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TURNER v. GOODYEAR TIRE & RUBBER CO.

March 18, 2003

MICHAEL TURNER AND MARGARET ANN TURNER, PLAINTIFFS,
v.
THE GOODYEAR TIRE & RUBBER CO., WESTOVER CARTAGE LTD., AND WESTOVER CONTRACT CARRIERS, INC. DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo, District Judge.

MEMORANDUM OPINION AND ORDER

I.

The plaintiff, Michael Turner, was employed by Bowevil Express as a truck driver. He was assigned to transport tires belonging to defendant Goodyear Tire and Rubber Co. ("Goodyear") from Virginia to Illinois. Under Goodyear's supervision, defendants Westover Cartage, Ltd. and Westover Contract Carriers, Inc. (together, "Westover") loaded a shipment of tires onto Mr. Turner's truck in Virginia. When Mr. Turner arrived in Illinois and opened the rear doors of his vehicle, a tire fell on his head and body and injured him.

Mr. Turner sued Goodyear and Westover in the Circuit Court of Cook County, alleging that the defendants caused his injury by carelessly and improperly stacking the tires in his truck, and seeking damages "over and above $50,000" from each defendant for the physical injuries, lost wages, medical bills, and pain and anguish their negligence allegedly caused. His wife, Margaret Ann Turner, likewise sued both defendants for "over and above $50,000" for loss of her husband's consortium and society.

Process in that suit was served upon Goodyear on May 7, 2002. On June 5 of that year, Goodyear requested that the plaintiffs admit that neither Mr. nor Mrs. Turner would seek a judgment greater than $75,000. On June 18, the plaintiffs admitted that they might seek more than that amount. Twenty-eight days after this admission was filed, on July 16, defendant Goodyear filed a notice of removal based on diversity of citizenship pursuant to 28 U.S.C. § 1441, and the case was removed to this court. Plaintiffs now move for remand to the Circuit Court of Cook County due to untimely removal and improper consent to removal by Westover. I deny the motion.

II.

The first question posed by this motion is whether Goodyear was required to remove the case within 30 days of being served with the complaint, or whether the 30-day countdown did not begin until it received an explicit admission that at least one plaintiff was seeking damages against one defendant in excess of $75,000, the jurisdictional amount.

28 U.S.C. § 1446(b) states that notice of removal "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading . . . or other paper from which it may first be ascertained that the case is removable." The plaintiffs argue that because their initial pleading alleged such severe and lasting injuries, including ongoing loss of wages and large medical bills, the defendants were on notice from the day they were served that the case was removable.

However, in the Northern District of Illinois, Local Rule 81.2 supplements § 1446(b) where the state complaint does not contain an express ad damnum by a single plaintiff against a single defendant in excess of the federal jurisdictional amount. The rule states that in such cases:

The notice of removal shall include:

(2) with respect to at least one plaintiff in the Illinois action, either —
(A) a response by such plaintiff to an interrogatory or interrogatories (see Ill.S.Ct. Rule 213) as to the amount in controversy, either (i) stating that the damages actually sought by that plaintiff exceed the jurisdictional amounts or (ii) declining to agree that the damage award to that plaintiff will in no event exceed the jurisdictional amount; or
(B) an admission by such plaintiff in response to a request for admissions . . . conforming to the statement or declination to agree described in subparagraph (2)(A) of this rule.
Receipt by the removing defendant or defendants of the response by a plaintiff referred to in subparagraph (2)(A) or of the admission by a plaintiff referred to in paragraph (2)(B) . . . shall constitute the receipt of a "paper from which it may first be ascertained that the case is one which is ...

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