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Lynn Arnieri v. Thomas M. Cornhoff

August 11, 2011

LYNN ARNIERI, PLAINTIFF,
v.
THOMAS M. CORNHOFF, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Sherwin-Williams Company ("Sherwin-Williams") has filed a Notice of Removal ("Notice"), seeking to bring this action here from its place of origin in the Circuit Court of Cook County on diversity of citizenship grounds. Notice ¶5 effectively addresses the citizenship of the litigants:

Sherwin-Williams is a corporation organized and existing under the laws of the State of Ohio, with its principal place of business in Cleveland, Ohio. Defendant Thomas M. Cornhoff is a citizen of the State of Ohio, and resides in the City of Twinsburg.

Plaintiff, Lynn Arnieri, is a citizen of the State of Illinois, residing in the City of St. Charles. As such, there is complete diversity of citizenship between the parties, pursuant to 28 U.S.C. §1332.

But this memorandum opinion and order is triggered by a serious question as to another facet of the removal syndrome--its timeliness.

In that respect, Notice Ex. B (a photocopy of the Complaint filed by plaintiff Lynn Arnieri ("Arnieri")) shows a filing date of March 21, 2011, with the Notice not having been filed until almost five months later (on August 9), well outside the 30-day period prescribed by the first paragraph of 28 U.S.C. §1446(b):*fn1

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,*fn2 or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

To escape that time limit based on the date of service, Sherwin-Williams' counsel looks instead to the second paragraph of Section 1446(b):

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of 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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

In counsel's view the 30-day clock commenced ticking not on the April 1 date when Sherwin-Williams was served, but rather on July 12 (when Arnieri's counsel told Sherwin-Williams' counsel that the amount in controversy exceeded $75,000, Notice ¶6) or perhaps on July 25 (when discovery that had been undertaken in the Circuit Court produced an answer from Arnieri's counsel confirming that medical specials in excess of $73,000 had been incurred through June 10, 2011 (id.). That position, however, strikes this Court as excessively myopic.

For a number of years this District Court in fact had a local rule (then LR 81.2(a)) in place that dealt with the situation created by the Illinois statutory provision (75 ILCS 5/2-604) that forbids the inclusion of a specific ad damnum in a personal injury complaint. That LR required an express confirmation on the plaintiff's behalf that established, as a bright-line matter, the existence of the requisite amount in controversy.

After our Court of Appeals cast a cloud on LR 81.2(a) in the course of its decision in Rubel v. Pfizer Inc., 361 F.3d 1016, 1020 (7th Cir. 2004), the LR was repealed. But more importantly for present purposes, Rubel essentially reconfirmed both the literal and the common sense meaning of Section 1446(b) that it is defendant's burden, as the proponent of federal jurisdiction, who must establish its existence (Rubel, 361 F.3d at 1019).

To be sure, that principle is most often addressed by Courts of Appeals in the context of a plaintiff's challenge to the propriety of the defendant's original removal of a case, for that is the natural consequence of the prohibition contained in Section 1447(d), which bars appellate review of remand orders. But although that context typically poses the issue in terms of the reasonableness of the defendant's determination that more than $75,000 is indeed in controversy, it is equally logical to read the first paragraph of Section 1446(b) as requiring the defendant to exercise reason in deciding at the outset whether the jurisdictional minimum is in controversy.

On that score, look at Complaint ΒΆ10, as Sherwin-Williams should have done when it first ...


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