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Fultz v. Target Corp.

United States District Court, N.D. Illinois, Eastern Division

July 1, 2014


Monique Fultz, Plaintiff, Pro se.

For Target Corporation, Defendant: Robert Michael Burke, LEAD ATTORNEY, Matthew K Wollin, Michael Joseph Linneman, William Alzugaray, Johnson & Bell, Ltd., Chicago, IL.


Milton I. Shadur, Senior United States District Judge.

On June 27, 2014 counsel for Target Corporation (" Target" ), the defendant in this personal injury action brought against it by Monique Fultz (" Fultz" ), filed a Notice of Removal (" Notice" ) to bring the case from the Circuit Court of Cook County, Law Division to this District Court. Because this Court's mandated obligation

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is to " police subject matter jurisdiction sua sponte" (Wernsing v. Thompson, 423 F.3d 732, 743 (7th Cir. 2005)), and because it finds the effort by Target's counsel to remove this action is problematic because of its belated filing, this memorandum opinion and order directs counsel to address the subject anew.

Although Target was admittedly served with a copy of the Complaint on or about May 15, 2014 and filed its responsive pleading in the Circuit Court on June 11, its filing of the Notice did not take place until fully six weeks had elapsed after the May 15 date of service -- and tat was so even though 28 U.S.C. § 1446(b)(1)[1] requires the notice of removal to be filed within 30 days after defendant's receipt of a copy of the complaint. Target's counsel tries to find refuge in Section 1446(b)(3), which under appropriate circumstances says that " a notice of removal may be filed within 30 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." And to that end counsel seeks to rely on the June 23 date of receipt of Fultz's response to a Request To Admit Facts that " refused to agree or stipulate that the amount in controversy is less than $75,000.00 exclusive of interest and costs" (Notice ¶ 4). But the troublesome aspect of such reliance is that Section 1446(b)(3) comes into play only " if the case stated by the initial pleading is not removable" -- and for the reasons explained later, Target's counsel has not established that precondition.

Target's counsel's approach to this aspect of the removal process finds its antecedent in the two-decades-old case of Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993), in which this Court (sitting with a Seventh Circuit panel by invitation) dissented from the two-Judge majority opinion that allowed a pleading admission that the requisite amount was in controversy to prevail over hard evidence to the contrary.[2] Although the majority did not buy this Court's ultimate view as set out in detail at 994 F.2d 371-78, it found " eminently sensible" (id. at 367) this Court's contention " that, before the defendant seeks to remove a case, she should request the specific amount in controversy from the plaintiff by interrogatory" (id.) -- sound familiar?

This Court was then chairman of this District Court's Rules Committee, and in that capacity it drafted -- and our District Court adopted -- the version of LR 81.2 quoted in Rubel v. Pfizer Inc., 361 F.3d 1016, 1018 (7th Cir. 2004) (to which LR Target's Notice ¶ 4 refers). That LR sought to establish a bright-line rule that would eliminate the type of uncertainty, on the part of a defendant trying to decide when a notice of removal must be filed, that can be posed by a complaint such as the one brought by Fultz here.[3]

That uncertainty is created by the Illinois statute (which has its counterpart in

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some other states as well) that prohibits setting out an express ad damnum in personal injury cases. What that prohibition does is to foster the filing of complaints that, like Fultz's, seek judgment " in a sum of money exceeding $50,000.00 as and for compensatory damages" -- a demand that under Ill. S.Ct. Rule 222 allows a broader type and scope of discovery than is available in a case seeking a lesser amount.

But Target's counsel has not faced up to the situation that existed back in mid-May of this year, when Target first received service of Fultz's Complaint. At that time counsel knew not only that Fultz and her counsel regarded her claim as exceeding $50,000 but also that her slip and fall at a Target store had these asserted consequences (Complaint ¶ 7):

That as a direct and proximate result of one or more of the foregoing careless and negligent acts of the defendant, Target Corporation plaintiff, Monique Fultz was injured in body and mind and became sore, lame and disabled and suffered pain and anguish and will continue to so suffer in the future; further, the plaintiff, was caused to incur medical expenses in endeavoring to be cured of her said injuries and will incur further such expenses in the future; further the plaintiff was prevented from attending to her ordinary daily affairs and activities which she would otherwise would have engaged and was prevented from attending to or ...

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