United States District Court, N.D. Illinois, Eastern Division
November 15, 2004.
GREGORY THORNTON, Plaintiff,
SIGNATURE FLIGHT SUPPORT CORPORATION, a foreign corporation, Defendant.
The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
On September 4, 2003, plaintiff Gregory Thornton filed this
action in the Circuit Court of Cook County, Illinois and promptly
served defendant Signature Flight Support Corporation. Almost one
year later on September 3, 2004, Signature filed a notice of
removal to the Northern District of Illinois. The removal was
based on diversity of jurisdiction. Plaintiff has moved to remand
the case, contending the notice of removal was untimely.
Plaintiff filed this action naming Signature and a John Doe as
defendants. The next day, plaintiff served a summons on
Signature. Plaintiff alleged that he was working for United
Airlines, guiding a plane on the tarmac, when he was hit by a
fuel truck driven by Doe. Doe was alleged to be an employee of Signature. It was alleged that plaintiff suffered "severe and
permanent injuries;" would continue to "suffer great pain and
mental anguish and loss of a normal life;" that he had past and
future medical expenses; was disabled from performing his usual
occupation and would suffer past and future losses of income; and
that he would suffer "disability and disfigurement." No dollar
amount of damages was specified other than that damages exceeded
$50,000, the jurisdictional requirement for the Law Division of
the Circuit Court of Cook County, Illinois.
On September 5, 2003, plaintiff amended his complaint to
substitute Ray Sims for the John Doe defendant. Plaintiff
retained a process server who was unable to locate Sims. On June
4, 2004, plaintiff's motion to voluntarily dismiss Sims was
granted with leave to reinstate.
Plaintiff asserts, and Signature does not represent otherwise,
that Signature knew from early on in the case that plaintiff is a
citizen of New York and that Sims likely still lived in
Illinois.*fn1 Signature is a Florida corporation and its
principal place of business is apparently in Florida as
well.*fn2 In his March 2, 2004 interrogatory response,
plaintiff provided additional details of his injuries, but did not specify a dollar
amount for any loss or expense other than to provide bills for
medical services. Plaintiff did list 13 medical providers who
treated him and described his injuries as "including, but not
limited to, pain, suffering, mental anguish, and loss of normal
life. Plaintiff also suffered cuts on or about his head and legs;
injury to his neck and torso; focal tearing of the meniscus; and
posterial crucial ligament tear; ligament Grade I sprain or
partial tear." Plaintiff also answered that he had an unspecified
amount of wage loss from being on light duty for two years, had a
financial loss from running out of sick days and vacation time,
and suffered additional unspecified financial loss.
On August 5, 2004, Signature served requests for admission on
plaintiff asking plaintiff to admit, among other things, that he
was claiming damages in excess of $75,000. When plaintiff did not
respond to the request to admit within 28 days, it was deemed
admitted as of September 3, 2004. Signature filed its notice of
removal that same day, which was just under a year after being
served with the original complaint. A few days later, plaintiff
located Sims and apparently filed a motion in state court
requesting to amend the complaint to reinstate Sims as a
defendant. That motion was without effect because the case had already been removed to federal court. See
28 U.S.C. § 1446(d).
Signature contends it timely filed its notice of removal within
30 days of first ascertaining the case became removable, see
28 U.S.C. § 1446(b), because it did not know the over $75,000
jurisdictional amount was satisfied until the request to admit
was deemed admitted on September 3, 2004. See N.D. Ill. Loc. R.
At the time plaintiff first filed this action in state court,
there was complete diversity of citizenship.*fn3 The
complaint did not contain an express ad damnum stating that the
amount in controversy exceeded $75,000, but claimed damages in
excess of $75,000 was evident from the injuries alleged in the
initial and first amended complaint. Once Sims was named as a
defendant, however, removal would not have appeared possible
because Sims is an Illinois resident and a case cannot be removed
based on diversity jurisdiction if one or more of the defendants
is a citizen of the state in which the case has been filed. See
28 U.S.C. § 1441(b). That exception, however, would not have
applied for long because it only applies if the in-state
defendant has been "properly joined and served." Id.; Great
American Insurance Co. v. K & R Transportation, Inc., 2004 WL 1094540 *1 n. 1 (N.D. Ill. May 17, 2004); Maple Leaf Bakery v.
Raychem Corp., 1999 WL 1101326 *3 (N.D. Ill. Nov. 29, 1999).
