may be provided in the absence of a sufficient ad damnum.
The case law provides equal support to both parties. In Height v. Southwest Airlines, Inc., No. 02 C 2854, 2002 WL 1759800 (N.D.Ill. Jul.29, 2002) (Guzman, J.), the court held that Rule 81.2 "appears to include an exhaustive list" and that even if a state complaint contains allegations of severe and permanent injury and financial loss, "they would not necessarily mean that Plaintiff seeks damages in excess of $75,000. A Plaintiff could choose to seek a lesser amount in order to avoid removal." Id. at *3-4. Height is the most recent of a line of cases strictly construing the Rule; see, e.g., Abdishi v. Philip Morris, Inc., No. 98 C 1310, 1998 WL 311991 (N.D.Ill. June 4, 1998) (Gettleman, J.).
But just three months later, in McCoy v. General Motors Corp., 226 F. Supp.2d 939 (N.D.Ill. 2002) (Castillo, J.), the court held that when a plaintiff seeks relief for lost wages, surgical bills, permanent injuries, "it is obvious from a common-sense reading of the complaint that Plaintiffs were seeking in excess of $75,000 in damages," and defendants must remove within 30 days of service. Id. at 941. Furthermore, the McCoy court stated that to the extent that Local Rule 81.2 "provides the exclusive procedure by which defendants may remove Illinois state complaints that lack an express ad damnum clause, it impermissibly contravenes the federal removal statute." Id., at 942. McCoy did not distinguish Height; it merely mentioned it as a contrary holding. McCoy, like Height, rests on a long line of preceding cases; see, e.g., Huntsman Chem. Corp. v. Whitehorse Tech., No. 97 C 3842, 1997 WL 548043, at *5 (N.D.Ill. Sept.2, 1997) (Coar, J.). No case appears to settle the debate as to the construction of Local Rule 81.2.
I am persuaded by Judge Guzman's reasoning in Height. Plaintiffs sometimes deliberately seek less than the amount they might otherwise collect in order to avoid removal from a preferred forum. In Tokarz v. Texaco Pipeline Inc., 856 F. Supp. 403 (N.D.Ill. 1993) (Shadur, J.), for example, each plaintiff in the suit sought $29,999.99 in damages, $.01 less than the jurisdictional amount required in the forum preferred by the defendants. No matter how grievous a plaintiff's injury, it is always possible that he or she will choose this strategy. If courts permit removal when subject-matter jurisdiction is only suspected, some cases will pointlessly travel to federal court, only to be remanded when the plaintiff's intentions are clarified. Local Rule 81.2 suggests that the proper time for determining a case's removability is before removal. A defendant is on notice that the plaintiff is seeking above $75,000 only after the plaintiff makes an explicit statement to that effect. After being served with an ambiguous state complaint, Goodyear promptly sought such an explicit ad damnum, and removed the case within 30 days of receiving a response. Thus, its removal was timely.
The plaintiffs' motion to remand erroneously asserts that because Mrs. Turner's claim is derivative of her husband's claim, the damages sought in their respective state complaints should be added together to total $100,000. If this were true, then the state complaint would have been removable on its face, and Goodyear's removal 70 days after service of process would have been untimely. But multiple plaintiffs cannot aggregate their claims where none of the claimants satisfy the jurisdictional amount. See Tokarz, 856 F. Supp. at 404. The fact that Mrs. Turner's claim is a loss of consortium claim arising from the same event as her husband's physical injury is of no consequence; those were also the facts in Tokarz. Her injury (loss of companionship, etc.) is distinct from his, and must independently meet the jurisdictional threshold. Thus, the fact that plaintiffs' multiple claims for less than the jurisdictional amount added up to over $75,000 does not change the fact that the state complaint was not adequate notice to Goodyear of the case's removability.
The second question plaintiffs raise is whether Goodyear's notice of removal is faulty because co-defendant Westover had no standing to consent to removal after failing to file an appearance in state court. Plaintiffs cite no law for the proposition that a defendant must file an appearance in state court before consenting to removal to federal court, and the removal statute says simply that each defendant must communicate his or her consent to the court in writing within 30 days of receiving the initial pleading containing the removable claim. See Thomas v. Klinkhamer, No. 00 C 2654, 2000 WL 967984 (N.D.Ill. July 10, 2000) (Lindberg, J.). Westover did so in its consent to removal filed on July 16. Therefore, Westover's consent to removal is valid.
Goodyear was not on notice that the case against them was removable until it received a response to its request for admission on June 18, and the case was removed within 30 days of that date, pursuant to Local Rule 81.2. Westover likewise consented to removal within 30 days of that admission. Since the defendants complied with the removal statute and local rule, the removal is valid, and the case is properly before this court.
The plaintiffs' motion for remand is DENIED.
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