Terzi v. Mosquera et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Nicholas Terzi,
Plaintiff,
-v-
William Mosquera, and WM International Services,
Defendants.
2:25-cv-5781
(NJC) (ST)
MEMORANDUM AND ORDER REMANDING ACTION
NUSRAT J. CHOUDHURY, United States District Judge:
On October 15, 2025, Defendants William Mosquera and WM International Services
(together, “Defendants”) filed a Notice of Removal purporting to remove an action pending in
Suffolk County Supreme Court, initiated by Plaintiff Nicholas Terzi for alleged injuries resulting
from a motor vehicle incident. (Not. Removal, ECF No. 1; see also Verified Compl., ECF No. 1-
1.) The Notice of Removal asserts that this Court has diversity jurisdiction under 28 U.S.C.
§ 1332. (Not. Removal ¶ 5.)
On December 12, 2025, the Court issued an Order to Show Cause directing Defendants to
demonstrate “why this Court should not remand this action for lack of subject matter
jurisdiction.” (ECF No. 14 at 1.) On December 29, 2025, Defendants filed their response. (ECF
No. 16.)
For the reasons set forth below, the Court finds that Defendants have failed to show cause
that this Court has diversity jurisdiction over the matter. Accordingly, this action is remanded to
Suffolk County Supreme Court pursuant to 28 U.S.C. § 1447(c) for lack of subject matter
jurisdiction.
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BACKGROUND
Plaintiffs initiated this action in Suffolk County Supreme Court on July 24, 2025. On
October 15, 2025, Defendants filed the Notice of Removal purporting to remove an action
pending in Suffolk County Supreme Court.1 (Not. Removal; see also Verified Compl.) The
Notice of Removal asserts that this Court has diversity jurisdiction under 28 U.S.C. § 1332. (Not.
Removal ¶ 5.) On December 12, 2025, the Court issued an Order to Show Cause directing
Defendants to demonstrate “why this Court should not remand this action for lack of subject
matter jurisdiction.” (ECF No. 14 at 1.) On December 29, 2025, Defendants filed their response.
(ECF No. 16.)
In the Order to Show Cause, this Court found that the Notice of Removal, even when
assessed in conjunction with corresponding exhibits and the Verified Complaint, failed to
plausibly allege “that the amount in controversy exceeds $75,000 and therefore that the Court
has diversity jurisdiction over this matter.” (Order to Show Cause at 5.) Specifically, the sole
basis for Defendants’ assertion that the amount-in-controversy exceeded $75,000 was an oral
settlement demand made by Plaintiff’s counsel during a telephone conversation on September
22, 2025. In the Order to Show Cause, the Court explained that “an oral settlement demand, on
its own, is not a sufficient or ‘reliable’ indicator of the amount in controversy,” and is instead
“‘only one factor’ in the court’s assessment.” (Id. at 7.) The Court further reasoned that:
1 28 U.S.C. §1446(b)(3) requires a notice of removal to be filed “within thirty days after receipt
by the defendant, through service or otherwise, of 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,” where, as here, “the case stated by the initial pleading is not removable.”
Defendants discovered the alleged basis for removal on September 22, 2025, and filed the Notice
of Removal on October 15, 2025, which falls within the 30-day window. The Court has already
established that the alleged basis for removal was not sufficient, but had it been adequate,
removal would have been timely.
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Defendants fail to specify the amount demanded by Plaintiff, and the context in which the
settlement demand was made, and why the nature of Plaintiff’s alleged injuries or alleged
damages resulting from the motor vehicle incident support the demand or any amount
above $75,000.
(Id. at 7 (internal citations omitted).)
On December 29, 2025, Defendants timely filed their response and an attached affidavit
by Defendants’ counsel and an email from Plaintiff’s counsel dated December 1, 2025 (ECF
Nos. 16; “Williams Aff.,” ECF No. 61-1; ECF No. 16-2). Defendants’ assertion that the amount-
in-controversy requirement for diversity jurisdiction is met because “[o]n December 1, 2025,
Plaintiff identified in writing that his settlement demand remained $425,000.” (Williams Aff. ¶
5.) Defendants attach an email in which Plaintiff’s counsel states: “Please be advised that the
$25,000 offer has been rejected. Plaintiff's demand remains $425,000.” (ECF No. 16-2 at 1.)
Defendants further state that “[o]n September 9, 2025, we served a demand for an addendum
pursuant to CPLR 3017(c), but no response was provided.” (Williams Aff. ¶ 6.)
