United States District Court, E.D. Pennsylvania
EDUARDO C. ROBRENO, J.
the removal statute, 28 U.S.C. § 1446(b), a defendant
has thirty days after being served with a complaint to remove
a case to federal court. However, where, as here, it is not
apparent from the face of the complaint that a case is
removable, a defendant may remove within thirty days of
receipt of an amended complaint, motion, order, or
“other paper” from which it may first be
ascertained that the case is removable.
case, Defendants' counsel first learned in pre-suit
written communications with Plaintiff's counsel that the
amount in controversy exceeded $75, 000, and that therefore
the case was removable. However, the amount in controversy
was not apparent from the face of the barebones Complaint,
subsequently filed and served. Sometime thereafter, Plaintiff
submitted a case management conference memorandum (required
by local procedure in state court) demanding $350, 000.
Thirty days after the case management memorandum was filed
(but forty-nine days after the filing and service of the
Complaint), Defendants removed the case to federal court. In
response, Plaintiff filed the instant motion to remand the
case back to state court.
position is that the aforementioned pre-suit written
communications made it apparent that the amount in
controversy exceeded $75, 000, and thereby constitute
“other paper” under the removal statute. Given
that, in Plaintiff's view, the Defendants already knew
that the amount in controversy exceeded $75, 000, the
thirty-day removal period began when the Complaint was filed
and served, thereby rendering removal untimely because
removal was more than thirty days after the filing and
service of the Complaint.
contend that it was not apparent that the amount in
controversy exceeded $75, 000 until Plaintiff filed the case
management conference memorandum, making removal - thirty
days thereafter - timely.
issue in this case is whether the written pre-suit
communications between counsel qualify as “other
paper” under the removal statute. If so, then
Defendants' thirty-day window to remove would have
started on the date that the Complaint was filed and served.
If not, then the time for removal would run from the filing
of the case management conference memorandum.
reasons that follow, the Court finds that, under §
1446(b), the written pre-suit communications do not qualify
as “other paper, ” and therefore Defendants'
removal within thirty days of the filing of the case
management conference memorandum was timely.
Bruce Rosenfield broke his patella (knee cap) when he slipped
and fell on ice outside of his apartment at 1835 Arch Street
in Philadelphia - which is owned by Defendants. The injury
required surgery and extensive rehabilitation. See ECF Nos.
1, 3, 5.
to filing suit, Plaintiff's counsel sent a demand letter
to Defendants via email on December 30, 2016. See Pl. Mot.
Ex. A, ECF No. 3. The letter described the accident, injury,
surgery, hospital care, and rehabilitation that Plaintiff
underwent. Id. at Ex. A. These descriptions were set
forth in great detail, spanning over half of the letter's
approximately six total pages. See Id. The letter
explained that Plaintiff was required to pay for certain
medical expenses out of pocket, and had incurred significant
travel expenses associated with his wife coming to care for
him from her home in New York. Id. It also noted
that his injury was in some respects permanent, and that he
had already missed a significant amount of work due to the
injury and rehabilitation. Id.
how valuable Plaintiff's missed work time was, the letter
also included some of Plaintiff' professional
qualifications. Id. For instance, the letter
explained that Plaintiff was a partner at Schnader Harrison
Segal & Lewis, where he had practiced law since 1978.
Id. Also, he was the long-time chair of the
firm's Trust & Estates Department at the time of the
the letter offered to release Plaintiff's claims in
exchange for Defendants' agreement that Plaintiff live
rent-free in his current apartment for five years.
Id. This would also include free rent of
Plaintiff's storage unit, free parking for him and his
wife, and additional free electronic access keys to the
apartment building and gym. Id. The letter noted
that Plaintiff was paying, per month, $2, 580 in rent; $265
for parking; and $50 for a storage unit. Id. Thus,
the total value of the demand letter was over double the
amount in controversy threshold.
receiving the demand letter, Defendants' counsel
requested via email that Plaintiff's counsel agree to cap
damages at $75, 000; and explained that if Plaintiff did not
so agree, Defendants would likely remove to federal court.
Id. at Ex. B. In his emailed response on February 5,
2017, Plaintiff's counsel refused to agree, and stated
that “[Plaintiff's] medical bills from the surgery
. . . will probably exceed $75, 000 . . . The amount in
controversy is way over $75, 000.” Id.
commenced this action in the Court of Common Pleas of
Philadelphia County, Pennsylvania when he filed the Complaint
on March 15, 2017. ECF No. 1. That same ...