United States District Court, D. Connecticut
RULING ON PLAINTIFF'S MOTION TO REMAND
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
13, 2017, Defendants United Airlines Inc., d/b/a Commutair
("United") and Champlain Enterprises Inc. d/b/a
Commutair ("Champlain"), filed a Notice of Removal
removing this action from the Connecticut Superior Court,
Judicial District of Hartford to this District. Doc. 1.
Defendants removed the action pursuant to 28 U.S.C.
§§ 1332, 1441 and 1446. Id. at 1.
Plaintiff then filed on July 11, 2017, a Motion to Remand the
action and a Memorandum of Law in Support of its Motion. Doc.
13. Defendants objected and opposed the Motion. Doc. 15. This
Ruling resolves Plaintiff's Motion to Remand.
initiated this action in Connecticut Superior Court on or
about June 7, 2017. Doc. 1 ¶ 1. A copy of the Summons
and Complaint were served upon the Defendants on or about May
26, 2017. Id. ¶ 6. It is a negligence action in
which Plaintiff seeks damages for losses arising after
emergency landing by an airplane on June 5, 2015.
Id. ¶ 2; Doc. 1 Ex. B (the "Compl.")
¶¶ 4-8. Plaintiff's Complaint consists of two
negligence causes of action, the first against United and the
second against Champlain. See Compl. at 1, 4.
Plaintiff alleges that the passengers, including Plaintiff,
were required to jump out of the rear door of the airplane
and onto the tarmac. Doc. 1 ¶ 2; Complaint ¶ 8. The
Complaint alleges that Plaintiff sustained "serious
physical injuries, some or all of which may be permanent,
" including a "sustained right knee strain/sprain,
lumbar strain/sprain, loss of range of motion in the affected
areas, physical and mental pain and suffering, and shock and
fright to her nervous system." Compl. ¶ 12; see
also Doc. 1 ¶ 3. Plaintiff also alleges that she
has "sustained economic damages of lost wages" as
well as past and future medical bills in addition to past and
future non-economic damages of "physical and mental pain
and suffering, physical impairment and/or disability, and
loss of enjoyment of life's activities." Compl.
¶¶ 13-14; see also Doc. 1 ¶ 3.
Plaintiff's "Statement of Amount in Demand" was
for an amount greater than $15, 000, exclusive of costs and
interest. Compl. at 9.
filed a Notice of Removal on June 13, 2017. Doc. 1.
Defendants attached the Summons, Complaint, and Return of
Service as Exhibits to this Notice. Doc. 1 ¶ 1.
Defendants allege that this Court has jurisdiction pursuant
to 28 U.S.C. § 1332 because the amount in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs, and the action involves citizens of different
states. Id. ¶ 9. Defendants state that the
Complaint alleges Plaintiff suffered severe and permanent
injuries as a result of being required to jump from the plane
to the tarmac, and that Plaintiff made a "formal
demand" in excess of $75, 000. Id. ¶ 10.
Defendants "specifically den[y] that the Plaintiffs are
entitled" to that sum, but based on the demand, assert
the amount in controversy can reasonably be said to exceed
$75, 000. Id. ¶ 11. According to Defendants,
complete diversity exists because Plaintiff is a resident of
Connecticut, United is a Delaware corporation with a
principal place of business in Chicago, Illinois, and
Champlain is a New York corporation with a principal place of
business in South Burlington, Vermont. Id. ¶
11, 2017, Plaintiff filed a Motion to Remand the action with
an accompanying Memorandum of Law in Support of its Motion.
Doc. 13. Plaintiff while conceding that diversity of
citizenship exists, maintains that the amount in controversy
fails to exceed the sum or value of $75, 000, exclusive of
interest and costs, and that Defendants have failed to
establish this jurisdictional threshold. Doc. 13-1 at 2.
Defendants in opposing this Motion to Remand argues that it
has proven the amount in controversy based on the serious
allegations in Plaintiff's Complaint and Plaintiff's
settlement demand of $171, 527.26, well exceeding $75, 000.
Doc. 15 at 3. Defendants also explained to the Court that
Plaintiff's counsel would not agree to stipulate to
capping the damages at $75, 000. Id. at 3 n.1.
Standard of Review
to 28 U.S.C. § 1441(a), "any civil action brought
in a State court of which the district courts of the United
States have original jurisdiction, may be removed by the
defendant or defendants, to the district court of the United
States for the district and division embracing the place
where such action is pending." District courts have
original jurisdiction over civil actions where the amount in
controversy exceeds $75, 000, exclusive of interest and
costs, and diversity of citizenship exists. 28 U.S.C. §
1332(a). Notice of removal must be filed either within thirty
days of receiving a copy of the initial pleading setting
forth the claim for relief, or within thirty days of
receiving "a copy of 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." 28
U.S.C. § 1446(b)(1) & (3).
a defendant seeks federal-court adjudication, the
defendant's amount-in-controversy allegation should be
accepted when not contested by the plaintiff or questioned by
the court." Hayes v. Pfizer, Inc. No.
3:15-cv-1854, 2016 WL 1363623, at *1 (D. Conn. April 6, 2016)
(quoting Dart Cherokee Basin Operating Co., LLC v.
Owens, 135 S.Ct. 547, 553 (2014)) (internal quotation
marks omitted). If, as is the case here, the plaintiff
asserts that the amount-in-controversy requirement has not
been met, then "both sides submit proof and the court
decides, by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied."
