MEMORANDUM AND ORDER Plaintiffs Georgiann Brumfield, Carol Schasel, Edward Waszak, Susan Kennedy, Debbie Guerrero, F. Joyce Grasby, Edna O’Vitt, Maureen Pons, Ernest Malizia, Joseph Bernet, Patricia McKown, Loretta Sisca, August Speirs, Marleen Flanders, Jacquelyn Nash, Linda Thompson, Daniel Szymusiak, Salvatore Croce, Shirley Breault, Cheryl Lamparella, and Patrick Papas (collectively, “plaintiffs”) initiated this action against defendants Merck & Co., Inc., Merck Sharp & Dohme Corp. (together, “Merck”), and McKesson Corp. (“McKesson,” and together with Merck, “defendants”) on September 5, 2017, in the Supreme Court of the State of New York, Kings County. Plaintiffs seek damages for injuries allegedly sustained after receiving the vaccine, Zostavax.On November 8, 2017, Merck removed the action to this Court pursuant to 28 U.S.C. §1441, asserting diversity jurisdiction under 28 U.S.C. §1332.Presently before the Court is plaintiffs’ motion to remand.1 Plaintiffs argue that this action must be remanded to Kings County Supreme Court because Merck’s notice of removal was untimely. For the reasons set forth below, the Court concludes that Merck’s notice of removal was timely and, therefore, denies plaintiffs’ motion.I. BACKGROUND2Plaintiffs commenced this action on September 5, 2017, in Kings County Supreme Court, for personal injuries and damages allegedly suffered after receiving the Zostavax vaccine. In accordance with N.Y. C.P.L.R. §3017(c), which governs demands for relief in personal injury actions, plaintiffs’ complaint does not state the specific amount of damages sought by each plaintiff.3 Instead, the complaint asserts, among other things, that each plaintiff “suffered painful injuries and damages,…required extensive medical care and treatment,…[and] will continue to suffer significant medical expenses, pain and suffering, and other damages.” (E.g., Compl. 8.) Plaintiffs’ complaint also “demands judgment against [defendants] in an amount that exceeds the jurisdictional limitations of all lower courts that would otherwise have jurisdiction over this action, together with the interest, costs and disbursements of same allowed by law,” as required under N.Y. C.P.L.R. §3017(c). (Id. 238.)Plaintiffs served Merck with the summons and complaint on September 12, 2017. (Humphrey Decl. Exs. B, C.) On September 18, 2017, pursuant to N.Y. C.P.L.R. §3017(c), Merck sent plaintiffs a request for supplemental demand for relief (the “Request for Supplemental Demand”), requesting that each plaintiff “set[] forth the total damages to which each plaintiff deems themselves entitled.” (McLaughlin Decl. Ex. 2.) On October 10, 2017, having not received a response to the Request for Supplemental Demand, Merck sent plaintiffs a letter informing plaintiffs that their response was due on October 4, 2017 and directing plaintiffs to respond “as soon as practicable.” (Suppl. McLaughlin Decl. Ex. 1.) Two days later, on October 12, 2017, Merck filed a motion to dismiss plaintiffs’ claims for fraudulent misrepresentation and negligent misrepresentation in Kings County Supreme Court. (McLaughlin Decl. Exs. 1(D)-(J).) Merck contacted plaintiffs again about the Request for Supplemental Demand on October 17, 2017. (Suppl. McLaughlin Decl. Ex. 2.) On October 19, 2017, plaintiffs responded to Merck’s Request for Supplemental Demand, asserting that each plaintiff seeks $1 million in damages. (McLaughlin Decl. Ex. 3.)On November 8, 2017, Merck, with McKesson’s consent, filed a notice of removal in this Court. (ECF No. 1.) On December 8, 2017, plaintiffs moved to remand this action to Kings County Supreme Court. (ECF No. 12.) Merck opposed plaintiffs’ motion on December 22, 2017 (ECF No. 13), and plaintiffs replied on December 29, 2017 (ECF No. 14). The Court heard oral argument on April 12, 2018. (ECF No. 32.)The Court has fully considered the parties’ arguments and submissions.II. STANDARD OF REVIEWPursuant 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 the defendants” to federal court. On a motion to remand, the removing party “bears the burden of demonstrating the propriety of removal.” Cal. Pub. Emps.’ Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir. 2004) (quoting Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 151 (2d Cir. 1994)). In addition, “[i]n light of the congressional intent to restrict federal court jurisdiction, as well as the importance of preserving the independence of state governments, federal courts construe the removal statue narrowly, resolving any doubts against removability.” Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. 