In Bracken v. Dolgencorp, LLC, et al, No 18-4703, (E.D. Pa. Nov. 29, 2018), the Federal Court remanded the case back to the Philadelphia Court of Common Pleas after the Defendant filed an untimely Notice of Removal. The Court noted that Removal must be made within 30 days from the date of service or when the defendant could have “reasonably and intelligently” concluded the amount in controversy exceeded $75,000.
Plaintiff sued various non-Pennsylvania Defendants in the Philadelphia Court of Common Pleas alleging personal injuries sustained when a trailer lift gate malfunctioned while he was unloading goods. In his Complaint, Plaintiff alleged multiple injuries. However, the full extent of the injuries was alleged to be unknown at the time of the filing of the Complaint. Plaintiff further alleged that he was unable to attend to his usual duties and occupation, and alleged lost wages and earning capacity. Plaintiff sought damages in excess of $50,000.
Defendant filed a Notice of Removal seventy-two (72) days following service invoking diversity and an amount in controversy in excess of $75,000. Dolgencorp removed the matter alleging that it first received notice of the amount in controversy when counsel sought a settlement demand from Plaintiff’s counsel and was advised for the first time that a demand could not be made as the Plaintiff was still in treatment and there was a potential for surgical intervention. Thereafter, Plaintiff then filed a case management memorandum with the Philadelphia Court alleging medical bills of $20,304.67; past lost wages of $90,371.58; a worker’s compensation lien of $110,676.25, and a total demand of $650,000. Dolgencorp then filed an Amended Notice of Removal arguing that Plaintiff’s memorandum constituted further evidence that the requisite amount in controversy was satisfied.
The Court noted that a party seeking removal bears the burden of showing, at all stages of litigation, that the case is properly before the federal court. Frederico v. Home Dept, 507 F.3d 188, 193 (3d Cir. 2007). A defendant must file a notice of removal “within 30 days after 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. The initial 30 day period for removal is only triggered when the four corners of the pleading … inform the reader, to a substantial degree of specificity, [that] all the elements of federal jurisdiction are present.” In re Asbestos Products Liab. Litig., 770 F. Supp 2d 736 (W.D. Pa. 2016). If removability of an action is not apparent from the face of the initial pleading, “a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of the amended pleading, motion, order or other paper from which is may first be ascertained that the case is one which is or has been removable”. 28 USC 1446(b)(3). “Courts typically require that an ‘other paper’ consist of a written document; not oral communication.” Boggs v Harris, 226 F. Sup 3d 475, 491-92 (W.D. Pa. 2016).
The thirty-day period begins to run when a defendant can “reasonably and intelligently” conclude that the amount in controversy exceeds the jurisdictional minimum. Coralluzzo v. Darden Rests., Inc., No 13-6882 (E.D.Pa. Aug 6, 2015). “A pleading need not allege a specific dollar amount to give notice to the defendant of the existence of federal jurisdiction. In the context of a personal injury lawsuit between diverse parties, ‘severe injuries along with pain and suffering will alert the defendant that an amount in excess of the jurisdictional amount is at issue and trigger the running of the thirty-day removal.” Russo v. Wal-Mart Stores East, L.P., No 17-454, (M.D., Pa. May 8, 2017).
Plaintiff alleged in the Complaint severe and permanent injuries, great financial detriment, loss wages and earning capacity, and noted his injuries and financial damages could worsen in the future. In resolving all doubts in favor of remand, the Court found that the allegations made in the Complaint sufficed to put more than $75,000 in controversy. The Court found that Dolgencorp should have removed the action within thirty days of service of the Complaint because it could have reasonably and intelligently concluded the amount in controversy exceeded $75,000. As a result, the Court remanded the case to the Philadelphia Court of Common Pleas.
Questions regarding this alert may be directed to David Friedman, Esquire.
