The opinion of the court was delivered by: ANNE THOMPSON, Senior District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM & ORDER
This matter is before the Court on Plaintiffs Herbert Stein,
M.D., and Millie Stein's Motion to Remand this case to the
Superior Court of New Jersey. The Court decided this matter after
considering the written submissions of the parties. Pursuant to
Fed.R.Civ.P. 78, no oral argument was heard. For the reasons
given below, Plaintiffs' motion is granted and this matter is
remanded to the Superior Court of New Jersey, Law Division
In November 2002, the Plaintiff, Herbert Stein, M.D.,
self-prescribed an antibacterial agent known as Avelox which is
manufactured by the Defendant. The Plaintiff suffered a drug
immune reaction known as Stevens-Johnson syndrome, which
manifested itself as blistering of the skin and mucous membranes.
Initially admitted to a local hospital, the Plaintiff was later transferred to a regional medical center for more specialized
treatment. The Plaintiff's treatment was similar to that given to
a patient who suffered from second degree burns. He remained
there until December 4, 2002. According to the Plaintiff, while
he experienced an extremely serious reaction, it was transient
and has been resolved.
Plaintiffs filed suit in the Superior Court of New Jersey,
Monmouth County, on March 22, 2004 alleging product liability and
inadequate warnings. However, the Complaint did not specify
damages. The Complaint was served on the Defendant on April 5,
2004 and on May 3, 2004 the Defendant filed a timely Notice of
Removal and removed the matter to this Court, pursuant to
28 U.S.C. §§ 1141, 1146, and in accordance with 28 U.S.C. § 1332.
Diversity jurisdiction was premised on the diverse citizenship of
the parties and the Defendant's belief that the amount in
controversy exceeded the threshold value of $75,000. The
Plaintiffs filed a Motion to Remand, which the Defendant did not
oppose, alleging that the value of the Dr. Stein's injuries did
not exceed $75,000. The Motion was granted on September 29, 2004.
Over the next several months, the parties exchanged
correspondence and had discussions regarding settlement but
remained far apart, with Plaintiffs making a $25,000 settlement
demand and the Defendant countering with an offer of $7,500. On
March 21, 2005 Plaintiffs made another demand to the Defendant of
$100,000 for settlement of all claims. On April 7, 2005, the
Defendant sent the Plaintiff a Demand for Statement of Damages
pursuant to N.J. Ct. R. 4:5-2. Plaintiffs responded to this
demand with a figure of $500,000. On the basis of this response,
the Defendant filed a Second Notice of Removal with this Court on
May 10, 2005.
Plaintiffs now move to remand the case to the Superior Court of
New Jersey asserting that any demands made were only negotiating
positions and not a true valuation of the case, and that pursuant to 28 U.S.C. § 1446(b) the Second Notice of Removal was
untimely. However, the Defendant states that the response
received to the N.J. Ct. R. 4:5-2 demand was sufficient to
confirm that the amount in controversy exceeded $75,000, thereby
supporting the Defendant's motion for removal. Defendant further
argues that, based on Plaintiffs' prior valuations of the case,
an equitable extension of the one-year bar against removal is
Addressing the timeliness issue first, 28 U.S.C. § 1446(b)
provides that a defendant has thirty days to file a notice of
removal after service of the complaint. If it is unclear from the
complaint whether the case is removable, then the defendant has
thirty days to remove a case to federal court after it first
becomes clear, by way of "amended pleading, motion, order or
other paper," that the case is removable. 28 U.S.C. § 1446(b).
Notwithstanding this last provision, a case based on diversity
jurisdiction may not be removed more than one year after
commencement of the action. Id.
In this case, the Plaintiffs' Complaint was originally filed in
the Superior Court of New Jersey on March 22, 2004. In addition,
this Second Notice of Removal was not filed until May 10, 2005,
more than one year after commencement of the action. Defendant
contends that Plaintiffs' course of conduct throughout the
litigation requires the Court to relax the one year limitation on
removal. Specifically, Defendant argues that: (1) in their first
motion to remand Plaintiffs stated that the case was not worth
$75,000; (2) Plaintiffs raised their settlement demands weeks
before the one-year limitation on removal; (3) Plaintiffs did not
prosecute their case until just before the one-year limitation;
and (4) Plaintiffs have not responded to discovery requests.
According to Defendant, it was not until it received an answer to
the N.J. Ct. R. 4:5-2 statement of damages that it was clear that the case was worth
more than $75,000.
The Third Circuit has not addressed the issue of whether the
one year bar on removal is subject to an equitable extension.
However, the Fifth Circuit has concluded that "[s]ection 1446(b)
is not inflexible, and the conduct of the parties may affect
whether it is equitable to strictly apply the one-year limit."
Tedford v. Warner Lambert Co., 327 F.3d 423, 426 (2003)
(stating "[s]trict application of the one-year limit would
encourage plaintiffs to join nondiverse defendants for 366 days
simply to avoid federal court, thereby undermining the very
purpose of diversity jurisdiction."). The Fifth Circuit's
conclusion stands in contrast to those of several district courts
which hold that the plain language of § 1446(b) precludes an
equitable extension. See e.g., Jenkins v. Sandoz Pharms.
Corp., 965 F. Supp. 861, 869 (N.D. Miss. 1997); Russaw v.
Voyage Life Ins. Co., 921 F. Supp. 723, 724-25 (M.D. Ala. 1996);
Whisenant v. Roach, 868 F. Supp. 177, 178 (S.D.W. Va. 1994).
Yet, even assuming this Court agreed with the Fifth Circuit's
approach, the facts of this case do not warrant an equitable
extension. New Jersey Court Rule 4:5-2 requires complaints filed
in New Jersey Superior Court to plead unliquidated monetary
damages generally. The rule further provides that "[u]pon service
of a written request by another party, the party filing the
pleading shall within 5 days after service thereof furnish the
requesting party with a written statement of the amount of
damages claimed. . . ." Here, Defendant could have avoided any
perceived bad-faith efforts to avoid federal jurisdiction by
immediately demanding a N.J. Ct. R. 4:5-2 statement of damages
after receiving the Complaint. See Buchanan v. Lott,
255 F. Supp. 2d 326, 330 n. 2 (3d Cir. 2003). Therefore, the Court finds
an equitable extension of § 1446(b)'s one year bar on removal
unwarranted. Since the Defendant's removal is untimely, the Court
will not address whether Plaintiffs' case exceeds the requisite amount
in controversy for diversity jurisdiction.