Perez v. Sodexo, Inc.

• Decision Date: 07 June 2021
• Docket Number: 20-CV-4176 (MKB)
• Parties: DARNELL PEREZ, Petitioner, v. SODEXO, INC., Respondent.
• Court: U.S. District Court — Eastern District of New York

DARNELL PEREZ, Petitioner, v. SODEXO, INC., Respondent.

20-CV-4176 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 7, 2021

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Petitioner Darnell Perez commenced the above-captioned action on August 27, 2020, in the New York Supreme Court, Queens County ("State Court"), against Respondent Sodexo, Inc., to recover for personal injuries he allegedly sustained from a slip and fall at Flushing Hospital Medical Center ("Flushing Hospital") in February of 2020. (Notice of Removal 1-2, Docket Entry No. 1; Summons and Verified Compl. ("Compl.") 4-8, annexed to Notice of Removal as Ex. A, Docket Entry No. 1-1.) On September 8, 2020, Respondent removed the action to the Eastern District of New York on the basis of diversity of citizenship jurisdiction pursuant to 28 U.S.C. §§ 1332 and 1441. (Notice of Removal 1.) Petitioner now moves to remand the action to the State Court, arguing that the parties are not completely diverse and that Respondent failed to establish that the amount in controversy exceeds $75,000. (Pet'r Mot. to Remand, Docket Entry No. 11; Pet'r Mem. in Supp. of Pet'r Mot. ("Pet'r Mem."), Docket Entry No. 12.) Respondent opposes the motion. (Resp't Mem. in Opp'n to Pet'r Mot. ("Resp't Opp'n"), Docket Entry No. 14.)

For the reasons set forth below, the Court grants Petitioner's motion and remands the action to the State Court.

I. Background

Petitioner commenced this action on August 27, 2020, in the State Court against Respondent. (Notice of Removal 1.) Petitioner is a citizen of the State of New York. (Id. at 2.) Respondent is a foreign business corporation with its principal place of business in Maryland. (Id.) Respondent alleges upon information and belief that "Petitioner's alleged amount in controversy will be claimed to exceed the $75,000[] threshold" because, although the "Complaint did not specify the amount of damages . . . , Petitioner alleges that he was severely injured, bruised and wounded, suffered, still suffers and will continue to suffer physical pain and bodily injuries, and became sick, sore, lame and disabled for a considerable amount of time" as a result of the alleged slip and fall.¹ (Id. at 2-3; Compl. ¶ 24.) Based on these jurisdictional allegations, on September 8, 2020, Respondent removed the action to this Court pursuant to the Court's diversity jurisdiction and filed an Answer to the Complaint on September 10, 2020. (Notice of Removal; Answer, Docket Entry No. 8.) On September 25, 2020, after Respondent had removed the action, Petitioner served and filed in the State Court a Supplemental Summons and Amended Complaint, adding defendants Sodexo Management, Inc.; Sodexo, America, LLC; and Sodexo Operations, LLC. (Suppl. Summons and Am. Compl., annexed to Decl. of Keyonte Sutherland in Supp. of Pet'r Mot. as Ex. B, Docket Entry No. 13-2.) On October 8, 2020,Petitioner moved to remand the action to the State Court, arguing that new defendant Sodexo Management, Inc., is a resident of New York and thus the parties are no longer completely diverse and that Respondent failed to establish that the amount in controversy exceeds $75,000. (Pet'r Mot. to Remand; Pet'r Mem. ¶¶ 11-12, 18.)

II. Discussion

a. Standard of review

A notice of removal must allege a proper basis for removal under 28 U.S.C. §§ 1441-1445. See Agyin v. Razmzan, 986 F.3d 168, 181 (2d Cir. 2021) ("[In] determining whether jurisdiction is proper, we look only to the jurisdictional facts alleged in the Notices of Removal." (quoting California v. Atl. Richfield Co. (In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.), 488 F.3d 112, 124 (2d Cir. 2007))); New York v. Dickerson, No. 20-CR-208, 2020 WL 3263771, at *1 (E.D.N.Y. June 16, 2020) ("An effective petition for the removal of a state action to federal court must allege a proper basis for the removal under sections 1441 through 1445 of Title 28." (quoting Negron v. New York, No. 02-CV-1688, 2002 WL 1268001, at *1 (E.D.N.Y. Apr. 1, 2002))). A defendant may remove a civil action brought in state court to a federal court in "any civil action . . . of which the district courts of the United States have original jurisdiction." 28 U.S.C. § 1441(a). Federal courts have "original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000 . . . and is between citizens of different States." 28 U.S.C. § 1332(a). "[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." Platinum-Montaur Life Scis., LLC v. Navidea Biopharmaceuticals, Inc., 943 F.3d 613, 617 (2d Cir. 2019) (quoting Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 1043, 1045-46 (2d Cir. 1991),superseded by rule on other grounds as recognized by Contino v. United States, 535 F.3d 124, 127 (2d Cir. 2008)); Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (quoting Lupo v. Hum. Affs. Int'l, Inc., 28 F.3d 269, 274 (2d Cir. 1994)). The party seeking removal bears the burden of proving that the jurisdictional and procedural requirements have been met. Vermont v. MPHJ Tech. Invs., LLC, 803 F.3d 635, 647 (2d Cir. 2015) ("Where, as here, the defendant asserts federal jurisdiction in a removal petition, the defendant has the burden of establishing that removal is proper."). Where subject matter jurisdiction is contested in the context of removal, a court may consider materials outside the pleadings, including "documents appended to a notice of removal or a motion to remand that convey information essential to the court's jurisdictional analysis." Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir. 2010); JS Barkats PLLC v. Blue Sphere Corp., No. 16-CV-8404, 2017 WL 2930935, at *3 (S.D.N.Y. July 10, 2017) (same); B.N. ex rel. Novick v. Bnei Levi, Inc., No. 12-CV-5057, 2013 WL 168698, at *3 (E.D.N.Y. Jan. 15, 2013) (collecting cases).

