demonstrating complete diversity of the parties, and that the amount in controversy requirement

has been met. See Chase v. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.

1997) (internal citations omitted). There is no dispute that complete diversity of the parties
exists. The parties do dispute, however, whether the amount in controversy requirement has been
met.

In determining whether Dryvit has met its burden of establishing that the amount in
controversy exceeds the jurisdictional minimum, the Court must limit its inquiry concerning the
amount in controversy to the evidence that “was available at the moment the petition for

removal was filed.” Chase, 110 F.3d at 428 (citing In re Shell Qil Co., 970 F. 2d 355, 366 (7th

Cir. 1992) (per curiam)). Therefore, this Court must determine: (1) what evidence of the amount
in controversy was available at the time of removal; and (2) does that evidence prove, to a

reasonable probability, that the jurisdictional amount was met. Chase, 110 F.3d at 428.

Defendant contends that it has several reasons to believe that the amount in controversy
exceeds the jurisdictional minimum of $75,000. First, Dryvit maintains that based on what it
believes is a “common sense” reading of Hood’s First Complaint, Defendant contends that at the
time of removal, it had a good faith belief that the amount in controversy excceded $75,000, as
Plaintiff alleged that he had suffered in excess of $500,000 in diminution of value to his home.
Additionally, Defendant points to Plaintiff's affidavit, which asserts that the damages related to
his home do not exceed $74,500. Dryvit contends that in addition to these “economic losses”
resulting from any damage to Hood’s home, § 1332's amount in controversy prong requires a
consideration of reasonable attorneys’ fees and punitive damages where so by provided by

statute. Consequently, Defendant contends, because the Illinois Consumer Fraud Act includes

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IIL. Conclusion
For the foregoing reasons, Plaintiffs motion to remand is DENIED. Plaintiff's motion to file an

amended complaint is GRANTED.

Enter:

David HS
United States District Judge

Dated: September 16, 2004


controversy exceeds the jurisdictional amount specified in 28 U.S.C. § 1332(a) which is $75,000
In addition, on April 28, 2004, Dryvit served Hood with several requests for admissions and
interrogatories regarding whether the amount sought by Plaintiff exceeded $75,000.

On May 27, 2004, Hood filed his first motion to remand to state court, as well as a
motion for leave to file an amended complaint. In support of his first motion to remand, Plaintiff
contended that in paragraph 2 of his first motion to remand, he inadvertently placed an extra “0"
in the amount of damages sought, thereby pleading a damage total of “$500,000" instead of
“$50,000.” On June 17, 2004, this Court granted Hood’s motion to amend his First Complaint,
but denied his motion to remand. In his Amended Complaint, Hood’s request for damages was
amended to state, “an amount not less than $50,000.” Subsequently, Hood filed a motion to

remand and file an amended complaint, and that motion is presently before the Court.

II. Standard for Removal
Removal is proper over any action that could have originally been filed in federal court.
See 28 U.S.C. § 1441. Dryvit’s basis for removal is diversity jurisdiction, pursuant to 28 U.S.C.

§ 1332. As the party seeking to invoke diversity jurisdiction, Dryvit bears the burden of

5 Local Rule 81.2 mandates that when a defendant seeks to remove an action from an
Illinois state court based upon diversity of citizenship, and where the complaint does not
contain an express ad damnum in an amount exceeding the jurisdictional amount in
controversy (exclusive of interests and costs), the notice of removal shall include either: (1) a
response by the plaintiff to an interrogatory as to the amount in controversy stating that the
damages sought by the plaintiff exceed the jurisdictional amount, or declining to agree that the
damage award will in no event exceed the jurisdictional amount; or (2) an admission by the
plaintiff in response to a request for admissions, or a showing as to the deemed admission by
the plaintiff by reason of the plaintiff’s failure to serve a timely denial to a request to admit.
However, because Plaintiff's First Complaint alleges damages in excess of $500,000, Local
Rule 81.2 is inapplicable to Defendant’s removal.

