Green v. Clark Refining & Marketing, Inc.

• Decision Date: 15 August 1997
• Docket Number: No. 97-CV-73131-DT.,97-CV-73131-DT.
• Citation: 972 F.Supp. 423
• Parties: Jeri GREEN, Plaintiff, v. CLARK REFINING & MARKETING, INC., a Delaware corporation, and Christy Cordone, Jointly & Severally, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

972 F.Supp. 423

Jeri GREEN, Plaintiff, v. CLARK REFINING & MARKETING, INC., a Delaware corporation, and Christy Cordone, Jointly & Severally, Defendants.

No. 97-CV-73131-DT.

United States District Court, E.D. Michigan, Southern Division.

August 15, 1997.

Joseph H. Houle, Southfield, MI, for plaintiff.

Robert J. Haddad, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

DUGGAN, District Judge.

This matter is before the Court on plaintiff's motion to remand to the Wayne County Circuit Court. Plaintiff contends that defendants' notice of removal of her case to this Court was untimely under 28 U.S.C. § 1446(b) and thus the Court must remand it even if the removal notice would have been proper if timely filed. Plaintiff further argues that, contrary to defendants' allegation in their notice of removal, plaintiff did not fraudulently join defendant Cordone to defeat diversity.¹

Defendants argue in their response to plaintiff's motion that the case as stated in plaintiff's original, amended and second amended complaint was not removable because the damages alleged did not indicate the sufficient amount in controversy to confer subject-matter jurisdiction in this Court. Further, defendants argue that plaintiff's response to defendants' request for admissions regarding the jurisdictional amount did not allow defendants to ascertain the removability of the case; defendants could not ascertain the removability until they received plaintiff's answers to defendants' interrogatories and that, because defendants filed the notice of removal less than thirty days after receiving those answers, the notice of removal was timely filed.

A hearing on defendants' motion was held on August 14, 1997.

28 U.S.C. § 1446(b) provides:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant ... 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 ... 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(b). The thirty day time limitation is to be strictly construed against the extension of federal jurisdiction. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).

[A] defendant's failure to comply with the statute's thirty-day limitation is an absolute bar to removal regardless of whether the removal would have been proper if timely filed.

McCraw v. Lyons, 863 F.Supp. 430, 434 (W.D.Ky.1994)(citing Sanborn Plastics v. St. Paul Fire and Marine Ins., 753 F.Supp. 660, 664 (N.D.Ohio 1990)).

Section 1446(b) allows a time extension only for cases which were not removable as stated in the initial pleading or for which the removability was not ascertainable without information beyond the initial pleading from the plaintiff. Id. at 433.

When a defendant has missed the thirty-day deadline imposed by § 1446(b) and asserts that he is entitled to an extension, the relevant question becomes whether the defendant could have removed the case within the time limit.

Id. at 434 (citing Mielke v. Allstate Ins. Co., 472 F.Supp. 851, 853 (E.D.Mich.1979)). Determining if grounds for removal are present is complicated in states such as Michigan where the state rules prohibit plaintiffs from specifying an amount of damages in the pleadings.² Id.; see Gafford v. General Electric Co., 997 F.2d 150, 158 (6th Cir.1993).

Where the amount of damages are not specified, if the defendant is able to ascertain from a fair reading of the complaint or other papers filed by the plaintiff, that the jurisdictional threshold amount exists, failure to file notice of removal within thirty days of receipt of the complaint or other paper constitutes waiver of the defendant's right to remove. McCraw, supra.

This Court recognizes that where the state court rule prohibits a plaintiff from seeking a specific amount in personal injury claims, the determination as to whether the claim is removable may not be an easy one. "This case highlights the predicament facing defense attorneys who must determine the proper timing for removal of cases from state to federal court when faced with pleadings containing indeterminate amounts...." McCraw at 431. However, 28 U.S.C. § 1446(b) expressly permits an "extension" of the 30-day requirement if it is not apparent from the initial complaint that the case is removable. In that situation, a defendant may rely upon subsequently received information, but when that subsequently received information alerts a defendant to the fact that the case is removable, defendant has 30 days from receipt of that information to file a Notice of Removal.

In other words, even where the amount of damages is not specified, if the defendant is able to ascertain from a fair reading of the complaint or other papers filed that the minimum jurisdictional amount exists, he cannot "sit idly by" while the statutory period runs.

McCraw at 434, (citation omitted).

In this case defendants had information warranting the filing of a Notice of Removal after their receipt on May 27, 1997, of the responses to the request for admissions and plaintiff's second amended complaint. In her response to the request for admissions, plaintiff denied that she was not seeking or was not entitled to recover $75,000 in damages and she denied that the matter in controversy "does not exceed Seventy Five Thousand Dollars ($75,000.00) exclusive of...