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Tooley v. Washington Group International

January 13, 2009


The opinion of the court was delivered by: Joe Billy Mcdade United States District Judge


Before the Court is Plaintiff's Motion to Remand, filed on May 6, 2008 (Doc. 4). Defendant responded in opposition to the motion on May 19, 2008 (Doc. 6). On June 18, 2008, Magistrate Judge Cudmore issued a Report and Recommendation (R&R) which recommended the denial of Plaintiff's motion (Doc. 10). On June 27, 2008, Plaintiff filed objections to the R&R (Doc. 11), and on July 18, 2008, Defendant filed its response to those objections (Doc. 15).*fn1


This suit stems from a crane collapse alleged to have occurred on February 22, 2007. On that date, Plaintiff Macio Tooley, who was an employee of Caterpillar, Inc., was using a crane to move a battery, in the performance his job duties, when the crane collapsed and struck him. Plaintiff alleges to have sustained the following injuries as a result of the accident: "traumatic brain injury, fractured left humerus and thoracic spine fractures, scalp and left scapula lacerations, nondisplaced skull fracture and open fracture of the left index finger . . . ." (Ex. A to 4/7/08 Removal Pet., Compl. ¶ 4).

On December 6, 2007, Plaintiff filed suit in the Circuit Court of Tazewell County, Illinois against Washington Group International ("Defendant"). In Count I of his Complaint, Plaintiff alleged that Defendant breached a contract with Caterpillar to maintain and repair the crane that Plaintiff was using at the time he sustained his injuries. In Count II, Plaintiff set forth a negligence claim, realleging the facts stated in the first count.

Each count of the Complaint prayed damages in an amount "in excess of . . . $50,000." (Compl. at pp. 3-4). Plaintiff's recital of the $50,000 figure was in compliance with an Illinois statute that prohibits a personal-injury plaintiff from pleading an ad damnum "except to the minimum extent necessary to comply with the circuit rules of assignment where the claim is filed." See 735 Ill. Comp. Stat. 5/2-604.*fn2 The Complaint further alleged that Plaintiff: has in the past and may in the future expend and become obligated to expend large sums of money for doctor bills, hospital bills and other bills for medical attention in an effort to be relieved of the effects of the various injuries he sustained and he has been hindered and prevented from attending to his usual business affairs with consequent losses and has in the past and may in the future be hindered, hampered and prevented from carrying on ordinary affairs and duties to the same extent and in the same manner as he was able to do prior to the injuries. (Compl. ¶ 4).

Defendant was served with the Complaint on January 10, 2008. (Ex. B to 4/7/08 Removal Pet.). On or about January 30, 2008, Defendant's counsel entered his appearance, answered the Complaint, and immediately served Plaintiff with interrogatories and requests to produce. The discovery requests sought, among other information, evidence of damages. (Def.'s 5/19/08 Resp. Mem. at pp. 1-2 & Ex. A).

On or about March 21, 2008, Defendant received answers to the interrogatories propounded upon Plaintiff. (4/7/08 Removal Pet.¶ 4; Ex. C to Def.'s 5/19/08 Resp. Mem.).*fn3 The answers reflected that Plaintiff's medical expenses had already amounted to $272,269.84. (Ex. C to Def.'s 5/19/08 Resp. Mem.). In response to this information, on April 7, 2008, Defendant filed a notice of removal in federal court on the basis of diversity jurisdiction under 28 U.S.C. § 1332 and § 1441.

On May 6, 2008, Plaintiff asked this Court to remand this case back to Illinois state court because the notice of removal was untimely filed. On June 18, 2008, Magistrate Judge Cudmore recommended a denial of Plaintiff's motion to remand and concluded that Defendant had timely filed the notice of removal. Plaintiff now objects to the Magistrate Judge's conclusion.


In reviewing the recommendations of a magistrate judge, a district judge must make a de novo determination of those portions of the recommendations to which objections have been made. 28 U.S.C. § 636(b)(1)(C). A district judge may accept, reject, or modify, in whole or in part, the findings made by the magistrate judge. Id. Here, Plaintiff has objected to the Magistrate Judge's conclusion. The Court's review is, therefore, de novo.


Plaintiff's argument for remand is that Defendant's notice of removal was filed outside the time allowed by 28 U.S.C. § 1446. That statute details the procedure for removing to federal court an action originally filed in state court. It provides, in relevant part, as follows:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then ...

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