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STEMMONS v. TOYOTA TSUSHO AMERICA

October 8, 1992

MICHAEL STEMMONS, Plaintiff,
v.
TOYOTA TSUSHO AMERICA, INC., CONTINENTAL TOYOTA MOTOR CRAFT, TOYOTA CREDIT CORPORATION, TOYOTA MOTOR DISTRIBUTORS, TOYOTA MOTOR SALES, U.S.A., INC., Defendants.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

HONORABLE CHARLES R. NORGLE

 ORDER

 Before the court are defendant Toyota Motor Sales, U.S.A., Inc.'s ("Toyota Motor Sales") motion for reconsideration of this court's order remanding the case to state court, and plaintiff Michael Stemmons's ("Stemmons") motion to clarify this court's remand order. *fn1" For the following reasons, the court denies the motion for reconsideration, denies the motion to clarify, and remands the case to the Circuit Court of Cook County, Illinois.

 FACTS

 According to the complaint, Stemmons was driving a Toyota Celica on or about December 15, 1992 when the air bag inflated without impact. Stemmons brought suit against numerous defendants, including Toyota Motor Sales, in the Circuit Court of Cook County, Illinois on or about June 30, 1992. Toyota Motor Sales is currently the only defendant served, while the parties agree that Toyota of Japan is the proper defendant. Toyota Motor Sales filed a timely notice of removal pursuant to 28 U.S.C. § 1446 on July 31, 1992 alleging diversity jurisdiction under 28 U.S.C. § 1332(a). In its notice of removal, Toyota Motor Sales alleges Stemmons is a citizen of Illinois and all the defendants are non-Illinois citizens. Toyota Motor Sales also asserts that the amount in controversy is actually in excess of $ 50,000 based on Stemmons's counsel's assertion during a telephone conversation that Stemmons lost his sight in one eye, although the complaint's prayer for relief only seeks judgment for a sum in excess of $ 30,000 and there is no allegation in the complaint regarding the loss of sight or any other serious injury.

 By order dated August 4, 1992, this court ordered a remand because the complaint is silent on the nature of Stemmons's alleged injuries and on the amount of damages incurred, other than the request for over $ 30,000 in unspecified damages. In the order, however, the court invited Stemmons's counsel to establish the extent of the injuries and the amount of damages through the submission of affidavits or other supporting evidence, and by order dated August 21, 1992 the court gave the parties time to file such affidavits. The court noted that it would reconsider its order if the affidavits were in sufficient form and no other defects remained in the removal. Throughout the process, Stemmons has not contested removal and actually wants the court to assume jurisdiction.

 Notwithstanding the court's assertion that it would reconsider its order if the affidavits were in sufficient form, the court is of the opinion that a remand is appropriate. A fair reading of the complaint does not indicate that the amount in controversy is in excess of $ 50,000 even though the complaint has been supplemented by an affidavit. Additionally, the affidavit and supporting materials demonstrate the importance of carefully guarding federal jurisdiction. Because this issue will surely be a recurring one, see Navarro v. Subaru of Am. Operations Corp., No. 92 C 5966 (N.D. Ill. Oct. 8, 1992), and because the jurisdictional question on removal is important, the court deems it necessary to explain more fully in a written opinion its reasons for remand in this case.

 DISCUSSION

 Motions for reconsideration serve a limited function. They are ordinarily used to correct clear errors of law or fact or to present newly discovered evidence which could not have been adduced during the pendency of the motion. Kohl v. Murphy, 767 F. Supp. 895, 904 (N.D. Ill. 1991). As demonstrated below, the court's order remanding the case to the Circuit Court of Cook County, Illinois was not erroneous and the court is once again holds that a remand is appropriate.

 Unfortunately for the present parties, federal court jurisdiction does not turn on the agreement of the plaintiff and defendant. No matter how hard the parties may implore, it takes an act of Congress to change jurisdictional requirements. The propriety of removal depends on whether the suit, as plaintiff framed or easily could have framed it in the complaint, would have been within this court's jurisdiction at the time of removal. Federal Deposit Ins. Corp. v. Elefant, 790 F.2d 661, 667 (7th Cir. 1986) (citing Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 110, 103 S. Ct. 2906, 77 L. Ed. 2d 509 (1983)); see also In re Shell Oil Co., 966 F.2d 1130, slip op. at 5 (7th Cir. 1992) (jurisdiction depends on circumstances at the time of removal).

 The district court must jealously guard its jurisdiction against abuse by parties who may not comprehend the constitutional importance of federal jurisdiction. See In re Shell Oil Co., slip op. at 5 (28 U.S.C. § 1447(c) requires district courts to "remain vigilant to ensure the presence of jurisdiction even though the parties may disregard the subject (or, worse, try to sneak one by the judge)"). Questions on removal are accordingly strictly construed against federal jurisdiction. Hess v. Great Atlantic & Pac. Tea Co., 520 F. Supp. 373 (N.D. Ill. 1981); see also Holly Farms Corp. v. Taylor, 722 F. Supp. 1152, 1156 (D. Del. 1989) (removal strictly construed; federal court should remand if doubt exists as to right of removal). And ambiguities are resolved against removal when doubt exists as to jurisdiction. Jones v. General Tire & Rubber Co., 541 F.2d 660, 663 (7th Cir. 1976).

 Although removal is not limited only to cases where the complaint alleges an amount in controversy in excess of $ 50,000, removal does turn on the actual amount in controversy. Michigan Mfrs. Serv. Inc. v. Robertshaw Controls Co., 134 F.R.D. 154 (E.D. Mich. 1991). A district court can satisfy itself that removal is proper if the jurisdictional amount in controversy is manifest by a reasonable reading of the complaint. See, e.g., Baker v. Firestone Tire & Rubber Co., 537 F. Supp. 244 (S.D. Fla. 1982) (complaint alleged permanent and serious injuries, although amount stated was "in excess of $ 5,000"). As a result, it is the duty of the district court to satisfy itself that the complaint delineates a controversy involving a sum actually in excess of $ 50,000.

 In the Illinois court system, a plaintiff may not plead a specific ad damnum, but must instead plead the minimum extent necessary to comply with the appropriate jurisdictional amount contained in the circuit rules of assignment. Ill. Rev. Stat. ch. 110, P 2-604. The prayer in the complaint does not limit plaintiff's recovery. Id. Appropriately, Stemmons's complaint does not specify an amount in controversy and seeks judgment only in an amount in excess of $ 30,000. Therefore, the court is faced with a situation where the complaint's allegations are not specific as to the type of injury sustained or the amount of recovery expected, and the ad damnum declares an amount less than the federal jurisdictional requirement, although Stemmons is not limited to the $ 30,000 expressed in the ad damnum. Thus, the court resolved the ambiguity by ordering a remand on August 4, 1992.

 Caught in a similar conundrum, district courts have taken various approaches. See, e.g., Cole v. Great Atlantic & Pac. Tea Co., 728 F. Supp. 1305, 1308-09 (E.D. Ky. 1990) (evidentiary hearing); McCurtain County Production Corp. v. Cowett, 482 F. Supp. 809, 813 (E.D. Okl. 1978) (allegations in notice of removal taken at face value); Wright v. Continental Cas. Co., 456 F. Supp. 1075, 1078 (M.D. Fla. 1978) (court deemed concession by plaintiff's counsel that amount was actually in excess of $ 50,000 to be sufficient); see also Vail v. Orkin Exterminating Co., 1991 U.S. Dist. LEXIS 9633 (N.D. Ill. July 12, 1991) ...


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