§1446(b).

Local Rule 81.2 applies inthis case because each of the
original claims —- Mr. Turner’s against Goodyear, Mr. Turner’s
against Westover, and Mrs. Turner’s. against both defendants — seeks
“over and above $50,000” and does _not. include an ad damnum for over
$75,000. It is undisputed that Goodyear followed the rule to the
letter. It sought an admission from the plaintiffs in a timely

fashion and submitted its removal petition within 30 days of

receiving a response. But the plaintiffs argue that while an answer
to an interrogatory or request for, admission can serve as “paper

from which it may first be ascertained that the case is one which

is or has become removable,”...80, too can other documents.
Specifically, they claim that their state court complaint was

adequate notice of removability., Goodyear, in contrast, argues for

a strict reading of Rule 81.2 as an.exhaustive list of the means by
which notice may be provided in.the absence of a sufficient ad
damnum.

The case law provides equal support to both parties. In Height

v. Southwest Airlines, Inc., No © 2854, 2002 WL 1759800 (N.D.

Ill. Jul. 29, 2002) (Guaman, J.),..the court held that Rule 81.2

“appears to include an exhausti list” and that even if a state

complaint contains allegations of ‘Severe and permanent injury and
financial loss, “they would not... jecessarily mean that Plaintiff

seeks damages in excess of $75,0 0. A Plaintiff could choose to



Supp. at 404. The fact that Mrs. Turner’s claim is a loss of
consortium claim arising from the same event as her husband’s
physical injury is of no consequence; those were also the facts in
Tokarz. Her injury (loss of companionship, etc.) is distinct from
his, and must independently meet the jurisdictional threshold.
Thus, the fact that plaintiffs’ multiple claims for less than the
jurisdictional amount added up to. over $75,000 does not change the
fact that the state complaint was not adequate notice to Goodyear
of the case’s removability.
IIt.

The second question plaintiffs raise is whether Goodyear’s
notice of removal is faulty because co-defendant Westover had no
standing to consent to removal after failing to file an appearance
in state court. Plaintiffs cite no law for the proposition that a
defendant must file an appearance in state court before consenting
to removal to federal court, and. the removal statute says simply
that each defendant must communicate his or her consent to the
court in writing within 30 days.of receiving the initial pleading
containing the removable claim. See Thomas v. Klinkhamer, No. 00 C
2654, 2000 WL 967984 (N.D. I1L.July 10, 2000) (Lindberg, J.).
Westover did so in its consent. to removal filed on July 16.

Therefore, Westover’s consent to..removal is valid.

Iv.



through service or otherwise, of,.a copy of the initial pleading ...
or other paper from which it may first be ascertained that the case
is removable.” The plaintiffs argue that because their initial

pleading alleged such severe_and lasting injuries, including

ongoing loss of wages and large-medical bills, the defendants were
on notice from the day they were served that the case was

removable.

However, in the Northern District of Illinois, Local Rule 81.2
supplements § 1446(b) where the, state complaint does not contain an
express ad damnum by a single plaintiff against a single defendant
in excess of the federal jurisdictional amount. The rule states

that in such cases:

The notice of removal shall_include:

(2) with respect to at leas. ne plaintiff in the Illinois

action, either —

(A) a response by. such plaintiff to an
interrogatory or interrogatories (see I11.S.Ct.
Rule 213) as to the amount in controversy, either
(i) stating that the damages actually sought by
that plaintiff exceed the jurisdictional amounts or
(ii) declining to a that the damage award to
that plaintiff willuiin no event exceed the
jurisdictional amount; or

(B) an admission by such plaintiff in response to a
request for admissions... conforming to the
statement or declination to agree described in
subparagraph (2) (A) ofthis rule.

Receipt by the removingdefendant or defendants of the
response by a plaintiff referred to in subparagraph (2) (A) or
of the admission by a pl. tiff referred to in paragraph
(2) (B) ... shall constituté the receipt of a “paper from which
it may first be ascertainedwthat the case is one which is or
has become removable” within the meaning of 28 U.S.C.

