The opinion of the court was delivered by: Herndon, Chief Judge:
This case requires the Court to determine whether a plaintiff's failure in Illinois state court to respond to defendant's requests to admit, which sought to establish the amount in controversy and is deemed an admission of the facts set forth in the requests under Illinois Supreme Court Rule 216 ("Rule 216"), constitutes receipt by the defendant from which it may first be ascertained that the case is one which or has become removable. The Court finds that it does, resulting in defendant Wal-Mart Stores, Inc.'s notice of removal being untimely filed in this Court. Thus, plaintiff Brandy Anderton's motion to remand (Doc. 9) is granted. The case is remanded back to state court for further proceedings.
On July 5, 2011, plaintiff filed her complaint in St. Clair County circuit court (Doc. 2-4), alleging a claim of negligence against defendant arising out of an incident where plaintiff was allegedly injured while working in defendant's stockroom.
Notably, in plaintiff's complaint, plaintiff alleged that she was a "resident" of Missouri and claimed damages in excess of $50,000. On August 15, 2011, defendant mailed to plaintiff its request to admit (Doc. 5-1), requesting plaintiff to admit the following matters: "1) That the amount in controversy exceeds $75,000, exclusive of interest and costs."; "2) That plaintiff is seeking more than $75,000, exclusive of interest and costs, in damages in this case."; and "3) That plaintiff is a citizen of the State of Missouri." (Doc. 5-1). The requests to admit also contained the following warning, highlighted in bold, before the requests: "WARNING: If you fail to serve the response required by Rule 216 within 28 days after you are served with this paper, all the facts set forth in the requests will be deemed true and all documents described in the requests will be deemed genuine." (Doc. 5-1).*fn1
The same day, defendant filed a motion to dismiss (Doc. 6-2), contending that plaintiff failed to allege with any specificity how she was injured or what caused her alleged injury. Defendant also submitted interrogatories and requests to admit to plaintiff on August 15, 2011. On September 15, 2011, plaintiff filed a motion for leave to file an amended complaint (Doc. 6-7). Plaintiff failed to respond to defendant's request to admit, interrogatories, and requests for production, and on October 11, 2011, defendant filed a motion to compel (Doc. 6-1) plaintiff to respond to the interrogatories and requests for production served on plaintiff on September 20, 2011. On December 21, 2011, a hearing was held on defendant's motion to dismiss and motion to compel. The circuit court granted defendant's motion to dismiss without prejudice and motion to compel, giving plaintiff twenty-one days to file an amended complaint and responses to defendant's discover requests. On January 11, 2012, plaintiff filed her amended complaint (Doc. 2-6) against defendant. Defendant also received plaintiff's responses to defendant's interrogatories and requests for production on the same day.
On January 17, 2012, defendant filed its notice of removal (Doc. 2) in this Court on the basis of diversity. In the notice of removal, defendant alleged that complete diversity existed between the parties as plaintiff was a citizen of the State of Missouri at the time of the commencement of the lawsuit and because defendant was a citizen of the States of Delaware and Arkansas, its state of incorporation and principle place of business, respectively. Defendant also alleged that the amount in controversy exceeded $75,000,"[b]ased on plaintiff's allegations of 'severe and debilitating injuries' and past and future medical expenses and wage loss in the [a]mended [c]omplaint, plaintiff's claimed wage loss of 'approximately $46,000 to date,' and the extensive medical treatment identified in Dr. Matz's IME Report, including two lumbar surgeries, a preponderance of the evidence known to date establishes that the amount in controversy exceeds $75,000 exclusive of interest and costs." (Doc. 2). Defendant claimed that the "notice of removal was filed within thirty days of counsel for defendant's receipt of plaintiff's [a]mended [c]omplaint and her responses to defendant's interrogatories and requests for production, which established that the amount in controversy exceeded $75,000.00 and that the district courts have jurisdiction over the matter pursuant to 28 U.S.C. § 1446(b)."