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both punitive damages and attorneys’ fees as “other relief’ (See 815 ILCS 505/10(a)), there is a
reasonable certainty that the $75,000 amount in controversy requirement has been satisficd, given
the requirement that Plaintiff's punitive damages and attorneys’ fees can be considered in
determining whether the jurisdictional minimum has been met.

Again, this Court notes that the crucial point of inquiry in determining whether Defendant
has met its burden in proving that the amount in controversy meets the jurisdictional minimum is
the time of removal. Hood urges this Court to look to his affidavit, stipulation, and amended
Complaint, all filed post-removal, and find that the amount in controversy requirement has not
been fulfilled, thereby requiring remand to Circuit Court. However, the Seventh Circuit has

noted that it follows the Supreme Court’s holding in St. Paul Mercury Indemnity Co. v. Red Cab

Co., 303 U.S. 283, 288 (1938), which held that jurisdiction is not stripped from the district court
where, “the plaintiff after removal, by stipulation, by affidavit, or by amendment of his pleadings,

reduces the claim below the requisite amount.” Chase, 110 F.3d at 429 (citing St. Paul, 110 F.3d

at 592). Plaintiff filed his Complaint in Circuit Court on Apri! 16 2004, and Dryvit was served
with the summons and Complaint on April 26, 2004. On April 28, 2004, Dryvit served Plainuff
with several interrogatories regarding whether the amount in controversy sought by Plaintiff
exceeded $75,000. On May 3, 2004, Defendant filed its notice of removal. Plaintiff did not file
a response to Defendant’s request to admit until May 27, 2004. Plaintiff had an adequate
opportunity, between filing his complaint on April 16, 2004 and Defendant’s May 3, 2004

removal, to correct any typographical error by filing the appropriate stipulation in state court.4

* As the Chase court notes:
Despite the Illinois ad damnum restriction, a plaintiff who claims more than [the
jurisdictional minimum] in damages, but who wants to proceed in state court, can

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Minyie Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
ov Magistrate Judge

David H. Coar

Sitting Judge if Other
than Assigned Judge

David H. Coar

CASE NUMBER 04C 3141 DATE 9/16/2004
CASE Peter Hood vs. Dryvit Systems, Inc. [ Doc. No. 14-1]; [Doc. No. 14-2]
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)

Plaintiffs’ Motion for Leave to File An Amended Complaint and Remand to State Court

DOCKET ENTRY:

a oOo Filed motion of [ use listing in “Motion” box above.]

(2) Qo Brief in support of motion due

(3) Q Answer brief to motion due_, Reply to answer brief due.

(4) g Ruling/Hearing on set for at

(5) (a) Status hearing[held/continued to] (set for/re-set for)on ss set for at _

(6) Qa Pretrial conference(held/continued to] [set for/re-set for] on __ set for at

(7) Q Trial[set for/re-set for] on

(8) a [Bench/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to] .

OOFRCP4(m) (Local Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

qo) «of [Other docket entry) For the reasons set forth in the attached memorandum opinion and order,
Plaintiffs motion for leave to file an amended complaint and remand to state court is granted in part and
denied in part. Plaintiff's motion for leave to file an amended complaint [Doc. No. 14-1] is GRANTED;
plaintiff's motion to remand to state court [Doc. No.  Ovhndbd | (be

(i) [For further detail see order attached to the original minute order.]

EL No notices required, advised in open court. Document
Number

No notices required.
Notices mailed by judge's staff.
Notified counse! by telephone,
Docketing {o mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge

courtroom
deputy's
initials

siffle)

umber of notices

SEP 27 2004 lA

date dockered

Date/timne! vecgived in
central Clerk's Office

mailing deputy initials



Any typographical errors that Hood may have made does not affect the fact that on the face of his
Complaint, and at the time of removal, Plaintiff alleged damages in excess of $500,000.
Consequently, Defendant has met its burden of showing that at the time of removal, Plaintiff
claimed damages sufficient to meet the amount in controversy requirement

