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Thomas B. Erekson v. Ashford Philadelphia Annex

April 23, 2013


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


Plaintiff Thomas Erekson contends that Defendants' removal of this action to this Court was untimely. For the reasons below, the Court finds that the removal was not timely, Mr. Erekson's Motion to Remand is meritorious, and the case will be remanded to the Philadelphia Court of Common Pleas.


This premises liability action stems from an injury incurred by Thomas Erekson on May 26, 2010 on a walkway near the main entrance of the Courtyard by Marriott hotel located at 21 N. Juniper Street in Philadelphia, Pennsylvania. On May 21, 2012, Mr. Erekson, through counsel, sent Defendants*fn1 a settlement demand letter seeking $225,000 for his damages. Three days later, Mr. Erekson filed his complaint in the Philadelphia Court of Common Pleas. He alleges that he served the complaint and summons on Defendant Ashford Philadelphia Annex, LLC, f/n/a CNL Philadelphia Annex, LLC ("Ashford") on June 4th, and on the remaining Defendants on July 20th. Defendants dispute that service was proper; however, for the purposes of the removal analysis, service is immaterial, as there is no question that Defendants were in actual possession of the Complaint as of at least August 24, 2012, the date on which defense counsel served Mr. Erekson's attorney with a Request for Admission as to the amount of damages.

The Complaint filed in the Philadelphia Common Pleas Court does not seek specific damages, but states that the amount in controversy is "greater than $50,000," thereby conferring major jury status on the matter in state court. On August 24, 2012, Defendant Courtyard Management Corporation ("Courtyard") served Mr. Erekson with a Request for Admission seeking to establish whether he claimed damages in excess of $75,000. Although the affirmative Response to the Request for Admission was executed August 30, 2012, Opp. to Mot. to Remand, Ex. I, Defendants apparently did not receive the Response until September 18, 2012-19 days later, and fully two weeks after the case management conference. Mr. Erekson does not dispute, however, that Defendants received the Response on that date.

In the meantime, on September 4, 2012, the parties held a case management conference in common pleas court at which Mr. Erekson alleges that damages and the value of the claim were discussed among Mr. Erekson's counsel, counsel for Courtyard Management Corporation, and the state court's Case Manager. A copy of Plaintiff's Case Management Conference Memorandum, attached to the Motion to Remand as Exhibit A and to Defendant's Opposition as Exhibit G, states that damages are requested in the amount of $275,000. Defendants concede that Mr. Erekson's counsel submitted the Memorandum at the conference.

Defendants' Notice of Removal was filed in this Court on October 16, 2012, fewer than 30 days after Defendants' receipt of Plaintiff's Response to Request for Admission on September 18, 2012, but more than 30 days after the September 4, 2012 case management conference.


Any civil action brought in state court may be removed to the federal district court in the district where the action is pending, if the district court would have had original jurisdiction. 28 U.S.C. § 1441. The removing party bears the burden of showing that the case is properly before the court at all stages of the litigation. See Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). The removal statutes are strictly construed against removal, and all doubts should be resolved in favor of remand. Boyer v. Snap-On Tools, 913 F.2d 108, 111 (3d Cir. 1990).

The district court has subject matter jurisdiction over civil actions between citizens of different states where the amount in controversy, exclusive of interest and costs, exceeds $75,000. 28 U.S.C. § 1332(a). The amount in controversy is generally decided from the face of the complaint itself. Angus v. Shiley Inc., 989 F.2d 142, 145 (3d Cir. 1993). 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." Id. at 146.

Under 28 U.S.C. § 1446(b), "the notice of removal of a civil action or proceeding shall be filed within thirty days after the 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever is shorter." 28 U.S.C. § 1446(b).

Where it is not apparent from the face of the initial pleading that a case is removable, "a notice of removal may be filed 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 first be ascertained that the case is one which is or has become removable . . . ." 28 U.S.C. § 1446(b) (emphasis added).

Section 1446(b) does not define "other paper." The statute is clear, however, "that the time for removal begins to run when the defendant receives the requisite written notice of facts which make the case removable." Broderick v. Dellasandro, 859 F. Supp. 176, 178 (E.D. Pa. 1994). "Although notice must be in writing, the statute does not require 'service' of that notice in some formal, legal sense." Id. Courts have found that answers to interrogatories in discovery proceedings, statements in deposition testimony, post-complaint demand letters, and attorney correspondence may all meet the statutory requirement for "other paper." See id. at 178-79 (collecting cases). In White v. Gould, No. 91-6531, 1992 WL 7032, at *2 (E.D. Pa. Jan 9, 1992), for example, the court held that, where a state court complaint simply alleged damages "in excess of $25,000," a case became removable after plaintiff's counsel sent defendant a settlement letter demanding $100,000. In Broderick, holding that "other paper" may include attorney correspondence, the court granted remand where the defendant filed notice of removal more than 30 days after receiving a letter from plaintiff's attorney advising of plaintiff's change of residence (for diversity jurisdiction), but less than 30 days after plaintiff served answers to interrogatories which identified his new residence. See Broderick, 859 F. Supp. at 177.

Here, Defendants argue that the document from which it could "first be ascertained" that this case was removable is Plaintiff's Response to Courtyard Management Corporation's Request for Admission, which Defendant received on September 18, 2012. This is the document, Defendants contend, "from which it could first be established with the requisite degree of certainty that the amount in controversy in this case met the federal jurisdictional limit." Opp. to Mot. to Remand at 8. The Court agrees that the Complaint alone, which contained only general allegations of serious injury and sought damages in excess of $50,000, was not sufficient to trigger the removal period. See, e.g., Inaganti v. Columbia Props. Harrisburg LLC, No. 10-1651, 2010 WL 2136597, at *3, *5 (E.D. Pa. May 25, 2010) (collecting cases for the proposition that "when a complaint fails to allege with specificity damages that permit a defendant to conclude, to a legal certainty, that the amount in controversy creates federal jurisdiction, the removal period is not triggered by service of the complaint"); ...

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