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Riconda v. US Foods, Inc.

United States District Court, D. New Jersey

May 2, 2019

US FOODS, INC., et al., Defendants.


          Hon. Kevin McNulty United States District Judge.

         This is 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.

         There 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.

         I. BACKGROUND

         The 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 discriminatory.

         On June 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").[1] Within 30 days of service, on July 31, 2018, the defendant timely removed the case to federal court.[2] 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.[3] 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).

         On 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. § 1332(a).[4]

         The 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 of Illinois.[5]

         That 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.

         The second Notice of Removal states that the defendant requested a statement of the damages sought under N.J. Ct. R. 4:5-2.[6] 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.)

         That 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.


         The 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).

         The 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.

         The 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).[7]

         Defendant 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).

         The 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.[8]

         If it 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?


         It is 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).

         At 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). ...

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