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Presnell v. Cottrell

December 14, 2009

DALE PRESNELL AND LORI PRESNELL, PLAINTIFFS,
v.
COTTRELL, INC. AND UNITED ROAD SERVICES, INC., DEFENDANTS.



The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the motion of plaintiffs Dale Presnell and Lori Presnell (collectively, "the Presnells") to remand this case to state court (Doc. 10). Defendants Cottrell, Inc. ("Cottrell") and United Road Services, Inc. ("United") have filed their respective responses to the motion (Docs. 17 & 18), and the Presnells have replied to those responses (Doc. 20).

As a preliminary matter, the Court is dismayed by the tone of the Presnells' reply brief (Doc. 20).The Presnells' counsel make ad hominem argument attacking the integrity of Cottrell's counsel instead of the merits of this dispute. For example, counsel accuses Cottrell's counsel of defamation, of labeling the Presnells' counsel as "evil," and of intentionally misleading the Court. Cottrell's counsel did none of these things. The Presnells' counsel's behavior in making such accusations is unacceptable, and the Court will not tolerate it. The Court therefore warns counsel for the Presnells that, should these types of statements recur in this case or any other case in which counsel appear before this Court, the Court may impose monetary sanctions on counsel without further warning. The Court now turns to the substance of the pending motion.

I. Background

The Presnells originally filed this case in the Circuit Court for the Twentieth Judicial Circuit in St. Clair County, Illinois. They allege that Dale Presnell was injured when he fell from a car-hauling trailer designed and manufactured by Cottrell. Dale Presnell alleges that the defendants are liable for his injuries under theories of products liability, negligence, breach of implied warranty, fraud and willful and wanton injury. Lori Presnell also seeks to recover for loss of consortium. The plaintiffs plead that they seek a sum greater than $50,000 in compensatory damages, and two of Dale Presnell's claims also seek punitive damages in an amount in excess of $50,000.

Believing that the Presnells, citizens of Tennessee, are completely diverse from the defendants and that more than $75,000 is in issue, exclusive of interest and costs, Cottrell removed this case to federal court under 28 U.S.C. § 1441(a), relying on the Court's original diversity jurisdiction under 28 U.S.C. § 1332(a).

The Presnells now ask the Court to remand this case for two reasons: (1) Cottrell failed to attach the summons to his notice of removal as required by 28 U.S.C. § 1446(a) and (2) Cottrell has not established that more than $75,000 is in issue, exclusive of interest and costs, as required by 28 U.S.C. § 1332(a).*fn1 Believing United was an Illinois citizen, the Presnells also initially challenge the removal on the basis of the forum defendant rule of 28 U.S.C. § 1441(b), which provides for removal of diversity actions "only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought." However, in their reply brief, they concede that United is not an Illinois citizen and that the forum defendant rule does not prohibit removal of this action.

In response*fn2 , Cottrell asserts that its omission of the summons from the notice of removal was in compliance with the filing instructions posted on the Court's website and does not amount to a removal defect. Alternatively, it argues the omission of the summons has no effect on the Court's jurisdiction. Cottrell also argues that the demand for $50,000 in compensatory damages and $50,000 in punitive damages along with the extensive injuries alleged in the complaint shows the minimum amount in controversy requirement of 28 U.S.C. § 1332(a) is met. Finally, it asserts the Court has supplemental jurisdiction over Lori Presnell's claim under 28 U.S.C. § 1367(a) because it forms part of the same case or controversy as Dale Presnell's claims, which satisfy the diversity jurisdiction requirements of 28 U.S.C. § 1332(a).

II. Analysis

A defendant may remove to federal court a case filed in state court if the federal court would have had jurisdiction to hear the case when the plaintiff originally filed it. 28 U.S.C. § 1441(a); Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d 752, 758 (7th Cir. 2009). In this case, Cottrell relies on original federal diversity jurisdiction under 28 U.S.C. § 1332(a), which requires that the parties be completely diverse and that the amount in controversy exceed $75,000 exclusive of interest and costs. "The party seeking removal has the burden of establishing federal jurisdiction, and federal courts should interpret the removal statute narrowly, resolving any doubt in favor of the plaintiff's choice of forum in state court." Schur, 577 F.3d at 758 (citing Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993)). The Court begins with the Presnells' amount in controversy argument since it raises a jurisdictional question and will then address the procedural argument regarding the content of the notice of removal.

A. Amount in Controversy

The Presnells no longer dispute that the parties are completely diverse, but they continue to assert that the minimum amount in controversy -- $75,000 exclusive of interest and costs -- is not satisfied. They argue the Court should not consider punitive damages in calculating the amount in controversy because there has been no state court hearing to determine the availability of punitive damages. See 735 ILCS 5/2-604.1. In response, Cottrell points to the nature of Dale Presnell's alleged injuries to argue that it is not legally impossible for him to recover more than $75,000.

The Court need not address the propriety of including punitive damages because the allegations in the complaint clearly show that more than $75,000 in compensatory damages alone is in issue.

Cottrell, as the party seeking to invoke federal jurisdiction, bears the burden of demonstrating by a preponderance of the evidence facts showing that Dale Presnell*fn3 stands to recover more than $75,000 in the suit. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 541 (7th Cir. 2006); Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 815 (7th Cir. 2006); Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997). After the Court decides any contested facts relevant to the amount in controversy, "the case stays in federal court unless it is legally certain that the controversy is worth less than the jurisdictional minimum." Meridian, 441 F.3d at 542; see St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938). In removal cases based on diversity jurisdiction, the amount in controversy is determined based on the plaintiff's complaint at the time the notice of removal is filed. Meridian, 441 F.3d ...


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