United States District Court, E.D. Pennsylvania
Before the court is the motion of plaintiff Nisheaba Lewis under 28 U.S.C. § 1447(c) to remand this action to the Court of Common Pleas of Philadelphia County on the ground that defendants were untimely in removing it here from the state court. Defendants opposed the motion.
Plaintiff instituted this action by filing a writ of summons on December 22, 2014. It was served on January 5, 2015.Thereafter, on March 19, 2015, plaintiff filed and served electronically a complaint for breach of warranty against defendants. She alleges she suffered serious injuries when the airbags in the Chrysler vehicle she was driving failed to deploy during a collision with another vehicle. Defendants did not file a notice of removal in this court until May 19, 2015, some sixty days after service of the complaint. See 28 U.S.C. § 1446(a).
Plaintiff argues that remand is required because removal did not occur within 30 days after defendants’ receipt of the complaint. She relies on 28 U.S.C. § 1446(b) (1) which provides:
The notice of removal of a civil action or proceeding shall be filed within 30 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....
Where service of a summons takes place before the service of the complaint as happened here, the 30 day period for removal begins to run when the complaint is served. Murphy Bros. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999); Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220-23 (3d Cir. 2005).
Defendants, in arguing that removal was timely, cite § 1446(b)(3) which provides:
[I]f the case stated by the initial pleading is not 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.
Defendants concede that the complaint, which they received on March 19, 2015, put them on notice of the nature of plaintiff’s claim for relief and of the parties’ diversity of citizenship. See 28 U.S.C. § 1332(a). Invoking § 1446(b)(3), defendants contend that removal was timely because they did not become aware until April 29, 2015 that the plaintiff was seeking in excess of $75, 000 exclusive of interest and costs, the threshold for a diversity action in federal court under § 1332(a). According to defendants, they first learned of the requisite amount in controversy not from the complaint but from the receipt of an “other paper, ” that is, from plaintiff’s April 29, 2015 Case Management Conference Memorandum which identified damages of $125, 000. May 19, the removal date, is within 30 days of April 29.
We must therefore determine whether the clock began to run under § 1446(b)(3) from the date of the receipt of plaintiff’s Case Management Conference Memorandum or under § 1446(b)(1) from the date when the complaint was received. This, of course, depends on whether the complaint put the defendants on notice that the action was removable. The question before us is whether the defendants knew from the complaint “what the suit [was] about.” See Murphy Bros., 526 U.S. at 352. In Foster v. Mutual Fire, Marine & Inland Insurance Co., 986 F.2d 48, 53 (3d Cir. 1993), our Court of Appeals explained:
The inquiry is succinct: whether the document informs the reader, to a substantial degree of specificity, whether all the elements of federal jurisdiction are present.
(internal quotation mark omitted).
In assessing whether the complaint meets this standard for purposes of establishing the requisite amount in controversy under 28 U.S.C. § 1332(a), we look to Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938). In Red Cab the Supreme Court explained in the context of a motion to remand that the amount sought in good faith in a complaint controls for jurisdictional purposes. Id. at 288. A claim may be remanded for lack of subject-matter jurisdiction only when “it ...appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.” Id. at 289; see also Frederico v. Home Depot, 507 F.3d 188, 195 (3d Cir. 2007); Samuel-Bassett v. KIA Motors Amer., Inc., 357 F.3d 392, 398 (3d Cir. 2004). Thus, when a defendant reviews a state court complaint to ascertain the amount in controversy for federal jurisdictional purposes, it must do so with the Red Cab standard in mind.
In this case, the complaint claims unliquidated damages for personal injuries “in a sum in excess of Fifty Thousand ($50, 000) Dollars.” Under Rule *1301 of the Philadelphia Civil Rules, this signals that the action is not eligible for initial resolution in the court’s compulsory arbitration program for smaller cases. See also 42 Pa. Cons. Stat. § 7361; Pa. R. Civ. P. 1301 et seq. Under Pennsylvania practice, it is not proper to claim any specific sum for unliquidated damages except in counties such as Philadelphia where compulsory arbitration exists. Pa. R. Civ. P. 1021(b). Even then, a plaintiff may only state whether or not “the amount claimed does or does not exceed the ...