3.



seek a lesser amount in order’ to avoid removal.” Id. at *3-4.
Height is the most recent of a line of cases strictly construing
the Rule; see, e.g., Abdishi v. Philip Morris, Inc., No. 98 C 1310,
1998 WL 311991 (N.D. Ill. June 4, 1998) (Gettleman, J.).

But just three months later, in McCoy v. General Motors Corp.,
No. 02 C 4983, 2002 WL 31324060 (N.D. Ill. Oct. 17, 2002)
(Castillo, J.), the court held that when a plaintiff seeks relief
for lost wages, surgical bills, permanent injuries, “it is obvious
from a common-sense reading of .the complaint that Plaintiffs were
seeking in excess of $75,000 in’ damages,” and defendants must

remove within 30 days of service.,.Id. at *2. Furthermore, the McCoy

court stated that to the extent.that Local Rule 81.2 “provides the
exclusive procedure by which defendants may remove Illinois state
complaints that lack an express ad damnum clause, it impermissibly
contravenes the federal removal statute.” Id., at *3. McCoy did not
distinguish Height; it merely mentioned it as a contrary holding.
McCoy, like Height, rests on a long line of preceding cases; see,
e.g., Huntsman Chem. Corp. v. Whitehorse Tech., No. 97 C 3842, 1997
WL 548043, at *5 (N.D. Ill. Sept. 2, 1997) (Coar, J.). No case

appears to settle the debate ast . the construction of Local Rule

81.2.

I am persuaded by Judge Guzman’ s reasoning in Height.

Plaintiffs sometimes deliberately seek less than the amount they

might otherwise collect in order.to avoid removal from a preferred



Goodyear was not on notice that the case against them was
removable until it received a response to its request for admission
on June 18, and the case was removed within 30 days of that date,
pursuant to Local Rule 81.2. Westover likewise consented to removal
within 30 days of that admission. Since the defendants complied
with the removal statute and local rule, the removal is valid, and
the case is properly before this.court.

The plaintiffs’ motion for remand is DENIED.

ENTER ORDER:
Lif,
Laie 2 Buhl

Elaine E. Bucklo
United States District Judge

Dated: March i, 2003


ae

Minute Order Forg{06197)
United States District Court, Northern District of Iinois
vere Magistrate ude Elaine E. Bucklo “Than Asiged Sud
CASE NUMBER 02 C 5012 DATE 3/18/2003
CASE Turner, et al. vs. The Goodyear Tire, et al.
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented,]
DOCKET ENTRY: .
() o Filed motion of [ use listing in “Motion” box.above.]
(2) a Brief in support of motion due
G3) oO Answer brief to motion due___. Reply.to,answer briefdue___.
(4) oO Ruling/Hearing on___— Set for atta
(5) Oo Status hearing[held/continued to] [set for/re-set.for]on___setfor____att
(6) Q Pretrial conference[held/continued to] [set for/re-set for]on__—_esetfor__— at
(7) Qa Trial[set for/re-set for]on___at
(8) Qo [Bench/Jury trial] [Hearing] held/continued to... at
(9) gq This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(¢m) O Local Rule 41.1 OFRC

OFRCP41(a)(2).

(7-1).

d1) @ [For further detail see order attached to the original minute order.]

(0) MH [Otherdocket entry] Enter Memorandum Opinion and Order denying plaintiffs’ motion to remand

No notices required, advised in open court,
3

No notices required, umber of notices

wv | Notices mailed by judge’s staff. MAR 19 7003
Notified counsel by telephone. ‘

dare docketed
Docketing to mail notices.

