Opinion
1:04-cv-1394 (GLS\RFT).
December 22, 2004
GEORGE J. HOFFMAN, ESQ., JAMES D. LINNAN, ESQ., Linnan, Fallon Law Firm, Albany, New York, for Plaintiffs.
ALAN JAY GOLDBERG, ESQ., NEIL L. LEVINE, ESQ., Whiteman, Osterman Law Firm, Albany, New York, for Defendants.
SUMMARY REMAND ORDER
On October 4, 2004, plaintiff Patricia H. Duker (Duker) commenced a class action lawsuit in New York Supreme Court for Albany County against various computer microchip companies (defendants). See Notice of Removal ¶ 1, Dkt. No. 1. In her complaint, Duker alleges, inter alia, that the defendants engaged in "unlawful practices designed to inflate and stabilize the prices of Dynamic Random Access Memory (DRAM) computer chips" in violation of New York General Business Law § 349. See id., Ex. A, Compl. ¶ 2. On December 3, 2004, the defendants removed this case from state court asserting diversity of citizenship under 28 U.S.C. § 1332 as the only basis of this court's jurisdiction. See Notice of Removal ¶¶ 4-20, Dkt. No. 1.
The defendants timely removed the case within thirty (30) days of receipt of the pleadings. The specific dates of service of the summons and complaint for each defendant are set forth in the Notice of Removal. See id. ¶ 2, Dkt. No. 1.
The defendants do not assert nor does this court find any federal question jurisdiction in its analysis under the well-pleaded complaint rule. See e.g., Marcus v. ATT Corp., 138 F.3d 46, 52 (2d Cir. 1998) (stating that the plaintiff is the master of the complaint, free to avoid federal jurisdiction by pleading only state claims even where a federal claim is also available.)
It is well settled that removal statutes are to be "strictly construed against removal and all doubts should be resolved in favor of remand." Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990). Moreover, " 28 U.S.C. § 1446(c)(4) [also] requires the district court in which a notice of removal is filed to examine the notice promptly." Aquilina C. Lim, M.D., P.C. v. Stuart Saftchick, M.D., 2002 WL 1808422, at *1 (S.D.N.Y. 2002). "If it clearly appears on the face of the notice and any exhibits annexed thereto that removal should not be permitted, the court shall make an order for summary remand." 28 U.S.C. § 1446(c)(4).
Under 28 U.S.C.A. § 1332(a), "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — (1) citizens of different States. . . ." The "requirement that a certain amount be at stake is an unwaivable jurisdictional one." E.R. Squibb Sons, Inc. v. Accident Cas. Ins. Co., 160 F.3d 925, 933 (2d Cir. 1998). This "jurisdictional amount cannot be satisfied through the aggregation of claims." See Zahn v. Int'l Paper Co., 414 U.S. 291, 300 (1973).
The only issue before this court is whether the claims in the complaint meet the amount in controversy requirement of $75,000 for diversity jurisdiction. See 28 U.S.C.A. § 1332(a). Defendants contend that at least one or more class members will be able to meet the amount in controversy requirement since the class will include companies who have purchased large amounts of products containing the DRAM. See Notice of Removal ¶¶ 23, 25, Dkt. No. 1 (emphasis added). Therefore, Duker submits that jurisdiction is proper in this court. The defendants also contend that this court can exercise supplemental jurisdiction over the member plaintiffs that do not separately meet the amount in controversy requirement. See id. ¶ 22. These contentions fail for several reasons.
The defendants cite to several Circuit cases for the proposition that this court can exercise supplemental jurisdiction over these claims. See Notice of Removal ¶ 22, Dkt. No. 1.
First, Duker has limited her relief to actual damages under $75,000 and has waived any "discretionary" and statutory damages under New York's General Business Law § 349. See Notice of Removal, Ex. A, Compl. ¶ 72, Dkt. No. 1. Secondly, there has been no class notice in this case wherein a company has been named as a plaintiff. See e.g., Fein v. Chrysler Corp., 1998 WL 34032284, at *8 (E.D.N.Y. Sept. 29, 1998). Moreover, such companies may elect to opt out of the proposed class leaving this court with no plaintiffs to satisfy the amount in controversy requirement. This is an unacceptable result.
Finally, while other Circuits have held that federal courts can exercise supplemental jurisdiction over claims that do not meet the amount in controversy as long as one plaintiff meets the amount in controversy requirement, the district courts in the Second Circuit do not. See Rosemer v. Pfizer, Inc., 264 F.3d 110, 117 (4th Cir. 2001) ; see also, Olden v. LaFarge, 383 F.3d 495 (6th Cir. 2004); Stromberg Metal Works Inc. v. Press Mechanical Inc., 77 F.3d 928, 930-32 (7th Cir. 1996). Instead, the district courts in this Circuit have consistently held that every plaintiff must meet the jurisdictional amount as set forth in Zahn v. Int'l Paper Co., 414 U.S. 291 (1973). See also, Mehlenbacher v. Akzo, 207 F. Supp. 2d 71, 81 (W.D.N.Y. 2002); In re Ciprofloxacin Hydrochloride Antitrust Litigation, 166 F. Supp. 2d 740, 755 (E.D.N.Y. 2001); McGowan v. Cadbury Schweppes PLC, 941 F. Supp. 344, 348 (S.D.N.Y. 1996); Bernard v. Gerber Food Prods. Co., 938 F. Supp. 218, 224 (S.D.N.Y. 1996); Colon v. Rent-a-Center Inc., 13 F. Supp. 2d 553, 562 (S.D.N.Y. 1998). Therefore, defendant's proposed basis for supplemental jurisdiction is not supported by the case law of the Second Circuit. See Fein, 1998 WL 34032284, at *9. Instead, this court finds case law to the contrary, supporting remand to the state court in order to avoid the "undesirable outcome of having parallel complex litigation in federal and state courts." See Mehlenbacher, 207 F. Supp. 2d at 81 (quoting Freeman v. Great Lakes Energy Partners, L.L.C., 144 F. Supp. 2d 201, 211 (W.D.N.Y. 2001)). Until such time when the defendants can establish this court's jurisdiction, this matter must be remanded to state court.
After careful review of the record, defendants' application for removal and for the reasons stated herein, it is hereby
ORDERED that this matter be REMANDED for lack of subject matter jurisdiction to the New York Supreme Court of Albany County pursuant to 28 U.S.C. §§ 1446(c)(4) and 1447(c); and it is further
ORDERED that the Clerk of the Court serve a certified copy of this Summary Remand Order to the state court; and it is further
ORDERED that the Clerk of the Court serve copies of this Summary Remand Order to the parties.