Report and Recommendation — Andres Valerio et al. v. Nermin Mustabasic et al. (D.N.J., Dkt. 6)

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Report and Recommendation in the District of New Jersey on the plaintiffs' motion to remand a negligence suit, Andres Valerio, et al. v. Nermin Mustabasic, et al., to the Superior Court of New Jersey. The plaintiffs claim injuries from an automobile accident involving a tractor trailer owned by MG Express Transport, Inc. and operated by Mustabasic, but their complaint does not state an amount of damages. The defendants removed the case based on diversity jurisdiction and offered no evidence that the amount in controversy exceeds $75,000. The Magistrate Judge, Claire C. Cecchi, concludes that the defendants did not meet their burden and respectfully recommends that the motion to remand be granted.

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“Report and Recommendation — Andres Valerio et al. v. Nermin Mustabasic et al. (D.N.J., Dkt. 6).” Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-2-07-cv-00534-dkt-6-d-n-j-f19b209da2/, SHA-256 4a88d5d79a5284a93b434853c5cb4ab3b06422fda2876ab7f6c34d5226614f61.

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Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 1 of 10 PageID: 89

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

___________________________________
ANDRES VALERIO, ET AL. :
:
:
Plaintiff(s), : Civil Action No.
: 07-534 (JLL)
v. :
:
NERMIN MUSTABASIC, ET Al. :
:
:
Defendant(s). :
___________________________________:

REPORT AND RECOMMENDATION

This matter is before the Court on Plaintiff’s motion to

remand [Docket Entry No. 2] this matter to the Superior Court of

New Jersey. Defendant opposed the motion. Pursuant to Fed. R.

Civ. P. 78, no oral argument was heard. This Report and

Recommendation is issued pursuant to 28 U.S.C. § 636(b)(1)(B). For

the reasons expressed below, I respectfully recommend that the

Court enter an Order granting Plaintiff’s motion to remand.

BACKGROUND

On or about July 31, 2006, Plaintiffs Andres and Mercadies

Valerio (the “Plaintiffs”) filed a Complaint in the Superior Court

of New Jersey against Defendants Nermin Mustabasic (“Mustabasic”)
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 2 of 10 PageID: 90

and MG Express Transport, Inc. (“MG Express,” collectively with

Mustabasic the “Defendants”) alleging various claims sounding in

negligence.1 The events giving rise to the Complaint took place on

or around November 3, 2004, when the Plaintiffs allegedly sustained

injuries in an automobile accident involving a tractor trailer

owned by Defendant MG Express Transport, Inc. and operated by

Nermin Mustabasic. Plaintiffs assert that they are owed damages in

compensation for: (1) severe permanent injuries; (2) pain and

suffering; (3) present and future medical expenses; and (4) lost

wages. Plaintiffs also assert a loss of consortium claim. The

amount of damages Plaintiffs seek is not specified in their

Complaint.2

On or about January 31, 2007, Defendants removed the action to

this Court pursuant to 29 U.S.C. 1441(a), asserting that the Court

has original subject matter jurisdiction over this matter under 28

U.S.C. § 1332. Plaintiffs now move to remand the action to the

Superior Court of New Jersey, claiming that removal is improper

because this Court lacks jurisdiction. In support of their

argument, Plaintiffs assert that Defendants have failed to

demonstrate that jurisdiction under Section 1332 is appropriate

1
Plaintiffs also asserted claims against numerous John Does
and ABC Corporations.
2
Pursuant to New Jersey Court Rule 4:5-2, “[i]f unliquidated
money damages are claimed in any court, other than the Special
Civil Part, the pleading shall demand damages generally without
specifying the amount.”

2
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 3 of 10 PageID: 91

because they have not identified evidence demonstrating that the

damages in controversy exceed $75,000. Plaintiffs state that their

Complaint does not quantify the damages sought and instruct the

Court that Defendants have not sought a statement of their damages.

Plaintiffs contend that Defendants have presented the Court with no

evidence showing that the jurisdictional threshold has been

satisfied and that, accordingly, Defendants have failed to show

that removal is proper.3

In response, Defendants assert that the amount in controversy

threshold has been satisfied and that the Court is vested with

proper subject matter jurisdiction over the action under Section

1332. Defendants claim that, although Plaintiffs have not

estimated their damages in the Complaint or otherwise, the “serious

and permanent nature of the injuries alleged by [P]laintiffs in

their Complaint,” are sufficient for the Court to conclude that the

amount in controversy requirement has been satisfied. Defendants

submitted no further evidence regarding valuation of Plaintiffs’

claims.

For the reasons expressed below, the Court recommends that the

Plaintiffs’ motion to remand this matter to New Jersey Superior

Court be granted.

3
Plaintiffs do not dispute that diversity of citizenship
exists in this matter. Plaintiffs are individuals domiciled in
New Jersey. Defendant Mustabasic is an individual domiciled in
Georgia. Defendant MG Express is a Texas corporation with its
principal place of business in Bedford, Texas.