Mail AO 450 form. dockeii ((—

Copy to judge/magistrate judge. iyno3 LOINLS!G ‘sq
Page MESO

3/18/2003

date mailed notice

courtroom azzh Wd 81 BUH tt

MPI deputy’s
initials

MpE

cna cies ha a3 4 mailing deputy initials



forum. In Tokarz v. Texaco Pipeline Inc., 856 F. Supp. 403 (N.D.
Ill. 1993) (Shadur, J.), for example, each plaintiff in the suit
sought $29,999.99 in damages, $.01 less than the jurisdictional
amount required in the forum preferred by the defendants. No matter
how grievous a plaintiff's injury, it is always possible that he or
she will choose this strategy... If courts permit removal when
subject-matter jurisdiction is..only suspected, some cases will
pointlessly travel to federal court, only to be remanded when the
plaintiff’s intentions are clarified. Local Rule 81.2 suggests that
the proper time for determining a case’s removability is before
removal. A defendant is on notice that the plaintiff is seeking
above $75,000 only after the plaintiff makes an explicit statement
to that effect. After being served with an ambiguous state
complaint, Goodyear promptly sought such an explicit ad damnum, and
removed the case within 30 days of receiving a response. Thus, its
removal was timely.

The plaintiffs’ motion to.temand erroneously asserts that
because Mrs. Turner’s claim is derivative of her husband’s claim,
the damages sought in their respective state complaints should be
added together to total $100,000,.I1f this were true, then the state
complaint would have been removable on its face, and Goodyear’s
removal 70 days after service of process would have been untimely.
But multiple plaintiffs cannot aggregate their claims where none of

the claimants satisfy the jurisdictional amount. See Tokarz, 856 F.


IN THE UNITED STATES DISTRICT COURT prennny
FOR THE NORTHERN,DISTRICT OF ILLINOIS DOCK: ;
EASTERN. DIVISION

MAR 1 9 2003
MICHAEL TURNER AND MARGARET ANN
TURNER,
Plaintiffs,
v. No. 02 ¢ 5012

THE GOODYEAR TIRE & RUBBER. C(
WESTOVER CARTAGE LTD., AND WEST
CONTRACT CARRIERS, INC.

Defendants.

MEMORANDUM OPINION AND ORDER

The plaintiff, Michael Turnér; was employed by Bowevil Express

as a truck driver. He was assigned to transport tires belonging to

rem

defendant Goodyear Tire and Rubber.Co. (“Goodyear”) from Virginia

to Illinois. Under Goodyear’s jpervision, defendants Westover

Cartage, Ltd. and Westover Contract Carriers, Inc. (together,
“Westover”) loaded a shipment of ‘Fires onto Mr. Turner’s truck in
Virginia. When Mr. Turner arriv in Illinois and opened the rear
doors of his vehicle, a tire fell..on his head and body and injured
him. :

Mr. Turner sued Goodyear and Westover in the Circuit Court of

Cook County, alleging that the.defendants caused his injury by

carelessly and improperly stacking the tires in his truck, and

seeking damages "over and above 50,000" from each defendant for



the physical injuries, lost wages, medical bills, and pain and

anguish their negligence allegedly caused. His wife, Margaret Ann

Turner, likewise sued both defendants for “over and above $50,000”
for loss of her husband’s consortium and society.

Process in that suit was se ved upon Goodyear on May 7, 2002.

On June 5 of that year, Goodyear. requested that the plaintiffs

admit that neither Mr. nor Mrg....Turner would seek a judgment

greater than $75,000. On June 18, the plaintiffs admitted that

they might seek more than tha

jount. Twenty-eight days after

this admission was filed, on July 16, defendant Goodyear filed a

sity of citizenship pursuant to 28

notice of removal based on diver
U.S.C. § 1441, and the case was-removed to this court. Plaintiffs

now move for remand to the Circuit Court of Cook County due to

untimely removal and improper ¢cénSent to removal by Westover. I
deny the motion.
Il.

The first question posed by this motion is whether Goodyear

was required to remove the case w in 30 days of being served with
the complaint, or whether the 30-day countdown did not begin until
it received an explicit admission. that at least one plaintiff was
seeking damages against one defendant in excess of $75,000, the
jurisdictional amount.

28 U.S.C. § 1446(b) states that notice of removal “shall be

filed within thirty days after_.the receipt by the defendant,