Yonkosky v. Hicks

• Decision Date: 19 August 2005
• Docket Number: No. 04-CV-756S(F).,04-CV-756S(F).
• Citation: 409 F.Supp.2d 149
• Parties: David YONKOSKY, and Mary Yonkosky, Plaintiffs, v. Ricky HICKS, and Hornish Bros. Inc., Defendants.
• Court: U.S. District Court — Western District of New York

Page 149

409 F.Supp.2d 149

David YONKOSKY, and Mary Yonkosky, Plaintiffs, v. Ricky HICKS, and Hornish Bros. Inc., Defendants.

No. 04-CV-756S(F).

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

August 19, 2005.

Paul William Beltz, P.C., Stephen R. Foley, of Counsel, Buffalo, NY, for Plaintiffs.

Sliwa & Lane, Stanley J. Sliwa, of Counsel, Buffalo, NY, for Defendants.

DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by Honorable William M. Skretny on September 23, 2004, for nondispositive motions. The matter is presently before the court on Plaintiff's motion, filed October 18, 2004, to remand the action to New York Supreme Court (Doc. No.7).¹

BACKGROUND and FACTS²

Plaintiffs David Yonkosky ("Yonkosky") and his wife, Mary Yonkosky ("Mary Yonkosky") (together, "Plaintiffs"), both New York residents, commenced this personal injury action against Defendants Ricky Hicks ("Hicks"), an Ohio resident, and Hornish Bros., Inc. ("Hornish"), an Ohio corporation (together, "Defendants"), on May 11, 2004 in New York Supreme Court, Erie Country. Specifically, Plaintiffs seek monetary damages for personal injuries suffered by Yonkosky, and a loss of consortium claim by Mary Yonkosky, as a result of a motor vehicle accident on August 7, 2003, in Hamburg, New York. A copy of the Summons and Complaint was served on Hornish, the owner of the truck involved in the accident, on May 19, 2004, and on Hicks, the driver of the truck, on May 29, 2004. According to Defendants, as the Complaint fails, in accordance with New York Civil Practice Law and Rules ("N.Y. Civ. Prac. L. & R.")³ § 3017(c) ("§ 3017(c)"), to specify the amount of damages Plaintiffs seek, Defendants, on June 15, 2004, served Plaintiffs' attorney, Stephen R. Foley, Esq. ("Foley") with a Request for Supplemental Demand for Relief ("Demand for Relief Request") pursuant to § 3017(c) seeking an itemization of the monetary relief to which Plaintiffs claim they are entitled.

Defendants filed an answer to the Complaint and served Plaintiffs with an omnibus discovery demand on June 18, 2004. On September 9, 2004, Defendants' attorneys received from Foley the requested Demand for Relief pursuant to § 3017(c), indicating that amount of damages sought by Plaintiffs exceeds $ 75,000.

On September 17, 2004, Defendants removed the action to this court, asserting complete diversity of the parties, and a damage claim exceeding $ 75,000, as the basis for federal jurisdiction pursuant to 28 U.S.C. § 1332. Notice of Removal ("Removal Notice") (Doc. No. 1) ¶ 5. Plaintiffs, on October 18, 2004, moved to remand the action to New York Supreme Court, Erie County, and an award of the costs and expenses incurred as a result of the removal (Doc. No. 7).⁴ The motion is supported by the attached Affirmation of Stephen R. Foley, Esq. in Support of Plaintiffs' Motion to Remand ("Foley Affirmation"), and exhibits A through E ("Plaintiffs' Exh. ___"). On November 11, 2004, Defendants filed the Affidavit of Stanley J. Sliwa, Esq. in Opposition to Motion to Remand (Doc. No. 9) ("Sliwa Affidavit"), and a Memorandum of Law Submitted by Defendants in Opposition to Plaintiffs' Motion to Remand (Doc. No. 10) ("Defendants' Memorandum"). On November 22, 2004, Plaintiffs filed, in further support of remand, the Reply Affirmation of Stephen R. Foley, Esq. (Doc. No. 11) ("Foley Reply Affirmation"). On January 10, 2005, Defendants filed in further opposition to remand the Sur-Reply Affidavit of Stanley J. Sliwa, Esq. (Doc. No. 16) ("Sliwa Sur-Reply Affidavit").⁵,⁶ Oral argument was deemed unnecessary.

Based on the following, the motion to remand is DENIED.

DISCUSSION

Removal of a state court proceeding to federal court is provided for under 28 U.S.C. § 1441(a) which states in pertinent part:

any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Here, Defendants removed the instant action to this court pursuant to 28 U.S.C. § 1332(a), which provides for original jurisdiction in district courts where there is complete diversity of the parties and "where the matter in controversy exceeds the sum or value of $ 75,000 ...." Removal Notice ¶ 5. Plaintiffs, in moving to remand the matter to New York Supreme Court, do not contest that both the diversity of citizenship and amount in controversy requirements of 28 U.S.C. § 1332(a) have been met, but contend that the removal of the action more than 30 days after the action was filed violated 28 U.S.C. § 1446(b). Foley Affirmation ¶¶ 13-14.

