1

 Plaintiff s Response to Defendant s Notice of Removal seeks remand of the action

arguing that removal is improper. (Pl. s Resp. Def. s Not. Removal). Although not labeled as a

motion for remand, I will treat Plaintiff s Response as a motion for remand pursuant to 28 U.S.C.

§ 1447(c).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

:

PHYLLIS BUCK, : CIVIL ACTION

Plaintiff, :

:

v. : No. 05-5905

:

WAL-MART ASSOCIATES, :

:

Defendant. :

 : 

MEMORANDUM

ROBERT F. KELLY, Sr. J. DECEMBER 22, 2005

This case is a premises liability action. Plaintiff alleges that she tripped and fell

over a soda carrier case at a Sam s Club in Fairless Hills, Pennsylvania. She claims that she

suffered severe, disabling and permanent bodily injuries resulting in extensive medical treatment. 

Before the Court is Plaintiff s Motion for Remand and Defendant s Response thereto.1 For the

following reasons, I conclude that Defendant properly removed this action. Consequently,

Plaintiff s Motion for Remand is denied.

I. PROCEDURAL BACKGROUND

On March 14, 2005, Plaintiff filed a Complaint in the Court of Common Pleas,

Philadelphia County. Plaintiff s case initially qualified for compulsory arbitration because the ad

damnum clause specified that damages shall not exceed $50,000. See 42 Pa.C.S. § 7361(b). In

October 2005, Plaintiff filed a Petition to Transfer Case From Arbitration to Major Jury Listing.

Case 2:05-cv-05905-RK Document 4 Filed 12/22/05 Page 1 of 7
2

 28 U.S.C. § 1332 states, in pertinent part, that [t]he district courts shall have original

jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of

$75,000, exclusive of interest and costs, and is between . . . citizens of different States.  28

U.S.C. § 1332(a)(1). In this case, diversity of citizenship is not contested since Plaintiff is a

resident of Pennsylvania and Defendant is a Delaware corporation with its principal place of

business in Arkansas. 

3

 The entire first paragraph of 28 U.S.C. § 1446(b) states 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, or within thirty days after the service of summons upon the

2

Plaintiff s Petition attempted to remove the case to the Philadelphia County major jury program

on the basis that her damages had significantly increased and would exceed $50,000. Defense

counsel received Plaintiff s Petition on or about October 28, 2005. By letter dated October 31,

2005, defense counsel inquired into the amount in controversy by sending Plaintiff a letter to

stipulate her damages to below $75,000. Plaintiff refused to stipulate that her damages are below

$75,000. On or about November 9, 2005, Defendant removed the matter to this Court based

upon diversity jurisdiction.2 On November 21, 2005, Plaintiff filed the Motion for Remand

which Defendant responded to on November 29, 2005.

II. DISCUSSION

Plaintiff s Motion for Remand argues that remand is proper because Defendant

did not file its Notice of Removal within the requisite thirty day time period after receipt of the

Complaint. See 28 U.S.C. § 1446(b). According to the first paragraph of 28 U.S.C. § 1446(b), a

defendant seeking to remove a civil action from a state court is required to file a notice of

removal within thirty days of receipt, 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. 

3

 Id.

Case 2:05-cv-05905-RK Document 4 Filed 12/22/05 Page 2 of 7
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. 

28 U.S.C. § 1446(b).

4

 The entire second paragraph of 28 U.S.C. § 1446(b) states as follows: 

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.

28 U.S.C. § 1446(b).

3

Since Plaintiff filed her Complaint in state court on March 14, 2005, and Defendant did not file

its Notice of Removal until November 9, 2005, it is clear that the removal was not in accordance

with the time limits imposed by the first paragraph of 28 U.S.C. § 1446(b). 

Defendant argues that the Notice of Removal was timely pursuant to the second

paragraph under 28 U.S.C. § 1446(b) which provides that [i]f 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. 

4

 Id. Defendant contends that Plaintiff 

s Petition to Transfer Case From Arbitration

to Major Jury Listing effectively amended the Complaint to increase damages bringing them

within the jurisdictional amount for removal to federal court. According to Defendant, Plaintiff s

Petition constituted an amended pleading  described in the second paragraph of 28 U.S.C. §

1446(b) as triggering the thirty-day removal period. Defendant argues that its removal was

Case 2:05-cv-05905-RK Document 4 Filed 12/22/05 Page 3 of 7
4

timely since it was filed within thirty days after its receipt of Plaintiff s Petition. Thus, at issue in

this case is whether Defendant s removal was timely pursuant to the second paragraph of 28

U.S.C. § 1446(b) and, if so, whether Defendant has shown that the requisite jurisdictional

amount of $75,000 has been met. 

