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Ford v. Keck

April 2, 2007

PERCY FORD, PLAINTIFF,
v.
RONALD EUGENE KECK, DEFENDANT.



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

MEMORANDUM & ORDER

I. INTRODUCTION

This matter is before the Court on the motion for remand to state court brought by Plaintiff Percy Ford (Doc. 4). For the following reasons, the motion is GRANTED.

This relatively simple lawsuit arises from a two-car collision that occurred in Lebanon, Illinois, on March 13, 2004. Ford, one of the drivers involved, alleges that the collision was caused by the negligence of Defendant Ronald Eugene Keck, the driver of the other car involved, and asserts claims for personal injuries allegedly arising from the collision. (See Doc. 2, Ex. 4.) Ford's complaint was filed in the Circuit Court of the Twentieth Judicial Circuit, St. Clair County, Illinois, on February 9, 2006. Keck removed the case to this Court in federal diversity jurisdiction, whereupon the case was docketed as Ford v. Keck, Case No. 06-cv-292-DRH (S.D. Ill. filed Apr. 10, 2006). The Court subsequently remanded the case due to Keck's failure to show that an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See Ford v. Keck, No. 06-CV-292-DRH, 2006 WL 2255852 (S.D. Ill. Aug. 7, 2006).

On August 28, 2006, Keck removed Ford's claims a second time, contending that medical bills disclosed to him by Ford in discovery now prove that the jurisdictional amount for diversity purposes is satisfied in this case. Ford in turn has moved for remand of the case to state court on the grounds that the removal is untimely. Having reviewed carefully the submissions of the parties, the Court now is prepared to rule.

II. DISCUSSION

A. Legal Standard

Under 28 U.S.C. § 1441, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). A federal court may exercise jurisdiction in diversity if all parties to an action are of completely diverse citizenship, that is, no plaintiff is a citizen of the same state as any defendant, and an amount in excess of $75,000, exclusive of interest and costs, is in controversy. See 28 U.S.C. § 1332; Rubel v. Pfizer Inc., 361 F.3d 1016, 1017 (7th Cir. 2004); Broadwater v. Heidtman Steel Prods., Inc., 300 F. Supp. 2d 671, 672 (S.D. Ill. 2003); Rice-Bey v. Koppers Indus., Inc., 180 F. Supp. 2d 988, 989 (S.D. Ill. 2002).

The party seeking removal has the burden of establishing federal jurisdiction.See Lyerla v. Amco Ins. Co., 461 F. Supp. 2d 834, 835 (S.D. Ill. 2006) (citing Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 540 (7th Cir. 2006)); Fiore v. First Am. Title Ins. Co., No. 05-CV-474-DRH, 2005 WL 3434074, at *2 (S.D. Ill. Dec. 13, 2005). "'Courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum.' Put another way, there is a strong presumption in favor of remand." Fuller v. BNSF Ry. Co., No. CIV. 06-722-GPM, 2007 WL 403853, at *1 (S.D. Ill. Jan. 3, 2007) (quoting Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)). All doubts about the propriety of removal are to be resolved in favor of remand. See Morthland v. BRP US, Inc., No. 06-CV-01038-DRH, 2007 WL 853986, at *1 (S.D. Ill. Mar. 16, 2007); Ford, 2006 WL 2255852, at *1; Littleton v. Shelter Ins. Co., No. 99-912-GPM, 2000 WL 356408, at *1 (S.D. Ill. Mar. 9, 2000).

B. Timeliness of Removal

In this case it is undisputed that Ford is an Illinois citizen and Keck is an Alabama citizen. Further, as will be discussed in more detail presently, the record discloses evidence that an amount in excess of $75,000, exclusive of interest and costs, is in controversy. Thus, it appears that the prerequisites for the exercise of federal diversity jurisdiction are met, and the sole issue for the Court to decide is whether the removal of the case was timely. A defendant seeking to remove a case in federal subject matter 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 Section 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 Fields v. Jay Henges Enters., Inc., Civil No. 06-323-GPM, 2006 WL 1875457, at *2 (S.D. Ill. June 30, 2006) (citing In re Continental Cas. Co., 29 F.3d 292, 293-95 (7th Cir. 1994)). See also Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 932 (S.D. Ill. 2006). In this instance Ford has raised a prompt objection to the timeliness of the removal of the case, so that the issue is properly before the Court and ripe for decision.

