In this case, similarly, Ocampo alleged that she was “seriously injured” by PCMC’s
machine; that her scalp was “traumatically removed from her head”; and that this “caused
permanent pain and suffering,” “disability and disfigurement,” lost financial gains, and medical
and hospital expenses. PX A, 3, 6. Under the reasoning of McCoy, this was arguably
sufficient to put PCMC on notice that Ocampo was seeking in excess of $75,000 in damages.
Compare Height, 2002 WL 1759800, at *4 (defendant’s knowledge that plaintiff jumped out of
an airplane door and broke his wrist was not sufficient to put defendant on notice that plaintiff
sustained severe or permanent injuries in absence of specific allegation to that effect); Ford v.
Mannesmann Dematic Corp., No. 00 C 1226, 2000 WL 1469371, at *3 (N.D. UL. Oct. 2, 2000)
(allegation that plaintiff was “seriously injured” and sought damages in excess of $50,000 “did
not provide the required degree of certainty that the jurisdictional amount was satisfied”).

On the other hand, Ocampo was not necessarily seeking damages in excess of $75,000
just because she alleged severe injury. As the Height court noted, “{a] plaintiff could choose to
seek a lesser amount [of damages] in order to avoid removal.” 2002 WL 1759800, at *4. See
also Abdishi v. Phillip Morris, Inc., No. 98 C 1310, 1998 WL 31 1991, at *2 (N.D. Ill. June 4,
1998) (“the fact that a plaintiff has alleged that he has suffered serious injuries or has undergone
various medical procedures does not necessarily mean that he is seeking damages in excess of
$75,000”). In addition, as PCMC points out, failing to obtain actual confirmation of the
jurisdictional amount before removing a case constitutes a violation of Local Rule 81.2. But see
McCoy, __F. Supp. 2d at __, 2002 WL 31324060, at *3 (“to the extent that Local Rule 81.2

provides the exclusive procedure by which defendants may remove Illinois state complaints that



Corp., __F. Supp. 2d __, 2002 WL 31324060, at *1 (N.D. Il. Oct. 17, 2002); Height v.
Southwest Airlines, Inc., No. 02 C 2854, 2002 WL 1759800, at *3 (N.D. Ill. July 29, 2002).
Ocampo claims that PCMC could have determined from the face of the complaint that the
case was removable pursuant to §1332. With respect to the amount in controversy, Ocampo
says, the allegations of severe injury were a clear indication that she was seeking more than
$75,000 in damages. Ocampo’s position finds support in McCoy v. General Motors. In McCoy,
the plaintiffs filed a product liability suit in the Circuit Court of Cook County alleging damages
in excess of $50,000. The defendant removed the case within thirty days after receiving an
admission from the plaintiffs that the amount in controversy exceeded $75,000, but more than
thirty days after the initial complaint was filed. __ F. Supp. 2d at ___; 2002 WL 31324060, at *1.
The court stated that a defendant must “ascertain from a reasonable and commonsense
reading of the complaint whether the action is removable.” Jd. at *2. The complaint alleged that
the plaintiffs suffered “lasting and permanent injuries” and “severe pain, emotional distress,
disability, lost value and enjoyment of life, future loss of income, medical expenses, loss of
normal life, disfigurement and paralysis.” Jd. The court held that “[iJn the parlance of product
liability suits, these statements should sound warning bells in defendants’ ears that significant
damages are sought.” Thus, the defendant should have removed the case within thirty days of
receipt of the complaint. Id. See also Huntsman Chemical Corp. v. Whitehorse Technologies,
Inc., No. 97 C 3842, 1997 WL 548043, at *6 (N.D. Ill. Sept. 2, 1997) (“[wJhere, as here, the
defendant is placed on notice of the amount in controversy by a demand letter received prior to
the filing of the complaint, he may not claim an inability to ascertain removability by the lack of

an ad damnum clause in the complaint itself”).



lack an express ad damnum clause, we believe that it impermissibly contravenes the federal
removal statute’).

In any event, the Court need not resolve this issue because Ocampo’s complaint failed to
provide sufficient information regarding a second element required for removal under §1332 —
citizenship. Simply put, the complaint nowhere identified Ocampo’s — or PCMC’s — state of
residency. The mere allegation that Ocampo worked in Wheeling, Illinois in no way established
that Ocampo was also a resident of Illinois for purposes of diversity jurisdiction. This omission,
together with the lack of a damages request exceeding $75,000, rendered Ocampo’s complaint
insufficient to give PCMC notice that the case was removable. See Height, 2002 WL 1759800,
at *4 (“most importantly, the complaint was silent as to citizenship of the parties, therefore
diversity was not established at the time of filing the complaint”). Accordingly, the thirty day
period for removing the case did not begin to run until PCMC received Ocampo’s admissions
confirming her residency and the amount in controversy. 28 U.S.C. §1446(b); Local Rule 81.2.
PCMC timely removed the case within thirty days after receiving that confirmation, so remand is
inappropriate.