A. Other Paper  Under the Second Paragraph of 28 U.S.C. § 1446(b)

As previously mentioned, Defendant argues that Plaintiff s Petition is an

 amended pleading  because it amended the damages demand of the Complaint thereby

triggering the second paragraph of 28 U.S.C. § 1446(b). The issue of whether Plaintiff s Petition

should be considered an amended pleading  does not need to be addressed because it constitutes

an other paper  pursuant to the second paragraph. See Textile Chem. Co. v. Aetna Cas. &

Surety Co., No. 97-2142, 1997 WL 537408, at *2 (E.D. Pa. Aug. 5, 1997)(analyzing the other

paper  language in 28 U.S.C. § 1446(b) concluding that plaintiff s statement to the court, for the

purposes of taking the case out of arbitration, that the amount in controversy was over $100,000

is not an extraneous document and would be sufficient to put defendant on notice of the amount

in controversy requirement). Although what constitutes other paper  under the second

paragraph of 28 U.S.C. § 1446(b) has not been clearly defined, courts in this district have

concluded that other paper  encompasses, inter alia: plaintiffs  counsel s letter to defendants 

counsel (Efford v. Milam, 368 F. Supp. 2d 380, 385 (E.D. Pa. 2005)); answers to interrogatories

(Cabibbo v. Einstein/Noah Bagel Partners, L.P., 181 F. Supp. 2d 428, 432-33 (E.D. Pa. 2002));

attorney correspondence (Broderick v. Dellasandro, 859 F. Supp. 176, 179-80 (E.D. Pa. 1994));

and a response to request for admissions (McGhee v. Allstate Ins. Co., No. 05-1813, 2005 WL

2039181, at *2 (E.D. Pa. Aug. 22, 2005)). 

Case 2:05-cv-05905-RK Document 4 Filed 12/22/05 Page 4 of 7
5

Adding more uncertainty to the definition of other paper  is the spilt amongst

courts in this district regarding whether other paper  requires the documents at issue to be filed

with the court. See MP III Holdings v. Hartford Cas. Ins. Co., No. 05-1569, 2005 WL 1320127,

at *4-5 (E.D. Pa. May 31, 2005)(stating  [o]ther paper  should mean other types of court-filed

documents ); Textile Chem. Co., 1997 WL 537408, at *2 (finding that a plaintiff 

s letter is an

extraneous document not constituting other paper  because it was not filed with the court); but

see Efford, 368 F. Supp. 2d at 385 (analyzing whether other paper  requires a filing in court

concluding that attorney correspondence such as a letter is within the purview of the term);

Cabibbo, 181 F. Supp. 2d at 432-33 (stating 

[m]erely because answers [to interrogatories] are

not filed with the court should not be taken to mean that they are insufficient to trigger the

thirty-day period ). 

B. Analysis

In this action, Plaintiff s Petition is a court-filed document expressing that the

case has a reasonably anticipated value significantly in excess of the arbitration jurisdictional

amount  due to the fact that Plaintiff s medical records have shown that she suffered injuries far

more severe than originally reported. (Def. s Not. Removal, Ex. B, ¶¶ 16-17). Specifically,

Plaintiff alleges medical bills currently amounting to $60,217.75. (Defs.  Br. Opp n Pl. s Mot.

Remand, Ex. A). Plaintiff also alleges that she continues to experience very significant

symptoms from her injuries, and will continue to do so into the future and will likely require

substantial additional treatment in the future.  (Def. s Not. Removal, Ex. B, ¶ 13). 

I find that Plaintiff s Petition qualifies as an other paper  within the language of

the second paragraph of 28 U.S.C. §1446(b). It is a document filed with the court upon which

Case 2:05-cv-05905-RK Document 4 Filed 12/22/05 Page 5 of 7
6

Defendant first ascertained that the case is one which is, or has become, removable. When

Plaintiff commenced this action, in March 2005, it was not removable because the damages

claimed were less than $ 50,000. Plaintiff s Petition, which was filed in October 2005, put

Defendant on notice, for the first time, that federal diversity jurisdiction may exist. In fact, in her

response to Defendant s Notice of Removal, Plaintiff admits that diversity jurisdiction may exist,

and only argues against removal based upon its timeliness under the first paragraph of 28 U.S.C.

§ 1446(b). (Pl. s Resp. Def. s Not. Removal at ¶ 4). The allegations contained within Plaintiff s

Petition concerning her severe injuries which have already accrued significant medical bills

amounting to $60,217.75 (and will most likely require extensive medical treatment into the

future) informed Defendant to a specific degree of certainty that there was in controversy an

amount exceeding $75,000 exclusive of costs and interest. 

IV. CONCLUSION

In this action, Plaintiff s Petition to Transfer Case From Arbitration to Major Jury

Listing constitutes an other paper  under the second paragraph of 28 U.S.C. § 1446(b) which

initially put Defendant on notice that the case was removable based upon diversity jurisdiction

because it informed Defendant to a specific degree of certainty that there was in controversy an

amount exceeding $75,000 exclusive of costs and interest. Defendant s removal was timely

pursuant to the second paragraph of 28 U.S.C. § 1446(b) since it was filed within thirty days of

receipt of Plaintiff s Petition. As a result, Plaintiff s Motion for Remand is denied.

An appropriate Order follows.

Case 2:05-cv-05905-RK Document 4 Filed 12/22/05 Page 6 of 7
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

:

PHYLLIS BUCK, : CIVIL ACTION

Plaintiff, :

:

v. : No. 05-5905

:

WAL-MART ASSOCIATES, :

:

Defendant. :

 : 

ORDER

 AND NOW, this 22nd day of December, 2005, upon consideration of Plaintiff s 

Motion for Remand (Doc. No. 2), and Defendant s Response thereto, it is hereby ORDERED

that the Motion is DENIED.

BY THE COURT:

s/ Robert F. Kelly 

 Robert F. Kelly, Sr. J. 

Case 2:05-cv-05905-RK Document 4 Filed 12/22/05 Page 7 of 7