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Raspa v. Home Depot

December 21, 2007

ANTONINO RASPA AND PATRICIA RASPA, HIS WIFE, PLAINTIFFS,
v.
THE HOME DEPOT AND/OR JOHN DOE(S) #1-20 (REPRESENTING PRESENTLY UNIDENTIFIED INDIVIDUALS, BUSINESSES AND/OR CORPORATIONS, WHO WERE RESPONSIBLE FOR EITHER THE OWNERSHIP, OPERATION, MAINTENANCE, SUPERVISION, DESIGN, CONSTRUCTION, REPAIR, INSPECTION, AND/OR CONTROL OF PREMISES; OR CREATED THE HAZARDOUS CONDITION FOR THE ACCIDENT IN QUESTION), DEFENDANTS.



The opinion of the court was delivered by: Dennis M. Cavanaugh, U.S.D.J.

FOR PUBLICATION

OPINION

This matter comes before the Court upon motion to remand by Plaintiffs Antonio Raspa ("Antonio") and Patricia Raspa ("Patricia," and collectively, "Plaintiffs"). Plaintiffs' motion is unopposed by Defendant The Home Depot. Pursuant to FED. R. CIV. P. 78, no oral argument was heard. After carefully considering the submissions of the parties, and based upon the following, it is the finding of this Court that Plaintiffs' motion to remand is denied.

I. BACKGROUND*fn1

A. Tort Claims

On August 30, 2006, Antonio was shopping with Michael Egierd at The Home Depot when both of them were attacked and bitten by a racoon. Antonio filed a Complaint seeking compensatory and punitive damages alleging that, as a result of his injuries, he suffered severe and permanent physical, psychological and emotional injuries; he suffered great pain; he incurred substantial medical expenses; he lost wages; and he will continue to suffer great medical expenses and lost wages into the foreseeable future. In the Complaint, Patricia alleged a loss of consortium claim. Pursuant to N.J.S.A. 4:5-2, however, Plaintiffs did not demand a specific amount of damages.

B. Removal

Defendant alleges that diversity jurisdiction exits under 28 U.S.C. § 1332 because there is diversity of citizenship between the parties and "it is likely" that the amount in controversy exceeds the sum of $75,000. Plaintiffs' Complaint, however, failed to demand a specific amount of damages and Defendant never served Plaintiff with a written request for a statement of damages upon receiving the Complaint as required under N.J.S.A. 4:5-2.

Egierd and his wife, Leslie Egierd, also filed a Complaint seeking compensatory and punitive damages. Defendant also removed that matter to the Federal District Court for the District of New Jersey pursuant to 28 U.S.C. § 1441. Egierd thereafter filed a Notice of Motion for Remand to the Superior Court of New Jersey, Middlesex County. Judge Stanley Chesler granted the motion and the matter was remanded to state court.

Plaintiffs attempted, in light of the remand of Egierd v. The Home Depot, et al., No. 07-1164 (D. N.J. July 10, 2007), to obtain defense counsel's consent to have this matter remanded to state court, but Defense counsel declined to consent to the remand.

C. The Complaint

In the Complaint, Plaintiffs do not state the exact sum that they are seeking. Instead, the Complaint "demands judgment against the defendant Home Depot, jointly and/ or severally together with costs of suit and attorney fees." (Compl. ¶ 4 (First Count)). Furthermore, Plaintiffs "demand[] judgment . . . together with punitive damages." (Compl. ¶ 3 (Third Count)). Also, Plaintiffs demand "judgment against the defendants jointly, individually and/or severally for damages, interest, costs of suit and attorney fees." (Compl. ¶ 3 (Fourth Count)).

D. Plaintiff's Motion to Remand

Plaintiffs argue under Samuel-Bassett v. Kia Motors Am., Inc. that Defendant has failed to establish to a legal certainty that the amount in controversy exceeds the jurisdictional threshold and, therefore, this matter should be remanded to the Superior Court of New Jersey, Middlesex County because this Court lacks subject matter ...


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