The opinion of the court was delivered by: Irenas, Senior District Judge
HONORABLE JOSEPH E. IRENAS
This product liability personal injury suit arises out of Plaintiff Robert Weiderspahn's fall from a ladder on June 11, 2006. Plaintiff filed the instant suit against Defendant Wing Enterprises, Inc., the manufacturer of the ladder, in the Superior Court of New Jersey, on May 30, 2008. On May 21, 2009, Defendants removed the case to this Court on the basis of diversity of citizenship, 28 U.S.C. § 1332(a). Upon initial review of the Notice of Removal, it appeared to the Court that removal was untimely, and the Court issued an Order to Show Cause why the case should not be remanded.*fn1 For the reasons stated herein, the case will be remanded.
The Complaint alleges that as a result of Defendants' negligence,*fn2 Robert Weiderspahn "sustained severe personal injuries to his body of both a temporary and permanent nature" which, among other things, prevented him from "attend[ing] to his normal duties and occupations," and caused him "great pain, physical disability, and mental anguish." (Compl. p. 2-4). Robert Weiderspahn's wife, Plaintiff Margaret Weiderspahn, asserts a loss of consortium claim. Plaintiffs seek compensatory and punitive damages. The Complaint does not seek a specific sum of damages.*fn3
The Complaint was served on Defendant on June 20, 2008. According to current defense counsel (who was not defense counsel at the time the Complaint was served*fn4 ), the Complaint on its face presented insufficient "information to support a belief that the plaintiff was, indeed, alleging an injury of such severity that, even with boilerplate permanency language, the plaintiff had sustained an injury sufficient to permit removal." (Def. Br. at p. 2)*fn5
These assertions notwithstanding, Plaintiffs assert that Defendant was aware of the nature and extent of Robert Weiderspahn's injuries even before the Complaint was filed. Specifically, Plaintiffs assert that on May 14, 2008, Plaintiffs' counsel sent Defendant's insurance carrier a letter "providing detailed medical records" regarding Robert Weiderspahn's injuries, including "neurological injuries." (Pls' Br. at 1) Plaintiffs also assert that on June 24, 2008 (four days after Defendant was served with the Complaint), Defendant's "designated representative," Mr. Frank Ward, took a "sworn statement"*fn6 from Weiderspahn which inquired as to the "nature and extent of [his] injuries, including reference to neurological injuries." (Id. at 2)
In any event, while the case was still pending in state court, Plaintiffs apparently did not respond to Defendant's discovery requests, which led to the dismissal of the suit without prejudice.*fn7 Indeed, on January 23, 2009, Superior Court Judge Jean McMaster signed an order dismissing the case without prejudice. (Exhibit E to Notice of Removal) Defendant further attempted to get discovery from Plaintiffs after the order was entered (in accordance with the governing rule), but to no avail. Thereafter, on April 28, 2009, Defendant moved the state court to dismiss the case with prejudice for Plaintiffs' alleged continued failure to comply with their discovery obligations. (Exhibit G to the Notice of Removal) Apparently that motion was not decided when Plaintiffs finally served their interrogatory responses and documents on Defendant on May 8, 2009. Approximately two weeks later, on the basis of information contained in Plaintiffs' discovery responses that the amount in controversy exceeded $75,000, Defendant removed the case to this Court. The case was still dismissed without prejudice at the time it was removed.
The relevant removal statute provides, 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, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
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, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.
Three issues are raised by the Notice of Removal. First, may a Defendant properly remove a case that has been dismissed without prejudice by the state court? Second, in determining when the time for removal begins to run under § 1446(b), is the Court limited to the face of the initial pleading when it was served, or may the Court also consider a defendant's actual knowledge independent of the facts alleged in the initial pleading? Third, does the Complaint allege facts sufficiently demonstrating that the amount in ...