3
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 4 of 10 PageID: 92

DISCUSSION

1. Federal Removal Statutes

Cases originally brought in state court over which a federal

court may also have jurisdiction can be removed pursuant to 28

U.S.C. § 1441. According to Section 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 the defendants, to the district court of the United States for

the district and division embracing the place where such action is

pending.” Id. Thus, “[t]o qualify for removal, the cause of action

must be a claim ‘of which the district courts of the United States

have original jurisdiction.’” Penn v. Wal-Mart Stores, 116

F.Supp.2d 557, 561 (D.N.J. 2000).

28 U.S.C. § 1446 sets forth the procedure for the removal of

a civil action. Section 1446(a) states in relevant part that “a

defendant or defendants desiring to remove any civil action . . .

from a State court shall file in the district and division within

which such action is pending a notice of removal . . . containing

a short and plain statement of the grounds for removal.” Moreover,

Section 1446(b) provides that “the notice of removal of a civil

action . . . shall be filed within thirty days after the receipt by

the defendant, through service or otherwise, of a copy of the

initial pleading setting forth the claim for relief upon which such

action or proceeding is based.”

4
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 5 of 10 PageID: 93

The removal statutes are to be “strictly construed against

removal and all doubts should be resolved in favor of remand.”

Orlick v. J.D. Carton & Son, Inc., 144 F. Supp. 2d 337, 341 (D.N.J.

2001); see also Samuel-Bassett v. Kia Motors America, Inc., 357

F.3d 392, 396 (3d Cir. 2003). This policy “has always been

rigorously enforced” and the Third Circuit has admonished courts to

strictly adhere to the practice of resolving doubts in favor of

remand. Samuel-Bassett, 357 F.3d at 396, 403. Pursuant to 28

U.S.C. § 1447©, “[i]f at any time before final judgment it appears

that the district court lacks subject matter jurisdiction, the case

shall be remanded.”

2. Defendants’ Burden of Proof

As discussed, Defendants assert that the Court has subject

matter jurisdiction over this action pursuant to Section 1332.

Section 1332 vests district courts with original jurisdiction over

‘diversity actions,’ “where the matter in controversy exceeds the

sum or value of $75,000, exclusive of interests and costs” and the

parties are diverse in citizenship. Id. For removal to be proper,

both jurisdictional requirements set forth in Section 1332 must be

satisfied or the Court must order remand pursuant to Section 1447©.

The removing party bears the burden of demonstrating the

appropriateness of removal. Penn, 116 F.Supp.2d at 561; see also

5
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 6 of 10 PageID: 94

Samuel-Bassett, 357 F.3d at 396 (finding that “[t]he party asserting

jurisdiction bears the burden of showing that at all stages of the

litigation the case is properly before the federal court.”). To

assess whether the jurisdictional threshold has ben satisfied, a

Court must first look to the Complaint. Samuel-Bassett, 357 F.3d

at 398. If a plaintiff’s complaint specifies the amount of damages

sought, a court may rely on the estimation provided therein to

determine the amount in controversy. Buchanan v. Lott, 255 F.Supp.2d

326, 331 (D.N.J. 2003). If, however, the specific damages sought are

not delineated, and the amount in controversy cannot be clearly

assessed from the complaint, a court must make an independent

appraisal of the claims being litigated. Id. In so doing, a court

must “look to the facts alleged in the defendant’s notice of removal

or to proofs offered in support of jurisdiction once it has been

called into question.” Bailey, 2007 WL 764286 at *3. Despite a

court’s independent appraisal, “the party asserting jurisdiction

bears the heavy burden of showing that the case is properly before

the federal court.” Ellis v. Bradbeck, 2006 WL 3518590, *1 (D.N.J.

Dec. 4, 2006).

In the instant matter, Plaintiffs’ Complaint is silent as to

the amount of damages sought. Accordingly, the Court must

independently appraise the evidence offered by Defendants in support

of removal to determine whether Defendants have shown that the

amount in controversy requirement has been satisfied in this matter.

6
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 7 of 10 PageID: 95

3. Jurisdiction in this Matter

Defendants have proffered no evidence from which the Court may

find that the jurisdictional threshold has been satisfied in this

action. As an initial matter, the Court notes that Defendants

failed to discover the amount of damages sought by Plaintiffs. As

observed, Plaintiffs’ Complaint does not plead a specific amount of

monetary damages, as is proper under the New Jersey Court Rules.

Defendants, however, failed to discover this information despite

having a clear procedural mechanism available to them by which they

may have done so. New Jersey Court Rule 4:5-2 provides that:

[u]pon service of a written request by another party,
the party filing the pleading shall within 5 days after
service thereof furnish the requesting party with a
written statement of the amount of damages claimed.

