McCoy by Webb v. General Motors Corp., 02 C 4983.

• Decision Date: 16 October 2002
• Docket Number: No. 02 C 4983.,02 C 4983.
• Citation: 226 F.Supp.2d 939
• Parties: Ronald McCOY, a minor, by his mother and next friend Sherry Webb and Philip McClain, a minor, by his mother and next friend, Margie Webb and Sherry Webb, individually, Plaintiffs, v. GENERAL MOTORS CORP., Defendant.
• Court: U.S. District Court — Northern District of Illinois

Page 939

226 F.Supp.2d 939

Ronald McCOY, a minor, by his mother and next friend Sherry Webb and Philip McClain, a minor, by his mother and next friend, Margie Webb and Sherry Webb, individually, Plaintiffs, v. GENERAL MOTORS CORP., Defendant.

No. 02 C 4983.

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

October 16, 2002.

Timothy R. Tyler, Tyler & Porter, Chicago, IL, for plaintiffs.

Louis Anthony Lehr, Mai Lin Petrine Noffke, Lord, Bissell & Brook, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiffs filed a product liability suit in the Circuit Court of Cook County, Illinois, against defendant General Motors Corporation ("General Motors"), alleging that injuries caused to the minor plaintiffs during a car accident resulted from a defect in a General Motors vehicle. General Motors removed the case to federal court on the basis of diversity jurisdiction. This Court remanded the case to state court for failure to timely remove the case. General Motors now moves for reconsideration of the remand. For the reasons set out herein, we deny General Motors' motion. (R. 6-1.)

RELEVANT FACTS

On April 12, 2002, Plaintiffs filed a product liability complaint in the Circuit Court of Cook County. Plaintiffs allege that the brakes on their General Motors' vehicle failed causing the vehicle to crash into an oncoming car. Plaintiffs claim that each occupant of the vehicle sustained "lasting and permanent injuries" and other damages including "severe pain, emotional distress, disability, lost value and enjoyment of life, future loss of income, medical expenses, loss of normal life, disfigurement and paralysis." (R. 1, Notice of Removal, Ex. A, Compl. ¶¶ 10, 13.) In accordance with the Illinois Rules of Civil Procedure, which prohibit express ad damnum clauses in personal injury complaints, Plaintiffs requested damages for each count only in the amounts necessary to comply with Illinois Circuit Court's rules of assignment (in this case $50,000). 750 ILCS § 5/2-604.

On May 20, 2002, General Motors filed an answer to the complaint and simultaneously requested an admission from the plaintiffs that they were seeking damages in excess of $75,000, the amount necessary for diversity jurisdiction in federal court. See 28 U.S.C. § 1332. Plaintiffs' response was due on or before June 17, 2002. The information requested would be deemed admitted if Plaintiffs did not respond by that date. See Ill. Sup.Ct. R. 216. Plaintiffs did not respond until July 3. On July 15, 2002, within 30 days after the due date of the response to the request for admission, as well as within 30 days of Defendant's actual receipt of the plaintiffs' admission that their alleged damages exceeded $75,000, General Motors filed its notice of removal. This Court remanded the action to the Circuit Court of Cook County, holding that it was apparent from the face of Plaintiffs' complaint that the amount in controversy exceeded the $75,000 jurisdictional minimum. Defendant timely filed the instant motion to reconsider.

ANALYSIS

Removal is governed by 28 U.S.C. § 1446(b), which states in pertinent part:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant ... 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).

Removal to the federal district courts in Illinois also is aided by Local Rule 81.2, which provides a procedure for defendants faced with a complaint alleging a damages amount that satisfies the Illinois jurisdictional minimum but is below the federal jurisdictional amount in controversy. Local Rule 81.2 requires removing defendants to file along with their notice of removal: (1) a statement that the defendant in good faith believes the amount in controversy exceeds the jurisdictional amount; and (2) a response by plaintiff to an interrogatory or request for admission stating that the damages sought exceeds $75,000.

