Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McMillan v. Wilkie Trucking Inc.

United States District Court, Eastern District of Pennsylvania

February 25, 2014



R. Barclay Surrick U.S. District Judge

Presently before the Court is Plaintiff Thomas McMillan’s Motion to Remand (ECF No. 3). For the following reasons, Plaintiff’s Motion will be granted.


On September 24, 2013, Plaintiff Thomas McMillan filed a Complaint in the Court of Common Pleas of Philadelphia County against Defendant Wilkie Trucking Inc. and Defendant Randy Lovell alleging careless and negligent operation of Defendants’ tractor trailer. McMillan v. Wilkie Trucking Inc., Civ. A. No. 002782 (Pa. Ct. Com. Pl., filed Sept. 24, 2013). The case was removed to this Court on December 5, 2013. (Notice of Removal, ECF No. 1.) Plaintiff, a Pennsylvania resident, was riding his bicycle on Second Street in Philadelphia on May 16, 2013. (Compl. ¶¶ 1, 5, Mot. to Remand Ex. A, ECF No. 3.) Lovell, a New Jersey resident, was driving a tractor trailer owned and maintained by his employer, Wilkie Trucking, a business operating in New Jersey. At the corner of Second and Callowhill Streets, Lovell made a right turn and ran over Plaintiff and Plaintiff’s bicycle with the tractor trailer. (Id. at ¶¶ 2-4, 6-7.) Plaintiff alleges that he suffered catastrophic and life-altering permanent personal injuries as a result of the accident. (Id. at ¶ 11.) Plaintiff claims that Defendants were careless and negligent in the happening of this accident. (Id. at ¶ 10.) Plaintiff brought this action to recover from Defendants “jointly and severally, separate sums in excess of $50, 000 in damages.” (Compl.)[1]

On November 1, 2013, Defendants filed an Answer to Plaintiff’s Complaint with New Matter in the Court of Common Pleas of Philadelphia County asserting that the recoverable damages in this case are less than $75, 000. (Mot. to Remand; Notice of Removal Ex. B.) On November 26, 2013, Plaintiff filed a Response to Defendants’ New Matter, in which Plaintiff denied that his recoverable and claimed damages were less than $75, 000. (Notice of Removal Ex. C.) On December 5, 2013, Defendants filed a Notice of Removal on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. (Notice of Removal.)

On December 6, 2013, Plaintiff filed the instant Motion to Remand. (Pl.’s Mot., ECF No. 3.) Defendants filed a response to the Motion on December 20, 2013. (Defs.’ Resp., ECF No. 4.)


Under 28 U.S.C. § 1441(a), “any civil action brought in a State court of which the district courts of the United States have original jurisdiction, 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(a). To remove a lawsuit filed in a state court to a federal district court, a defendant must file a notice of removal within thirty days of the date a plaintiff serves the defendant with a copy of the original pleading or complaint that sets forth the claim for relief upon which the action is based. 28 U.S.C. § 1446(b)(1). However, 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 30 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)(3). The purpose of 28 U.S.C. § 1446(b)(3) is to start “the running of the thirty day period once the defendant receives actual notice that the case has become removable.” McGhee v. Allstate Ins. Co., No. 05-1813, 2005 U.S. Dist. LEXIS 17995, at *6 (E.D. Pa. Aug. 22, 2005).

A 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 does not need to be stated in the initial pleading to trigger the running of the 30-day period for removal under 18 U.S.C. § 1446(b). “Rather, the thirty-day period begins to run when a defendant can reasonably and intelligently conclude from the pleadings that the amount in controversy exceeds the jurisdictional minimum.” Sims v. PerkinElmer Instruments, LLC, No. 04-3773, 2005 U.S. Dist. LEXIS 5300, at *8 (E.D. Pa. Mar. 31, 2005) (quoting Carroll v. United Airlines, Inc., 7 F.Supp.2d 516, 521 (D.N.J. 1998)); see also Johnson v. Tesla Motors, Inc., No. 13-5106, 2013 U.S. Dist. LEXIS 155776, at *4 (E.D. Pa. Oct. 30, 2013). Thus, a “pleading does not have to allege a specific dollar amount to give notice to the defendant of the existence of Federal jurisdiction.” Sims, 2005 U.S. Dist. LEXIS 5300, at *8 (quoting Carroll, 7 F.Supp.2d at 521).

A case removed to federal court may be remanded to state court “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction.” 28 U.S.C. § 1447(c). The defendant as the removing party bears the burden of proving to a legal certainty that federal subject matter jurisdiction exists. Samuel-Bassett v. Kia Motors Am., Inc., 357 F.3d 392, 396 (3d Cir. 2004). Because the removal statutes are strictly construed against removal, Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990), all doubts must be resolved in favor of remand. Samuel-Bassett, 357 F.3d at 403.


Plaintiff argues that remand of this action is required because Defendants failed to file their Notice of Removal within thirty days of receiving a copy of the Complaint. Plaintiff filed the Complaint on September 24, 2013. Defendants filed their Notice of Removal on December 5, 2013, well beyond thirty days after the Complaint was filed. Defendants respond that their Notice of Removal was timely because it was filed within thirty days of being first put on notice that the action was removable. Specifically, Defendants argue that Plaintiff’s Complaint only demands recoverable damages in excess of $50, 000, and that it was not until Defendants were in receipt of Plaintiff’s Answer to New Matter that Defendants became aware that the jurisdictional amount was greater than $75, 000 and that federal court diversity jurisdiction existed.[2]Defendants contend that because they were first put on notice that the action was removable upon the receipt of Plaintiff’s Answer to New Matter, the Notice of Removal was timely under 28 U.S.C. § 1446.

Defendants frame the issue before us as whether or not Plaintiff’s Answer to New Matter triggered the start of the thirty-day time period within which Defendants were required to file a notice of removal. We agree with Defendants that Plaintiff’s Answer to New Matter constitutes an “other paper” for purposes of § 1446(b)(3). See Bishop v. Sam’s E., Inc., No. 08-4550, 2009 U.S. Dist. LEXIS 53082, at *12-13 (E.D. Pa. June 23, 2009) (finding that the plaintiff’s reply to the defendant’s new matter in which plaintiff denied that her damages were not in excess of $75, 000 constituted an “other paper” as contemplated by § 1446(b)). However, § 1446(b)(3) only comes into play if the allegations in the complaint fail to make it evident that a case is removable. Therefore, we must determine whether Plaintiff’s Complaint put Defendants on notice that the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.