The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Defendant has removed this action from the Circuit Court of Cook
County, Illinois to this court. For the reasons stated below, the court
sue sponte remands the case to state court.
Plaintiff Phyllis Hanlon, Special Administrator of the Estate of her
deceased husband, Thomas Hanlon ("decedent"), brought this wrongful death
and survival action against Defendant XY Tool & Die, Inc. in Illinois
state court. Plaintiff is an Illinois citizen and defendant is an Indiana
corporation with its principal place of business in Indiana.
The complaint states that on June 6, 2003, the decedent, as part of his
employment, was operating an allegedly defective "clutch test machine"
which was manufactured by defendant. The decedent suffered fatal injuries
while operating the machine "when [it] crushed him due to the lack of continuous functioning horizontal
light curtains designed to guard and prevent entry of employees into
points of operation." (Comply, p. 2.)
The complaint asserts wrongful death claims on both products liability
and negligence theories (Counts I & II, respectively), and a survival
claim premised on products liability (Count II)). Each count contains a
separate request for damages "in an amount in excess of the
jurisdictional amount of this Court." (Compl., pp. 4, 6.)*fn1
filed the complaint on November 3, 2003, and served it upon defendant on
November 7, 2003. On December 19, 2003, defendant served plaintiff with a
request to admit that the action sought damages in excess of $75,000.
Defendant received an unqualified admission Lo that effect on January
20, 2004. The following day, defendant removed the action to federal
Section 1441(a) of Title 28 permits a defendant in a civil action
brought in state court to remove the case to a federal district court
which would have had original jurisdiction over the case, by virtue of
either diversity of citizenship or the presence of a federal question.
See. 28 U.S.C. § 1441. Defendant's notice of removal invokes this court's
diversity jurisdiction which requires that the suit is between citizens
of different states and that, the amount in controversy exceeds $75,000, See 28 U.S.C. § 1332
(a)(1). Both requirements are met in this case. But. that is not the end
of the matter. To effect, a removal, a defendant, also must comply with
the procedures in 28 U.S.C. § 1446, Section 1446(b), the subsection
relevant, here, outlines the timeliness requirements for removal. The
first paragraph of that section provides:
The 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 setting forth the claim for relief upon which
such action or proceeding is based. . . .
28 U.S.C. § 1446(b). The second paragraph reads:
If the case stated by the initial pleading is not
removable, a notice of removal nay 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 l year after
commencement of the action.
Removal in the Northern District of Illinois is also governed by Local
Rule 81.2, which mandates that when a defendant seeks to remove an action
from an Illinois state court based on diversity, and where the complaint
does not contain an express ad damnum exceeding the jurisdictional amount
in controversy, the defendant must include two items in the notice of
removal: (i) a statement of defendant's good faith belief that the amount in controversy
exceeds the jurisdictional amount, and (ii) an interrogatory response or
admission by the plaintiff stating either that the damages sought are
Indeed in excess of $75,000, or that plaintiff declines to agree that
damages will not exceed $75,000. See N.D. Ill. L.R. 81.2. Under the Local
Rule, receipt by the removing defendant of the second item constitutes
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)*fn2 See id.
It is clear that defendant did not file its notice of removal within
thirty days of receiving a copy of the complaint as required by the first
paragraph of section 1446(b). Therefore, the removal is timely only if
defendant can invoke the section's second paragraph, that is, "[if] the
case stated by the initial pleading is not removable," and the case was
removed within thirty days of receipt of a "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).
Defendant's notice of removal asserts that it could not have
ascertained that the action sought damages in excess of $75,000, and was thus removable, until it received plaintiff's Local Rule 81.2
admission on January 20, 2004. We disagree.
It is true, as defendant maintains, that no single count contains a
prayer for relief in excess of $73,000, However, "[t]he diversity statute
confers federal jurisdiction over `civil actions' satisfying the required
minimum amount in controversy, not over counts, thus permitting the
plaintiff to aggregate the stakes in his separate claims or counts to come
up to the minumum." Horremans v. Carrera Designs, 157 F.3d 11, 18, 1121
(7th Cir. 1998) (citations omitted). This complaint alleges three
counts, each of which contains an express ad damnum for an amount
exceeding $50,000. It appears that Counts I and II, the wrongful death
counts, are essentially one claim pled under alternative legal theories,
which precludes their aggregation. There is no impediment, however, to
aggregating the wrongful death claim (Counts I and II) and the survival
claim (Count III). These are distinct causes of action, each with its own
basis for recovery. See Varelis V. Northwestern Mem'l. HOSP., 167 Ill.2d
449, 456, 657 N.E.2d 997, 212 Ill. Dec. 652 (1995) ("[B]oth a survival
action and a wrongful death action may be pursued for injuries caused by
the same conduct.") (internal citations omitted,)*fn3 So had plaintiff chosen to file this action in federal court instead of Illinois state
court, this court would have had original jurisdiction pursuant to
20 U.S.C. § 1332(a)(1) because plaintiff's express ad damnums of $50,000
for her independent wrongful death and survival claims could be
aggregated to total $100,000.
And just as plaintiff could have aggregated her claims to establish
original jurisdiction, defendant could have done so to effect a removal.
See Chase v. Shop'N Save Warehouse Foods, 110 F.3d 424, 427 (7th Cir.
1997) ("Removal is proper over any action that could have originally been
filed in federal court,"). Therefore, it was apparent (or should have
been) from the Lace of the complaint that this case was removable.
Defendant's reliance on the second paragraph of section 1446, which by
its own terms applies only "[if] the case stated by the initial pleading
is not removable," is simply misguided. 28 U.S.C. S 1446(b). As for Local
Rule 81.2, that provision never should have come into play because no
discovery was required Lo determine that the complaint sought damages in
excess of $75,000. See N, D. Ill. L, R. 81.2 Committee Comment ("This
rule outlines a procedure to be followed in cases where the complaint
filed in state court does net, on its face, indicate that the amount in
controversy exceeds the jurisdictional amount specified by 28 U.S.C. § 1332
Accordingly, because defendant could have ascertained the removability of the case upon its receipt of the complaint, the notice of
removal, filed severity-four days thereafter, In untimely under 28
U.S.C. g. 1.446(b). In light of our ruling, defendant's motions to
dismiss for lack of jurisdiction and, ...