IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
June 30, 2006
KENNETH FIELDS, PLAINTIFF,
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.
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.
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 amount when there are no numbers in the [complaint] at all," and holding that removal was untimely where it was apparent from the allegations of a complaint that an amount sufficient to satisfy the requirements of diversity jurisdiction was in controversy) (emphasis in original) (collecting cases).
In McCoy the court addressed the timeliness of the removal of a personal-injury case from state court. The complaint in McCoy asserted no demand for a specific damage amount, other than the $50,000 demand specified under Illinois Supreme Court Rule 222 for purposes of case assignment in Illinois state court. See 226 F. Supp. 2d at 940. The defendant had removed the case within thirty days after the plaintiffs had admitted under Illinois Supreme Court Rule 216 that an amount in excess of the jurisdictional minimum for diversity purposes was in controversy. See id. In evaluating the timeliness of removal, the court noted that the plaintiffs' complaint alleged that they had suffered "lasting and permanent injuries . . . and incurred bills related to . . . medical, surgical, hospital, and nursing care for their injuries . . . as well as . . . [lost] wages and profits which they otherwise would have earned and acquired." Id. at 941. "Plaintiffs further claimed that they suffered . . . severe pain, emotional distress, disability, lost value and enjoyment of life, future loss of income, medical expenses, loss of normal life, disfigurement and paralysis." Id.
The McCoy court held that the plaintiffs' allegations "should sound warning bells in defendants' ears that significant damages are sought" and that "it is obvious from a common-sense reading of the complaint that Plaintiffs were seeking in excess of $75,000 in damages," rendering removal of the case later than thirty days after service of the complaint untimely. 226 F. Supp. 2d at 941. See also Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510, 514-15 (7th Cir. 2006) (addressing sua sponte on appeal the issue of subject matter jurisdiction in a case removed in diversity, and holding that jurisdiction was proper where the plaintiff's complaint sought damages "in excess of $50,000" and alleged "severe and permanent" injuries, and where discussion between the parties' counsel led the removing defendant to believe the plaintiff's medical and rehabilitation expenses alone would exceed $75,000, and the plaintiff did not challenge the removing defendant's estimate of his potential damage); Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 815 (7th Cir. 2006) (in a removed case arising from a slip-and-fall incident at a motel, holding that the amount in controversy was satisfied where the plaintiff's medical expenses and lost earnings amounted to $45,000, so that "[a] modest allowance for pain, suffering, and future losses (either income foregone or medical expenses incurred) brings the total over the threshold.").
In this case, Plaintiff alleges that the negligence of Defendants in spraying chemicals at the construction site where he was injured "caus[ed] plaintiff . . . to sustain serious and permanent personal injuries." Complaint ¶ 3. Plaintiff alleges that he has suffered "great physical injuries," id.¶ 4, and that "as a direct and proximate result of the negligence and carelessness of the defendants, . . . plaintiff . . . sustained injuries to his skin and body as a whole." Id. ¶ 5. Specifically, Plaintiff alleges that as a proximate result of Defendants' negligence "he incurred folliculitis, irritant contact dermatitis, mil[i]aria rubra and p[r]urigo nodularis." Id. Plaintiff alleges also that he "suffered, suffers and will in the future continue to suffer great physical pain and mental anguish." Id. Plaintiff alleges that "the function of all of the said areas and parts of plaintiff['s] . . . body has been and will be in the future greatly impaired and diminished, and plaintiff['s] . . . ability to work and to labor has been greatly diminished and that all of the plaintiff['s] . . . injuries . . . are permanent and progressive." Id. ¶ 6. Plaintiff alleges that "as a direct and proximate result of the said occurrence and injuries sustained by plaintiff . . . [he] has been caused to incur medical expenses for medicines, doctors, x-rays, medical institutions and prescriptions and will in the future be required to expend further sums[.]" Id. ¶ 7. Plaintiff alleges also that "as a direct and proximate result" of his injuries, "plaintiff has been caused to lose time from [his] employment[.]" Id. ¶ 8. Finally, as per Illinois Supreme Court Rule 222, Plaintiff's counsel attests in support of the complaint that at least $50,000 is in controversy. See id. at 5-6.
