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Fields v. Jay Henges Enterprises

June 30, 2006

KENNETH FIELDS, PLAINTIFF,
v.
JAY HENGES ENTERPRISES, INC., J. HENGES ENTERPRISES, INC., HENGES INTERIORS, INC., AND HENGES INTERIORS, DEFENDANTS.



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

MEMORANDUM AND ORDER

This matter is before the Court on the motion to remand brought by Plaintiff Kenneth Fields (Doc. 10). For the following reasons, the motion is GRANTED, and this action is remanded to state court pursuant to 28 U.S.C. § 1447(c) by reason of a procedural defect in removal.

INTRODUCTION

Plaintiff Kenneth Fields originally filed this case in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, on May 6, 2005, seeking recovery for personal injuries he allegedly suffered while working on a construction site in St. Clair County, Illinois. See Complaint ¶ 1, ¶ 3. Specifically, Plaintiff alleges that on May 30, 2003, Defendants Jay Henges Enterprises, Inc., J. Henges Enterprises, Inc., Henges Interiors, Inc., and Henges Interiors (hereinafter, collectively, "Defendants"), through their agents and employees, negligently sprayed him with chemicals, causing him to contract skin disease. See id. ¶ 1, ¶ 3, ¶ 5, ¶ 6. On April 26, 2006, Defendants removed the case to this Court, asserting the existence of federal subject matter jurisdiction in diversity. See 28 U.S.C. § 1332; Id. § 1441. Following removal, Defendants brought a third-party claim against Kane Mechanical, Inc., Plaintiff's employer at the jobsite where he was injured, asserting a demand for contribution under the Illinois Joint Tortfeasor Contribution Act, 740 ILCS 100/0.01 -- 100/5. On May 23, 2006, Plaintiff moved for remand of the case to state court on the grounds that removal of the case is untimely under 28 U.S.C. § 1446(b). Defendants having filed their response to Plaintiff's motion for remand, the Court now is prepared to rule.

DISCUSSION

A. Legal Standard

Removal based on diversity requires that the parties be of diverse state citizenship and that the amount in controversy exceed $75,000. See 28 U.S.C. § 1332; Id. § 1441. See also Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir. 2004); Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D. Ill. Mar. 9, 2000). The party seeking removal has the burden of establishing federal jurisdiction. See Disher v. Citigroup Global Mkts. Inc., 419 F.3d 649, 654 (7th Cir. 2005). "Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum." Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Put another way, there is a strong presumption in favor of remand. See Jones v. General Tire & Rubber Co., 541 F.2d 660, 664 (7th Cir. 1976). A defendant seeking to remove a case in diversity jurisdiction must file a notice of removal within thirty days after service of the complaint. See 28 U.S.C. § 1446(b). If, however, a case is not removable at the outset, a notice of removal may be filed within thirty days after the defendant receives "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." Id.

Failure to effect timely removal under 28 U.S.C. § 1446(b) is a procedural defect in removal, not a jurisdictional one, and it is waived unless raised by a plaintiff within thirty days of the date of removal. See In re Continental Cas. Co., 29 F.3d 292, 293-95 (7th Cir. 1994). However, "[a]lthough the 30-day time limit in § 1446(b) is not jurisdictional, it is mandatory and strictly applied." Citibank, N.A. v. Grafmeyer, No. 05 C 3680, 2005 WL 1799280, at *1 (N.D. Ill. July 27, 2005). "The plaintiff has a right to remand if the defendant did not take the right steps when removing . . . and . . . a removed matter must be remanded if there are any defects in the removal procedure." Macri v. M & M Contractors, Inc., 897 F. Supp. 381, 384 (N.D. Ind. 1995). Put another way, "[a] defendant seeking removal must strictly comply with all the statutory requirements, and where there is doubt as to whether the requirements have been satisfied, the case should be remanded." Ortiz v. General Motors Acceptance Corp., 583 F. Supp. 526, 529 (N.D. Ill. 1984) (citation omitted). Further, the burden of proof is on a removing defendant to establish the right to removal, including strict compliance with the procedural requirements of the removal statutes. See id.at 530.

B. Timeliness of Removal

The parties to this case do not dispute that the jurisdictional prerequisites for removal in diversity are met, that is, Plaintiff and Defendants are of diverse state citizenship and an amount in excess of $75,000, exclusive of interest and costs, is in controversy.*fn1 Plaintiff raised a prompt objection to the timeliness of the removal of this case under 28 U.S.C. § 1446(b), and the sole issue for the Court to decide is whether Defendants complied with the procedural requirements of section 1446(b) by removing this case within thirty days of receiving notice, either through Plaintiff's complaint or through other paper, that the case is removable in diversity. The precise question presented by Plaintiff's request for remand is whether Defendants removed this case within thirty days of the date that they learned that an amount in excess of the jurisdictional minimum for diversity purposes is in controversy in this case.

