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VARTANIAN v. TERZIAN

April 9, 1997

HAIG VARTANIAN, Plaintiff,
v.
CARLOS TERZIAN, Defendant.



The opinion of the court was delivered by: RODRIGUEZ

 RODRIGUEZ, District Judge.

 This matter comes before the court on plaintiff, Haig Vartanian's motion pursuant to Fed. R. Civ. P. 1447(c) to remand this case to the Superior Court of New Jersey, Law Division, Atlantic County because the defendant failed to remove this action within thirty (30) days of service of the original complaint. For the reasons stated below, plaintiff's motion to remand this action to state court for lack of subject matter jurisdiction will be denied.

 I. BACKGROUND

 This defamation case was commenced on May 3, 1996 in the Superior Court of New Jersey, Law Division, Atlantic County (Docket No. ATL-L- 001462-96). The complaint was served on the defendant on or about November 5, 1996. In accordance with New Jersey court rules, the ad damnum clause of the complaint did not specify the amount of compensatory and punitive damages that the plaintiff demanded. (N.J. Ct. R. 4:5-2)

 On December 16, 1996, the defendant demanded a statement of damages pursuant to N.J. Ct. R. 4:5-2. By letter dated December 27, 1996, the plaintiff responded that the damages claimed by the plaintiff were $ 1,000,000.00.

 On January 13, 1997, defendant filed a notice of removal pursuant to 28 U.S.C. §§ 1332 and 1441(a), alleging diversity of citizenship and that adequate notice of federal jurisdiction was first provided upon receipt of the plaintiff's Statement of Damages on December 27, 1996. Thus, the defendant's notice of removal was filed 69 days after the complaint was received and 18 days after the Statement of Damages was received. The narrow issue presented by this motion is as follows: When is a defendant responsible for knowing that the damage claim exceeds the amount required for federal diversity jurisdiction when the ad damnum clause does not and cannot specify an amount of damages?

 Plaintiff bases this motion on 28 U.S.C. § 1447(c), which requires remand of cases improvidently removed. Plaintiff claims that the defendant did not comply with the time limitations for removal contained in 28 U.S.C. § 1446(b), which provides as follows:

 
The petition for removal of a civil action or proceeding shall be filed within thirty 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 * * *. If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty 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.

 Thus, § 1446 provides a two-step test for determining whether a defendant timely removed a case. The first paragraph applies where the case stated by the initial pleading is removable and requires that notice of removal be filed within thirty days of receipt of the initial pleading by the defendant. The second paragraph applies where the initial pleading is not removable and requires that notice of removal be filed within thirty days from receipt of an amended pleading, motion, order or other paper from which the defendant can first ascertain that the case is removable.

 Relying on the first paragraph of § 1446(b), plaintiff asserts that the defendant should know from the nature of the cause of action whether the plaintiff's claim exceeds the amount required for federal diversity jurisdiction. (Plaintiff's Brief at 5). Thus, because this action is one for defamation, plaintiff argues that the defendant was on notice that a sufficient amount in controversy existed for federal jurisdiction upon service of the original complaint. Plaintiff relies upon Horak v. Color Metal of Zurich Switzerland, 285 F. Supp. 603 (D.N.J. 1968) and Richman v. Zimmer, Inc., 644 F. Supp. 540 (S.D. Fla. 1986) for the proposition that, where the complaint alleges circumstances which would lead a party to understand that damages are in excess of the jurisdictional amount, then the complaint is sufficient to trigger the time periods for a removal application.

 In Horak v. Color Metal of Zurich Switzerland, 285 F. Supp. 603 (D.N.J. 1968), the plaintiff lost his right arm while using an allegedly defective offset printing press. Plaintiff's complaint, which was filed in the Superior Court of New Jersey, did not specify the amount of damages sought. More than 45 days after service of the complaint, two defendants filed a petition of removal. The third defendant, whose joinder in the petition was necessary for effective removal, joined in the removal petition approximately one month after it was filed. The removal petition stated that the complaint failed to provide notice that there existed diversity of citizenship or that the amount in controversy exceeded the federal jurisdictional amount of $ 10,000.

 After finding that diversity of citizenship was apparent from the complaint, the Horak court turned to the issue of jurisdictional amount. The court focused upon the nature of the alleged injury, finding that "there can be no question but that more than $ 10,000 is at stake. As a result of the defendants' negligence, the complaint states, plaintiff suffered the loss of his right arm; such a serious ...


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