The next day, on January 18, 2012, plaintiff filed its motion to remand (Doc. 5), contending that defendant failed to remove the case from circuit court within thirty days after it first became ascertainable that the citizenship of the parties was diverse and the amount in controversy exceeded $75,000. Plaintiff based its argument on the fact that on August 15, 2011, defendant served requests to admit upon plaintiff pursuant to Rule 216 seeking to conclusively establish diversity of citizenship between plaintiff and defendant, and that the amount in controversy exceeded $75,000, exclusive of interest and costs. Plaintiff asserts that by failing to respond to the requests to admit by the twenty-eighth day following defendant's service of the requests, it was admitted by operation of law that the amount in controversy exceeded $75,000, and that plaintiff was a diverse citizen. Thus, plaintiff avers that defendant had thirty days following the twenty-eighth day after plaintiff was served with the requests to admit to remove this case to federal court.
Defendant filed a memorandum in opposition to plaintiff's motion to remand, (Doc. 7), maintaining that defendant removed this case immediately upon receipt of plaintiff's discovery requests, which for the first time established that the amount in controversy exceeded $75,000. Further, citing Deboe v. Flick, 526 N.E.2d 913, 916 (Ill. App. Ct. 1988), defendant argues that a party's failure to respond to requests to admit under Illinois Supreme Court Rule 216 does not automatically render the requests admitted. Furthermore, defendant posits that plaintiff's failure to respond to the requests to admit did constitute "receipt by defendant" of an "amended pleading, motion, order or other paper" as required by federal law to trigger the thirty-day deadline to remove. See 28 U.S.C. § 1446(b)(3). For the reasons that follow, plaintiff's motion to remand (Doc. 5) is granted. This case is dismissed and remanded back to state court for further proceedings.
It is well known that removal is proper over any action that could have been filed originally in federal court. 28 U.S.C. § 1441; Tylka v. Gerber Prods. Co., 211 F.3d 445, 448 (7th Cir. 2000). The removal statute, 28 U.S.C. § 1441, is construed narrowly and doubts concerning removal are resolved in favor of remand. Doe v. Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Defendant bears the burden to present evidence of federal jurisdiction once the existence of that jurisdiction is fairly cast into doubt. See In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997). Still, "[t]here is no presumption against federal jurisdiction in general, or removal in particular." Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830 (7th Cir. 2011). "A 'defect in the removal procedure' normally requires remanding a case that has been removed under section 1446(a)." Walton v. Bayer Corp., 643 F.3d 994, 998 (7th Cir. 2011) (citing 28 U.S.C. § 1447(c)). Still, the thirty-day removal deadline is not jurisdictional, and a totally inconsequential defect in removal papers does not deprive the district court of jurisdiction over a case removed to it. Walton, 643 F.3d at 998-99.
This case was removed here on the basis of diversity jurisdiction.
"For good or ill, Congress has authorized the removal of cases in which the parties are of diverse citizenship and the states exceed $75,000." Benson v. SI Handling Sys., Inc., 188 F.3d 780, 783 (7th Cir. 1999). "When either side to such a suit prefers the federal forum, that preference prevails." Id.
The statute regarding diversity jurisdiction, 28 U.S.C. § 1332, requires complete diversity between parties plus an amount in controversy exceeding $75,000, exclusive of interest and costs. Complete diversity means that "none of the parties on either side of the litigation may be a citizen of the state of which a party on the other side is a citizen." Howell v. Tribune Entm't Co., 106 F.3d 215, 217 (7th Cir. 1997) (citations omitted). "[U]nless recovery of an amount exceeding the jurisdictional minimum is legally impossible, the case belongs in federal court." Back Doctors Ltd., 637 F.3d at 830. "Only jurisdictional facts, such as which state issued a party's certificate of incorporation, or where a corporation's headquarters are located, need be established by a preponderance of the evidence." Id. "[T]he estimate of the dispute's stakes advanced by the proponent of federal jurisdiction controls unless a recovery that large is legally impossible." Id. "Only if it is 'legally certain' that the recovery (from plaintiff's perspective) or cost of complying with the judgment (from defendant's) will be less than the jurisdictional floor may the case be dismissed." Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). "[E]vents after the date of removal do not affect federal jurisdiction, and this means in particular that a declaration by the plaintiff following removal ...