Plaintiff contends that, if the allegations of his state-court complaint did not put Defendants on notice of a jurisdictionally-sufficient amount, then his response dated June 28, 2005, to a request for admissions served on him by Defendants in which he denied that less than $75,000, exclusive of interest and costs, is in controversy in this case should have alerted Defendants to the existence of diversity jurisdiction. Because Defendants failed to remove within thirty days of either service of the complaint or receipt of the response to the request for admissions, Plaintiff argues that the removal of this case is untimely. Defendants insist in their turn that the removal of this case is timely because the removal occurred within thirty days after Defendants received, on March 27, 2006, a certified transcript of a deposition of Plaintiff in which he testified to having $30,000 in medical bills as a result of the incident giving rise to this case, as well as $300,000 in lost wages, showing that the jurisdictional amount for diversity purposes is met in this instance.*fn2 In the Court's view, Plaintiff clearly has the better of the argument. Plaintiff's complaint, which alleges that he has contracted chronic skin disease as a result of Defendants' negligence, was sufficient to put Defendants on notice of the existence of diversity jurisdiction in this case. Even assuming for the sake of argument that the complaint was insufficient to set in motion the thirty-day period for removal, Plaintiff's refusal to admit that less that the jurisdictional minimum for diversity purposes is in controversy in this case put Defendants on notice of the existence of federal jurisdiction.

1. Plaintiff's Complaint

This Circuit adheres of course to the view that the right of removal can be waived by a failure to effect timely removal where a defendant is on notice of the existence of federal subject matter jurisdiction in a case. See Wilson v. Intercollegiate (Big Ten) Conference Athletic Ass'n, 668 F.2d 962, 965-66 (7th Cir. 1982) (holding that the time period for removal was not revived when the plaintiff added new federal claims to a complaint, because the original complaint contained allegations of constitutional violations such as to make the case removable at its inception); Jeffrey M. Goldberg & Assocs. v. Collins, Tuttle & Co., 739 F. Supp. 426, 430 (N.D. Ill. 1990) (finding that the addition of a "new tortious interference claim" that did not change the basic legal theory in an initially removable complaint did not set running a new thirty-day period for removal); Herschman v. Travelers Ins. Co., No. 89 C 1109, 1989 WL 111848, at *2 (N.D. Ill. Sept. 21, 1989) (a defendant waived the right to remove a case where the initial complaint asserted federal claims when the case originally was filed; the addition of new federal claims to the complaint did not revive the defendant's right of removal). The purpose of requiring prompt removal of cases in which federal jurisdiction is apparent on the face of a complaint is to avoid gamesmanship. The "policy and purpose of Congress [is] to effect removals as early as possible and avoid unnecessary delay." Gilardi v. Atchison, Topeka & Santa Fe Ry. Co., 189 F. Supp. 82, 85 (N.D. Ill. 1960). Correspondingly, courts should not encourage parties to "hold[ ] back" their "federal cards." Wilson, 668 F.2d at 966. "If a [defendant] has good grounds to remove a case to federal court, it cannot experiment in state court before seeking removal." Gallagher v. Max Madsen Mitsubishi, No. 90 C 0508, 1990 WL 129611, at *5 (N.D. Ill. Aug. 27, 1990). When a defendant fails to effect timely removal of a case that "[is] removable on the initial pleading, the plain language of . . . [28 U.S.C.] § 1446(b) applies," so that "[if] the notice of removal [is] not filed within 30 days of the date [the defendant] was served with the original complaint, the removal [is] untimely." Id.

Consistent with the policy favoring prompt removal of cases, it is "a defendant's responsibility to ascertain from a reasonable and commonsense reading of the complaint whether the action is removable." McCoy v. General Motors Corp., 226 F. Supp. 2d 939, 941 (N.D. Ill. 2002). Also, a defendant who wishes to remove a case to federal court cannot "wait for discovery responses that simply confirm what was obvious from the face of the complaint; in such cases, defendants are not insulated from a remand to state court." Id. It is not the law that "cases are not removable until there has been an absolute affirmation via discovery . . . that more than $75,000 [is] in issue." Id. Instead, "courts have routinely held that when plaintiffs allege serious, permanent injuries and significant medical expenses, it is obvious from the face of the complaint that the plaintiffs' damages exceeded the jurisdictional amount, thus triggering the 30-day removal period under . . . [28 U.S.C.] § 1446(b)." Id. (collecting cases). See also Century Assets Corp. v. Solow, 88 F. Supp. 2d 659, 661 (E.D. Tex. 2000) (noting that a complaint "can facially state a claim over the jurisdictional ...


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