UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHARLES MARLEY, )

)

Plaintiff, )

)

v. ) No. 1:14 CV 235

)

TRACTOR SUPPLY COMPANY, )

)

Defendant. )

OPINION and ORDER

On December 7, 2013, plaintiff filed a complaint against defendant Tractor Supply

Company (“TSC”) in St. Joseph Superior Court. (DE # 1.) The complaint contained no

demand for a specific dollar amount. In late February or early March of 2014, TSC was 1

served with the complaint. Via email on March 19, 2014 counsel for TSC requested the

consent of plaintiff’s counsel to a motion for enlargement of time to respond to plaintiff’s

complaint. (DE # 14-2.) Plaintiff’s counsel consented in a return email the same day, and

added: “Can I presume you are going to remove?” (Id.) Also on March 19, counsel for TSC

replied: “We are still considering removal.” (Id.)

On June 13, 2014, defendant served a request for admission (“RFA”) on plaintiff,

requesting that plaintiff admit that the amount in controversy exceeded $75,000. (DE # 1-

2.) On July 11, 2014, plaintiff served its response, in which he stated that he would not

admit the amount of damages he was seeking because the RFA was untimely and because

 The parties disagree on the precise day of service, but the specific date does not 1

matter in this case, as explained below. It is undisputed that service was returned

executed on March 3, 2014. (DE # 14-1 at 2.)
he was not required to give a specific dollar amount of the damages claimed. (Id.) On

August 5, 2014, TSC removed the case to this district, citing 28 U.S.C. § 1332(a), which

grants federal district courts original jurisdiction over civil actions between citizens of

different states where the amount in controversy exceeds $75,000.

Plaintiff has moved to remand the case back to state court, claiming that

defendant’s removal procedure was defective because defendant filed its notice of removal

more than 30 days after receipt of a copy of the initial pleading. (DE # 14.) Plaintiff further

claims that TSC “implicitly knew” that plaintiff was seeking damages in excess of $75,000

based on plaintiff’s counsel’s question regarding removal on March 19, 2014, otherwise

“[w]hy else would counsel for the Plaintiff even inquire as to removal?” (Id. at 3.)

As plaintiff points out, 28 U.S.C. § 1446(b)(1) provides that

[N]otice of removal of a civil action or proceeding shall be filed

within 30 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 30 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.

However, 28 U.S.C. § 1446(b)(3) also states:

[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.

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In such instances, the thirty-day removal clock does not begin to run until the defendant

receives a “specific, unequivocal statement from the plaintiff regarding the damages

sought.” Walker v. Trailer Transit, Inc., 727 F.3d 819, 824 (7th Cir. 2013).

In this case, when plaintiff filed his lawsuit in state court, the amount plaintiff

sought to recover from defendant was uncertain. Because of this uncertainty, defendant

could not – and did not – immediately remove the case to federal court. Further, neither

the question “Can I presume you are going to remove?” nor plaintiff’s refusal to respond

substantively to TSC’s RFA constitute “specific, unequivocal statement[s]” from plaintiff

regarding the damages sought. Walker, 727 F.3d at 824. Accordingly, TSC’s notice of

removal was not untimely filed.

For the foregoing reasons, plaintiffs’ motion to remand (DE # 14) is DENIED.

SO ORDERED.

Date: April 8, 2015

 s/ James T. Moody 

JUDGE JAMES T. MOODY

UNITED STATES DISTRICT COURT

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