2013) (quoting Lupo v. Human Affairs Int’l, Inc., 28 F.3d 269, 275 (2d Cir. 1994)).III. DISCUSSIONThe parties do not dispute that the Court has subject matter jurisdiction over this action. Plaintiffs and defendants agree, and the Court likewise concludes, that diversity jurisdiction exists under 28 U.S.C. §1332.4Instead, the parties’ dispute centers on whether Merck’s notice of removal was timely. Plaintiffs argue that Merck’s notice of removal was untimely because it was filed more than thirty days after Merck received plaintiffs’ complaint. In response, Merck asserts that its time to remove did not start running until October 19, 2017, when plaintiffs responded to its Request for Supplemental Demand and, therefore, that Merck’s November 8, 2017 notice of removal was timely because it was filed within thirty days of receiving plaintiffs’ response. For the reasons discussed below, the Court concludes that Merck’s notice of removal was timely and denies plaintiffs’ motion to remand.Under 28 U.S.C. §1446(b), a notice of removal of a civil action generally must be filed “within 30 days after the receipt by the defendant…of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. §1446(b)(1). However, “if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant…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.” Id. §1446(b)(3).The Second Circuit made clear in Moltner v. Starbucks Coffee Co. that, in diversity cases, “the removal clock does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of damages sought.” 624 F.3d 34, 38 (2d Cir. 2010) (per curiam) (emphasis added). In Moltner, the plaintiff filed a personal injury action against Starbucks in New York Supreme Court for alleged severe burns suffered after spilling tea purchased at a Starbucks location. Id. at 35-36. Because Moltner’s complaint did not specify the amount of damages sought, Starbucks served Moltner with a request for supplemental demand for relief under N.Y. C.P.L.R. §3017(c). Id. at 36. Moltner responded nearly two months later, stating that she sought damages not to exceed $3 million. Id. Eight days after receiving Moltner’s response, Starbucks filed a notice of removal. Moltner thereafter moved to remand on the basis that Moltner’s notice of removal was untimely. Id.The Second Circuit concluded that Starbucks’ notice of removal was timely because it was filed within thirty days of Moltner’s response to Starbucks’ request for supplemental demand for relief — the first “paper” explicitly stating that Moltner sought more than $75,000 in damages. Id. at 37-38. In reaching its conclusion, the Court dismissed Moltner’s argument that Starbucks should have ascertained from the description of her injuries in the complaint that the amount in controversy would exceed $75,000. Id. The Court reasoned that a bright line rule was preferable to requiring a defendant to review a complaint and “guess the amount of damages that the plaintiff seeks,” as the latter approach would “create uncertainty and risks increasing the time and money spent on litigation.” Id. at 38.Under this standard, “defendants must still ‘apply a reasonable amount of intelligence’ in ascertaining removability.” Cutrone v. Mortg. Elec. Registration Sys., Inc., 749 F.3d 137, 143 (2d Cir. 2014) (quoting Whitaker v. Am. Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001)). However, defendants are not required “to investigate whether a case is removable.” Id. In other words, “[i]f removability is not apparent from the allegations of an initial pleading or subsequent document, the 30-day clocks of 28 U.S.C. §§1446(b)(1) and (b)(3) are not triggered.” Id.Here, like in Moltner, defendants were unable to ascertain from plaintiffs’ complaint that this case was removable. In accordance with N.Y. C.P.L.R. §3017(c), plaintiffs’ complaint does not specify the amount of damages sought by each plaintiff. Although plaintiffs’ complaint alleges that plaintiffs suffered serious injuries and demands judgment “in an amount that exceeds the jurisdictional limitations of all [other] lower courts,”5 these allegations do not provide sufficient information from which defendants could determine that the amount in controversy exceeds $75,000. See, e.g., Moltner, 624 F.3d at 37-38 (description of injuries in complaint insufficient to start removal clock); Castillejo v. BJ’s Wholesale Club, Inc., 16-CV-6973 (VSB), 2017 WL 1929561, at *3 (S.D.N.Y. May 9, 2017) (allegations of physical injuries in complaint did not trigger removal period, “[e]ven assuming Defendant could ‘intelligently ascertain’ damages in excess of $75,000 from the description” of the injury); Henry v. Sharkey, No. 14-CV-7329 (JG), 2015 WL 778192, at *2 (E.D.N.Y. Feb. 24, 2015) (“A statement in the complaint prescribed by C.P.L.R. §3017(c) that the damage ‘exceeds the jurisdiction of the lower Courts’ is insufficient” to start the removal clock.). Accordingly, plaintiffs’ complaint did not trigger Merck’s time to remove under 28 U.S.C. §1446(b)(1).Instead, plaintiffs’ October 19, 2017 response to Merck’s Request for Supplemental Demand was the first paper