-4-
statement of defendant's good faith belief that the amount in
controversy exceeds the jurisdictional amount, and (ii) an

interrogatory response or admission by the plainti

thal the damages sought are indeed in excess of

plaintiff declines to agree that damages will nol exce

See N.D. Ill. LR. 81.2. Under the Local Rule, receipt

removing defendant of the second item constilutes the receipt of a

“paper from which it may first be ascertained that the case is

which is or has become removable” within the meaning of 28 U
§ 1446(b).’ See id.
It is clear that defendant did not file its notice ol

removal within thirty days of receiving a copy of Lhe complaint

veafore, whe

required by the First paragraph of section 1446(b).

cemoval is timely only if defendant can invoke the eocllon’s

second paragraph, that is, “[{if]) the case stated by the int

pleading is not removable,” and the case was remov within thirzy

days of receipt of a “paper from which it may first be
that the case is one which is or has become removable... .% 28

U.S.C. § 1446 (b).

Defendant’s notice of removal asserts that it could:

ascertained that the action sought damag

in excess of $

7Local Rule 81,2 must be read in conjunction with sect 1
46(b) and cannot conflict with or override the ter of the
statute. See Weigand v. The Paul Revere Life Ins. Co., No. 97 C
8880, 1998 WL 142365, at *3 (N.D. Ill. Mar. 19, 1998).



7a
removability of the case upon its receipt of the complaint, the

notice of removal, filed seventy-four days thereafter, is untim

nder 28 U.S.C. § 1446(b). In light of our ruling, delenca

ni’s

motions to dismiss for lack of jurisdiction and, alternatively

transter the case to the Northern District of Indiana are denied as

moot.
CONCLUSION

For the foregoing reasons, we sua sponte remand this

to the Circuit Court of Cook County, Illinois. ‘tthe Clerk of

is directed to mail a certified copy of the remand order tors

John FH. Grady, United States


-3-

that the amount in controversy exceeds $75,000. 28 U.S y
1332(a) (1). Both requirements are met in this case. But thal is

net the end of the matter. To effect a removal, a defendant
mast comply with the procedures in 28 U.S.C. § 1446, Section

14146 (b), the subsection relevant here, outlines the tlmeliness

requirements for remo The first paragraph of Lhat section

provides:

The notice of removal . . . shall be filed
within thirty days after the receipt by Lhe
defendant, through service or otherwise, of
a copy of the initial pleading setting
the claim for relief upon which such action
or proceeding is hased

n

28 1446(b). The second paragraph reads:

wa

If the case stated by the initi
not removable, a notice of
filed within thirty days aft
defendant, through service or otherwi
copy of an amended pleading, motion, o
other paper from which it may first be
ascertained that the case is one which is or
has become removable, except that a c 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.

i pleading is

2

Removal in the Northern District of Tllinsis is alse

governed by Local Rule 81.2, which mandates that when a defendant

seeks to remove an action from an Illinois stale court based on
diversity, and where the complaint does not contain an expre ad
damnum exceeding the jurisdictional amount in controversy, tne
defendant must include two items in the notice of removal: (1) a



-5-

and was thus removable, until it received plaintiff’s Lecal Au

81.2 admission on January 20, 2004. We disagree.

It is true, as defendant maintains, that no single count

contains a prayer for relief in excess of $75,000. However, “[tjhe
diversity statute confers federal jurisdiction over ‘civil actions

satisfying the required minimum amount in controversy, hot ov

counts, thus permitting the plaintiff to aggregate the sta

in

his Separate claims or counts to come tp to the minimum.”

th Cir. 199

Horremans v. Carrera Designs, 157 F.3d 1118, 1121

{eitaLlions omitted). ‘his complaint alleges three counts, each of

which contains an exp ad damnum for an a

ding

$50,000, h

appears that Counts I and II, the wrongful

counts, are essentially one claim pled under alterna

ive legal

theories, which precludes their aggregation. There is no
impediment, however, to aggregating the wrongful death claim
(Counts I and II) and the survival claim (Count fI1I). These are

distinct causes of action, each with its own basis for reco

See Varelis v. Northwestern Mem’1. Hosp., 167 Ill.2d 449, 456, G5?

N.B.2d 997, 212 Tll.Dec. 652 (1995) (“[Bleth a survival action and
a wrongful death action may be pursued for injuries caused by the

same conduct.”) {internal citations omitted.)% So had plaintit?

’The Illinois Wrongful Death Act provides a cause of action
for the benefit of a deceased person's viving spouse and
of kin to compensate them for their losses. See 740 TLCS 18 fi &
2. The Tllinois Survival Act, on the other hand, contemplates an
action to recover damages for the deceased person's injuries

sustained prior to death. See 755 ILCS $/27-6, See gene ly

1
aL



i

Manure Order For (QU?)

Se United States District Court, Northern District of Illinois
sS

Name of Assigned Judge * Gra Sitting Judge if Other
or Magistrate Judge John F', Grady than Assigned Judge
CASE NUMBER 040 410 DATE April 15, 2004
CASE HANLON vy. XY TOOL & DIE, INC.
TITLE
{in the following box (a) indicate te party filing the motion, €.g.. plaintiff, defendant, 3ed party plaincff, ard (h) suate briefly the
MOTION: nature of the mutien being presemed.)

