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CARROLL v. UNITED AIR LINES

March 10, 1998

JOHN DOUGLAS CARROLL and SYLVIA CARROLL, Plaintiffs,
v.
UNITED AIR LINES, INC., Defendant.



The opinion of the court was delivered by: LECHNER

OPINION

 LECHNER, District Judge

 This is a personal injury action brought by the plaintiffs, John Douglas Carroll ("John Carroll") and Sylvia Carroll (collectively, the "Plaintiffs"), against the defendant, United Air Lines, Inc. ("United"). Removal jurisdiction is alleged by United pursuant to 28 U.S.C. §§ 1441 and 1446.

 The issue sub judice is the question of whether this action should be remanded to the Superior Court of New Jersey, Law Division, Essex County (the "Superior Court") pursuant to 28 U.S.C. § 1447(c). The issue of remand was timely raised by a sua sponte motion (the "Motion") at a hearing on 19 December 1997 (the "19 December Hearing"). At the 19 December Hearing, the parties were offered the opportunity to submit briefs setting forth their respective positions on the remand issue. *fn1"

 For the reasons set forth below, this matter is remanded to the Superior Court.

 Facts

 On 1 August 1997, the Plaintiffs filed a summons and complaint (the "Complaint") in the Superior Court. See Notice of Removal, filed on 12 December 1997, (the "Notice of Removal") P 2; United Brief at 2. The Plaintiffs seek money damages for personal injuries allegedly sustained by John Carroll on or about 25 March 1996 *fn2" when he fell while deplaning from United Flight 809 at Kansai Airport in Osaka, Japan. See Complaint at 1, P 1; United Brief at 2. As a result of his fall, the Plaintiffs allege John Carroll suffered

 
injuries causing disability, impairment, loss of enjoyment of life, pain and suffering, and he will suffer in the future....

 Complaint at 2, P 5 (emphasis added). The Complaint also alleges that United, as a common carrier, "violated its high duty of care to [John Carroll] in its failure to provide [him with] safe passage," which failure constituted "willful misconduct." Id. at 3, P 5 of Fourth Count.

 In accordance with New Jersey state court rules, the Complaint does not contain a demand for a specific amount in damages. *fn3" See Complaint. United concedes it was served with the Complaint on 28 August 1997. See Notice of Removal P 2. Neither the Notice of Removal nor the Opposition Papers state when United first received a copy of the Complaint.

 On 7 October 1997, United filed a stipulation, pursuant to Rule 4:6-1(c) of the New Jersey Rules of Court, extending its time to answer the Complaint to and including 1 December 1997. See United Brief at 3. United served and filed an answer (the "Answer") to the Complaint on 1 December 1997. See Notice of Removal P 3. The seventh affirmative defense set forth in the Answer invoked the limitation of liability provided for by the terms of the Warsaw Convention. See Answer at 5.

 On 2 December 1997, United served the Plaintiffs with a Request for Statement of Damages Claimed (the "Request for Damages"), pursuant to Rule 4:5-2 of the New Jersey Rules of Court. See United Brief at 3. On 9 December 1997, United received a response to the Request for Damages demanding $ 2,000,000 in damages (the "Response to Request for Damages"). See Notice of Removal P 4. The Notice of Removal does not explain why United waited more than three months to serve the Request for Damages.

 On 12 December 1997, United filed the Notice of Removal. See Notice of Removal. United alleges jurisdiction, pursuant to 28 U.S.C. § 1332(a) *fn4" ("Section 1332(a)"), based solely upon diversity of citizenship between the parties. See Notice of Removal PP 6, 8. The Notice of Removal states United removed the action within thirty days after receiving the Response to Request for Damages, which United alleges was "the first notice to United that the amount in dispute in this action exceeds the sum of $ 75,000, exclusive of interest and costs." Id. at PP 4, 6.

 At the 19 December Hearing, seven days after the Notice of Removal was filed, the issue of remand was raised, via a sua sponte motion to remand, because it appeared the Notice of Removal was untimely. It appeared United was or should have been on notice that the amount in ...


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