Defendants propounded no such request upon Plaintiffs.4 As a result,

Defendants did not receive a statement of the damages sought by

Plaintiffs. “[A] defendant who wises to preserve his right to

removal could file a demand for a statement of damages immediately

upon receiving the complaint. Because the plaintiff must respond

4
Defendants seem to assert that their letter of December 19,
2006 to Plaintiffs’ counsel requesting that they provide medical
records relevant to the litigation and a settlement demand
satisfies Defendants’ burden to discover the nature of
Plaintiffs’ damages. Defendants, however, did not utilize the
procedure set forth in New Jersey Court Rule 4:5-2 and their
letter failed to articulate a request for Plaintiffs’ statement
of damages.

7
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 8 of 10 PageID: 96

within five days, the defendant would then have 25 days in which to

decide whether removal was appropriate.” Buchanan, 255 F.Supp.2d

at 330.

Moreover, Defendants have presented the Court with no

additional evidence from which the Court may conclude that

Plaintiffs’ damages exceed the jurisdictional threshold. Defendants

make a general assertion as to the “serious and permanent nature” of

the Plaintiff’s injuries, but “[i]n neither its notice of removal

nor its opposition letter [do Defendants] assert any facts that

suggest the claims asserted would satisfy the statutory

requirement.” Imperial Spirits, U.S.A., Inc. v. Trans Marine Int’l

Corp., et al., 1999 WL 172292, *1 (D.N.J. Feb. 17, 1999). Moreover,

“[a]lthough [they] could have done so easily, defendant[s] did not

even proffer any case law illustrating the recoveries of similarly

situated plaintiffs.” Id.

General contentions of the kind asserted by Defendants are

insufficient to satisfy Defendants’ burden. Samuel-Bassett, 116

F.Supp.2d at 567 (finding that allegations of severe injury and

future medical bills insufficient to demonstrate that the

jurisdictional threshold was satisfied). Likewise, allegations of

“great pain and suffering [are] insufficient to transform an

otherwise non-removable claim into one which would meet the amount-

8
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 9 of 10 PageID: 97

in-controversy requirement.”5 Buchanan, 255 F.Supp.2d at 333;

Fosbrenner v. Wal-Mart Stores, 2001 WL 1231761, *2 (E.D.Pa. October

12, 2001). The mere “possibility that damages may aggregate to more

than the jurisdictional amount does not, in itself, show that the

amount in controversy exceeds the jurisdictional amount.” Imperial

Spirits, 1999 WL 172292 at *2 (citing Gary Mercante v. Preston

Trucking Co., Inc., 1997 WL 230826, *1 (E.D.Pa. May 1, 1997)).

Indeed, a removing party must provide more than tenuous

inferences and assumptions about the amount in controversy to

satisfy its burden. Fosbrenner, 2001 WL 1231761 at *3. “Considering

that estimations of the amounts recoverable must be realistic, and

‘not based in fanciful, ‘pie-in-the-sky,’ or simply wishful

amounts,” unsubstantiated claims that damages will exceed the

jurisdictional amount are too theoretical to satisfy Defendants’

burden to demonstrate that removal is proper. Ellis, 2006 WL

3518590 at *2 (citing Samuel-Bassett, 357 F.3d at 403). When

determining if the jurisdictional threshold has been met, “[i]f this

Court has to guess, defendant has not proved its point.” Kleiss v.

Granite Run Mall, 2006 WL 562203, *3 (E.D.Pa. March 6, 2006).

5
Courts have recognized that some allegations of severe
injury, such as the permanent loss of the use of a plaintiff’s
heart, are “different in kind and degree” from more routine
injuries and are adequate to demonstrate that the amount in
controversy requirement has been satisfied. Buchanan, 255
F.Supp.2d at 333. Nothing on the face of Plaintiffs Complaint
suggests that this type of injury is alleged here and Defendants
have failed to present the Court with any evidence suggesting
otherwise.

9
Case 2:07-cv-00534-JLL-CCC Document 6 Filed 09/06/07 Page 10 of 10 PageID: 98

In light of the Third Circuit’s instruction that doubts must be

resolved in favor of remand, and because Defendants have proffered

no evidence to demonstrate that the amount in controversy will exceed

$75,000, the Court concludes that Defendants have failed to show

that Plaintiffs’ claims satisfy the jurisdictional threshold.

Accordingly, Defendant improperly

removed this case without jurisdiction. This matter, therefore,

should be remanded to the Superior Court of New Jersey, as required

by 28 U.S.C. § 1447©.

CONCLUSION

In light of the foregoing, it is respectfully recommended that

Plaintiffs’ motion to remand this matter to the Superior Court of New

Jersey [Docket Entry No. 2] be granted.

Respectfully submitted,

s/ Claire C. Cecchi
HON. CLAIRE C. CECCHI
United States Magistrate Judge
Dated: September 6, 2007

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