (Notice of Removal, ECF No. 1.) Petitioner then filed a motion to remand this action to New York Supreme Court (ECF No. 13), and Costco thereafter cross-moved to dismiss the petition (ECF No. 14).

Pending before the Court are (1) petitioner's motion to remand, and (2) respondent Costco's cross-motion to dismiss the petition. For the reasons that follow, the Court concludes that Costco has failed to show that there is diversity jurisdiction and, therefore, that the Court lacks subject matter jurisdiction. In particular, assuming arguendo that pre-action disclosure proceedings under N.Y. C.P.L.R. § 3102(c) are removable, this particular action is not removable because (1) the parties to the pre-action disclosure proceeding are not diverse, and (2) even if the Court were to confine its analysis (as respondent Costco suggests) to whether diversity jurisdiction would exist in the potential future underlying personal injury action (rather than assessing the citizenship of the parties in the pre-action disclosure proceeding), it is far from clear based upon the record before this Court that there would necessarily be diversity jurisdiction even when the underlying personal injury action is brought. In other words, there is a lack of clarity as to whether there may be an additional putative defendant in the future underlying personal injury action (other than Costco) who is not diverse with plaintiff, and plaintiff cannot make that determination without obtaining additional information through the pre-action disclosure proceeding. In this case, Costco has not shown that the pre-action disclosure proceeding is being brought in state court with non-diverse, nominal defendants in bad faith, simply to avoid restrictions in federal discovery rules that would otherwise apply in an underlying federal action. In sum, under the circumstances of this case, there is no basis for the Court to exercise subject matter jurisdiction over this pre-action disclosure proceeding. To hold otherwise could result in a federal court exercising jurisdiction over a pre-action disclosure proceeding with non-diverse parties, in connection with a future lawsuit for which there also may be no federal subject matter jurisdiction.

Accordingly, the Court must remand this pre-action disclosure proceeding to state court pursuant to 28 U.S.C. § 1447(c).

I. BACKGROUND

A. Facts

The following facts are taken from the petition. On April 14, 2017, petitioner, a member of Costco, was injured at the Costco warehouse retail store located at 3000 Middle Country Road in Nesconset, New York (the "Costco warehouse"). (Pet. ¶¶ 5, 12.) Specifically, shortly before noon, petitioner was in the back of the Costco warehouse where the bundled paper goods were displayed on the open floor, and, while retrieving a bundle of paper towels, "caught his foot on/in a makeshift display platform which had several tiers of the bundles stacked on top of each other, causing him to trip and fall hard on his left upper extremity." (Id. ¶¶ 12–13.)

After falling, petitioner observed that the display platform was comprised of "several low-lying wooden freight skids" ("skids"), which were obscured, in part, by the materials stacked upon them. (Id. ¶ 13.) According to petitioner, the skids "were irregular in their configuration with spaces between them, had protruding edges beyond the displayed merchandise, and had large trap-like holes along the front and sides of the wood exactly where a shopper would naturally position their feet in order to pick-up the merchandise." (Id. )

Within moments of the fall, witnesses called 911 and reported the incident and the need for an ambulance. (Id. ¶ 14.) The SCPD responded to the 911 call, confirmed that petitioner had fallen at the Costco warehouse, and coordinated with the Nesconset Fire Department EMS to transport petitioner to the hospital. (Id. )

At the hospital, petitioner was diagnosed with "multiple comminuted and displaced fractures

of the surgical neck of the left humerus," and a surgical trauma specialist indicated that joint replacement was needed. (Id. ) The joint replacement was performed on April 26, 2017. (Id. )

B. Procedural History

On June 19, 2017, Johnson filed a petition in the Supreme Court of the State of New York, County of Suffolk, pursuant to N.Y. C.P.L.R. §§ 403 and 3102(c), seeking pre-disclosure discovery from the Suffolk County respondents and Costco, including video surveillance and photographic materials and 911 call recordings and transmissions, in order to "assist in ascertaining the identities of those who may be parties to the claim (apart from Costco)," (Pet. ¶¶ 16–18); "assist in framing the legal documents of the forthcoming action" (id. ¶ 18); and "preserve those recording and images as material and necessary information for the use at trial of [petitioner's] claim" (id. ).

On June 21, 2017, Judge William B. Rebolini issued an order to show cause, returnable on July 6, 2017, directing respondents to appear before the court to show cause why an order should not be entered pursuant to § 3102(c). (O.S.C. 1–2.) On July 3, 2017, the Suffolk County Attorney's Office submitted an affirmation on behalf of the SCPD stating that it would not object to producing the requested 911 recordings for which the SCPD is the custodian if the court were to order their production. (Caputi Affirm. ¶ 3, ECF No. 13–3 at 7–8.)

On July 5, 2017, Costco filed a notice of removal in this Court, arguing that the Court has original jurisdiction under 28 U.S.C. § 1332 because there is complete diversity between Costco and petitioner, and the Suffolk County respondents are merely nominal parties. (Notice of Removal ¶¶ 4–10.)

Petitioner filed the instant motion to remand on July 31, 2017, asserting that the Court must remand this proceeding under 28 U.S.C. § 1447(c) because there is no diversity jurisdiction and Costco's notice of removal is otherwise procedurally defective. (ECF No. 13.) On September 8, 2017, respondent Costco opposed petitioner's motion to remand and cross-moved to dismiss the petition on the basis that the petition improperly seeks pre-action disclosure in violation of Federal Rule of Civil Procedure 27. (ECF No. 14.) Petitioner submitted an affidavit in opposition to Costco's cross-motion and in further support of its motion to remand on September 18, 2017 (Aff. in Opp. to Cross–Mot., ECF No. 15), and Costco replied on September 27, 2017 (Reply Decl., ECF No. 16). Oral argument was held on October 5, 2017. The Court has fully considered the parties' submissions.

II. STANDARD OF REVIEW

A. Motion to Remand

Generally, a case may be removed from state court to federal court "only if it could have originally been commenced in federal court on either the basis of federal question jurisdiction or diversity jurisdiction." Citibank, N.A. v. Swiatkoski , 395 F.Supp.2d 5, 8 (E.D.N.Y. 2005) (citing 28 U.S.C. § 1441(a) ); see also 28 U.S.C. § 1441. If a federal district court determines that it lacks subject matter jurisdiction over a case removed from state court, the case must be remanded. 28 U.S.C. § 1447(c). "When a party challenges the removal of an action from state court, the burden falls on the removing party to establish its right to a federal forum by competent proof." In re Methyl Tertiary Butyl Ether ("MTBE") Prods. Liab. Litig ., No. 1:00–1898, MDL 1358 (SAS), M 21–88, 2006 WL 1004725, at *2 (S.D.N.Y. Apr. 17, 2006) (internal quotation marks and citations omitted). Further, "[i]n 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." Lupo v. Human Affairs Int'l, Inc. , 28 F.3d 269, 274 (2d Cir. 1994) (quotation marks and citation omitted); accord Fed. Ins. Co. v. Tyco Int'l Ltd. , 422 F.Supp.2d 357, 367–68 (S.D.N.Y. 2006).

B. Diversity Jurisdiction

It is axiomatic that federal courts only have diversity jurisdiction when there is complete diversity between the parties—that is, when all plaintiffs are citizens of different states from all defendants. See 28 U.S.C. § 1332 ; Lincoln...