General Motors argues in its motion to reconsider that its removal was proper and timely because it complied with the procedure outlined in Local Rule 81.2. But we do not believe that this Local Rule obviates a defendant's responsibility to ascertain from a reasonable and commonsense reading of the complaint whether the action is removable. Roberson v. Orkin Exterminating Co., 770 F.Supp. 1324, 1328-29 (N.D.Ind.1991). Nor does the Local Rule provide a safe harbor that encourages defendants to wait for discovery responses that simply confirm what was obvious from the face of the complaint; in such cases, defendants are not insulated from a remand to state court. See, e.g., Century Assets Corp. v. Solow, 88 F.Supp.2d 659, 662 (E.D.Tex. 2000) (rejecting on policy grounds defendant's argument that cases are not removable until there has been an absolute affirmation via discovery request that more than $75,000 was in issue).

In this case, as this Court noted in its initial minute order remanding this case, it is obvious from a common-sense reading of the complaint that Plaintiffs were seeking in excess of $75,000 in damages. Plaintiffs alleged that they suffered "lasting and permanent injuries" and incurred bills related to "medical, surgical, hospital, and nursing care for their injuries" as well as "[lost] wages and profits which they otherwise would have earned and acquired." (R. 1, Notice of Removal, Ex. A, Compl. ¶¶ 10, 13.) Plaintiffs further claimed that they suffered "severe pain, emotional distress, disability, lost value and enjoyment of life, future loss of income, medical expenses, loss of normal life, disfigurement and paralysis." (Id. at ¶ 13.) In the parlance of product liability suits, these statements should sound warning bells in defendants' ears that significant damages are sought. Indeed, courts have routinely held that when plaintiffs allege serious, permanent injuries and significant medical expenses, it is obvious from the face of the complaint that the plaintiffs' damages exceeded the jurisdictional amount, thus triggering the 30-day removal period under the first sentence of § 1446(b). See Huntsman Chem. Corp. v. Whitehorse Tech., No. 97 C 3842, 1997 WL 548043, at *5 (N.D.Ill. Sept.2, 1997). See also Carleton v. CRC Indus., Inc., 49 F.Supp.2d 961, 962 (S.D.Tex.1999) (concluding that it was "undeniably facially apparent" that plaintiff's damages exceeded $75,000 because he alleged that he contracted leukemia from defendant's chemicals); Roberson, 770 F.Supp. at 1329; Turner v. Wilson Foods Corp., 711 F.Supp. 624, 626 (N.D.Ga.1989) (holding that allegations in complaint that plaintiff suffered severe burns, permanent scarring, pain and suffering, and medical expenses provided defendant with sufficient information to ascertain removability); Mielke v. Allstate Ins. Co., 472 F.Supp. 851, 853 (E.D.Mich.1979) ("there is no reason to allow a defendant additional time if the presence of grounds for removal are unambiguous in light of the defendant's knowledge and the claims made in the initial complaint"); Lee v. Altamil Corp., 457 F.Supp. 979, 981 (M.D.Fla.1978); Horak v. Color Metal of Zurich, 285 F.Supp. 603, 606 (D.N.J.1968) (holding that where complaint alleges that plaintiff suffered loss of right arm, defendant on notice that claim exceeds jurisdictional amount). But cf. Height v. Southwest Airlines, Inc., No. 02 C 2854, 2002 WL 1759800, at *4 (N.D.Ill. July 29, 2002); Ford v. Mannesmann Dematic Corp., No. 00 C 1226, 2000 WL 1469371, at *3 (N.D.Ill. Oct.2, 2000); Abdishi v. Phillip Morris, Inc., No. 98 C 1310, 1998 WL 311991, *3 (N.D.Ill. June 4, 1998).¹ Thus, because plaintiffs, two of whom are minors, alleged severe and permanent injuries, including paralysis, and sought damages for lost income General Motors surely was on notice that the case was removable and it should have removed the case within 30 days of receipt of the complaint.²

Moreover, to the extent that Local Rule 81.2 provides the exclusive procedure by which defendants may remove Illinois state complaints that lack an express ad damnum clause, we believe that it impermissibly contravenes the federal removal statute. A Local Rule may not limit or contravene the plain language and intent of a federal statute. See Fed.R.Civ.P. 83 ("[a] local rule shall be consistent with — but not duplicative of — Acts of Congress"); 28 U.S.C. § 2071(a)...