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Kancewick v. Howard

April 3, 2008

CHRISTINE KANCEWICK, PLAINTIFF,
v.
STANFORD HOWARD AND ARTHUR WELLS, INC., DEFENDANTS.



The opinion of the court was delivered by: John F. Grady, United States District Judge

MEMORANDUM OPINION

Plaintiff's motion for remand is before the court. For the following reasons, the motion is denied.

BACKGROUND

Plaintiff Christine Kancewick, an Illinois citizen, brought this action in the Circuit Court of Cook County against defendants Stanford Howard, a Missouri citizen, and Howard's employer, Arthur Wells, Inc. ("Wells"), a Missouri corporation with a principal place of business in Missouri. Kancewick seeks damages for injuries sustained in an October 19, 2005 car accident near Hamel, Illinois, allegedly caused by Howard's negligence. At the time of the accident, Howard was acting as an employee of Wells. The complaint seeks "judgment . . . in an amount not to exceed $50,000.00 and for such other relief as the court deems just and proper." (Compl. at 2.)

The following facts are not in dispute. Plaintiff filed this action in the Circuit Court of Cook County in October 2007. On December 11, 2007, Wells waived service of the summons and complaint and received a copy of the complaint. Upon receipt of the complaint, defendant's counsel contacted plaintiff's counsel to seek clarification of the amount in controversy and to request that plaintiff comply with Illinois Supreme Court Rule 222(b), which requires a plaintiff in any civil action seeking money damages to attach to her initial pleading her affidavit that the total of money damages sought does or does not exceed $50,000. Plaintiff's counsel stated that Kancewick's damages were not in excess of $50,000 and that he would provide the Rule 222 affidavit.

On December 12, 2007, plaintiff's counsel sent opposing counsel an affidavit that states: "My name is John T. Benz and I am the attorney representing Christine Kancewick in this case. Based upon my review of this matter to date, it is my belief that the total money damages sought for the plaintiffs' [sic] injuries in this case exceed $50,000." (Notice of Removal, Ex. B, Benz Aff.)

Defendant Wells removed the case to this court on January 10, 2008, asserting diversity jurisdiction.*fn1 Plaintiff now moves to remand.

DISCUSSION

Jurisdiction based on diversity exists if the amount in controversy exceeds $75,000 and the suit is between citizens of different states. 28 U.S.C. § 1332(a)(1). There is no dispute that the parties are of diverse citizenship, but the amount in controversy is at issue.

Wells, as the removing party, bears the burden of establishing jurisdiction. See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir. 2005). To meet the amount-in-controversy requirement, "the removing litigant must show a reasonable probability that the stakes exceed the minimum. The demonstration concerns what the plaintiff is claiming (and thus the amount in controversy between the parties), not whether plaintiff is likely to win or be awarded everything he seeks." Id. at 449 (citations omitted). "Once the proponent of jurisdiction has set out the amount in controversy, only a 'legal certainty' that the judgment will be less forecloses federal jurisdiction." Id. at 448.

At first glance, Kancewick's complaint does not seem to place over $75,000 in controversy because it includes a statement that judgment is sought in "an amount not to exceed $50,000.00." In Oshana v. Coca-Cola Co., 472 F.3d 506 (7th Cir. 2006), the Court of Appeals was confronted with a similar, though stronger, disclaimer and explained that these kinds of statements have no legal effect:

Coke must establish that at the time of removal Oshana personally had placed over $75,000 in controversy. On the face of Oshana's state-court complaint, she did not.

She expressly disclaimed individual damages over $75,000: "Plaintiff seeks no relief, cause of action, remedy, or damages that would confer federal jurisdiction upon the claims asserted herein, and expressly disclaims individual damages in excess of $75,000." Such disclaimers have been long approved as a way of staying out of federal court, but only when the disclaimer is binding. Illinois does not bind plaintiffs to such disclaimers in complaints-like in federal court, plaintiffs in Illinois are not limited to the amounts they've requested. So Oshana's disclaimer had no legal effect. If Oshana really wanted to prevent removal, she should have stipulated to damages not exceeding the $75,000 jurisdictional limit. A stipulation would have had the same effect as a statute that limits a plaintiff to the recovery sought in the complaint.

Id. at 511-12 (citations omitted). Kancewick's request for judgment in an amount not to exceed $50,000 therefore did not bind her and did not prevent removal of this case. In addition, Kancewick ...


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