KATHY GERHARDT v. HOBBY LOBBY STORES INC (2026)

REPORT, RECOMMENDATION AND ORDER

Before the court is plaintiff Kathy Gerhardt's motion to remand this action to state court and for an award of costs and attorney's fees [7]¹ , which has been referred to me by District Judge John L. Sinatra, Jr. for initial consideration [5]. Having reviewed the parties’ submissions [11,12, 13], for the following reasons I recommend that Gerhardt's motion for remand be granted; and if that recommendation is adopted, I order that her motion for costs and attorney's fees also be granted ² .

BACKGROUND

Gerhardt commenced this action in State of New York Supreme Court, County of Erie on May 30, 2025, seeking recovery for injuries sustained in a June 14, 2023 slip and fall accident at a Hobby Lobby store. Complaint [1-3]. She alleged that she “sustained serious and permanent injuries including but not limited to a fractured femur at the hip, requiring emergency medical treatment, hospitalization, surgery, and medical care”, that she “has suffered and will continue to suffer ․ permanent disability and disfigurement; medical expenses, both past and future; and other economic losses and damages”, and that she “has been damaged in sums in excess of the jurisdictional limit of all lower courts”. Id., ¶¶10, 11, 13 ³ .

Gerhardt's Complaint was served on Hobby Lobby on June 18, 2025 [11-2]. On July 8, 2025, Hobby Lobby served its Answer and various discovery demands [11-3], including a “Demand for Specific Relief” pursuant to N.Y. C.P.L.R. § 3017(c), requesting that Gerhardt provide a written specification of the total damages sought in this action. Although C.P.L.R. § 3017(c) required Gerhardt to respond to that demand within 15 days, she did not respond until December 23, 2025, stating that she was seeking $500,000. [11-11] at 3.

Hobby Lobby filed its notice of removal on January 7, 2026 [1], citing 28 U.S.C. § 1332(a)(1) (“[t]he 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 ․ citizens of different States”). Gerhardt filed the pending motion on January 29, 2026 [7].

DISCUSSION

A. Timeliness of the Removal

“On a motion to remand, the party seeking to sustain the removal, not the party seeking remand, bears the burden of demonstrating that removal was proper.” Meeks v. City of Rochester, 2022 WL 13789086, at *1 (W.D.N.Y. 2022). “If the removing party fails to meet its burden, the Court will remand the action to the state court from which it was removed.” dela Rosa ex rel. dela Rosa v. 610-620 West 141 LLC, 2009 WL 1809467, at *3 (S.D.N.Y. 2009).

“[T]he burden is on the removing party to show that ․ removal was timely.” Meeks, 2022 WL 13789086, at *1. A notice of removal 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”, unless “the initial pleading is not removable”, in which case it “may be filed within 30 days after receipt by the defendant ․ of a copy of an ․ other paper from which it may first be ascertained that the case is one which is or has become removable”. 28 U.S.C. § S1446(b)(1),(3). Since Hobby Lobby did not file its notice of removal within 30 days of its receipt of the Complaint on June 18, 2025, the removal was timely only if the Complaint itself was not removable.

Hobby Lobby argues that the 30-day deadline for removal “does not start to run until the plaintiff serves the defendant with a paper that explicitly specifies the amount of monetary damages sought”. Hobby Lobby's Memorandum of Law [12] at 8 (emphasis in original), citing Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010) and Essenmacher v. Keene Carriers, Inc., 702 F. Supp. 3d 160, 165 (W.D.N.Y. 2023). While acknowledging that the “Complaint alleged, among other things, a fractured femur and surgical intervention”, Hobby Lobby contends that “[u]nder Moltner, those allegations are legally insufficient to trigger the removal clock”, because the Complaint “did not specify damages”. Hobby Lobby's Memorandum of Law [12] at 10.

Moltner reasoned that “[a] case is removable when the initial pleading enables the defendant to intelligently ascertain removability from the face of such pleading”, that “[a] pleading enables a defendant to intelligently ascertain removability when it provides the necessary facts to support the removal petition”, and that “the facts required to support the removal petition include the amount in controversy”. 624 F.3d at 37, quoting Whitaker v. American Telecasting, Inc., 261 F.3d 196, 206 (2d Cir. 2001). Therefore, Hobby Lobby correctly concluded that under Moltner’s rationale, removal would be proper only if the Complaint itself stated the amount in controversy.

However, Hobby Lobby overlooks the fact that Moltner was decided prior to the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ⁴ , which amended 28 U.S.C. § 1446 to allow for removal even where the complaint does not allege the amount in controversy. § 1446(c)(2)(A)(ii) now provides that “the notice of removal may assert the amount in controversy if the initial pleading seeks ․ a money judgment, but the State practice ․ does not permit demand for a specific sum”. Thus, “[w]hen the plaintiff's complaint does not state the amount in controversy, the defendant's notice of removal may do so”. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 84 (2014). The notice of removal “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required ․ only when the plaintiff contests, or the court questions, the defendant's allegation”. Id. at 89.