Presumably, an out-of-state defendant could not jump in and
remove the case on the first day it is served and ignore the
presence of an in-state defendant who has not yet been served. In
this case, though, it is unnecessary to decide precisely how long
an in-state defendant must go unserved before his or her presence
is no longer an impediment to removal and the 30 days begins to
run. Here, Sims went unserved for nine months, was then
voluntarily dismissed, and Signature still did not remove the
case for another three months after that. It is clear that
Signature did not remove the case until well more than 30 days
after it could be ascertained that there was complete diversity
of citizenship and no defendant was a resident of Illinois.
The question still remains as to when Signature could first
ascertain that the amount in controversy requirement for
diversity jurisdiction had been satisfied. Diversity jurisdiction
requires both complete diversity of citizenship and an amount in
controversy in excess of $75,000. 28 U.S.C. § 1332(a). Because
filings in Illinois circuit courts generally do not require a
specific ad damnum, only a general allegation of above $50,000
to show the appropriate court division, this court has provided a
procedure in Local Rule 81.2(a) by which a defendant may
ascertain if the amount in controversy exceeds $75,000. Under this rule, the defendant is deemed to have
ascertained the amount in controversy when it receives a response
to an interrogatory or request to admit, or a nonresponse that is
deemed an admission, regarding the amount of damages being
claimed. Judges in this district are split as to whether this
rule applies in a case for which there no specific ad damnum,
but the allegations of injury make it clear that the amount in
controversy exceeds $75,000. Compare McCoy v. General Motors
Corp., 226 F. Supp. 2d 939, 941-42 (N.D. Ill. 2002), with
Zeedyk v. Federal Express Corp., 2004 WL 417202 (N.D. Ill.
March 1, 2004). This is such a case. To the extent the rule is
inapplicable in such a situation, it is clear that Signature's
removal is untimely because satisfaction of the amount in
controversy requirement was clear from when the case was first
filed and made even more clear when plaintiff responded to
interrogatories approximately six months before Signature filed
its notice of removal. This bench, however, need not decide
whether Local Rule 81.2(a) still applies in such situations. Even
assuming it does, Signature's removal was untimely.
Although Local Rule 81.2(a) contains no express time limit for
serving the pertinent interrogatory or request to admit, the rule
should not be read as permitting a defendant to indefinitely
extend the time for seeking removal by simply delaying serving
the appropriate interrogatory or request. See McCoy, 226 F. Supp. 2d at 941-42; Campbell v. Bayou Steel
Corp., ___ F. Supp. 2d ___, 2004 WL 1125901 *5 (N.D. Ill. May
20, 2004). Here, Signature was aware no later than late fall 2003
that there was complete diversity of citizenship and that Sims
had not been served and therefore did not prevent removal.
Signature was also well aware that the allegations supported an
amount in controversy that was likely, if not definitely, in
excess of $75,000. Also, as of December 11, 2003, the state court
entered an order permitting the commencement of discovery.
Nevertheless, Signature waited almost eight more months before
serving its request to admit regarding the amount in controversy.
Even if it should be considered that Signature first filed
interrogatories that had questions about damages, Signature had
plaintiff's response to interrogatories for five months before it
served the request to admit. As previously discussed, it was
unnecessary to have Sims dismissed before Signature could remove
the case, but it is also noted that Sims was dismissed for two
months before Signature served the request to admit. Since
Signature acted in a dilatory manner in serving the request to
admit, it may not rely on Local Rule 81.2 as extending the date
it first ascertained that the amount in controversy was
satisfied. Instead, the allegations of the first amended
complaint and plaintiff's answers to interrogatories were a more
than sufficient basis for ascertaining that the amount in
controversy controversy exceeded $75,000. Defendant had those papers well
more than 30 days before it filed its notice of removal.
Therefore, the removal was untimely and plaintiff's motion for
remand will be granted.
Plaintiff requests its costs of removal. Since Signature was
dilatory in removing this case and since no substantive
litigation activity occurred in federal court, plaintiff is
awarded all his reasonable costs and attorney fees related to the
removal and remand. See 28 U.S.C. § 1447(c). If the parties
cannot agree as to an appropriate amount, plaintiff must timely
move for costs and attorney fees in accordance with Local Rule.
See N.D. Ill. Loc. R. 54.3.
IT IS THEREFORE ORDERED that plaintiff's motion for remand
[4-1] is granted. The Clerk of the Court is directed to remand
this case to the Circuit Court of Cook County, Illinois, Law
Division Plaintiff is awarded his costs and reasonable attorney
fees related to the removal and remand of this case.