United States District Court, D. New Jersey
Kevin McNulty United States District Judge.
a state-court case, removed on the basis of the court's
diversity jurisdiction. The plaintiff has moved to remand it
to state court, asserting that defendant's notice of
removal is untimely. For the reasons stated herein, the
motion to remand is denied.
is a recurring issue in this Court with respect to the $75,
000 jurisdictional amount-in-controversy requirement, see 28
U.S.C. § 1332(a), in cases removed from the New Jersey
state courts. That issue stems from a the rule of New Jersey
civil practice that a complaint for unliquidated damages
shall not state a dollar amount of the damages sought. See
N.J. Ct. R. 4:5-2. The Jurisdiction and Venue Clarification
Act of 2011 provided some much-needed clarity as to the
removability of such cases. See 28 U.S.C. §
1332(c)(2)(A)(ii). The lack of a damages figure in the
complaint, however, may continue to inject uncertainty as to
the running of the 30-day deadline to remove. In such cases,
the better practice in New Jersey may be to immediately serve
a request for a statement of damages, see N.J. Ct. R. 4:5-2,
and thereby avoid unnecessary motion practice.
plaintiff, James Riconda, was formerly employed by defendant
U.S. Foods, Inc. The complaint alleges that Mr. Riconda left
work and went to the emergency room with flu-like symptoms in
the early morning hours of July 6, 2017. The hospital sent
him home, and on July 9, 2017, he was back at work. Later in
July 2017, he was fired. The firing, he claims, was
20, 2018, Mr. Riconda filed a complaint in the Superior Court
of New Jersey, Middlesex County, Law Division. His complaint
asserted four state-law causes of action, plus a federal-law
claim under the Family Medical Leave Act
("FMLA"). Within 30 days of service, on July 31,
2018, the defendant timely removed the case to federal
court. That notice of removal was based on the
presence of a federal question, i.e., the FMLA
claim, but did not address any alternative theory of removal
based on diversity jurisdiction. Within a few weeks, the
defendant moved to dismiss on the basis (inter alia)
that the complaint failed to state a federal claim under the
FMLA. On December 20, 2018, I granted the defendant's
motion to dismiss, declined to exercise supplemental
jurisdiction over the state-law claims, and remanded the
matter (now a pure state-law case) to state court. See
Riconda v. U.S. Foods, Civ. No. 18-12238, 2018 U.S.
Dist. LEXIS 216231 (D.N.J. Dec. 20, 2018).
January 25, 2019, the defendant filed a second Notice of
Removal to this Court. (DE 1) This second Notice of Removal
was assigned the new civil number in die caption above, but
it relates to the same state-court complaint. This time, the
defendant bases its notice of removal on this Court's
diversity jurisdiction, which requires tiiat the parties be
citizens of separate states and that the amount in
controversy exceed $75, 000. See 28 U.S.C. §
second Notice of Removal states that James Riconda is a
citizen of the State of New Jersey. It states that the
defendant, U.S. Foods, Inc., is a citizen of the State of
Delaware. At any rate, U.S. Foods is not a citizen of the
State of New Jersey; it is incorporated under the laws of
Delaware and has its principal place of business in the State
leaves the $75, 000 amount-in-controversy requirement. This
state-court complaint, as per New Jersey civil practice, does
not specify the dollar amount of damages sought. See N.J. Ct.
R. 4:5-2 ("If unliquidated money damages are claimed in
any court... the pleading shall demand damages generally
without specifying the amount."). Instead, the ad
damnum language of the complaint describes the damages
sought only by category: (1) compensatory damages, (2)
punitive damages, (3) front and back pay, (4) equitable
reinstatement, and (5) attorneys' fees.
second Notice of Removal states that the defendant requested
a statement of the damages sought under N.J. Ct. R.
4:5-2. On January 7, 2019, die plaintiff
responded with a Statement of Damages and settlement demand
in excess of the jurisdictional amount of $75, 000. (DE 8-1.)
