Carroll v. United Air Lines, Inc.

• Citation: 7 F.Supp.2d 516
• Decision Date: 10 March 1998
• Docket Number: No. CIV. A. 97-5982 AJL.,CIV. A. 97-5982 AJL.
• Parties: John Douglas CARROLL and Sylvia Carroll, Plaintiffs, v. UNITED AIR LINES, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

7 F.Supp.2d 516

John Douglas CARROLL and Sylvia Carroll, Plaintiffs, v. UNITED AIR LINES, INC., Defendant.

No. CIV. A. 97-5982 AJL.

United States District Court, D. New Jersey.

March 10, 1998.

Seamus Boyle, Weiseman Hely, P.A., Mountainside, NJ, for Plaintiffs.

Bruce L. Shapiro, Gregory B. Pasquale, Shanley & Fisher, P.C., Morristown, NJ, for Defendant.

OPINION

LECHNER, District Judge.

This is a personal injury action brought by the plaintiffs, John Douglas Carroll ("John Carroll") and Sylvia Carroll (collectively, the "Plaintiffs"), against the defendant, United Air Lines, Inc. ("United"). Removal jurisdiction is alleged by United pursuant to 28 U.S.C. §§ 1441 and 1446.

The issue sub judice is the question of whether this action should be remanded to the Superior Court of New Jersey, Law Division, Essex County (the "Superior Court") pursuant to 28 U.S.C. § 1447(c). The issue of remand was timely raised by a sua sponte motion (the "Motion") at a hearing on 19 December 1997 (the "19 December Hearing"). At the 19 December Hearing, the parties were offered the opportunity to submit briefs setting forth their respective positions on the remand issue.¹

For the reasons set forth below, this matter is remanded to the Superior Court.

Facts

On 1 August 1997, the Plaintiffs filed a summons and complaint (the "Complaint") in the Superior Court. See Notice of Removal, filed on 12 December 1997, (the "Notice of Removal") ¶ 2; United Brief at 2. The Plaintiffs seek money damages for personal injuries allegedly sustained by John Carroll on or about 25 March 1996² when he fell while deplaning from United Flight 809 at Kansai Airport in Osaka, Japan. See Complaint at 1, ¶ 1; United Brief at 2. As a result of his fall, the Plaintiffs allege John Carroll suffered

injuries causing disability, impairment, loss of enjoyment of life, pain and suffering, and he will suffer in the future ....

Complaint at 2, ¶ 5 (emphasis added). The Complaint also alleges that United, as a common carrier, "violated its high duty of care to [John Carroll] in its failure to provide [him with] safe passage," which failure constituted "willful misconduct." Id. at 3, ¶ 5 of Fourth Count.

In accordance with New Jersey state court rules, the Complaint does not contain a demand for a specific amount in damages.³ See Complaint. United concedes it was served with the Complaint on 28 August 1997. See Notice of Removal ¶ 2. Neither the Notice of Removal nor the Opposition Papers state when United first received a copy of the Complaint.

On 7 October 1997, United filed a stipulation, pursuant to Rule 4:6-1(c) of the New Jersey Rules of Court, extending its time to answer the Complaint to and including 1 December 1997. See United Brief at 3. United served and filed an answer (the "Answer") to the Complaint on 1 December 1997. See Notice of Removal ¶ 3. The seventh affirmative defense set forth in the Answer invoked the limitation of liability provided for by the terms of the Warsaw Convention. See Answer at 5.

On 2 December 1997, United served the Plaintiffs with a Request for Statement of Damages Claimed (the "Request for Damages"), pursuant to Rule 4:5-2 of the New Jersey Rules of Court. See United Brief at 3. On 9 December 1997, United received a response to the Request for Damages demanding $2,000,000 in damages (the "Response to Request for Damages"). See Notice of Removal ¶ 4. The Notice of Removal does not explain why United waited more than three months to serve the Request for Damages.

On 12 December 1997, United filed the Notice of Removal. See Notice of Removal. United alleges jurisdiction, pursuant to 28 U.S.C. § 1332(a)⁴ ("Section 1332(a)"), based solely upon diversity of citizenship between the parties. See Notice of Removal ¶¶ 6, 8. The Notice of Removal states United removed the action within thirty days after receiving the Response to Request for Damages, which United alleges was "the first notice to United that the amount in dispute in this action exceeds the sum of $75,000, exclusive of interest and costs." Id. at ¶¶ 4, 6.

At the 19 December Hearing, seven days after the Notice of Removal was filed, the issue of remand was raised, via a sua sponte motion to remand, because it appeared the Notice of Removal was untimely. It appeared United was or should have been on notice that the amount in controversy exceeded $75,000 at the time it first received the Complaint.