CONCLUSION
For the reasons stated above, Ocampo’s Motion to Remand (Docket Entry #3-1) is

denied.

Noma rb

NAN R. NOLAN
United States Magistrate Judge
Dated: November 8, 2002



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Nan R. Nolan Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 4054 DATE 11/12/2002
CASE Ocampo vs. Renard Machine Co., et al.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:
Ocampo’s motion to remand the case for failure to file a timely notice of removal
DOCKET ENTRY:
Q) o Filed motion of [ use listing in “Motion” box above.]
(2) im Brief in support of motion due
(3) Qa Answer brief to motion due____.. Reply to answer briefdue__
(C3) a Ruling/Hearingon___ssetfor____at.
(5) Oo Status hearing[held/continued to] [set for/re-set for]on____—ssetfor_— at.
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_ at
(7) a Trial[set for/re-set for]on___at
(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) CO Local Rule 41.1 OFRCP41(a)(1) OO FRCP41(a)(2).

(10) a [Other docket entry] Enter Memorandum Opinion and Order. Ocampo’s motion to remand the case
for failure to file a timely notice of removal [3-1] is denied.

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

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

No notices required. number of notices

a | Notices mailed by judge's staff.

NOV 1 3 280°,

Notified counsel by telephone. dae dockered,

Docketing to mail notices.

Mail AO 450 form. 1yno9 Lys wand } al

Copy to judge/magistrate judge. wag 4510 ‘sn —
couttroom 4s 39 Wd 21 AGN Za date mailed notice
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45


IN THE UNITED STATES DISTRICT COURT Noy 7: sallid
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ALEJANDRINA OCAMPO,
Plaintiff,

vs. Case No. 02 C 4054
RENARD MACHINE COMPANY,

a subsidiary of PAPER CONVERTING
MACHINE COMPANY, and PAPER
CONVERTING MACHINE COMPANY,
a foreign corporation.

werevevenververrerververve we

Defendants.

MEMORANDUM OPINION AND ORDER
NAN R. NOLAN, Magistrate Judge:

Plaintiff Alejandrina Ocampo filed a product liability suit against defendants Renard
Machine Company and Paper Converting Machine Company (collectively “PCMC”) in the
Circuit Court of Cook County, Illinois. PCMC removed the case to federal court on the basis of
diversity jurisdiction. This matter is now before the Court on Ocampo’s Motion to Remand the
case for failure to file a timely notice of removal. For the reasons set forth below, the motion is
denied.

FACTUAL BACKGROUND

On March 5, 2002, Ocampo filed a complaint in the Circuit Court of Cook County
alleging that PCMC’s defective machine “traumatically removed” her hair and scalp from her
head, causing her to suffer permanent pain, disability and disfigurement. PX A. The complaint

indicated that Ocampo worked in Wheeling, Illinois and sought damages in excess of $50,000.

id



However, the complaint did not disclose Ocampo’s citizenship or state of residence. Jd. PCMC
answered the complaint on April 15, 2002, and then on May 3, 2002 filed a Request to Admit
Facts regarding Ocampo’s citizenship and the jurisdictional amount in controversy in accordance
with Local Rule 81.2. Based on Ocampo’s May 20, 2002 responses to those requests, PCMC
removed the case to federal court on June 6, 2002, asserting diversity jurisdiction pursuant to 28
US.C. §1332.

Ocampo claims that the removal was untimely because it occurred more than thirty days
after PCMC was served with Ocampo’s complaint. PCMC claims that it could not determine
from the face of the complaint whether the case was removable under §1332 and, thus, it timely
removed the case within thirty days after receiving Ocampo’s admissions confirming diversity
jurisdiction.

DISCUSSION

Under 28 U.S.C. §1446, a defendant must file a notice of removal within thirty days after
receiving the pleading, motion or other paper that first demonstrates that the case is removable.
If removal is based on diversity of citizenship but the complaint does not contain “an express ad
damnum ... in an amount exceeding the jurisdictional amount in controversy,” Local Rule 81.2
requires that a defendant obtain an admission from the plaintiff that the amount in controversy
does in fact exceed that amount. This requirement is problematic in Illinois because plaintiffs are
not permitted to plead an express ad damnum in personal injury cases beyond stating that the
damages exceed the jurisdictional amount necessary to comply with the Illinois Circuit Court’s

rules of assignment - in this case $50,000. See 750 ILCS 5/2-604; McCoy v. General Motors