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Rosenfield v. Forest City Enterprises, L.P.

United States District Court, E.D. Pennsylvania

March 28, 2018

BRUCE ROSENFIELD, Plaintiff,
v.
FOREST CITY ENTERPRISES, L.P., et al., Defendants.

          MEMORANDUM

          EDUARDO C. ROBRENO, J.

         Under 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.

         In this 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.

         Plaintiff's 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.

         Defendants 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.[1]

         The 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.

         For the 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.

         I. PROCEDURAL HISTORY

         Plaintiff 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.

         A. Demand Letter

         Prior 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.

         Expounding 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 accident. Id.

         Finally, 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.

         After 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.

         B. Complaint

         Plaintiff 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 ...


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