United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
DUNN WETTRE, UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on plaintiff Marta
Morales's motion to remand this action to the Superior
Court of New Jersey, Law Division, Essex County for lack of
subject matter jurisdiction. ECF No. 5. Defendant Family
Dollar Stores of New Jersey, LLC ("Family Dollar"
or "defendant") opposes the motion. ECF No. 7. United
States District Judge Susan D. Wigenton referred this motion
to the undersigned for a Report and Recommendation. Having
considered the parties' submissions, and for good cause
shown, this Court recommends that plaintiffs motion be
alleges in the Complaint that while in a Family Dollar store
in Belleville, New Jersey, she tripped and fell on items
scattered on the floor and in the aisles, causing her
"severe permanent injuries" and "great
physical pain and suffering." Compl., ECF No. 1-1 at
8-9, 11 (ECF pagination). She filed this negligence action
against Family Dollar and fictitious defendants to recover
"general damages," medical expenses, loss of
earnings, interest, and costs of suit. Id. at 12.
The Complaint does not specify what physical injuries
plaintiff sustained or the amount of damages she seeks.
See generally id.
filed the action in the Superior Court of New Jersey, Law
Division, Essex County in December 2017 and served defendant
with process in February 2018. Defendant timely removed the
action to this Court in March 2018, asserting subject matter
jurisdiction based on diversity of citizenship. Notice of
Removal, ECF No. I. Defendant asserts there is complete
diversity of citizenship between the parties because the
store in which plaintiff fell is operated by Family Dollar
Stores of New Jersey, LLC, the sole member of which is Family
Dollar Stores, Inc., a Delaware company having its principal
place of business in North Carolina. Id.
¶¶H-14. Plaintiff, on the other hand, is a New
Jersey resident. Id. ¶ 10.
asserted in its Notice of Removal that the $75, 000 amount in
controversy requirement is satisfied because plaintiff
alleged "significant" injuries and plaintiffs
counsel informed defendant's adjuster that plaintiff
planned to undergo a spinal fusion procedure. Id.
¶¶ 2-3, 16. Based on this, defendant averred in the
Notice of Removal that the amount in controversy would exceed
$75, 000. Id. Accordingly, defendant claims, this
Court has subject matter jurisdiction under 28 U.S.C. §
1332. Id. ¶ 9.
now moves to remand this action to the Superior Court of New
Jersey for lack of subject matter jurisdiction. ECF No. 5.
Plaintiff does not dispute that the parties are citizens of
different states and therefore diverse in their citizenship.
She argues, however, that defendant has failed to meet its
burden to prove that the amount in controversy is at least
$75, 000. Id. Plaintiffs counsel certifies in
support of remand that, contrary to defendant's averment
in the Notice of Removal, he did not advise defendant's
adjuster that plaintiff intended to undergo a spinal fusion
procedure and further asserts that there are no medical
records suggesting that plaintiff would or should undergo
such a procedure. ECF No. 5-1 ¶ 4.
argues in opposition to the remand motion that plaintiffs
counsel "failed to concede" in his certification
that the amount in controversy did not exceed $75, 000. ECF
No. 7. It asserts that if plaintiff would agree to stipulate
that the amount in damages would not exceed $75, 000, it
would consent to remand, but absent such a stipulation,
removal is proper. Id. In reply, plaintiff argues
that it is not obligated to stipulate that its damages are
less than $75, 000 to obtain remand and that defendant has
not met its burden to establish that amount. ECF No. 10.
defendant may remove any civil action filed in state court to
a federal district court having original jurisdiction over
the action. 28 U.S.C. § 1441(a). When a party moves to
remand an action to state court for lack of subject matter
jurisdiction, the party asserting federal jurisdiction bears
the burden to demonstrate that the case is properly before
the Court. Frederico v. Home Depot, 507 F.3d 188,
193 (3d Cir. 2007). Removal statutes are "strictly
construed against removal and all doubts should be resolved
in favor of remand." Steel Valley Auth. v. Union
Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir.