b. The Court lacks subject matter jurisdiction because Respondent has failed to establish that the amount in controversy exceeds $75,000

Petitioner argues that the Court should grant its motion to remand the action because (1) the Supplemental Summons and Amended Complaint Petitioner filed in State Court added defendant Sodexo Management, Inc., and Sodexo Management, Inc., is incorporated in New York and thus is a resident of New York, which destroys complete diversity,² (Pet'r Mem. ¶¶ 11-13), and (2) Respondent "failed to allege that the amount in controversy was over $75,000" and instead "only assumes" it is met, (id. ¶¶ 17-21). In support. Petitioner argues that"[w]here . . . 'after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action.'"³ (Id. ¶ 14 (quoting 28 U.S.C. § 1447(e)).)

Respondent argues that complete diversity still exists because the nondiverse defendant, Sodexo Management, Inc., had no connection to Flushing Hospital on the day of the alleged slip and fall; rather, Sodexo Operations, LLC, was the only Sodexo entity performing services there at that time, making it the only "appropriate entity with respect to [Petitioner's] alleged injury." (Resp't Opp'n ¶¶ 11-17.) Respondent also contends that complete diversity exists because Sodexo Operations, LLC, is a foreign limited liability company and the original defendant, Sodexo, Inc., is its sole member, Petitioner is a resident of New York, and Sodexo, Inc., is incorporated in Delaware⁴ and maintains its principal place of business in Maryland.⁵ (Id. ¶¶ 13, 17.) In addition, Respondent maintains that the amount in controversy exceeds $75,000 and notes that it served Petitioner, contemporaneously with the Answer it filed in this Court, with arequest for the specific dollar amount of his damages pursuant to N.Y. C.P.L.R. § 3017, but Petitioner has yet to respond.⁶ (Id. ¶¶ 18-20.) Thus, Respondent argues, while Petitioner "does not concede that the amount in controversy is under $75,000" and "asserts that [Respondent] has failed to meet its burden, [the] information necessary to satisfy this requirement remains in [Petitioner's] exclusive control." (Id. ¶ 21.)

Federal courts are courts of limited jurisdiction and may not hear cases if they lack subject matter jurisdiction over the issues presented. Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). "In 28 U.S.C. §§ 1331 and 1332(a), Congress granted federal courts jurisdiction over two general types of cases: cases that 'aris[e] under' federal law, § 1331, and cases in which the amount in controversy exceeds $75,000 and there is diversity of citizenship among the parties, § 1332(a)." Home Depot U.S.A., Inc. v. Jackson, 587 U.S. ---, ---, 139 S. Ct. 1743, 1746 (May 28, 2019) (alteration in original). Under the diversity jurisdiction statute, all plaintiffs and all defendants must be of diverse citizenship. 28 U.S.C. § 1332(a); see also Bartlett v. Honeywell Int'l Inc., 737 F. App'x 543, 547 (2d Cir. 2018) ("Diversity jurisdiction is present when there is complete diversity between the parties . . . ." (citing 28 U.S.C. § 1332(a))); Pa. Pub. Sch. Emps.' Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 117-18 (2d Cir. 2014) ("Subject matter jurisdiction is based on 28 U.S.C. § 1332, which requires 'complete diversity,' i.e.[,] all plaintiffs must be citizens of states diverse from those of alldefendants." (footnote omitted)). In addition, "[f]ederal diversity jurisdiction requires an amount in controversy of at least $75,000 . . . [and] this amount is measured as of the time that a complaint is filed," Lapaglia v. Transamerica Cas. Ins. Co., 155 F. Supp. 3d 153, 154-55 (D. Conn. 2016) (citing Hall v. EarthLink Network, Inc., 396 F.3d 500, 506 (2d Cir. 2005)), "and it is established by the face of the complaint...