defendant Consolidated's principal place of business, precluding defendants H.C.M. and Color Metal from ascertaining whether there was diversity between plaintiff and all defendants; 2) there was no ad damnum clause in the complaint, in accordance with New Jersey procedure, R.R. 4:8-1, precluding defendants from ascertaining whether the matter in controversy exceeded the sum of $10,000. Although defendants do not suggest that plaintiff filed, subsequently to the filing of the complaint, any "amended pleading, motion, order or other paper" which did in fact permit them to ascertain that the case is removable, thus raising question whether, at the very least, defendants' removal was premature, it is the court's view that plaintiff's complaint did state a removable case, and that defendants' failure to petition for removal within thirty days of service of the complaint upon them precludes them from removing the case to this court at the present time.
Defendants' first contention with respect to the inadequacy of plaintiff's complaint is without merit, as paragraph 2 of the complaint states that "Defendant Consolidated International Corporation * * * has its principal place of business at 4501 South Western Avenue, Chicago, Illinois." As a result, defendants could immediately tell from the complaint that there was complete diversity between plaintiff and defendants.
Defendants' second argument raises some difficult questions. Essentially, it poses a challenge to prompt removal of non-liquidated damage cases from the New Jersey courts to this court, since defendant is in effect suggesting that removal in such cases may be delayed months, until the plaintiff positively indicates to the defendant that he is seeking more than $10,000 in damages. Unfortunately for the defendants, the language of Section 1446 itself precludes such an interpretation. It will be noted that the portion of paragraph two of part (b) of that section, which permits late petition for removal after plaintiff has served upon defendant "an amended pleading, motion, order or other paper" permitting it to ascertain the removability of the case, is prefaced by the following clause: " If the case stated by the initial pleading is not removable. * * *". As a result, the removability of the case in the first instance is the sole matter for consideration when a defendant attempts to rely on the second paragraph of Section 1446(b).
Case law on the removability of unliquidated damage claims appears to support the proposition that such claims may be removed if the federal court, upon a review of the complaint, considers that more than $10,000 is at stake. See Alabama ex rel. Flowers v. Robinson, 220 F. Supp. 293 (N.D.Ala.1963); Dri. Mark Products, Inc. v. Meyercord Co., 194 F. Supp. 536 (S.D.N.Y.1961); Mayor and City Council of Baltimore v. Weinberg, 190 F. Supp. 140 (D.Md.1961); Cross v. Oneida Paper Products Co., 117 F. Supp. 919 (D.N.J.1954); Seber v. Spring Oil Co., 33 F. Supp. 805 (N.D.Okla.1940); Daland v. Hewitt Soap Co., 27 F. Supp. 482 (S.D.N.Y.1939). That being the case, all that remains to be done is to examine the complaint and determine whether it does effectively state a claim for more than $10,000.
In the present case, there can be no question but that more than $10,000 is at stake. As a result of defendants' negligence, the complaint states, plaintiff suffered the loss of his right arm; such a serious injury would likely, should the defendants be found negligent, warrant a recovery in excess of $10,000.
In addition, the equities present appear to support the plaintiff's position. No further papers were filed by the plaintiff subsequent to his complaint which indicated to the defendants that the case was worth more than $10,000. Defendants' own petition for removal states that the case involves more than $10,000; this information was apparently gleaned from the complaint. Defendants cannot now be heard to challenge the very facts they alleged in their petition for removal. Remand to the state court will not be barred because of defendants' challenge to the sufficiency of the complaint. The complaint having stated a removable cause of action, and the defendants having failed to file a petition for removal within the thirty days prescribed by 28 U.S.C. § 1446, the plaintiff's motion to remand to the Superior Court of New Jersey will be granted.
In addition to challenging the sufficiency of the complaint, defendants urge that plaintiff waived any right it might have had to challenge their failure to abide by the thirty day rule. Specifically, they allege that counsel for the plaintiff represented to their counsel on February 28, 1968 that plaintiff would not attempt to require defendants' adherence to the letter of Section 1446. This contention must be rejected. For one thing, the communication allegedly came on February 28, more than one month after the first complaint was served. More importantly, however, there can be no doubt that plaintiff could not, simply by its word, acquiesce in defendants' delay in filing. Although there may be some support for the proposition that certain actions on the part of a plaintiff, such as fraudulent joinder of resident defendants, may cause his rights to object to late filing to be waived,
there can be no doubt that a stipulation by the parties is not sufficient to extend defendant's time to petition for removal. As was stated in the case of Peter Holding Co., v. Le Roy Foods, Inc., 107 F. Supp. 56, 57-58 (D.N.J.1952):
Where the right of removal has been lost by failure to file a petition within the statutory period, it cannot be restored by order of the court or by stipulation of the parties. The statutory period is an inflexible rule of law determining the time within which an application to remove must be made, and the court has no discretionary power to enlarge this period.
As a result, any agreement between plaintiff and defendants which might have been made on February 28 can be of no effect.
Plaintiff's motion to remand the case to the Superior Court of New Jersey will be granted.
Let an appropriate order be submitted.