from which defendants were able to ascertain that this case was removable. There, plaintiffs explicitly stated that they each seek $1 million in damages, satisfying the jurisdictional amount in controversy. Because Merck filed its notice of removal within thirty days of receiving plaintiffs’ response, it was timely under 28 U.S.C. §1446(b)(3).Plaintiffs’ attempt to distinguish this case from Moltner fails. Plaintiffs argue that, because the complaint asserts that each plaintiff demands judgment “in an amount that exceeds the jurisdictional limitations of all [other] lower courts” (i.e., $25,000), defendants were able to intelligently ascertain from the complaint that plaintiffs’ aggregate damages exceed $75,000. However, “[t]he Supreme Court has long held that separate and distinct claims raised by different plaintiffs may not be aggregated to satisfy the jurisdictional amount in controversy.” Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000) (citing Snyder v. Harris, 349 U.S. 332, 336 (1969)); see also Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, S.A., 988 F.2d 559, 563 (5th Cir. 1993) (“[Plaintiffs'] personal injury claims clearly are individual and not aggregable.”), abrogated on other grounds by Marathon Oil Co. v. Ruhrgas, 145 F.3d 211 (5th Cir. 1998). Accordingly, plaintiffs’ claims based on their individual injuries cannot be aggregated to establish diversity jurisdiction.6To the extent plaintiffs argue that the complaint enables defendants to ascertain that each plaintiff individually seeks more than $75,000 in damages, as discussed above, this argument also fails under Moltner. Indeed, following Moltner, courts in this district have correctly remanded cases with similar pleadings (which lacked a definite amount and simply contained the N.Y. C.P.L.R. §3017(c) jurisdictional clause) for failure to establish diversity jurisdiction. See, e.g., Gowerie v. Crown Forklift Co., 17-CV-1447 (DLI) (LB), 2017 WL 1331262, at *2 (E.D.N.Y. Aug. 10, 2017) (remanding case because complaint containing allegations of serious injuries and N.Y. C.P.L.R. §3017(c) jurisdictional clause did “not suffice to establish that th[e] action involves an amount in controversy adequate to support federal diversity jurisdiction”); Noguera v. Bedard, No. 11-CV-4893 (RRM)(ALC), 2011 WL 5117598, at *3 (E.D.N.Y. Oct. 26, 2011) (same). In remanding the actions, these courts not only noted that removal was premature, but also specifically advised that the defendants should have availed themselves of the N.Y. C.P.L.R. §3017(c) procedures to ascertain the jurisdictional amount in controversy prior to removal. E.g., Gowerie, 2017 WL 1331262, at *2; Noguera, 2011 WL 5117598, at *2. Thus, Merck followed the correct approach here.Plaintiffs’ remaining arguments. in support of remand are equally unavailing. Plaintiffs claim that, under 28 U.s.c. §1446(b), Merck was both required to ascertain the specific amount of damages sought by plaintiffs and file its notice of removal within thirty days of receiving plaintiffs’ complaint. Plaintiffs’ argument cannot be squared with the plain language of 28 U.S.C. §1446(b)(3), which provides that where, as here, “the case stated by the initial pleading is not removable,” a notice of removal may be filed within thirty days of receipt of a “paper from which it may first be ascertained that the case is one which is or has become removable.” Plaintiffs’ argument is also foreclosed by Moitner, which held that Starbucks’ notice of removal filed more than thirty days after receiving Moitner’s complaint was timely. Moitner, 624 F.3d at 37-3 8; see also, e.g., Henry, 2015 WL 778192, at *2 (finding notice of removal filed more than six months after service of complaint timely).Plaintiffs’ suggestion that Merck used N.Y. C.P.L.R. §30 17(c) as a procedural tactic to delay the proceedings is likewise without merit. Merck sent plaintiffs the Request for Supplemental Demand six days after being served with plaintiffs’ complaint, well within the statutorily prescribed time.7 Plaintiffs, however, took twice the time allotted under N.Y. C.P.L.R. §30 17(c) to respond. Thus, like in Moitner, there is no evidence whatsoever that Merck engaged in any gamesmanship. See Moitner, 624 F.3d at 38. Instead, it was plaintiffs’ actions, if anything, that delayed removal to this Court.In sum, Merck was unable to ascertain that this action was removable until they received plaintiffs’ response to its Request for Supplemental Demand, explicitly stating that each plaintiff seeks damages above the jurisdictional amount in controversy. Merck’s notice of removal, filed twenty days after receiving this information, was therefore timely under 28 U.S.C. §1446(b)(3).IV. CONCLUSIONFor the foregoing reasons, the Court denies plaintiffs’ motion to remand.SO ORDERED.Dated: April 25, 2018Central Islip, NY
