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Eleby v. Steigerwald

April 30, 2010

PAULINE ELEBY, PLAINTIFF,
v.
TRACY STEIGERWALD, DEFENDANT.



The opinion of the court was delivered by: Diamond, J.

MEMORANDUM

Some ten months ago, Pennsylvania citizen Pauline Eleby began a state court negligence action against New Jersey citizen Tracy Steigerwald, seeking $50,000 or less in damages. On April 5, 2010, six days after Plaintiff's counsel said that Ms. Eleby would not stipulate to damages below $75,000, Defendant removed to this Court on diversity grounds. Plaintiff now asks me to remand, arguing that her lawyer's statement is inadequate to make out the $75,000 threshold for diversity jurisdiction. I agree and will remand to state court.

I. Background

On July 10, 2009, Plaintiff Eleby sued Defendant Steigerwald in Philadelphia Common Pleas Court, alleging that on November 29, 2007, Defendant negligently drove her car, injuring Plaintiff. (Doc. No. 1, Ex. A.) Plaintiff sought damages "not in excess of Fifty Thousand Dollars ($50,000.00) along with costs, fees, and such other relief as the Court may deem necessary and appropriate." (Id.) Because the damages claim did not exceed $50,000, the matter was subject to compulsory arbitration. On March 9, 2010, an arbitration panel awarded Plaintiff $50,000 -- the maximum amount she sought. (Doc. No. 1, Ex. B.) Plaintiff nonetheless appealed the arbitration award and sought a trial de novo in Common Pleas Court. (Doc. No. 1, Ex. C.) During a telephone conversation on the day Plaintiff took the appeal -- March 30, 2010 -- her lawyer apparently told defense counsel that Ms. Eleby would not stipulate to damages below $75,000. On March 31, 2010, defense counsel sent a letter to Plaintiff's counsel confirming this conversation. (Doc. No. 1, Ex. D.) Plaintiff has not disputed the letter's accuracy. On April 5, 2010, Defendant removed to this Court on diversity grounds. (Doc. No. 1.)

On April 20, 2010, Plaintiff filed the instant Motion to Remand, arguing that the removal of this action was improper "because the amount in controversy has not been alleged to be more than $75,000." (Doc. No. 4 at 2.)

II. Diversity Jurisdiction and Removal

Although state court cases with diverse parties are commonly removed to federal court, the requirements of removal are often disputed -- as they are here. The district court has original jurisdiction over "all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between . . . [c]itizens of different States." 28 U.S.C. § 1332(a)(1). Where the plaintiff brings such an action in state court, it "may be removed by the defendant . . . to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441; see also Salce v. First Student, Inc., 2009 U.S. Dist. LEXIS 94589, at *2 (D.N.J. Oct. 8, 2009) (a defendant may remove an "action from state court pursuant to 28 U.S.C. § 1441(a), grounding the basis for removal in federal diversity jurisdiction, pursuant to 28 U.S.C. § 1332(a)").

A defendant must seek to remove within thirty days of receiving "the initial pleading setting forth the claim for relief upon which such action or proceeding is based . . . ." 28 U.S.C. § 1446(b). Where "the case stated by the initial pleading is not removable," however, the defendant may remove the action 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 . . . be ascertained that the case is one which is or has become removable . . . ." Id. As the removing party, the defendant "bears the burden of showing that at all stages of the litigation the case is properly before the federal court." Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004).

III. Discussion

Because Plaintiff alleged in state court that she was entitled to damages "not in excess" of $50,000, "the case stated by [Plaintiff's] initial pleading" was not removable, as "the matter in controversy" did not "exceed[] the sum or value of $75,000, exclusive of interest and costs . . . ."

28 U.S.C. §§ 1446(b), 1332(a). Rather, Defendant could remove this action only if she received "an amended pleading, motion, order or other paper from which it [could] be ascertained that the case is one which is or has become removable [under the diversity statute]." 28 U.S.C. § 1446(b). Defendant argues that this requirement was met when Plaintiff's counsel stated on March 30th that Ms. Eleby would not stipulate to less than $75,000 in damages. (Doc. No. 6, Mem. at 3.) I do not agree. Neither the March 30th statement nor Defendant's March 31st confirming letter triggered § 1446(b)'s thirty day removal clock.

Counsel's March 30th Statement

Defendant argues that because opposing counsel's March 30th statement constituted an "other paper" under § 1446(b), Defendant's April 5th removal of this matter was both timely and proper. (Doc. No. 6, Mem. at 2.) Defendant's argument confounds the English language and the law.

Although "several courts, including this one, have concluded that [written] correspondence between parties can be 'other paper,'" Defendant offers no legal authority -- and I can find none -- to support her counter-intuitive suggestion that an off-the-record oral statement to opposing counsel is a "paper" under § 1446. Efford v. Milam, 368 F. Supp. 2d 380, 385 (E.D. Pa. 2005) (citing Addo v. Globe Life & Accident Ins. Co., 230 F.3d 759, 761-62 (5th Cir. 2000); Broderick v. Dellasandro, 859 F. Supp. 176, 180 (E.D. Pa. 1994); Rahwar v. Nootz, 863 F. Supp. 191, 192 (D.N.J. 1994); Hessler v. Armstrong World Indus., 684 F. Supp. 393, 394 (D. Del. 1988)). On the contrary, courts have held just the opposite: that oral communications between counsel "are incapable of triggering the thirty-day limitation for removal." Entrekin v. Fisher Scientific Inc., 146 F. Supp. 2d 594, 612 (D.N.J. 2001); see also Jiminez v. Sears, Roebuck & Co., 2010 U.S. Dist. LEXIS 22031, at *4 (C.D. Cal. Feb. 18, 2010) ("[D]istrict courts have generally held that oral statements are not an 'other paper' which triggers removal under 42 U.S.C. ยง 1446(b).") (citations omitted); Horos v. Allstate Ins. Co., 2003 U.S. Dist. LEXIS 18170, at *5 (E.D. Pa. Sept. 18, 2003) ("[Defendant] has pointed to no 'amended pleading, motion, order or other paper' that forms the basis of its removal notices. The Notice[s] for Removal state only that Plaintiff's counsel informed defense counsel 'via conversation' that his client refused to stipulate to ...


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