The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Plaintiff's motion for remand is before the court. For the following
reasons, the motion is granted.
Plaintiff Andrew demons, an Illinois citizen, brought, this putative
class action in the Circuit Court of Cook County against defendant
Hornell Brewing Company, Inc. ("Hornell"), a New York corporation with
its principal place of business in New York, and Ferolito, Vultaggio
& Sons, which does not appear to be a separate entity but rather a
name under which Hornell does business.
Plaintiff alleges that Hornell produces and sells five bottled
beverages "Arizona RX" brand iced teas and fruit punch
that falsely claim to offer certain health benefits. The complaint
contains claims of false advertising, statutory and common-law fraud,
negligent misrepresentation, and unfair competition.
Plaintiff seeks, inter alia, damages, restitution,
disgorgement of profits, and an injunction "prohibiting Defendants from
claiming in labeling, advertisement or any other form that the five
Arizona RX beverages, respectively, improve memory, reduce stress,
bolster health or immune systems, boost power, increase energy, or affect
consumers' health in any other way." (Complaint at 25.)*fn1
The following facts are not in dispute. Plaintiff filed the action in
the Circuit Court of Cook County on January 15, 2003, but did not serve
defendant with the complaint until February 13, 2003, On March 13, 2003,
defendant served plaintiff with a request to admit certain facts, one
fact being that "the cost of the injunctive relief sought in Plaintiff's
Complaint will in no event exceed $75,000.00 exclusive of interest and
costs." (Notice of Removal, Ex, B, Request to Admit Facts, ¶ 9.)
Plaintiff responded on April 10 as follows: "This request is admitted as
to Plaintiff Andrew demons individually. The costs of the injunctive
relief sought in Plaintiff's complaint as to all plaintiff class members
may, in the aggregate, exceed $75,000." (Notice of Removal, Ex. C,
Plaintiff's Response to Request to Admit Facts, ¶ 9.) Thereafter, on
April 23, 2003, plaintiff moved to preliminarily enjoin Hornell "from
selling its RX beverages as currently labeled." (Notice of
Removal, Ex, D, Plaintiff's Motion for a Preliminary Injunction, at
Defendant removed the case to this court on May 5, 2003, baaed on
diversity jurisdiction. Plaintiff now moves to remand, arguing first that
the notice of removal was untimely and second that, defendant has not
established that the amount in controversy exceeds $75,000.
Jurisdiction based on diversity exists if the amount in controversy
exceeds $75,000 and the suit is between citizens of different states.
See 28 U.S.C. § 1332(a)(1). There is no dispute here that
the parties are of diverse citizenship, but the timeliness of removal and
the amount in controversy are at issue.
Removal is governed by 28 U.S.C. § 1446(b), which permits a
defendant to remove a case from state to federal court in two situations.
The first situation, as outlined in the first, paragraph of
28 U.S.C. § 1446(b), requires the defendant to file a notice of removal in the
federal district court within thirty days of being served with the
complaint. The second situation is covered by the second paragraph of
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,
through service or otherwise, 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,
except that a case may not be removed on the
basis of jurisdiction conferred by section
1332 of this title more than 1 year after
commencement of the action.
In this court, removal is also governed by Local General Rule 81, 2,
which provides the procedure for filing a notice of removal where the
complaint does not contain an express ad damnum that exceeds
the jurisdictional amount in controversy. Local Rule 81.2 requires a
defendant to include in its notice of removal; (1) a statement of its
good-faith belief that the amount in controversy exceeds the
jurisdictional amount; and (2) with respect to at least one plaintiff,
either a response to an interrogatory or an admission by plaintiff that
acknowledges or declines to agree that the damages sought exceed the
jurisdictional amount. The local rule must be read in conjunction with
§ 1446(b) and cannot conflict with or override the statute. See
Weigand v. Paul Revere Life Ins. Co., No. 97 C 8880, 1998 WL 142365,
at *3 (N.D. Ill. Mar. 19, 1998) (considering local rule as formerly
designated, Rule 3).
It is undisputed that Hornell did not file its notice 01 removal within
thirty days of being served with the complaint. Instead, Hornell avails
itself of the second paragraph of § 1446(b) and contends that it
filed its notice of removal within thirty days of first ascertaining that
the case was removable, in accordance with that provision. Because
Hornell is the party seeking to preserve removal, it bears the burden of
establishing, by a preponderance of the evidence, that it complied with
the requirements of the ...