The allegations of Plaintiff's complaint assert a claim for personal injuries that clearly is worth an amount in excess of $75,000, exclusive of interest and costs. Plaintiff alleges that, as a result of Defendants' negligence, he suffers from chronic, painful skin disease. The Court judicially notices that prurigo nodularis is "[a] chronic disease of the skin marked by a persistent eruption of papules that itch intensely." Stedman's Medical Dictionary (27th ed. 2000). See also Hines v. Secretary of Dep't of Health & Human Servs., 940 F.2d 1518, 1525-26 (Fed. Cir. 1991) (a court could take judicial notice of authoritative data regarding the incubation period of measles set out in a medical textbook); Franklin Life Ins. Co. v. William J. Champion & Co., 350 F.2d 115, 130 (6th Cir. 1965) (the court took judicial notice of the fact that cancer does not manifest itself quickly but lies dormant, typically for long periods). Naturally the Court does not mean to suggest that Plaintiff's allegations are true or that Plaintiff is likely to prevail on his claims. See Peckmann v. Thompson, 966 F.2d 295, 298 (7th Cir. 1992) (an inquiry into subject matter jurisdiction is distinct from an inquiry into the merits of a case). However, it is clear to the Court that Plaintiff's allegations of chronic, severe skin disease, pain and suffering, and past and future medical expenses and lost earnings are such that they should have put Defendants on notice of the existence of a jurisdictionally-sufficient amount in controversy in this case within thirty days after service of the complaint. See Andrews, 447 F.3d at 514-15; Rising-Moore, 435 F.3d at 815; McCoy, 226 F. Supp. 2d at 941. Defendants' failure to remove the case within thirty days after service of the complaint is fatal to the removal of this case.
2. Plaintiff's Response to Defendants' Request for Admissions
After failing to remove this case within thirty days after service of Plaintiff's complaint, Defendants bypassed still another potential opportunity for removal after Plaintiff formally denied that the jurisdictional amount for diversity purposes is not satisfied in this case. On June 28, 2005, Plaintiff made the following responses to a request for admissions served on him by Defendants regarding the amount in controversy in this case:
Defendants Jay Henges Enterprises, Inc., J. Henges Enterprises, Inc., Henges Interiors, Inc., and Henges Interiors, . . . pursuant to Rule 216 of the Supreme Court Rules of Illinois, request[ ] plaintiff to admit the truth of the following matters:
1) That the amount in controversy does not exceed $75,000, exclusive of interest and costs.
2) That plaintiff will not seek more than $75,000 in damages in the case. Denied
3) That plaintiff will not enforce any judgment in excess of $75,000, exclusive of interest and costs, in this case.
Denied Doc. 10, Ex. A. Just as "plaintiffs can't prevent removal by refusing to concede that the controversy exceeds the jurisdictional minimum," Rubel, 361 F.3d at 1020, so a plaintiff's denial of a request for an admission that an amount below the jurisdictional minimum for diversity purposes is in controversy in a case is "other paper" under 28 U.S.C. § 1446(b) authorizing removal of the case in diversity. See, e.g., Field v. National Life Ins. Co., No. 8:00-CV-989-T-24TBM, 2001 WL 77101, at *8 (M.D. Fla. Jan. 22, 2001); McLain v. American Int'l Recovery, Inc., 1 F. Supp. 2d 628, 631 (S.D. Miss. 1998);14C Charles Alan Wright, Arthur R. Miller, Edward H. Cooper & Joan E. Steinman, Federal Practice & Procedure § 3732 (3d ed. 1998 & Supp. 2006) (collecting cases).
It is debatable, of course, whether Plaintiff's denial of Defendants' request for admissions was effective to revive Defendants' right to remove in this case, given the allegations of Plaintiff's complaint showing that a minimum amount sufficient for diversity purposes is in controversy. See Gallo v. Homelite Consumer Prods., 371 F. Supp. 2d 943, 947-48 (N.D. Ill. 2005) (holding that removal of a case was untimely, notwithstanding a plaintiff's admission that the jurisdictional amount for diversity purposes was in controversy, where the allegations of the complaint were sufficient to show the existence of a jurisdictionally-sufficient amount in controversy); McCoy, 226 F. Supp. 2d at 941-43 (same).*fn3 In any event, Defendants failed to remove the case within thirty days of receipt of Plaintiff's denial of their requests for admissions regarding the amount in controversy. See Green v. Clark Ref. & Mktg., Inc., 972 F. Supp. 423, 425-26 (E.D. Mich. 1997)(holding that removal was untimely where the defendants failed to remove within thirty days after receipt of responses to requests for admissions in which the plaintiff denied that she was not seeking in excess of $75,000). Whether the time to remove is measured from when Defendants received Plaintiff's complaint or when Defendants received Plaintiff's response to Defendants' request for admissions regarding the amount in controversy, it is clear that the removal of this case is untimely. See Thornton v. Signature Flight Support Corp., No. 04 C 5795, 2004 WL 2608291, at **2-3 (N.D. Ill. Oct. 14, 2004) (holding that removal was untimely where the existence of a jurisdictionally-sufficient amount in controversy was clear from the allegations of the plaintiff's complaint and was made "even more clear" by the plaintiff's responses to interrogatories, yet the defendant failed to remove within thirty days of receipt of either); Campbell v. Bayou Steel Corp., 338 F. Supp. 2d 896, 902-03 (N.D. Ill. 2004) (removal was untimely where, although the allegations of the complaint were sufficient to put the defendants on notice of the existence of diversity jurisdiction, "[i]f Defendants entertained genuine doubts concerning the amount in controversy," such doubts should have been dispelled by the plaintiff's responses to interrogatories, yet the defendants failed to remove until after they had taken the plaintiff's deposition).
