The opinion of the court was delivered by: McDADE, District Judge.
Before the Court is Defendant's Verified Petition For
Removal*fn1 filed October 29, 1993. Defendant seeks removal to
federal court based upon 28 U.S.C. § 1441(a) which allows removal
of a civil action from a state court to a federal court in
circumstances where the federal court would have original
jurisdiction over the action. Defendant contends that this Court
has original jurisdiction over this action based upon diversity
pursuant to 28 U.S.C. § 1332(a)(1). In accordance with the
Court's duty to immediately review newly filed and newly removed
complaints,*fn2 the Court sua sponte remands this case to
Circuit Court of the Eleventh Judicial Circuit, County of McLean,
Defendant's Petition for Removal has two primary defects.
First, Defendant states that "[e]ach of the five Plaintiffs is a
resident of the State of Illinois." (Notice of Removal 2).
However, the statute upon which Defendant bases its contention
that this Court has original subject matter jurisdiction in this
matter, 28 U.S.C. § 1332(a)(1), requires that the controversy be
between "citizens" of different states not "residents" of
different states. This pleading defect deprives this Court of
subject matter jurisdiction over this case. Maki v. Keller
Indus., Inc., 761 F. Supp. 66, 67 (N.D.Ill. 1991). Were this the
only defect in Defendant's notice, the Court would be amenable to
allowing Defendant to amend its notice pursuant to
28 U.S.C. § 1653. The notice, however, suffers from a second jurisdictional
defect which renders amendment infeasible at this juncture.
In analyzing Defendant's claim that Counts II, IV, VI, VIII,
and X of the Complaint seek amounts in compensatory and punitive
damages in excess of $50,000, the Court shall first examine the
compensatory elements of these counts. In all of the ten counts
in the Complaint, each of the individual Plaintiffs simply state
that they each individually seek an amount in compensatory
damages in excess of $15,000. In Illinois, a plaintiff is not
limited to the amount sought in his prayer, but, rather, a
plaintiff need only plead the minimum amount necessary to meet
the appropriate jurisdictional requirement. 735 ILCS 5/2-604.
Given Illinois' system of pleading, a district court may look to
the whole of a complaint to assess whether the amount in
controversy is "manifest by a reasonable reading of the
complaint." Navarro v. Subaru of America Operations Corp.,
802 F. Supp. 191, 193 (N.D.Ill. 1992).
In the present case, it is manifest that the amounts sought for
compensatory damages by each of the individual Plaintiffs exceed
$15,000, but fall short of the $50,000 jurisdictional minimum
laid out by 28 U.S.C. § 1332(a). Count II states Plaintiff Bill
Hohn "has been damaged . . . in the amount of $40,000."
(Complaint, Count II ¶ 11). Count IV states that Plaintiff Janice
Hohn "has been damaged . . . in the amount of $35,000."
(Complaint, Count IV ¶ 11). Count VI states that Plaintiff
Raymond Garbeth "has been damaged . . . in the amount of
$42,000." (Complaint, Count VI ¶ 11). Count VIII states that
Plaintiff Andrew Huhra "has been damaged . . . in the amount of
$35,000." (Complaint, Count VIII ¶ 11). Count X states that
Plaintiff Rich Kwak "has been damaged . . . in the amount of
$40,000." (Complaint, Count X ¶ 11). Manifestly, none of these
claims for compensatory damages by themselves satisfy the $50,000
jurisdictional minimum laid out in 28 U.S.C. § 1332(a).
Although the individual claims for compensatory damages made by
Plaintiffs fall short of the jurisdictional minimum applicable in
this case, Plaintiffs have also requested punitive damages in
Counts II, IV, VI, VIII, and X. Defendant, in its Notice of
Removal, asserts that when considered together, the compensatory
and punitive damages requested by Plaintiffs exceed the sum of
$50,000 on each of these counts. The Supreme Court has stated
that "[w]here both actual and punitive damages are recoverable
under a complaint each must be considered to the extent claimed
in determining jurisdictional amount." (emphasis added) Bell v.
Preferred Life Society, 320 U.S. 238, 240, 64 S.Ct. 5, 6, 88
L.Ed. 15 (1943). In this case, Plaintiffs have made claims for
punitive damages that are not quantified either in the prayers of
the individual counts or in the body of the Complaint itself. In
addition, Defendant has not offered, nor has the Court found, an
indication in any other statement by Plaintiffs which would aid
the Court in determining the extent of punitive damages claimed
by each of the individual Plaintiffs. As such, the Court is faced
with a wholly unqualified and ambiguous claim for punitive
Although it may be tempting to simply assume that Plaintiffs
will seek amounts that, when combined with compensatory damages,
will easily meet and exceed the $50,000 jurisdictional minimum,
jurisdiction cannot be based upon probabilities, surmise, or
guesswork. Navarro v. LTV Steel Co., 750 F. Supp. 928 (N.D.Ill.
1990). Accordingly, this case must be remanded to the state court
for lack of subject matter jurisdiction. However, the remand is
without prejudice to a potential renewed removal should Defendant
at some future time ascertain through the use of discovery or
otherwise that the extent to which Plaintiffs claim punitive
damages when combined with the amount claimed for
compensatory damages exceeds the jurisdictional minimum amount of
Accordingly, the Court sua sponte REMANDS this case without
prejudice to the Circuit Court of the Eleventh Judicial Circuit,
County of McLean, ...