Finally, the Court must note that although Defendant has met its burden of demonstrating
that the amount in controversy meets the jurisdictional minimum, through the course of
discovery, it may become clear that Plaintiff's damages will not exceed the jurisdictional
minimum, thereby mandating remand to the Circuit Court. However, this will only become clear
once Plaintiff presents the Court with a sufficient itemization of all damages (including requested
attorneys’ fees and punitive damages). As previously stated, however, Defendant has met its
burden of showing that the amount in controversy requirement exceeds the jurisdictional

minimum,

control her forum by following this court’s advice In re Shell: “Litigants who want to
prevent removal must file a binding stipulation or affidavit with their complaints; once
a defendant has removed the case, St. Paul makes later filings irrelevant.” Chase, 110
F.3d at 430 (quoting In re Shell, 970 F.2d at 356).

6+


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION i
PETER HOOD, ) SeP 17 2004
)
Plaintiff, )
} No. 043141
v. )
) HONORABLE DAVID H. COAR
DRYVIT SYSTEMS, INC. )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Before this Court is Plaintiff Peter Hood’s { “Plaintiff” or “Hood”) motion for leave to file an
amended complaint, and a motion to remand to state court. For the reasons set forth below,
Plaintiff's motion for leave to file an amended complaint is GRANTED; Plaintiff's motion to

remand to state court is DENIED.

I. Procedural and Factual Background

On April 16, 2004, Hood filed a complaint! against Defendant Dryvit Systems, Inc.
(“Defendant” or “Dryvit”) in the Circuit Court of Cook County, Illinois (“Circuit Court’).
Hood’s First Complaint was based upon contracting work that was performed on his home. In
1993, Plaintiff contacted Forest Park Stucco to discuss the application of stucco to the original

first floor of his home, as well as to a second floor addition. (First Compl., 4). After much

'Hood’s Complaint filed on April 16, 2004 will hereinafter be referred to as his “First
Complaint.”

-l-


discussion, Forest Park Stucco persuaded Plaintiff to install Dryvitt Weatherlast Elastomeric
finish coat. The Dryvit Weatherlast Elastomeric finish coat was marketed, advertised and
promoted by Defendant as an efficient and economical protective coating for stucco. (See Id. at {
5). Further, the Dryvit Weatherlast Elastomeric finish coat was marketed and sold as being
impenetrable by water. (Id. at | 6). Plaintiff contends that years after the application of the
Dryvit Weatherlast Elastomeric finish coat, Plaintiff's home began to develop numerous areas of
rust stains on its surface. (Id. at | 7). Plaintiff contends that the Dryvit Weatherlast Elastomeric
finish coat allowed water to penetrate inside the exterior, causing rot and rust to studs, and
serious structural damage. (Id. at {| 8). Hood’s First Complaint was based upon two theories for
recovery: (1) violation of the Illinois Consumer Fraud Act, 815 ILCS 505/2 et. seq.; and (2)
common law misrepresentation. (See First Compl., 4 13). In his First Complaint, Hood avers
that he was damaged in an amount “not less than $500,000,” (FirstCompl., 4] 13).

On April 30, 2004, Dryvit filed a notice of removal of Hood’s First Complaint from
Circuit Court to this Court, pursuant to 28 U.S.C. § 1446. Defendant noted diversity of
citizenship pursuant to 28 U.S.C. § 1332(a) as its basis for jurisdiction.” In its notice of removal,
Defendant notes that Plaintiff alleges damages not less than $500,000, resulting from the
diminution to the value of his home as a result of Dryvit’s alleged false and misleading
representations concerning its Weatherlast Elasomeric finish coat. It is based upon these

allegations that Dryvit suggests that the Complaint, on its face, indicates that the amount-in-

> In his First Complaint, Plaintiff alleges that he is a citizen of Illinois, (See First
Compl., 4 1), and that Dryvit is incorporated in Rhode Island, and has its principal place of
business in Rhode Island (See First Compl., | 2). Neither party disputes that diversity of
citizenship exists.

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