The removal statutes require only that a defendant seeking a federal forum have a reasonable certainty of federal jurisdiction, not an absolute certainty. To effect removal, "all that a conscientious defendant needs is a reasonable basis in fact to believe that diverse citizenship and the amount requirements are satisfied." Huntsman Chem. Corp. v. Whitehorse Techs., Inc., No. 97 C 3842, 1997 WL 548043, at *6 (N.D. Ill. Sept. 2, 1997). See also Rubel v. Pfizer Inc., 276 F. Supp. 2d 904, 908 (N.D. Ill. 2003) (noting that all that is required for removal in diversity jurisdiction is "a good faith, minimally reasonable belief that the suit might result in a judgment in excess of [$75,000]"). Defendants' conduct in failing to remove this case after they were placed on notice of a jurisdictionally-sufficient amount in controversy for diversity purposes first by Plaintiff's complaint and later by Plaintiff's response to Defendants' request for admissions was not reasonable and therefore dooms the removal of this case. The Court notes that Defendants' delay in removing this case despite receiving clear evidence of federal subject matter jurisdiction on more than one occasion may have been prompted by something more than a desire to establish with perfect certainty the precise amount in controversy in this case. The record shows that this case was dismissed by the state court on December 29, 2005, for want of prosecution, apparently due to a clerical error, but was reinstated on Plaintiff's motion on January 9, 2006. See Doc. 1 at 17, 18-19, 20. Although it is clear from Defendants' request for admissions regarding the amount in controversy that Defendants were contemplating removal of this case as early as June 2005, see id. at 12-16, it was only after the dismissal and reinstatement of the case that Defendants at last sought removal. In short, the record in this case suggests jurisdictional gamesmanship of the kind that the policy favoring prompt removal of actions aims to prevent. See Gallagher, 1990 WL 129611, at *5 (stating that permitting a defendant to move to dismiss a case in state court, then, when the motion is denied, seek removal of the case to federal court undermines the policy underlying 28 U.S.C. § 1446(b)).
The Court need not speculate about Defendants' motives in pursuing removal of this case so belatedly, other than to note that, in finding that the removal of this case is untimely, the Court is in accord with authority holding that a defendant may not avoid the statutory time limits on removal by insisting on amassing absolute proof of the existence of federal subject matter jurisdiction where only reasonable proof is required. While defendants should never remove cases where they have less than a reasonable certainty that the jurisdictional amount is satisfied, neither should they be able to toll the removal clock indefinitely through reliance on the discovery process to establish jurisdictional prerequisites with absolute certainty. See Rubel, 361 F.3d at 1020 (observing that courts cannot make local rules that condition removal on discovery responses and thus "block[ ] . . . defendants from making an independent estimate of the amount in controversy."); International Ins. Co. v. Saco Defense, Inc., No. 98 C 3628, 1998 WL 939680, at *5 (N.D. Ill. Jan. 8, 1998) (noting that the federal removal statutes do not favor "a defendant who . . . sit[s] on his right to remove until such time as he deems it provident to discover from the plaintiff the requisite jurisdictional facts and remove the case to federal court."). In this case, Defendants ignored clear evidence of the existence of federal subject matter jurisdiction and failed to remove promptly under 28 U.S.C. § 1446(b). Plaintiff having raised a timely objection to this procedural defect in removal, the Court must remand this case.
For the foregoing reasons, Plaintiff's motion to remand (Doc. 10) is GRANTED. Pursuant to 28 U.S.C. § 1447(c), this action is REMANDED to the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, by reason of the untimeliness of the removal of this action.
IT IS SO ORDERED.
G. PATRICK MURPHY Chief United States District Judge