1987); Abels v. State Farm Fire & Cas. Co., 770
F.2d 26, 29 (3d Cir. 1985).
district court may hear any civil action in which "the
matter in controversy exceeds the sum or value of $75, 000,
exclusive of interest and costs, and is between .. . citizens
of different states." 28 U.S.C. § 1332(a). Here,
the parties do not dispute that there is diversity of
citizenship, and the Court agrees. The citizenship of an LLC
like defendant is determined by the citizenship of its
members, Zambelli Fireworks Mfg. Co., Inc. v. Wood,
592 F.3d 412, 420 (3d Cir. 2010), and defendant has
demonstrated that it is a resident of Delaware and North
Carolina, not New Jersey. Notice of Removal ¶¶
11-15. Plaintiff, on the other hand, is a citizen of New
Jersey. Id. ¶ 10; see also Compl. at
ECF p. 7. Accordingly, the sole issue before this Court is
whether the amount in controversy meets the $75, 000
determine the amount in controversy, the Court must look
primarily to the contents of the operative complaint at the
time of removal. Frederico, 507 F.3d at 197;
Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d
392, 398 (3d Cir. 2004). The Third Circuit has provided a
"roadmap" for determining whether a case should be
remanded because the amount in controversy does not exceed
$75, 000. Briggs v. Target Corp., Civ. A. No.
14-7165 (RBK), 2015 WL 1145127, at *2 (D.N.J. Mar. 13, 2015)
(citing Frederico, 507 F.3d at 196). First, if there
is a dispute over the relevant jurisdictional facts, the
party asserting federal jurisdiction bears the burden to
establish it by a preponderance of the evidence. Id.; see
also Raspa v. Home Depot, 533 F.Supp.2d 514, 518 (D.N.J.
2007); Clark v. JC Penny Corp., Inc., Civ. A. No.
08-4083 (PGS) (ES), 2009 WL 1564175, at *3 (D.N.J. June 1,
2009). "Second, if jurisdictional facts are not in
dispute, or if the court is satisfied with the sufficiency of
the jurisdictional proof, the analysis turns to whemer the
jurisdictional amount is met with 'legal
certainty.'" Briggs, 2015 WL 1145127, at *2
(quoting Frederico, 507 F.3d at 196). When, as here,
a complaint is silent as to the value of the relief sought,
"the case must be remanded if it appears to a legal
certainty that the plaintiff cannot recover the
jurisdictional amount." Frederico, 507 F.3d at
197; see also Raspa, 533 F.Supp.2d at 521-22.
this road map, the Court concludes that remand is not
warranted. First, the parties do not dispute the salient
jurisdictional facts. Indeed, there is no dispute that
plaintiff alleges significant, permanent injuries due to
defendant's actions or inactions and would be entitled to
seek recovery under each category of damages she claims.
See Compl. at 2-3, 5-6; Notice of Removal
¶¶ 4-5, 16; see also Zanger v. Bank of America,
N.A., Civ. A. No. 10-2480 (RBK), 2010 WL 3910142, at *3
(D.N.J. Oct. 1, 2010) (finding no dispute as to
jurisdictional facts where removing party relied on factual
allegations in the Complaint and there was no dispute that
plaintiff was entitled to seek recovery under each category
of alleged damages).
Court notes that there is a dispute over whether plaintiffs
counsel advised defendant's assigned adjuster that
plaintiff will need spinal fusion surgery. Notice of Removal
¶ 2; ECF No. 5-1 at ¶ 4. Defendant has not met its
burden to show, by a preponderance of the evidence, that
plaintiff will undergo spinal fusion surgery. Plaintiffs
counsel has certified that he did not advise defendant's
adjuster that plaintiff will undergo the surgery and that
there are no medical records to suggest that plaintiff would
or should undergo the surgery. Given the lack of a
certification from the adjuster or other evidence mat
directly refutes plaintiffs counsel's certification,
defendant has not met its burden as to this fact.
Nevertheless, and even assuming plaintiff will not undergo
spinal fusion surgery, there is no dispute as to me salient
jurisdictional facts-that plaintiff alleges severe injuries
and seeks to recover multiple categories of damages. See
Venuto v. Atlantis Motor Grp. LLC, Civ. A. No. 17-3363,
2017 WL 4570283, at *3 & n.l (D.N.J. ...