Statement calculates lost wages of $35, 000 (using the
plaintiffs salary of $1350 per week) for the five or six
months that the plaintiff remained unemployed. (Net of wages
for substitute employment obtained in December 2017, die
Statement calculates lost wages currently in excess of $50,
000, and "ongoing.") It alludes to emotional
distress and similar damages arising from the plaintiffs
unemployment and odier factors, such as an enforced
separation from his spouse. It cites allegedly comparable
recent New Jersey cases upholding jury awards of emotional
distress damages that ranged from $250, 000 to $800, 000. The
Statement also points generally to die complaint's demand
for punitive damages, alludes to die culpable participation
of upper management in the firing, and states that punitive
damages would likely not be covered by insurance.
facts alleged in the second Notice of Removal seem to be
largely undisputed. The plaintiff does not claim tiiat
diversity jurisdiction is lacking. Rather, he moves to remand
die case because the second Notice of Removal was filed
untimely under 28 U.S.C. § 1446(b)(1).
second Notice of Removal was not, of course, filed
"within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading." Id. Service of the complaint
occurred on July 2, 2018, and the second Notice of Removal
was filed on January 25, 2019.
defendant contends, however, that this second Notice of
Removal was filed "within 30 days after receipt by
Defendants ... of a copy of an amended pleading, motion,
order or other paper from which it may be first ascertained
that the case is one which is or has become removable."
28 U.S.C. g 1446(b)(3).
claims that it could not have known that the complaint sought
damages in excess of $75, 000. It first learned of that fact,
it says, on January 7, 2019, when the plaintiff, in response
to the defendant's Rule 4:5-2 request, furnished a
Statement of Damages in excess of $75, 000. This Statement of
Damages, in the defendant's view, was "an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable," which started the running of the
30-day deadline to remove. 28 U.S.C. § 1446(b).
plaintiff demurs, arguing that the Statement of Damages was
not required in order for the defendant to have ascertained
that the complaint demanded damages in excess of $75, 000.
Rather, says the plaintiff, the complaint itself adequately
informed the defendant that the amount in controversy
exceeded $75, 000.
was only the Statement of Damages that first placed the
defendant on sufficient notice that the amount in controversy
exceeded $75, 000, then the deadline did not begin running
until the Statement was served on January 7, 2019.
The filing of the second Notice of Removal on January 25,
2019, then, would have been timely. See 28 U.S.C. §
1446(b)(1) (quoted at n.2, supra). Because the
plaintiff claims that the complaint itself notified the
defendant of the jurisdictional amount, the question may be
framed more helpfully in this way: Did the complaint give the
defendant a sufficient basis to believe that more than $75,
000 was in controversy, and thereby trigger the running of
the 30-day deadline to remove the case on diversity grounds?
well-settled that the removal statutes, and 28 U.S.C. §
1441 in particular, are strictly construed against removal:
As [28 U.S.C] § 1441(a)'s language indicates,
removal under that section is proper only if die federal
district court would have had original jurisdiction if the
case was filed in federal court. This . jurisdictional
prerequisite to removal is an absolute, non-waivable
requirement. See Allbritton Communications Co. v.
NLRB, 766 F.2d 812, 820 (3d Cir. 1985), cert,
denied, 474 U.S. 1081, 106 S.Ct. 850, 88 L.Ed.2d 891
(1986). "Because lack of jurisdiction would make any
decree in the case void and the continuation of the
litigation in federal court futile, the removal statute
should be strictly construed and all doubts resolved in favor
of remand." Abels u. State Farm Fire & Cas.
Co., 770 F.2d 26, 29 (3d Cir. 1985) (citations omitted).
If there is any doubt as to the propriety of removal, that
case should not be removed to federal court. See Boyer v.
Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990),
cert, denied, 498 U.S. 1085, 111 S.Ct. 959, 112
L.Ed.2d 1046 (1991); Abels, 770 F.2d at 29.
Brown v. Francis, 75 F.3d 860, 865 (3d Cir. 1996).
See also Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 108-09 (1941); Samuel-Bassett v. KIA Motors
Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). When the
plaintiff has moved to remand, the burden of establishing the
propriety of removal and the existence of federal
jurisdiction falls upon the removing party. Boyer,
913 F.2d at 111; Frederico v. Home Depot, 507 F.3d
188, 193 (3d Cir. 2007).
issue here is the $75, 000 amount-in-controversy requirement
of diversity jurisdiction. The showing required to invoke die
court's jurisdiction has not traditionally been a
particularly high one. Where it appears that the plaintiff is
demanding in excess of $75, 000, that will be treated as the
amount in controversy, unless it "appears to a legal
certainty that the plaintiff cannot recover die
jurisdictional amount." Frederico, 507 F.3d at
197 (citing St. Paul Mercury Indemnity Co. v. Red Cab
Co.,303 U.S. 283 (1938)); Kabana v. C.A.R.S. Prot.
Plus, Inc., No. CV 15-7177 (SRC), 2015 WL 9308256, at
*l-2 (D.N.J. Dec. 22, 2015). ...