Benson v. Unilever United States, Inc.

Decision Date01 August 2012
Docket NumberNo. 12–CV–48–WDS.,12–CV–48–WDS.
Citation884 F.Supp.2d 708
PartiesRoger BENSON, Plaintiff, v. UNILEVER UNITED STATES, INC., Wal–Mart Stores, Inc., and Unilever Illinois Manufacturing, Inc., Defendants.
CourtU.S. District Court — Southern District of Illinois


David M. Duree, David M. Duree & Associates, O'Fallon, IL, for Plaintiff.

Paul N. Venker, Michelle Hayde, Williams Venker & Sanders LLC, St. Louis, MO, for Defendants.


STIEHL, District Judge.

Before the Court is plaintiff Roger Benson's motion to remand this matter to the Circuit Court of St. Clair County, Illinois, pursuant to 28 U.S.C. §§ 1446 and 1447(c) (Doc. 4). Defendants Unilever United States, Inc., Wal–Mart Stores, Inc., and Unilever Illinois Manufacturing, LLC have responded (Doc. 14), and plaintiff has replied (Doc. 15). Plaintiff moves to remand because only two of the three defendants—Unilever Illinois Manufacturing and Wal–Mart—joined in the notice of removal, while removal requires defendants' unanimous consent. Also before the Court is defendants' jurisdictional memorandum addressing the amount in controversy (Doc. 30).

I. Facts

Plaintiff Roger Benson injured his head, jaw, mouth, and teeth when he bit into a peanut-butter sandwich. A “hard nut shell-like foreign object” had found its way into his jar of Skippy peanut butter. The object split one of plaintiff's teeth, and the tooth had to be removed. He also had damage to the nerves, bones, joints, ligaments, and tendons in his jaw, mouth, and teeth. He sustained bruises in his mouth and jaw and experienced physical and mental pain and suffering. He suffered headaches and paresthesia.1 Medical and dental expenses were over $10,000 at the time of removal.

Plaintiff filed this product-liability action on December 18, 2011, against defendants Unilever Illinois Manufacturing, LLC, Unilever United States, Inc., and Wal–Mart Stores, Inc. in the Circuit Court for the Twentieth Judicial Circuit, St. Clair County, Illinois ( Benson v. Unilever United States, et al., Case No. 11 L 679). For brevity, the Court will refer to Unilever Illinois Manufacturing as “Unilever Illinois” and to Unilever United States as “Unilever U.S.”

Plaintiff claims disfigurement from the loss of his tooth and seeks total damages in excess of $200,000. He alleges that Unilever Illinois produced the jar of peanut butter at its plant in Franklin Park, Illinois, and that the object was in the jar when the jar left the plant. He further alleges that Unilever Illinois put the jar into the stream of commerce by “selling, and/or delivering” it to Unilever U.S., who then “delivered” it to a Wal–Mart store, where plaintiff purchased it (Doc. 2, Ex. A, ¶ 7).

Plaintiff served the summons and complaint on Wal–Mart and Unilever Illinois on December 19, 2011 (Doc. 2, Exs. C & D). Wal–Mart and Unilever Illinois state in their notice of removal that it does not appear Unilever U.S. was served (Doc. 2, ¶ 10). Plaintiff has since submitted an affidavit, though, showing that he also served Unilever U.S. on December 19, 2011 (Doc. 4, Ex. A). Unilever U.S. filed a notice of consent to removal on January 23, 2012 (Doc. 8). It filed its answer to the complaint in this Court a day later, on January 24 (Doc. 11).

II. Subject–Matter Jurisdiction

A district court's “first duty in every suit” is to establish the existence of subject-matter jurisdiction. Johnson v. Wattenbarger, 361 F.3d 991, 992 (7th Cir.2004); accord Krueger v. Cartwright, 996 F.2d 928, 930–31 (7th Cir.1993) (Courts in the federal system are obliged to police the statutory and constitutional limitations on their subject matter jurisdiction.”).

Unilever Illinois and Wal–Mart removed this action based on diversity jurisdiction. See28 U.S.C. §§ 1441, 1332. Diversity first requires that the matter in controversy be between citizens of different states. See§ 1332(a)(1). According to the complaint and the notice of removal, plaintiff is a citizen of Illinois. The first defendant, Unilever Illinois, is a limited liability company. The citizenship of a limited liability company for purposes of diversity jurisdiction is the citizenship of its members. Cosgrove v. Bartolotta, 150 F.3d 729, 731 (7th Cir.1998). Unilever Illinois is managed by a single managing organization, Conopco, Inc., which is a corporation organized in New York with its principal place of business in New Jersey. The second defendant, Unilever U.S., is a corporation organized in Delaware with its principal place of business in New Jersey. And the third defendant, Wal–Mart, is a corporation organized in Delaware with its principal place of business in Arkansas. Plaintiff and all three defendants are therefore citizens of different states, which meets the first requirement of diversity. See§ 1332(a)(1).