LEGAL STANDARDS
This Court has an independent obligation to determine whether subject matter jurisdiction
exists over this case. See Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006). “[F]ailure of subject
matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua
sponte.” Lyndonville Sav. Bank & Tr. Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000). If a
district court lacks subject matter jurisdiction, it must dismiss the action. See Doe v. McDonald,
128 F.4th 379, 384 (2d Cir. 2025); Fed. R. Civ. P. 12(h)(3).
“[A] plaintiff invoking federal jurisdiction must demonstrate a ‘reasonable probability’
that the amount-in-controversy requirement is satisfied.” Pyskaty v. Wide World of Cars, LLC,
856 F.3d 216, 223 (2d Cir. 2017) (citation omitted). The Second Circuit “recognize[s] a
rebuttable presumption that the face of the complaint is a good faith representation of the actual
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amount in controversy.” Id. The amount in controversy alleged must be plausible, i.e., supported
by factual allegations in the complaint. Wood v. Maguire Automotive, LLC, 508 F. App’x. 65, 65
(2d Cir. 2013) (affirming dismissal of complaint for lack of subject matter jurisdiction where the
complaint’s allegation “of $75,000 in controversy is conclusory and not entitled to a presumption
of truth”). “[I]f the jurisdictional amount is not clearly alleged in the . . . 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 v. Hum. Aff. Int’l Inc., 28 F.3d 269,
273–74 (2d Cir. 1994).
“A defendant removing a personal injury or wrongful death action from New York state
court, moreover, need not guess at the amount in controversy; New York state law provides a
mechanism for establishing exactly that.” Minaudo v. Sunrise at Sheepshead Bay, No. 22-cv-
2579, 2023 WL 110359, at *2 (E.D.N.Y. Jan. 5, 2023). “While the complaint in such an action
‘shall not state the amount of damages’ sought, N.Y. C.P.L.R. 3017(c), a defendant ‘may at any
time request a supplemental demand setting forth the total damages to which the pleader deems
himself entitled,’ . . . Should the plaintiff fail to serve that demand ‘within fifteen days,’ the state
court ‘may order that it be served.’” Id.
“[S]ettlement demands generally are not reliable indicators of the amount in controversy
. . . Indeed, ‘settlement offers can often be wildly unrealistic and constitute mere puffery or
posturing rather than a fair or realistic appraisal of a party’s damages.’” Elzoghary v. Zelaya-
Monge, No. 23-cv-5353, 2023 WL 6121800, at *2 (E.D.N.Y. Sept. 19, 2023) (internal citations
omitted). “‘[While] some courts have considered settlement demands in determining the amount
in controversy, they have done so with caution,’ warning that ‘[a] settlement demand does not
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conclusively resolve the ambiguity regarding the amount in controversy.’” Id. “As such, courts
considering settlement demands made prior to removal have viewed such offers as ‘only one
factor to consider in assessing the amount in controversy,’ explaining that ‘courts must consider
the context in which such a settlement demand was made.’” Id.
“The Second Circuit has held that ‘the existence of federal subject matter jurisdiction
over an action removed . . . is normally to be determined as of the time of removal.” Chang v.
Chang, No. 25-cv-4917, 2025 WL 2356421, at *3 (S.D.N.Y. Aug. 14, 2025) (citing Hallingby v.
Hallingby, 574 F.3d 51, 56 (2d Cir. 2009)); see also Yong Qin Luo v. Mikel, 625 F.3d 772, 776
(2d Cir. 2010) (finding subject matter jurisdiction where plaintiff “represented that the amount in
controversy was satisfied at the time of removal”).
DISCUSSION
Defendants’ sole basis for establishing the amount in controversy is a written settlement
demand by Plaintiff’s counsel, dated December 1, 2025, for $425,000. (Williams Aff. ¶ 5.)
However, Defendants removed this action on October 15, 2025. (See ECF No. 1.) The basis for
removing an action to federal court must be evident at the time of removal. See Chang, 2025 WL
2356421, at *3. Accordingly, this Court did not have subject matter jurisdiction over this matter
at the time of removal on October 15, 2025.
Even if timing were not an issue here, the Court finds pertinent the view of other courts
within this District that “[a] settlement demand does not conclusively resolve the ambiguity
regarding the amount in controversy,” because settlement demands can often be “wildly
unrealistic.” Elzoghary, 2023 WL 6121800, at *2. Here, Defendants have provided the Court
with no other “context in which such a settlement demand was made” (id.) to support a finding
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that the settlement demand supports an accurate approximation of the actual amount in
controversy.
Defendants’ statement that Plaintiff failed to respond to their N.Y. C.P.L.R. 3017(c)
demand is unavailing. N.Y. C.P.L.R. 3017(c) clearly states that “[i]n the event the supplemental
demand is not served within fifteen days, the court, on motion, may order that it be served.”
Defendants have not shown that they ever filed such a motion in state court prior to removing the
action to this Court.
CONCLUSION
For all of the reasons explained in this Memorandum & Order, this Court lacks subject
matter jurisdiction over this matter under 28 U.S.C. § 1332. This action is remanded to the
Supreme Court of the State of New York, County of Suffolk, for lack of jurisdiction under 28
U.S.C. § 1447(c). The Clerk of Court is respectfully directed to close the case and to mail a
certified copy of this order to the clerk of the Suffolk County Supreme Court.
Dated: Central Islip, New York
January 22, 2026
/s/ Nusrat J. Choudhury
NUSRAT J. CHOUDHURY
United States District Judge
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