United States District Court,
S.D. New York.
Craig O. SAILER, Plaintiff,
v.
RESPONSIVE TRUCKING, INC. and William J. Esteves, Defendants.
No. 12 Civ. 4822(KNF).
Oct. 15, 2012.
MEMORANDUM AND ORDER
KEVIN NATHANIEL FOX, United States Magistrate Judge.
*1 The instant action arises out of a October 29, 2009 automobile accident, allegedly involving citizens of different states, which occurred in Westchester County, New York. The action was commenced on May 29, 2012, in the New York State Supreme Court, Bronx County, and was removed to this court, by the defendants, on June 15, 2012, pursuant to 28 U.S.C. § 1441, which provides, in pertinent part, the following:
Except as otherwise expressly provided by Act of Congress, any civil action brought in 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 and division embracing the place where such action is pending.
28 U.S.C. § 1441(a).
“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between-(1) citizens of different States; … (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties….” 28 U.S.C. § 1332(a). “Every corporation is now treated for diversity purposes as a citizen of both its state of incorporation and its principal place of business, regardless of whether such place is foreign or domestic.” Bayerische Landesbank v. Aladdin Capital Management LLC, 692 F.3d 42, 51 (2d Cir.2012).
The verified complaint filed in the New York State Supreme Court to initiate this action, which is attached to the defendants’ notice of removal, indicates that the plaintiff is a resident of New Jersey and defendant William J. Esteves, is a resident of Massachusetts. The verified complaint asserts, “upon information and belief that, “[a]t all times mentioned [in the complaint] defendant Responsive Trucking, Inc. [“Responsive Trucking”] was and … is a foreign corporation duly organized and existing under and by virtues [sic] of the laws of a foreign corporation.” The verified complaint does not indicate where Responsive Trucking is incorporated or where its principal place of business is located. The defendants’ notice of removal avers that Responsive Trucking “is a corporation with offices in Hampden County, Massachusetts.” However, the submission made by the defendants in connection with the removal of the action to this court does not state where Responsive Trucking is incorporated. The defendants’ submission is also devoid of any facts that indicate where Responsive Trucking’s principal place of business is located. “Where … jurisdiction is asserted by a defendant in a removal petition, it follows that the defendant has the burden of establishing that removal is proper.” United Food & Commercial Workers Union, Local 919, AFL–CIO v. CenterMark Properties Meriden Square, 30 F.3d 298, 301 (2d Cir.1994). Under the circumstances described above, the Court finds that the defendants have not established that the court has subject matter jurisdiction based on diversity of citizenship among the parties. See Pope v. Brecher, No. 10 Civ. 5076, 2010 WL 3958768, at *l–2 (S.D.N.Y. Sept. 30, 2010) (remanding case to state court because the materials before the court failed to identify the plaintiffs’ place of citizenship).
*2 In the plaintiff’s verified complaint he contends that each of his causes of action “exceeds the jurisdictional limits of all lower [New York State] courts which would otherwise have jurisdiction” over this matter. The defendants aver, in the notice of removal, that “the amount in controversy exceeds [the] sum specified in 28 U.S.C. Section 1332.” Notwithstanding that assertion, the notice of removal lacks factual allegations establishing that the amount in controversy exceeds the jurisdictional amount recited in 28 U.S.C. § 1332(a).
“It is a fundamental precept that federal courts are courts of limited jurisdiction. The limits upon federal jurisdiction, whether imposed by the constitution, or by Congress, must be neither disregarded nor evaded.” Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2403 (1978). “The Supreme Court has held that the party asserting diversity jurisdiction in federal court has the burden of establishing the existence of the jurisdictional amount in controversy.” Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 273 (2d Cir.1994) (citation omitted). “[I]f the jurisdictional amount is not clearly alleged in the plaintiff’s complaint, and the defendants’ notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiff’s action from state court.” Id. at 273–74. As noted above, the burden is on the defendants to establish that removal is proper. See United Food Local 919, 30 F.3d at 301. The defendants’ conclusory statement that the amount in controversy exceeds the “sum specified in 28 U.S.C. Section 1332[,]” is insufficient to meet this burden. See Gilman, 104 F.3d at 1428. Similarly, the defendants’ burden is not met by “mere averment.” McNutt v. McHenry Chevrolet, 298 U.S. 190, 56 S.Ct. 785 (1936). Thus, where “the jurisdictional amount is not clearly alleged in the plaintiff’s complaint, and the defendant’s notice of removal fails to allege facts adequate to establish that the amount in controversy exceeds the jurisdictional amount, federal courts lack diversity jurisdiction as a basis for removing the plaintiff’s action from state court.” Lupo, 28 F.3d at 273–74.
Based on the record before it, and mindful that “federal courts construe the removal statute narrowly, resolving any doubts against removability [,]” Lupo, 28 F.3d at 274, the Court finds that this action was removed improperly from state court, because: (1) the verified complaint does not provide sufficient facts for the Court to determine that diversity of citizenship exists; (2) the verified complaint does not allege that the amount in controversy exceeds $75,000; and (3) the defendants’ notice of removal lacks facts that establish both complete diversity of citizenship among the parties and that the amount in controversy exceeds the requisite jurisdictional amount. Accordingly, the action is remanded to the state court from which it was removed, the New York State Supreme Court, Bronx County.
*3 SO ORDERED:
