Opinion
24-CV-5618 (JMF)
07-30-2024
ARISTIDES RAFAEL VARGAS VENTURA, Plaintiff, v. OSVALDO DE LA TORRE TOLEDO et al., Defendants.
MEMORANDUM OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
On July 26, 2024, Defendants Norma Jean Hubbard and Ryder Truck Rental, Inc. removed this action from the Supreme Court of New York, New York County, asserting that removal was proper on the basis of diversity jurisdiction. See ECF No. 7 (“Notice”), ¶ 15. There are, however, several apparent defects in the Notice of Removal.
First, the Notice of Removal alleges only the states of residence of the Plaintiff and Defendants Norma Jean Hubbard and Osvaldo De La Torre Toledo. See Notice ¶¶ 6, 7, 9. That is not enough. For the purpose of diversity jurisdiction, “a statement of the parties' residence is insufficient to establish their citizenship.” Leveraged Leasing Admin. Corp. v. PacifiCorp Capital, Inc., 87 F.3d 44, 47 (2d Cir. 1996) (emphases added); see also, e.g., Linardos v. Fortuna, 157 F.3d 945, 948 (2d Cir. 1998) (“For purposes of diversity jurisdiction, a party's citizenship depends on his domicile.”); Canedy v. Liberty Mut. Ins. Co., 126 F.3d 100, 103 (2d Cir. 1997) (“[A]llegations of residency alone cannot establish citizenship ....”).
Second, the Notice merely alleges that Defendant PC Holding Corporation “is a foreign corporation” with principal offices “located outside of New York State.” Notice ¶ 10. But that conclusory allegation of citizenship is also insufficient to establish diversity jurisdiction. See Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 60 (2d Cir. 2016) (merely alleging that “‘[a defendant] is a citizen of a different state' . . . is insufficient to show that the diversity requirement is met because, standing alone, it is entirely conclusory.”); Brown v. Diversified Maint. Sys., LLC, No. 16-CV-230, 2016 WL 3207712, at *3 (W.D.N.Y. June 10, 2016) (“[C]onclusory negative assertions: that it ‘is not a citizen of New York,' . . . [are] not good enough.”); Davis v. Cannick, No. 14-CV-7571 (SJF) (SIL), 2015 WL 1954491, at *2 (E.D.N.Y. Apr. 29, 2015) (“[A] conclusory allegation in the Complaint regarding diversity of citizenship does not extinguish the Court's responsibility to determine, on its own review of the pleadings, whether subject matter jurisdiction exists.” (internal quotation marks omitted)); see also Advani Enter. Inc. v. Underwriters at Lloyds, 140 F.3d 157, 160 (2d Cir. 1998) (“The party seeking to invoke jurisdiction under 28 U.S.C. § 1332 bears the burden of demonstrating that the grounds for diversity exist and that diversity is complete.”).
Finally, diversity jurisdiction requires that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332(a). The Second Circuit has held that, “if the jurisdictional amount is not clearly alleged in the plaintiff's complaint, and the defendant's notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis” for removal. Lupo v. Human Affairs Int'l, Inc., 28 F.3d 269, 273-74 (2d Cir. 1994). Here, the Notice of Removal and Complaint include only the bare allegations that the amount in controversy exceeds $75,000; that the amount in controversy “exceeds the jurisdictional limits” of New York State's courts; and that Plaintiff sustained “serious injuries” as defined by New York Insurance Law §§ 5102(d), 5104. See Notice ¶ 14; ECF No. 7 Ex. A (“Complaint”), ¶¶ 39-40, 43. There is reason to believe that those allegations do not suffice for removal. See, e.g., Yong Qin Luo v. Mikel, 625 F.3d 772, 775-76 (2d Cir. 2010); see also, e.g., Wright v. JB Hunt Transp. Inc., No. 19-CV-2414 (PKC) (RML), 2019 WL 1936725, at *2 (E.D.N.Y. May 1, 2019); Duncan v. Crawford, No. 16-CV-4699 (PKC), 2016 WL 4919891, at *1 (E.D.N.Y. Sept. 14, 2016); Walker v. Rodgers, No. 15-CV-07376 (PKC), 2016 WL 236223, at *2 (E.D.N.Y. Jan. 19, 2016); Woodley v. Massachusetts Mut., No. 08-CV-0949 (NRB), 2008 WL 2191767, at *1 (S.D.N.Y. May 23, 2008); Yonkosky v. Hicks, 409 F.Supp.2d 149, 156 (W.D.N.Y. 2005) (citing cases); cf. Kunstenaar v. Hertz Vehicles, LLC, No. 14-CV-1101 (PAE), 2014 WL 1485843, at *2 (S.D.N.Y. Apr. 14, 2014) (relying on additional disclosures, submitted pursuant to New York Civil Practice Law and Rules § 3017(c), in assessing amount in controversy of a case alleging serious injury under New York Insurance Law § 5102(d) to determine existence of diversity jurisdiction).
In light of the foregoing, it is hereby ORDERED that, on or before August 7, 2024, the removing Defendants shall amend their Notice of Removal to properly allege the citizenship of all parties and allege facts sufficient to demonstrate that the amount-in-controversy requirement is satisfied. If, by that date, the removing Defendants are unable to amend their Notice of Removal to truthfully allege complete diversity of citizenship and the requisite amount in controversy, the action will be remanded without further notice to the parties.
Finally, Defendants are directed to serve a copy of this Order on Plaintiff and to file proof of such service on the docket, within two business days of this Order. Counsel for Plaintiff is directed to file a notice of appearance on the docket within two business days of such service.
SO ORDERED.