The opinion of the court was delivered by: James Knoll Gardner, United States District Judge
Plaintiff initiated this product liability action on October 15, 2009 by filing a three-count Complaint in the Court of Common Pleas of Berks County, Pennsylvania. The Complaint alleges that plaintiff was employed in lawn mower service and repair, and was injured while using a defective "high impact Craftsman socket" purchased at the Sears store at Coventry Mall in Pottstown, Pennsylvania.*fn1 Specifically, plaintiff alleges that on October 19, 2007, while he was using the socket to loosen a bolt on a large riding lawn mower, the socket cracked, causing plaintiff injury to his body, including to his neck, right shoulder and right arm.*fn2
The Complaint alleges damages in excess of $50,000 and alleges that plaintiff incurred damages from medical treatment, physical therapy, and wage losses from having to take time off work. Moreover, the Complaint alleges that plaintiff "is still experiencing medical problems from said injury."*fn3
Defendants removed the action to federal court by Notice of Removal filed December 23, 2009. The Notice of Removal states that subject matter jurisdiction is proper on the basis of diversity of citizenship pursuant to 28 U.S.C. § 1332 because the amount in controversy exceeds $75,000 and the parties are citizens of different states. On January 8, 2010, plaintiff filed his within Motion to Remand, contending that this court lacks subject matter jurisdiction because defendants cannot establish that the amount in controversy exceeds $75,000.
Plaintiff contends that, although his Complaint seeks recovery "in excess of $50,000", defendants cannot show that he could recover more than $75,000 for purposes of establishing diversity jurisdiction. In support of this contention, plaintiff avers that his wage loss is limited because he has returned to work and the workers compensation lien totals $20,863.19.*fn4
Moreover, plaintiff notes that he has not sought punitive damages and does not allege a bad faith claim, further limiting his damages.
Defendants contend that remand is improper because it cannot be determined with legal certainty that plaintiff cannot recover more than $75,000. Moreover, they contend that for purposes of establishing jurisdiction, the amount in controversy is determined from the allegations set forth in the Complaint, not from averments by counsel in a motion for remand. Defendants assert that, based on plaintiff's allegations of personal injuries, ongoing medical treatment and lost wages, it does not appear to a legal certainty that plaintiff cannot recover more than $75,000. Additionally, defendants contend that plaintiff's unwillingness to sign a proposed stipulation limiting damages to $75,000 constitutes a tacit admission that plaintiff could, in fact, recover more than that amount.
Any civil action brought in state court may be removed to the federal district court embracing the place where the action is pending, if the district court would have had original jurisdiction. 28 U.S.C. § 1441(a). However, if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case must be remanded.
Title 28, United States Code, Section 1332(a)(1) gives district courts original jurisdiction to hear civil actions where the matter in controversy exceeds $75,000 and is between citizens of different states. The party asserting diversity jurisdiction bears the burden of proof by a preponderance of the evidence. McCann v. Newman Irrevocable Trust, 458 F.3d 281, 286 (3d Cir. 2006).
The amount in controversy is generally determined from the face of the complaint itself. It is "not measured by the low end of an open-ended claim, but rather by a reasonable reading of the value of the rights being litigated." Angus v. Shiley Inc., 989 F.2d 142, 145-146 (3d Cir. 1993). See also Valley State Farm Fire and Casualty Co., 504 F.Supp.2d 1, 3 (E.D.Pa. 2006) (Shapiro, S.J.).
Where, as here, plaintiff has not specifically averred in the complaint that the amount in controversy is less than the jurisdictional minimum, the case must be remanded "if it appears to a legal certainty that the plaintiff cannot recover the jurisdictional amount." Frederico v. Home Depot, 507 F.3d 188, 197 (3d Cir. 2007)(citing Samuel-Bassett v. Kia Motors America, Inc., 357 F.3d 392 (3d Cir. 2004)).
Determining the amount in controversy begins with a reading of the complaint filed in state court. Frederico, 507 F.3d at 197. In addition, "to determine whether the minimum jurisdictional amount has been met in a diversity case removed to federal court, a defendant's notice of removal serves the same function as the complaint would if filed in the district court." Id.
Here, plaintiff's Complaint alleges that plaintiff sustained injuries to his neck, right shoulder and right arm, requiring medical treatment and physical therapy.*fn5 Plaintiff further alleges that he incurred wage losses from having to take time off from work to recover from his injuries.*fn6 Moreover, plaintiff alleges that, as of the filing ...