The opinion of the court was delivered by: Harold A. Ackerman, U.S. District Judge.
This case comes before the Court on Plaintiff's motion to remand this action to state court. For the reasons outlined below, Plaintiff's motion is GRANTED.
In her complaint, Plaintiff Erma Buchanan ("Plaintiff") alleges the following facts: On January 25, 2002, a commercial truck owned by Defendant National Carriers, Inc. ("National") and driven by National's employee, Defendant Mark Lott ("Lott"), collided with Plaintiff's automobile while Plaintiff was driving. At the time of the collision, Lott was acting within the scope of his employment with National. As a result of the collision, Plaintiff was violently thrown about in her vehicle, causing "severe, painful bodily injuries, including multiple contusions and abrasions about her body, which injuries caused her great pain and suffering, incapacitated her from pursuing her usual employment and other activities, and have left her with permanent disabilities that will in the future similarly incapacitate her, cause her pain and suffering, and require medical treatment." Complaint, Count 1, ¶ 4. In addition to seeking compensation for her injuries, Plaintiff also seeks recovery for damages to her automobile resulting from the collision.
Plaintiff filed her Complaint in the Superior Court of New Jersey, Middlesex County, on March 15, 2002. Defendants, however, did not receive notice of the complaint until June 11, 2002. On July 2, 2002, Defendants filed a Notice of Removal with this Court. On July 25, 2002, Plaintiff filed a motion to remand the matter to state court.
There appears to be complete diversity among the parties pursuant to 28 U.S.C. § 1332: Plaintiff is a New Jersey resident, while Defendant Lott is a resident of Wisconsin and National is an Illinois corporation.*fn1 The main dispute at issue concerns whether, in addition to diversity, Plaintiff's complaint alleges facts sufficient to meet the $75,000 amount-in-controversy requirement for this Court to retain jurisdiction under 28 U.S.C. § 1332.
A. Implications of Procedural Requirements of 28 U.S.C. § 1446 and
New Jersey Court Rule 4:5-2
The procedural requirements of removal under 28 U.S.C. § 1446(b) provide as follows:
The notice of 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 notice of 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[.]
28 U.S.C. § 1446(b) (2003).
New Jersey Court Rule 4:5-2 requires that "[i]f unliquidated money damages are claimed in any court, other than the Special Civil Part, the pleading shall demand damages generally without specifying the amount . . ." N.J.Ct. R. 4:5-2. Pursuant to this rule, Plaintiff's complaint did not specify the amount of damages she demanded. Defendants argue that Rule 4:5-2, in combination with the requirements of 28 U.S.C. § 1446, place Defendants in a jurisprudential straight jacket. Because a plaintiff filing a civil action in New Jersey state court is precluded from specifying an amount of damages, it may be difficult for a defendant to determine whether the complaint alleges damages exceeding $75,000. Nevertheless, the 30-day time limit for removal pursuant to 28 U.S.C. § 1446 begins to run from the time the defendant receives a complaint setting forth a removable claim. If the defendant waits until the litigation proceeds further in state court and then determines that the amount may exceed $75,000, the 30-day window of opportunity for removal may have expired. Defendants cite several cases by Judge Lechner in which defendants attempting to remove suffered this unhappy fate.
In Carroll v. United Air Lines, Inc., 7 F. Supp.2d 516 (D.N.J. 1998), the plaintiff filed a complaint in state court for injuries allegedly sustained as a result of the defendant's negligence. The complaint did not contain a request for a specific amount of damages, but claimed that the plaintiff had suffered "injuries causing disability, impairment, loss of enjoyment of life, pain and suffering, and he will suffer in the future." 7 F. Supp.2d at 518. Four months later, in response to a request for damages pursuant to the New Jersey court rules, the plaintiff demanded $2 million in damages. After receiving this response, the defendant filed a motion for removal in federal court. The defendant argued that the action first became removable after the plaintiff filed the $2 million demand, because prior to that time it was not apparent that the plaintiff's complaint sought damages sufficient to meet the amount-in-controversy requirement of 28 U.S.C. § 1332. In rejecting this argument, Judge Lechner held that the defendant could reasonably have ascertained from the complaint that the amount in controversy exceeded $75,000, notwithstanding the fact that the complaint did not demand a specific amount of damages. The court noted that "`courts have held that allegations of severe injuries along with pain and suffering will alert [the] defendant that an amount in excess of [the jurisdictional amount] is at issue' and trigger the running of the thirty-day removal period." 7 F. Supp.2d 516, 521 (quoting Turner v. Wilson Foods Corp., 711 F. Supp. 624, 626 (N.D.Ga. 1989)).
Similarly, in Garofalo v. Medtronic Inc., 1997 WL 1049566 (D.N.J. 1997), the plaintiff sued the defendants in state court for damages due to defects in a pacemaker manufactured by the defendants. In the complaint, the plaintiff alleged "serious personal injuries causing significant disfigurement, permanent loss . . . [and] permanent consequential limitation of use of a body function or system . . ." and that the plaintiff "has been caused and in the future will be caused great pain and suffering." 1997 WL 1049566 at 1. Although the plaintiff did not indicate a specific amount of damages in the complaint, Judge Lechner held that the severity of the injuries pled in the complaint was sufficient to put the defendant on notice that the amount in controversy exceeded $75,000. Id. See also Teajman v. Frigoletti, 1997 WL 1067639 (D.N.J. 1997) (J. Lechner) (remanding case on similar grounds).
Under Judge Lechner's approach, therefore, it would appear that the only prudent course of action for a defendant in a case with unspecified damages is to remove as soon as possible, in order to avoid a remand for failure to comply with the procedural requirements of section 1446. Moreover, the holdings of these opinions seem to imply that a simple statement of "severe" or "serious" injuries, along with pain and suffering, is sufficient to put a defendant on notice that the claim could amount to over $75,000. Nevertheless, other courts in this district have adopted a different approach to this problem.
In Vartanian v. Terzian, 960 F. Supp. 58 (D.N.J. 1991) (J. Rodriguez), the plaintiff filed a complaint in state court, and, pursuant to the New Jersey court rules, did not specify the amount of damages sought. Five weeks later, the defendant demanded a statement of damages, and the plaintiff responded that the damages claimed were $1 million. The defendant then filed a notice of removal. This notice was filed 69 days after the original complaint was received, and 18 days after the statement of damages was received. Id. at 58. The plaintiff argued that the 30-day clock for removal pursuant to section 1446 began when the defendant received the original complaint, and therefore that the case should be remanded because the notice of removal was not timely filed. The ...