United opposes the remand of this action, arguing that (1) the court may not remand an action on its own motion and (2) removal was timely. See United Brief at 6-10, 11. Specifically, United argues 28 U.S.C. § 1447(c) does not authorize a court to remand an action sua sponte where the defect in removal is allegedly procedural, not jurisdictional. See id. at 11-13; United Reply Brief at 2-4. In addition, United asserts that removal was timely because it became aware of the presence of Federal jurisdiction only after receiving the Response to Request for Damages. See United Brief at 5-10.

Discussion

A. Motion to Remand

Under the general Federal removal statutes, an action brought in state court may be removed by the defendant to the Federal district court encompassing the state court if that Federal district court would have had original jurisdiction over the action. See 28 U.S.C. § 1441(a).⁵ A defendant seeking to remove a case must file a "notice of removal ... containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served...." 28 U.S.C. § 1446(a).

When confronted with a motion to remand, the removing party has the burden of establishing the propriety of removal. See Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir.1990), cert. denied, 498 U.S. 1085, 111 S.Ct. 959, 112 L.Ed.2d 1046 (1991); Steel Valley Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1011 (3d Cir.1987), cert. dismissed, 484 U.S. 1021, 108 S.Ct. 739, 98 L.Ed.2d 756 (1988); Moore v. DeBiase, 766 F.Supp. 1311, 1315 (D.N.J.1991); Mountain Ridge State Bank v. Investor Funding Corp., 763 F.Supp. 1282, 1288 (D.N.J.1991). "Removal statutes `are to be strictly construed against removal and all doubts resolved in favor of remand.'" Boyer, 913 F.2d at 111 (quoting Steel Valley, 809 F.2d at 1010); see Moore, 766 F.Supp. at 1314; Mountain Ridge, 763 F.Supp. at 1288.

An action that has been removed to Federal court may be remanded to state court, pursuant to 28 U.S.C. § 1447(c)⁶ ("Section 1447(c)"), because of a defect in the removal procedure. For example, failure to file a notice of removal within the time period provided by the removal statutes is a sufficient ground on which to remand an action. See Foster v. Mutual Fire, Marine & Inland Ins. Co., 986 F.2d 48, 50-53 (3d Cir.1993); Mountain Ridge, 763 F.Supp. at 1288; Capone v. Harris Corp., 694 F.Supp. 111, 112 (E.D.Pa.1988); Blow v. Liberty Travel, Inc., 550 F.Supp. 375, 375-76 (E.D.Pa.1982).

Section 1446(b) of the United States Code sets forth the time in which a removal petition must be filed:

(b) 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....

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....

28 U.S.C. § 1446.

1. Authority to Remand

United argues the instant matter should not be remanded because the Plaintiffs did not move to remand the action. See United Brief at 11-13. United also contends this court does not have the power to remand the action sua sponte. See id.; United Reply Brief at 2-4. In support of its argument, United cites Fifth, Sixth, Seventh and Eleventh Circuit decisions. These decisions are not the law in this Circuit and will not be followed.

Of the two Third Circuit decisions cited by United, only one, Air-Shields, Inc. v. Fullam, 891 F.2d 63 (3d Cir.1989), is instructive. The Plaintiff also cites Air-Shields, but, unlike United, does so in support of the remand of this action. United argues the reliance by the Plaintiffs on Air-Shields is "misplaced and is taken out of context."

In Air-Shields, the district court made a sua sponte motion to remand the case to state court more than seven months after the notice of removal had been filed. See Air-Shields, 891 F.2d at 64. The Third Circuit granted the petition of the defendant to vacate the sua sponte order remanding the action. See id. at 66. The Third Circuit held the district court exceeded its authority under Section 1447(c) by remanding the matter beyond the thirty-day limit on the basis of procedural defects. See id. In dicta, the court explained "[e]ven if the district court's sua sponte action qualifies as a motion under ... [Section 1447(c)], the district court could only remand within [thirty] days of the filing of notice to remove for procedural defects."⁷ See id. at 65.

United contends that the question of whether a court may remand an action sua sponte was not decided in Air-Shields and therefore the court should follow the precedent of other circuit courts. This argument, however, ignores the decision in Korea Exchange Bank v. Trackwise Sales Corp., 66 F.3d 46 (3d Cir.1995), where the Circuit stated the thirty day time limit of Section 1447(c) applies not only to motions brought by parties but also to sua sponte orders of remand, see Korea Exchange, 66 F.3d at 51; Air-Shields, 891 F.2d at 65, which orders of remand can, and should, be preceded by a sua sponte motion to remand in order to give the removing party an adequate opportunity to oppose such remand. See supra note 7.

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