In determining whether an allegation as to the amount in controversy is “plausible”, the court “should apply the same liberal rules to removal allegations that are applied to other matters of pleading”. Id. at 87. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw [a] reasonable inference ․ The plausibility standard is not akin to a probability requirement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The allegations must be “viewed in a light most favorable to the plaintiff and drawing all reasonable inferences in her favor”. Matson v. Board of Education, 631 F.3d 57, 72 (2d Cir. 2011).

Hobby Lobby does not suggest that it would be implausible to allege that a fractured femur necessitating surgery could create an amount in controversy of at least $75,000, for clearly it could. See Demauro v. Central Gulf SS Corp., 514 F.2d 403, 405 (2d Cir. 1975); Keenan v. Waldorf Carting Co., 2004 WL 1961592, at *5 (S.D.N.Y. 2004); Williams v. Williams, 226 A.D.2d 710, 711 (2d Dept. 1996), all holding that verdicts in excess of $75,000 for a fractured femur are sustainable. Instead, it argues that “[u]nder Moltner, it “was prohibited from assuming or guessing [the amount in controversy] based solely on the allegations of injuries”. Hobby Lobby's Memorandum of Law [12] at 11. For the reasons discussed, that prohibition no longer exists.

“[A]ny doubts as to removability should be resolved in favor of remand”. Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 220 (2d Cir. 2013). Since Hobby Lobby has not shown beyond doubt that Gerhardt's Complaint was not removable, it likewise has not shown beyond doubt that its notice of removal was timely. Therefore, remand is warranted.

B. Costs and Attorney's Fees

28 U.S.C. § 1447 provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal”. “[A]n award of fees under § 1447(c) is left to the district court's discretion, with no heavy congressional thumb on either side of the scales.” Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005).

“The statute does not require the party seeking costs and fees to demonstrate that the removing party acted in bad faith.” Sherman v. A.J. Pegno Construction Corp., 528 F. Supp. 2d 320, 331 (S.D.N.Y. 2007). Instead, “the standard for awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.” Martin, 546 U.S. at 141.

Hobby Lobby argues that its “basis for removal was reasonable because it was based on controlling Second Circuit authority holding that the removal clock does not begin to run until the defendant receives a paper explicitly specifying the amount of damages sought ․ At a minimum, [its] reliance on Moltner renders removal objectively reasonable”. Hobby Lobby's Memorandum of Law [12] at 14, 15. I disagree: as previously discussed, in light of the 2011 amendment to 28 U.S.C. § 1446 and Dart Cherokee, Moltner is no longer controlling authority. “A reasonable inquiry into the applicable law would have revealed that the statutory criteria for removing this action to federal court were not satisfied.” dela Rosa ex rel. dela Rosa v. 610-620 W. 141 LLC, 2009 WL 1809467, at *4 (S.D.N.Y. 2009)⁵ .

CONCLUSION

For these reasons, I recommend that Gerhardt's motion for remand [7] be granted; and if that recommendation is adopted, then I order that Gerhardt's motion for costs and attorney's fees also be granted. A briefing schedule for that request will be set at a later date. Unless otherwise ordered by Judge Sinatra, any objections to this Report, Recommendation and Order must be filed with the clerk of this court by June 22, 2026.

Any requests for extension of this deadline must be made to Judge Sinatra. A party who “fails to object timely ․ waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838 F. 2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985). Moreover, the district judge will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F. 2d 985, 990-91 (1st Cir. 1988).

The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court's Local Rules of Civil Procedure, written objections shall “specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection ․ supported by legal authority”, and must include “a written statement either certifying that the objections do not raise new legal/factual arguments, or identifying the new arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply with these provisions may result in the district judge's refusal to consider the objections.

FOOTNOTES

1.   Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF pagination.

2.   A motion for remand is dispositive, Williams v. Beemiller, Inc., 527 F.3d 259, 266 (2d Cir. 2008), whereas “decisions on ․ requests for attorney's fees are nondispositive”. Wright v. Rochester Sportfishing, Inc., 2025 WL 3703602, at *4 (W.D.N.Y. 2025).

3.   N.Y. C.P.L.R. § 3017(c) prohibits the Complaint from “stat[ing] the amount of damages to which the pleader deems himself entitled”.

4.   Pub. L. No. 112–63, 125 Stat. 758 (2011).

5.   Hobby Lobby also cited this court's 2023 decision in Essenmacher, supra, but since that case relied upon Moltner, it is likewise not controlling authority. See Camreta v. Greene, 563 U.S. 692, 709, n. 7 (2011) (“[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case”).

JEREMIAH J. MCCARTHY United States Magistrate Judge