Defendants argue in opposition to remand that because the Complaint did not specify the amount of monetary damages sought, Defendants were not able to legitimately remove the action to this court until after Plaintiffs served a Demand for Relief, pursuant to a request Defendants served on Plaintiffs' attorney on June 15, 2004, in accordance with § 3017(c). Sliwa Affidavit ¶ 5. As Plaintiffs failed to timely respond to the Demand for Relief Request within the 15 days specified by § 3017(c), Defendants' attorney wrote Plaintiffs' attorney several letters requesting the Demand for Relief, including letters dated June 18, 2004, July 1, 2004 and July 29, 2004. Sliwa Affidavit ¶¶ 8, 10 and 11, and Defendants' Exhs. 2, 3 and 4. When Plaintiffs' attorney failed to respond to any of the three letters and also failed to provide Defendants with the requested Demand for Relief, Defendants, on August 23, 2004, served Plaintiffs with a Notice of Motion filed in New York Supreme Court seeking, inter alia, an order directing Plaintiffs to provide Defendants with a Demand for Relief. Sliwa Affidavit ¶¶ 12-13 and Exhs. 6 and 7. Subsequently, Plaintiffs forwarded the Demand for Relief, along with a cover letter dated September 7, 2004. Sliwa Affidavit ¶ 14. Mr. Sliwa received the letter and Demand for Relief on September 9, 2004, in an envelope bearing the United States Postal Service cancellation date stamp indicating the documents were mailed on September 8, 2004. Sliwa Affidavit ¶ 14 and Foley Affirmation Exh. 4 to Exh. E. According to the Demand for Relief, the amount of monetary damages sought by Plaintiffs are $ 1.5 million for Yonkosky's injuries, and $ 500,000 for Mary Yonkosky's injuries. Demand for Relief⁷ ¶¶ 1 and 2. Defendants thus maintain it was not until September 9, 2004 that Defendants were aware of the amount in controversy established that the federal diversity jurisdictional threshold for the action had been met thus triggering removal to this court. Defendants' Memorandum at 1; Sliwa Affidavit ¶ 17.

Plaintiffs argue in further support of remand that after serving the Demand for Relief Request, Defendants "thereafter did absolutely nothing to attempt to obtain a response." Foley Reply Affirmation ¶ 6. According to Foley, Defendants delayed moving to compel the Demand for Relief because Defendants "have taken the bizarre position [ ] that they can merely sit on their hands and wait indefinitely, for months and even years, all the while enjoying the benefits of engaging in state court discovery and then `spring' a removal petition at such time as a damage amount is later supplied." Foley Reply Affirmation ¶ 6. Plaintiffs also maintain that Defendants never advised that they were awaiting the Demand for Relief so as to determine whether there was diversity jurisdiction supporting a change in forum, suggesting that had Plaintiffs been aware that Defendants intended to remove the action, Plaintiffs would have promptly provided the Demand for Relief. Id. ¶ 8. Furthermore, Plaintiffs assert that although it is not apparent from the face of the Complaint that Plaintiffs' injuries would support damages meeting the federal diversity jurisdictional threshold, the allegations of the Complaint nonetheless sufficiently demonstrate, for purposes of starting the required 30 day period for filing a removal petition, that the case's value exceeds $ 75,000. Id. ¶¶ 12-14.

Defendants, in further opposition to remand, reiterate that Defendants made several requests by letter for the Demand for Relief before resorting to filing a motion on August 23, 2004 to compel Plaintiffs to provide the Demand for Relief. Sliwa Sur-Reply Affidavit ¶ 9. Defendants maintain no legal authority supports the relevance to the merits of the instant motion of Plaintiffs' suggestion, Foley Reply Affirmation ¶ 8, that the Demand for Relief would have been provided sooner had Plaintiffs known that Defendants intended to remove the action to this court. Id. ¶ 12. Defendants challenge Plaintiffs' assertion that by measuring the statutory time for removal from the date Defendants received the Demand for Relief, rather than from the original filing of the Complaint, as would ordinarily be the case, Defendants could indefinitely postpone removal, by pointing to the fact that 28 U.S.C. § 1446(b) precludes removal on the basis of diversity jurisdiction more than one year after the Complaint has been filed. Id. ¶ 13. Finally, Defendants object to Plaintiffs' contention that the Complaint's allegations could have been "interpreted" as reflecting that the amount in controversy exceeds $ 75,000, as the relevant allegations are too vague to reasonably establish that the jurisdictional threshold has been met and, further, Plaintiffs' failure to comply with Defendants' discovery requests,⁸ left Defendants without any information, such as Yonkosky's medical records, from which Defendants could ascertain the extent of Plaintiffs' claimed damages. Id. ¶¶ 14-15.

Because federal courts are courts of limited jurisdiction, and as removal of a case raises issues of federalism, removal statutes are narrowly construed with doubts resolved against removal. Somlyo v. J. Lu-Rob Enterprises,...