Opinion
Case No. 03 C 4682
October 1, 2003
ORDER
Before the court is plaintiff's motion to remand. The question it raises is as follows: when a plaintiff files a complaint in the Circuit Court of Cook County alleging a serious injury (here, that plaintiff's "skull was crushed" while cleaning a machine at work) such that large potential damages can be assumed, but states as its ad damnum only that plaintiff seeks judgment in excess of $50,000, must the defendant remove within 30 days of being served with the complaint as provided in 28 U.S.C. § 1446(b), or should it follow Northern District of Illinois Local Rule 81.2? Local Rule 81.2 provides in pertinent part that where a defendant seeks to remove an action from an Illinois state court based upon diversity, where the complaint does not contain an express ad damnum, "the notice of removal shall include" a response to an interrogatory or request for admission served by the defendant upon the plaintiff stating that the damages actually sought by the plaintiff exceed the jurisdictional amount or declining to agree that the damage award to the plaintiff will in no event exceed the jurisdictional amount. The rule further provides that the receipt by the removing defendant of the response thus described is deemed the filing of a paper from which it may first be ascertained that the case is removable for § 1446(b) purposes, meaning that defendant has 30 days from such receipt to file its notice of removal. The rule also states that failure to comply with rule's requirement that such a response from the plaintiff be included in the notice of removal subjects the action to remand.
There is no dispute that defendant followed LR 81.2 to the letter. Plaintiff contends, however, that it was apparent from the face of the complaint that more than $75,000 was in controversy, and defendant was therefore required, under § 1446(b), to remove within 30 days of its receipt of the complaint.
As the parties recognize, the cases in this district are split on this precise issue, although the court's research suggests that defendant's position is preferred. This court agrees that defendant's removal was timely and that defendant should prevail. First, the local rule is mandatory, and failure to comply subjects the case to remand; a defendant would ignore the local rule at its peril. Second, while a good argument could be made that the local rule conflicts with § 1446(b), it can be reconciled with the statute if it is assumed that even if a complaint suggests damages far exceeding $75,000, as this one does, a plaintiff could in fact be seeking a lesser amount in order to avoid removal. See Height v. Southwest Airlines, Inc., No. 02 C 2854, 2002 WL1759800, *3-4 (N.D. Ill. Jul. 29, 2002); Turner v. Goodyear Tire Rubber Co., 252 F. Supp.2d 677, 680 (ND. Ill. 2003). The court adopts this convenient hypothesis because otherwise, manifest unfairness would result. A defendant desiring to remove would either have to follow the mandatory strictures of the local rule, thus arguably violating the removal statute and risking remand for failure to comply with the statute, or he would have to file his notice of removal without the information required by the local rule, thus subjecting himself to the possibility of remand for violating the local rule. The local rule provides a great convenience to the court by eliminating ambiguity and unnecessary litigation. Reading a complaint such as plaintiff's as ambiguous, and not subject to immediate removal, provides a way to read LR 81.2 so that it does not run afoul of § 1446(b). The court follows the cases that so read it.
Section 1446(b) would appear to require that, unless it cannot be determined from the complaint what the amount in controversy is, the notice of removal be filed within 30 days of defendant's receipt of the complaint. Thus, in a case such as this one where the complaint suggests that there is more than $75,000 in controversy, § 1446(b) might well require that the notice of removal be filed within 30 days of receipt of the complaint. The local rule, however, instructs the defendant in such a case to delay filing a notice of removal until he or she obtains certain definitive information from the plaintiff. Upon receipt of that information, the 30 day clock begins to run, inasmuch as that information is treated as "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 . . ." within the meaning of § 1446(b). See McCoy v. General Motors Corp., 226 F. Supp.2d 939, 942-43 (N.D. Ill. 2002) (reading LR 81.2 as inapplicable to a case in which a reasonable and common sense reading indicates removability in order to avoid a conflict with § 1446).
Diversity jurisdiction clearly exists in this case. Defendant followed the mandatory requirements of LR 81.2 and removed as soon as it could do so consistently with the requirements of the rule. The court declines to hold that its removal notice came too late. The motion to remand is denied.