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July 31, 2003

BRENT COUCH, Defendant

The opinion of the court was delivered by: CASTILLO, District Judge


Plaintiff RBC Mortgage Company ("RBC") filed suit in the Circuit Court of Cook County, Illinois against defendant Brent Couch ("Couch"), alleging that Couch breached an employment agreement by soliciting RBC's clients and employees and by disclosing confidential information. Couch moved for dismissal for lack of personal jurisdiction, which the Circuit Court denied, and then removed this case to federal court on the basis of diversity jurisdiction. RBC now moves to remand to state court for Couch's failure to timely remove the case. (R. 7-1.) In addition, Couch moves for an order transferring venue to the United States District Court for the District of Colorado pursuant to 28 U.S.C. § 1404(a). (R. 4-1.) For the reasons set out herein, we deny both motions. (R. 7-1; 4-1.)


  Couch was hired in an administrative capacity by First City Financial Corporation ("FCFC"), a Colorado corporation, in its Greeley, Colorado office in about May 1993. (R. 7, Pl.'s Mot. to Remand, Ex. 1, Pl.'s Complaint ¶ 16.) Approximately one year later, Couch requested and obtained a promotion to Loan Officer. (Id. at ¶ 17.) In February 1997 FCFC promoted Couch to Branch Manager, the highest position in any individual office and one with a Page 2 high degree of responsibility. (Id. at ¶ 18.) In about April 1999, FCFC was acquired by and became a subsidiary of Prism Financial Corporation ("Prism"), an Illinois corporation. (R, 9, Def.'s Mot. in Opp. to Pl.'s Mot. to Remand, Ex. 1, Couch Aff. ¶ 14.) In turn, Royal Bank of Canada ("RBC") acquired Prism and its subsidiaries (including FCFC) in April 2000, (R, 9, Def.'s Mot. at 2.) In a branding effort, RBC changed FCFC's name to RBC Mortgage Company.

  Also in April 2000, Couch executed the Branch Manager Employment Agreement ("Agreement") with FCFC. (R. 7, Pl.'s Mot. to Remand, Ex. 1, Ex. A, Employment Agreement at 1.) Although the Agreement mentions only FCFC by name, relevant language in the text includes "its affiliates and parent companies," (id. at 2), and Couch was aware at the time of signing that FCFC was in a period of transition, (R. 9, Def.'s Mot. at 2). After nearly ten years with the company, Couch resigned from FCFC in the summer of 2002. (Id.) Essentially, RBC alleges that Couch raided the office of confidential information, clients and employees, allowing Couch to set up his own profitable mortgage lending business while forcing RBC to close its Greeley office. (Id.)

  On August 27, 2002, RBC filed a complaint in the Circuit Court of Cook County, alleging: (1) breach of fiduciary duty; (2) breach of contract; (3) tortious interference with RBC's existing and prospective economic advantage; and (4) conversion. (Id.) The complaint prays the court to award "damages in an amount to be determined at trial" and "any other relief [the] Court deems just and appropriate," but also describes injury and damages exceeding $50,000 for each of Counts I, II and III. (R. 7, Pl.'s Mot. to Remand, Ex. I, Compl. ¶¶ 45, 49, 57.) Additionally, RBC prays for injunctive relief on Count IV, seeking to recover from Couch a laptop computer allegedly containing RBC's confidential information. (Id. at ¶ 4.) On October 31, 2002, Couch filed a motion to dismiss for lack of personal jurisdiction,

[274 F. Supp.2d 968]