Id. (quoting Owens, 135 S.Ct. at 553)
(internal quotation marks omitted). "The party invoking
jurisdiction . . . has the burden of proving that it appears
to a 'reasonable probability' that the amount in
controversy exceeds $75, 000." Id. (citations
omitted). The party opposing jurisdiction "must
then show 'to a legal certainty that the amount
recoverable does not meet the jurisdictional threshold."
Id. (citation omitted); see also Parola v.
Citibank (South Dakota), N.A., No. 3:11-cv-1017, 2011 WL
5374146, at *2 (D. Conn. Nov. 8, 2011) (citing Scherer v.
The Equitable Life Assurance Society, 347 F.3d 394, 397
(2d Cir. 2003)). Importantly, the party seeking removal
"must support its asserted jurisdictional facts with
'competent proof.'" Parola, 2011 WL
5374146, at *2 (quoting United Food & Commercial
Workers Union, Local 919 v. Centermark Props., 30 F.3d
298, 305 (2d Cir. 1994)).
"federal courts construe the removal statute narrowly,
resolving any doubts against removability." Acorne
Prods., LLC v. Tjekanovrian, No. 14-CV-2179, 2014 WL
3360344, at *3 (E.D.N.Y. July 9, 2014) (quoting Sherman
v. A.J. Pegno Constr. Corp., 528 F.Supp.2d 320, 325
(S.D.N.Y. 2007)) (internal quotation marks omitted). All of
the facts in the record at the time of removal may be
considered. Connecticut v. YP Advertising &
Publ'g LLC, No. 3:16-cv-1424, 2017 WL 810279, at *4
(D. Conn. March 1, 2017) (citing inter alia Luo v.
Mikel, 625 F.3d 772, 776 (2d Cir. 2010)), denying
reconsideration 2017 WL 124633 (D. Conn. April 3, 2017).
All relevant allegations contained in the complaint are also
accepted as true. See Wachtell, Lipton, Rosen & Katz
v. CVR Energy, Inc., 18 F.Supp.3d 414, 416 n.2 (S.D.N.Y.
2014). In order to determine whether the amount in
controversy, courts must first look to the plaintiff's
complaint and then to the defendants' petition for
removal. Arter v. Pathmark Stores, Inc., No.
14-cv-6933, 2014 WL 7426792, at *1 (E.D.N.Y. Dec. 31, 2014)
(citing Mehlenbacher v. Akzo Nobel Salt, Inc., 216
F.3d 291, 296 (2d Cir. 2000)); see also Price v.
PetSmart, Inc., 148 F.Supp.3d 198, 200-01 (D. Conn.
2015). "If those documents are inconclusive, courts
'may look outside those pleadings to other evidence in
the record.'" Arter, 2014 WL 7426792, at *1
(quoting CenterMark Props., 30 F.3d at 304-05).
Courts may consider a settlement offer made prior to removal,
but this is "only one factor to consider in assessing
the amount in controversy" and "courts must
consider the context in which such a settlement demand was
made." Vermande v. Hyundai Motor America, Inc.,
352 F.Supp.2d 195, 202-03 (D. Conn. 2004) (collecting cases).
both the Notice of Removal and Plaintiff's Motion to
Remand were timely. See 28 U.S.C. §
1446(b). Plaintiff also concedes and does not
challenge that diversity of citizenship exists. Doc. 13-1 at
2. Plaintiff challenges removal solely on the basis that
Defendant has not established by a preponderance of the
evidence that the amount in controversy is in excess of $75,
000. See id.
Complaint asserts that she has "sustained serious
physical injuries, some or all of which may be permanent in
nature." Compl. ¶ 12. Plaintiff claims to have
suffered "sustained economic damages of lost wages"
to have spent, or in the future will continue to spend,
"sums of money for hospitals, doctors, physical therapy
and surgery, all to her further loss and damage"and
certain "non-economic damages." Id. ¶
13-14. Plaintiff's Complaint, however, does
not explicitly state a demand an amount in controversy in
excess of $75, 000. Instead, in compliance with Connecticut
law, Plaintiff's Complaint in its prayer for relief seeks
"money damages" and Plaintiff's "Statement
of the Amount in Demand" reflects only that the amount
in controversy exceeds $15, 000. See Conn. Gen.
Stat. § 52-91 (requiring that where money damages are
sought the demand for relief must set forth, as one option,
only "[t]hat the amount, legal interest or property in
demand is fifteen thousand dollars or more, exclusive of
interest and costs"); see also Luce., 23
F.Supp.3d at 84-85 ("Indeed, state court plaintiffs in
Connecticut need not allege damages with particularity . . .
Connecticut law requires a plaintiff to allege no more than
the amount in demand exceeds $15, 000." (citations
omitted)). Thus, it is not clear from the face of the
Complaint that the amount in controversy exceeds $75, 000.
Notice of Removal reflects only that Plaintiff "made a
formal demand, seeking damages in excess of the
jurisdictional requirement, " and that this prompted
Defendants to remove the action. Doc. 1 ¶¶ 4, 10.
The Notice of Removal does not reflect what the amount
demanded was or even when it was made. The "formal
demand" is not separately attached as evidence.
Defendants' response to Plaintiff's Motion to Remand
the action clarifies a little bit of this confusion stating
that this "formal demand" was a settlement offer of
$171, 527.26 and it was made prior to the Complaint even
being filed. Doc. 15 at 3-4. However the demand, or even any
affidavit or evidence describing the demand, is not attached
to either Defendants' response or Notice of Removal.
Although Plaintiff does not appear to contest that such a
demand was made, there is absolutely no evidence in the
record before the Court as to how ...