In this instance, the basis for the second removal of the case is, as discussed, medical bills furnished by Ford to Keck in discovery which, together with the allegations of Ford's complaint regarding pain and suffering, medical expenses, and lost wages Ford has suffered and will suffer in the future, Keck avers, show that the jurisdictional amount for diversity purposes is satisfied. The Court agrees. The record shows that Ford has incurred medical expenses in the amount of approximately $54,000, a sum which, in combination with the allegations of pain and suffering and past and present lost income in the complaint, easily surpasses $75,000, exclusive of interest and costs. See 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."); Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 428-29 (7th Cir. 1997) (holding the amount in controversy requirement was satisfied where the plaintiff's medical expenses amounted to $4,400 and the plaintiff sought damages for "future medical treatment and disability care, future pain and suffering, future mental anguish, loss of past wages and impairment of future earning capacity"); Yount v. Shashek, No. CIV. 06-753-GPM, 2006 WL 4017975, at *9 (S.D. Ill. Dec. 7, 2006)(finding the jurisdictional amount in controversy for diversity purposes satisfied where "[t]he allegations of the operative complaint . . . assert[ed] that as a result of [the plaintiff's] injury [he] has suffered permanent and disabling injuries and pain and suffering, and that he has incurred and will continue to incur significant medical expenses and loss of income[.]"). See also Campbell v. Restaurants First/Neighborhood Rest., Inc., 303 F. Supp. 2d 797, 799 (S.D.W.Va. 2004) ("Although [the plaintiff's] medical bills total just shy of $20,000, when one considers the additional elements of pain and suffering and future damages, one can easily conclude the amount in controversy is satisfied.").

Where Keck's second removal of this case founders is on the issue of timeliness of removal. It is undisputed that Ford furnished his medical bills to Keck on May 17, 2006, nearly three months before the Court remanded Ford's claims for the first time, and considerably more than thirty days before Keck removed those claims for the second time. Keck argues that the second removal of the case is timely because, on the first removal of the case, the Court was precluded from considering any evidence regarding the existence of federal subject matter jurisdiction that was not in the record when the case was removed. Thus, Keck argues, he could only present Ford's medical bills to the Court as evidence of the existence of federal subject matter jurisdiction in this case on the second removal of the case on August 28, 2006. Keck's argument is entirely contrary to controlling authority in this Circuit.

The law of this Circuit is clear, of course, that the existence of federal subject matter jurisdiction in a case removed from state court must be assessed as of the time of removal, and that such jurisdiction, if proper at the time of removal, generally cannot be ousted by a plaintiff's actions after removal. "[T]he district court is not deprived of jurisdiction where, as here, 'the plaintiff after removal, by stipulation, by affidavit, or by amendment of his pleadings, reduces the claim below the requisite amount[.]'" Chase, 110 F.3d at 429 (quoting St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 292 (1938)). Thus, for example, a post-removal stipulation by a plaintiff that he or she is not seeking damages in excess of the jurisdictional minimum amount does not bar removal in diversity. See id.at 429-30. See also Gould v. Artisoft, Inc., 1 F.3d 544, 547 (7th Cir. 1993) (in determining the existence of federal subject matter jurisdiction in a case removed from state court, "[w]e look to the facts that existed at the time of removal to determine our jurisdiction, for a plaintiff . . . may not manipulate the process . . . to defeat federal jurisdiction and force a remand once the case has been properly removed."); Shaw v. Dow Brands, Inc., 994 F.2d 364, 367 (7th Cir. 1993) ("[J]urisdiction depends on the situation at the time of removal, and . . . once a case is successfully removed a plaintiff cannot do anything to defeat federal jurisdiction and force a remand.") (citations omitted); In re Shell Oil Co., 966 F.2d 1130, 1131-32 (7th Cir. 1992) (citing St. PaulMercury, 303 U.S. at 293) (a plaintiff's post-removal stipulation that he or she will not seek damages in excess of the jurisdictional minimum amount cannot bar removal: "[B]ecause jurisdiction depends on the situation at the moment of removal, . . . a stipulation would neither require nor authorize a remand."); In re Amoco Petroleum Additives Co., 964 F.2d 706, 707-09 (7th Cir. 1992) (an order remanding an action to state court ...


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