      asserting that he did Page 3 not have sufficient minimum contacts with Illinois to subject him to personal jurisdiction in the state's courts. (R. 7, Pl.'s Mot. to Remand at 4.) The state court denied Couch's motion on March 7, 2003, finding that he had voluntarily submitted to jurisdiction in Illinois by the terms of the Agreement with FCFC. (R. 7, Pl.'s Mot. to Remand, Ex. 4.) Four days later, Couch requested an admission from RBC that it seeks to recover damages in excess of $75,000, which he received on April 7, 2003. (R. 7, Pl.'s Mot. to Remand at 4.) On May 6, 2003, Couch filed both a notice of removal and a motion to transfer this case to Colorado. (Id. at 5.) Presently before the Court are RBC's motion to remand, filed June 5, 2003, and Couch's motion to transfer,
I. Motion to Remand
  RBC bases its motion to remand on Couch's alleged failure to follow proper procedures for removal. Removal is governed by 28 U.S.C. § 1446(b), which states in relevant part:
The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant . . . of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. . . . If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant . . . of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
28 U.S.C. § 1446(b). The party seeking to invoke federal diversity jurisdiction bears the burden of demonstrating that both the complete diversity and amount in controversy requirements are met. Chase v. Stop'n Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997). In order to meet this burden, the defendant must support his allegations of jurisdiction with "competent proof" id. (citing McNutt v. Gen. Motors Acceptance Corp., Inc., 298 U.S. 178 189 (1936)), the Page 4 definition of which is addressed by Local Rule 81.2. Local Rule 81.2 sets out specific filing guidelines, requiring that the notice of removal 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)(B) . . . shall constitute the receipt of a "paper from which it may first be ascertained that the case is one which is or has become removable" within the meaning of 28 U.S.C. § 1446(b).
  RBC first argues that the Court should remand this case because Couch failed to remove within 30 days of receipt of RBC's complaint. However, Couch submitted his removal notice within thirty days after receiving a requested admission from RBC asserting that it sought over $75,000. Thus, the critical question is: at what point did Conch first receive sufficient information that allowed him to determine whether the case was removable? Huntsman Chem. Corp. v. Whitehorse Tech.,

[274 F. Supp.2d 969]

      No. 97 C 3842, 1997 WL 548043, at *6 (N.D. Ill. Sept. 2, 1997).

  Generally, where the complaint does not articulate a specific ad damnum, the defendant is not on notice that more than $75,000 is in controversy, and the thirty-day time-clock does not start running until he receives an admission that the plaintiff is indeed seeking more than $75,000. Height v. Southwest Airlines, Inc., No. 02 C 2854, 2002 WL 1759800, at *4 (N.D. Ill. July 29, 2002); Abdishi v. Phillip Morris Inc., No. 98 C 1310, 1998 WL 311991, at *3 (N.D. Ill. June 4, 1998). However, in some cases the defendant is responsible for ascertaining from "a reasonable and commonsense reading" of the complaint whether the action is removable. McCoy v. Gen. Motors Corp., 226 F. Supp.2d 939, 942 (N.D. Ill. 2002) (holding that defendant was put on notice that plaintiffs would seek more than $75,000 where complaint alleged that Page 5 plaintiffs, two of whom were minors, suffered "severe and permanent injuries, including paralysis, and sought damages for lost income."); Huntsman, 1997 WL 548043, at *6. The logic of this requirement follows from Huntsman's observation that "there is no reason to allow a defendant additional time if the presence of grounds for removal are unambiguous in light of the defendant's knowledge and the claims made in the initial complaint." Huntsman, 1997 WL 548043, at * 5 (quoting Mielke v. Allstate Ins. Co., 472 F. Supp. 851 (E.D. Mich. 1979)). Yet, McCoy and related cases dealt solely with personal injury and product liability actions, all of which alleged "serious, permanent injuries and significant medical expenses." McCoy, 226 F. Supp.2d at 941 (collecting cases). In such situations, it is indeed "unambiguous" that a plaintiff will seek more than $75,000. However, because we find no reason to extend McCoy past the unique circumstances of personal injury and extraordinary loss into the general universe of tort law, we find as a matter of law that the amount in controversy was not unambiguous from the face of RBC's complaint.*fn1 Thus, Couch filed his notice of removal in a timely manner.

  RBC next contends that Couch waived his right to remove under the terms of the Agreement with FCFC. Where a contract provides that the parties consent to the jurisdiction of state or federal court within a particular region, however, the agreement does not constitute a waiver of a defendant's right to remove. Newman/Hass Racing v. Unelko Corp., 813 F. Supp. 1345, 1347-48 (N.D. Ill. 1993) (citing Oberweis Dairy, Inc. v. Maplehurst Farms, Inc., No. 88 C 4857, 1989 WL 2078, at *1 (N.D. Ill. Jan. 10, 1989)). Here, the pertinent Agreement language reads: Page 6

Jurisdiction over disputes with regard to this Employment Agreement shall be exclusively in the Circuit Court of Cook County, Illinois, or any federal court seated in Cook County, Illinois, and this Employment Agreement shall be construed and interpreted in accordance with and governed by the substantive laws of the State of Illinois, notwithstanding the conflict of laws provisions of such laws. The parties hereto hereby submit to in personum [sic] jurisdiction ...

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