Second, diversity requires that the matter in controversy exceed the sum or value of $75,000, exclusive of interest and costs, § 1332(a), as of when the federal suit began, Carroll v. Stryker Corp., 658 F.3d 675, 680–81 (7th Cir.2011); Meridian Sec. Ins. v. Sadowski, 441 F.3d 536, 538 (7th Cir.2006); St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 293, 58 S.Ct. 586, 82 L.Ed. 845 (1938). The amount in controversy stated in the plaintiff's complaint controls, as long as it is made in good faith. St. Paul Mercury, 303 U.S. at 288, 58 S.Ct. 586;Rising–Moore v. Red Roof Inns, Inc., 435 F.3d 813, 815 (7th Cir.2006); Meridian, 441 F.3d at 541. At that point, [i]t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.” St. Paul Mercury, 303 U.S. at 289, 58 S.Ct. 586;accord Rising–Moore, 435 F.3d at 815.

Here we are faced with an unusual situation. Plaintiff has included an ad damnum of over $200,000 in his complaint even though Illinois law prohibits personal-injury plaintiffs from pleading an ad damnum “except to the minimum extent necessary to comply with the circuit rules of assignment where the claim is filed.” 735 ILCS 5/2–604; accord Meridian, 441 F.3d at 541. A complaint that violates that prohibition and pleads a specific ad damnum will ordinarily be dismissed. 735 ILCS 5/2–604. But before that could happen here, defendants removed. So, the run of similar removal cases deal with vague pleadings of “over $50,000” in damages and how, without a better estimate of damages, the removing party and courts should establish the amount in controversy. See generally Meridian, 441 F.3d at 541.

The Court observed previously, in its Order directing defendants to file a jurisdictional brief (Doc. 29), that it is skeptical of plaintiff's damages claim. Plaintiff alleges among other things that he split a tooth and suffered damage to the nerves, bones, joints, ligaments, and tendons in his jaw, mouth, and teeth. He alleges “disfigurement,” but it is only from the loss of a tooth, which is not generally what one thinks of as a disfigurement. And for all the claimed damages, plaintiff had only $10,000 in medical and dental expenses at the time of removal. It is does not seem plausible that disfigurement from a lost tooth amounts to tens of thousands of dollars' in damages or that pain and suffering could push his total damages above $75,000. See Rising–Moore, 435 F.3d at 815 (finding that medical expenses and lost earnings of $45,000 with a “modest allowance for pain, suffering, and future losses ... brings the total over the threshold”). Further, plaintiff does not allege any loss of property, specific medical treatment, functional impairments, or disability, see Simon v. Wal–Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir.1999), severe and permanent in-juries, see Andrews v. E.I. Du Pont De Nemours & Co., 447 F.3d 510, 514–15 (7th Cir.2006), lost earnings or future lost income, see Rising–Moore, 435 F.3d at 815, or punitive damages, see Anthony v. Sec. Pac. Fin. Servs., Inc., 75 F.3d 311, 317–18 (7th Cir.1996).

Defendants agree that plaintiff's damages claim “seems excessive under the circumstances,” but they point out that his attorney filed an affidavit stating that [t]he amount claimed in the complaint is for a sum in excess of $200,000.00 for personal and bodily injury and medical and dental expenses” (Doc. 9, p. 5). They also point out there is no legal bar making it impossible to recover that amount. See Rising–Moore, 435 F.3d at 815.

Because the plaintiff is in the best position to know the true value of his claims, if he pleads a specific amount, it controls, unless recovering that amount would be legally impossible. It cannot be said that recovery of $200,000 is legally impossible. Moreover, in cases removed to federal court, the amount alleged in the plaintiff's complaint “is presumed correct on the assumption that a plaintiff would not fabricate the amount in controversy to meet the federal diversity jurisdiction requirements and then file her suit in state court relying on the defendant to remove the case to federal court.” Smith v. Am. Gen. Life and Acc. Ins. Co., Inc., 337 F.3d 888, 892 (7th Cir.2003). Thus the Court is satisfied that the matter in controversy here exceeds the sum or value of $75,000.

III. Unanimity

Plaintiff here argues that all three defendants were properly served on December 19, 2011, that valid removal required defendants' unanimous consent, but that Unilever U.S. did not join in removal within the required 30 days (by January 18, 2012). Its notice of its consent to removal came too late, on January 23, 2012.

The Court first notes that the Federal Courts Jurisdiction and Venue Clarification Act of 2011 took effect on January 6, 2012. SeePub.L. No. 112–63, § 105(a), 125 Stat. 758. The Act applies to any action commenced on or after its effective date, Pub.L. No. 112–63, § 105, 125 Stat. 759; MB Fin., N.A. v. Stevens, 678 F.3d 497, 498 (7th Cir.2012), but an action “commenced in State court and removed to Federal court shall be deemed to commence on the date the action ... was commenced, within the meaning of State law, in ...

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