The opinion of the court was delivered by: Foreman, District Judge
Before the Court is plaintiff's motion to remand (Doc. 16). Defendants have filed a response, (Doc. 20), and plaintiff has filed a reply (Doc. 23). Also before the Court is plaintiff's motion to strike (Doc. 24). These motions are discussed below.
On or about October 20, 2003, plaintiff, a truck driver for Transpetro, Inc., arrived at Conocophillips' facility in Hartford, Illinois, to deliver a liquid substance. On prior occasions, plaintiff had made deliveries at this facility by simply taking a hose that was attached to the liquid tank that he had transported, and attaching it to Conocophillips' storage tank valve. This time, however, Conocophillips' storage tank had a different hose and nozzle assembly. Upon receiving instructions from Conocophillips' agent on how to disengage the new assembly, plaintiff attempted to remove the new nozzle from the hose and in so doing, he was sprayed with an unknown fluid.
On October 19, 2005, plaintiff filed suit in the Circuit Court in Madison County, Illinois. Specifically, plaintiff filed a forty-two (42) count complaint alleging various theories of negligence and strict liability, as well that defendants' conduct was willful and wanton. With regard to his claimed damages, plaintiff's complaint states that he was caused to be: exposed to, covered with, and otherwise to ingest toxic chemical substances, thereby causing the plaintiff to suffer severe and permanent injuries, he has suffered and will continue to suffer extreme pain and suffering; he has lost and will continue to lose wages, his earning capacity has been permanently impaired, and he has spent and will continue to spend great sums of money endeavoring to be cured of said injuries, and he has been made disabled and lost his normal enjoyment of life, all to his damage . . . (Doc. 12, Exh. 1, p. 6).
Originally, plaintiff asked for an amount of damages in excess of Fifty Thousand Dollars ($50,000.00), but less than Seventy-Five Thousand Dollars ($75,000). Because Illinois law prohibits ad damnum clauses in complaints for personal injury actions, 735 ILCS 5/2-604, on December 22, 2005, plaintiff amended his complaint to ask for damages simply "in excess of $50,000."
Shortly thereafter, defendants submitted written discovery that asked plaintiff to specify how much he was seeking in damages. Plaintiff responded as follows:
The plaintiff has not yet made this determination other than what is stated in the Complaint. The Plaintiff will supplement this response after discovery is complete. (Doc. 20, Exh. 4, ¶¶21,22).
At the time plaintiff filed his original complaint, according to defendants and not disputed by plaintiff's memorandums, the only evidence as to damages that defendants had available to them was that there was an existing worker's compensation lien for $3,664.55. Thereafter, defendant was able to estimate from written discovery that plaintiff's damages approximated $39,554. (Doc. 20,p.9).
On August 2, 2006, defendants took plaintiff's deposition. (Doc. 20, Exh. 5). When asked how much he was claiming in damages, plaintiff's responses were evasive. (See Doc. 20, Exh. 5, pp.107-11). Defendant then asked plaintiff if he would stipulate that his damages were, in fact, not in excess of $75,000. Plaintiff refused. (Doc. 20, Exh. 5, p.107, Exh. 11). Specifically, plaintiff's counsel instructed plaintiff not to provide a stipulation because he believes it is improper.
Plaintiff did, however, provide additional information about his claim for permanent impairment of his earning capacity. Specifically, plaintiff testified that he is claiming damages not only for his regular wages but also for his lost overtime and his lifetime ability to earn additional income because he is no longer in the fuel hauling business. (Doc., 20, Exh. 5, p.110). After defendants obtained this information at plaintiff's deposition, defendants calculated this element of plaintiff's damages to approximate $36,400.
After plaintiff's deposition, defendants calculated plaintiff's total damages to be at least $75,944 ($39,544 $36,400) (Doc. 20, pp.8-10). Shortly thereafter, on September 1, 2006, defendants filed a notice of removal based on diversity of citizenship and an amount in controversy exceeding $75,000. Plaintiff's motions are discussed below.