DOCKET ENTRY:

qd) u Filed motion of [ use listing in “Motion” box above.|

(2) a Brief in support of motion due

(3) a Answer brief to motion due. . Reply to answer brie! due

(A) n Roling/Hearing on set for al

(5) nm Status hearing{held/continucd to} [set for/re-set for] on set for at

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

(7) u Trial[set for/re-set for] on ao.

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

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

O FRCP4(m) 0 General Rule 21 MI VRCP4l(a(l) 9 PRCP41(a)(2).

(10) a {Other docket entry] ‘his onte remands this case to the Cireuit
Court of Cook County, Ill ork of Court is directed to mail a
certified copy of the remand order forthwith. In light of our ruling,
defendant.’s motions to dismiss for Lack of 4 isdiction and, alternatively,
to transfer the case t @ Northern Dislriet of Indiana [4-1,4-2] are denied
as moot. FNTER MEMORANDUM OPINJON.

(iy x [For further detail sec order (an reverse side offattached to) the original minute order,]

No notices required, advised in open coust, Document
N . Number
0 notices required
nye obrarices
X | Notices MAILED by judge's staff RY
Notified counsel by telephone. 6 2004
Docketmg w nail notices, fy
Mail AO 430 form. on ctckexigh uty vials <
Copy ta al 7
dave railed nee
courtuomn
KAM depury’s KAM
initials -
Aime received in
pera} Clerk's Olive sling duty tls

far use by the Court)



OH

chosen to file this action in federal court instead of illi

ate court, this court would have had original jurisdiction

Pursuant to 28 U.S.C. § 1332(a) (1) because plaintiff’s exp

damnums of $50,000 for her independent wrongful death and sur

claims could be aggregated to total $100,009.
And just as plaintiff could have aggregated her claims to

establish original jurisdiction, defendant could have done se to

effecl a removal, See Chase v. Shop ‘N Save Warahou Foods, 110

F.3d 424, 427 (7th Cir, 1997) (“Removal is proper over any action

that could have originally been filed in federal

em the lace of

Therefore, it was apparent (or should have been)

the complaint that this case was removable. ier dant’s reliance

on the second paragraph of section 1446, which by its own terms

applies only “[if] the case stated by the initial pleading
removable,” is simply misguided. 28 U.8.C. § 1446(b)- As for

Local Rule 81.2, that provision never should have come into play

because na discovery was required to determine that the con

NO. Til. IR.

sought damages in excess of $75,000. 8

Committee Comment (“This rule outlines a procedure to be [cllowacdl
in cases where the complaint filed in state court does net, on its
face, indicate that the amount in controversy exceeds «he

§ 1332 (aj).")

jurisdictional amount specified by 28 U

Accordingly, because defendant could have ascertain

Patch v. ver, 248 I1]1.App.3d 562, 573, 618 N.E.2d 582,
Tll.Mec. 13 (lst Dist. 1993).



04-410,041-1CM April la, 2004

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

PHYLLIS HANLON, as Special
Administrator of the Estate of
THOMAS HANLON, Deceased,

Plaintiff,
No. 04 € 410

Vv.

SY TOOL & DIE, INC,,

Defendant.

MEMORANDUM OPINION

Defendant has removed this action from the Circuiz Court

of Cook County, Illinois to this court. For the reasons stab

below, the court sua sponte remands the se to state court.

BACKGROUND
Plaintiff Phyllis Hanlon, Special Administrator of the

Eslale of her decea

i husband, Thomas Hanlon (“decedent”), Droughl

this wrongful death and survival action against Defendant xy
& Die, Ine. in Illinois state court. Plaintiff is an tilinois

cilizen and defendant is an Indiana corporation with its prince

place of business in Indiana.

The complaint states that on June 6, 2003, the de

as part of his employment, was operating an allegedly defective

“clutch test machine” which was manufactured by defendant.

decedent suffered fatal injuries while operating the machine



-2~
{it] crushed him due to the lack of continuous functioning
horizontal light curtains designed to guard and prevent entry of
employees into points of operalion.” (Compl., p. 2.

Vhe complaint asserts wrongful daath claims on both products

liability and negligence theories (Counts I 4 II, respectively)

and a survival claim premised on products Jiablility (Count I71).

6

ach count contains a separate request for damages “in an amount in

excess of the jurisdictional amount of this Court.” (Compl.,

6.)* Plaintiff filed the complaint on November 3, 2003,

it upon defendant on November 7, 2003. On December

Gelendant served plaintiff with a request to admit that the action

sought damages in excess of $75,000. Defendant receiv

unqualified admission Lo that effect on January 20, 20C4.

follewing day, defendant removed the action Lo federal court.
DISCUSSION

Section 1441(a) of Title 28 permits a defendant in a

civil action brought in state court to remove the casé to a fer

district court which would have had original jurisdiction over th

case, by virtue of either diversity of citizenship or Lhe pre

of a federal question. See 28 U.S.C, § 1441. Defendant’s notice

ef removal invokes this court’s diversity Juri tion which

requires that the suit is between citizens of different states anc

‘The division of the Circuit Court of Coox County in which
the case was brought, known as tho Law Division, has a
jurisdictional amount in controversy requirement of $50,000.