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Foley v. CVS Pharmacy, Inc.

United States District Court, D. Connecticut

November 30, 2017

DARRYL FOLEY, Plaintiff,



         Darryl Foley (“Plaintiff” or “Foley”) moves to remand this case to the Superior Court of Connecticut, Judicial District of New Haven. Pl. Mot., ECF No. 24. Plaintiff indicates that all opposing parties consent to the motion. Id. at 1.

         For the reasons that follow, the motion is GRANTED.

         I. BACKGROUND

         Plaintiff, a citizen of Florida and past resident of Connecticut, alleges she fell while on the premises of a CVS pharmacy in Guilford, Connecticut. Compl., ECF No. 1-1 Upon exiting the store on the night of August 31, 2015, she alleges she tripped and fell in the parking lot of the premises “as the result of an absence of lighting and a slope connecting the sidewalk to the adjacent parking lot thereby creating an uneven surface.” Id.

         She originally filed this lawsuit in state court, alleging that Connecticut CVS Pharmacy, LLC. (“CVS”) was negligent in failing to maintain its facilities; allowing the facilities to remain in an unsafe or dangerous condition and failing to warn about potential hazards that existed on the property. Id. She also alleged similar claims against Third West Lodging Associates L.C. (“Third West”) and Finast Acquisition LLC (“Finast”), whom she alleges were responsible for maintenance services, under a similar theory of negligence. Id. Ms. Foley did not specify damages; she claimed “monetary damages, ” as well as the “costs and expenses of suit” and “such other relief as in law or equity may appertain.” Id.

         CVS then removed the case to this Court under 28 U.S.C. §§ 1446 and 1332. See Notice of Removal, ECF No. 1. CVS argued that the amount-in-controversy requirement was met because “Though the amount of medical expenses being claimed is not specified in the Complaint, [Foley] claims that she will be forced to incur ‘significant medical expenses' going forward (in addition to what is very likely to be significant medical expenses for the aforementioned surgery).” Id. at 2.

         After all parties appeared and answered the Complaint, Foley moved to remand to state court. Pl. Mot. to Remand, ECF No. 24. In her motion, Foley stipulated that she would not seek more than $75, 000 in damages for her claims against defendants. See Id. at 2. She argued that, due to the stipulation, “the amount in controversy does not exceed $75, 000, such that the District Court lacks subject matter jurisdiction.” Id. at 1. She also indicated that all defendants consented to the filing. Id. at 2.


         District courts have “original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interests and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a). Under 28 U.S.C. § 1441, “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 . . . to the district court of the United States for the district . . . embracing the place where such action is pending.” 28 U.S.C. § 1441(a).

         Defendant has the burden of demonstrating that removal of a case to federal court is proper. California Pub. Employees' Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004); Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000). The Court must “resolve any doubts against removability, ” out of “respect for the limited jurisdiction of the federal courts and the rights of states.” In re Methyl Tertiary Butyl Ether (“MTBE”) Prod. Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007) (internal quotation marks omitted).


         The issue is whether a plaintiff in a diversity case may secure a post-removal remand to state court by stipulating that the amount-in controversy is less than the diversity threshold of $75, 000. Because Plaintiff now has stipulated that the amount in controversy is not greater than $75, 000, exclusive of interests and costs, she argues that the Court lacks subject matter jurisdiction. Pl. Mot. at 2. The Court agrees.

         “[T]he existence of federal subject matter jurisdiction over an action removed from state court to federal court is normally to be determined as of the time of removal.” Hallingby v. Hallingby, 574 F.3d 51, 56 (2d Cir. 2009). Typically, the amount in controversy is established by the face of the complaint and the dollar-amount actually claimed. Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 353 (1961); Scherer v. Equitable Life Assurance Society of U.S.,347 F.3d 394, 397 (2d Cir. 2003). The Second Circuit “recognizes a rebuttable presumption that the ...

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