United States District Court, W.D. Wisconsin
OPINION AND ORDER
STEPHEN L. CROCKER Magistrate Judge
a civil dispute in which the plaintiffs, Randy and Stacy
Copeland, seek damages arising out of plaintiff Randy
Copeland's alleged slip and fall at a North American Pipe
Corp. (“NAPCO”) facility. NAPCO removed the case
to this court on July 20, 2017 on grounds of diversity
jurisdiction. Dkt. 1. Before the court is plaintiffs'
motion to remand this case to state court on the ground that
NAPCO's notice of removal was untimely. Dkt. 12. Because
I find that NAPCO filed the notice of removal within 30 days
after receiving affirmative and unambiguous information from
plaintiffs establishing that the jurisdictional threshold was
met, I am denying the motion.
Randy Copeland and his wife, Stacy Copeland, who are
residents of Missouri, initially sued defendants NAPCO and
its insurer, Starr Indemnity & Liability Company, in the
Circuit Court for Rock County, Wisconsin on February 16,
2017, asserting causes of action for negligence and violation
of Wisconsin's safe place statute. Plaintiffs alleged
that on March 25, 2014, while employed by Schill Corporation,
Randy Copeland had slipped on ice and fell while he was
delivering a load of bulk, dry lime to NAPCO. Dkt. 2-1, at
¶¶9. Plaintiffs named Great West Casualty Co.,
Schill Corp.'s workers compensation carrier, as an
involuntary plaintiff, alleging that Great West had a right
to subrogation or reimbursement of monies it paid for
Copeland's “medical and related
expenses.” Id. at ¶3. Although
plaintiffs' complaint alleged that Copeland had sustained
“severe and permanent injuries” and losses,
neither the original nor the amended complaint specified that
the amount in controversy exceeded $75, 000, the threshold
for diversity jurisdiction. 28 U.S.C. § 1332(a). Dkts.
March 15, 2017, NAPCO served plaintiffs with a request for
production of documents and served Copeland with a first set
of interrogatories. Dkt. 17-3, 17-1. Plaintiffs served their
responses to NAPCO's document requests on June 5, 2017.
In response to NAPCO's request for documents summarizing
their economic damages, the plaintiffs referred to
“attached medical records, medical bills and
Itemization of medical bills.” Dkt. 17-10. The itemized
medical expenses totaled $65, 345.67. In response to
NAPCO's request for plaintiffs' federal income tax
returns, plaintiffs referred to several years of W2 forms and
“Exhibit D, ” which was a document titled
“Wage Calculations.” Dkt. 17-10, 17-11. The
document, for which plaintiffs provided no context or
explanation, appears to show a calculation of Copeland's
gross pay for the three month period prior to the date of his
slip and fall.
response to NAPCO's request for “All documents the
plaintiffs have sent or received from Great West Casualty
Company relating to any claim related to the Incident or the
injuries Copeland allegedly sustained as a result of the
Incident, ” plaintiffs attached a document titled
“Stipulation for Compromise Settlement.” Dkt.
21-1. That document is a stipulation between Copeland, his
employer and Great West Casualty Company. The agreement
stated that Schill and Great West had paid $70, 753.37 for
Copeland's medical bills and $21, 867 as compensation for
32 2/7 weeks of temporary disability and that the parties had
settled their dispute about Copeland's alleged permanent
disability and future medical expenses for $53, 085. Dkt.
21-2, Exh. A, attached to Aff. of Atty. Stachowiak.
did not serve NAPCO with his responses to the interrogatories
until June 21, 2017. Answering Interrogatory No. 1, which
asked him to disclose the categories and amounts of his
economic damages, Copeland stated, in part:
Plaintiff, Randy Copeland may be making claim for the
following: Past Medical Expenses, Future Medical Expenses,
Past Wage Loss, Future Loss of Earning Capacity, Wage Loss,
Past Pain, Suffering and Disability and Future Pain,
Suffering and Disability. Attached to the corresponding
Request for Production of Documents is a list of past medical
expenses, attached as Exhibit A. In addition, the plaintiff
was off work for 32 2/7 weeks, and that is itemized in
20, 2017, NAPCO removed this case to federal court, asserting
federal jurisdiction under the diversity statute, 28 U.S.C.
§ 1332. Dkt. 1. Plaintiffs then filed a timely motion to
remand, asserting that defendant's notice of removal was
untimely. Dkt. 12.
a defendant has 30 days from receipt of the complaint to file
a notice of removal. 28 U.S.C. § 1446(b)(1). However,
when the basis for removal is not revealed on the face of the
complaint, the defendant may remove the case within 30 days
of receiving “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.”
§ 1446(b)(3). Plaintiffs argue that the removal was
untimely because NAPCO could have ascertained that the
jurisdictional threshold was met from the documents they
received from plaintiffs on June 5, 2017, if not from the
face of the complaint. NAPCO disagrees, arguing that the
30-day clock was not triggered until it received
Copeland's June 21, 2017 responses to the
interrogatories, in which Copeland first made clear what
damages he was seeking in this lawsuit.
with plaintiffs' fallback position regarding the face of
the complaint. In their initial brief, plaintiffs cite to
Freeland v. Wal-Mart Stores East, LP, 2010 WL 1981642 (W.D.
Wis. 2010), in which this court joined other courts from this
circuit in finding that the 30-day period was triggered when
removal was ascertainable “from a reasonable and
commonsense reading of the complaint” or when the
initial pleading contained “conspicuous clues”
that removal was a likely possibility. Id. at *2
(citations omitted). As plaintiffs appear to recognize in
their reply brief, however, Freeland and the authorities
cited therein are no longer good law.
Walker v. Trailer Transit, Inc., 727 F.3d 819, 825 (7th Cir.
2013), the Court of Appeals for the Seventh Circuit resolved
an intra-circuit split concerning the specificity required to
trigger the 30-day clock under § 1446(b)(3), rejecting
the “reasonable and commonsense” approach adopted
in Freeland. Instead, it joined the Second, Fourth, Fifth,
Eighth, Ninth and Tenth Circuits in finding that the 30-day
clock under § 1446(b)(3) “is triggered only by the
defendant's receipt of a pleading or other litigation
paper facially revealing that the grounds for removal are
present.” Id. at 823-24 (emphasis in
original). This “bright-line rule, ” explained
the court, “promotes clarity and ease of administration
for the courts, discourages evasive or ambiguous statements
by plaintiffs in their pleadings and other litigation papers,
and reduces guesswork and wasteful protective removals by
defendants.” Id. at 824.
the court made clear that it doesn't matter whether the
defendant has a subjective basis for thinking the
jurisdictional amount is met. “The moment a case
becomes removable and the moment the 30-day removal clock
begins to run ‘are not two sides of the same
coin.'” Id. (quoting Kuxhausen v. BMW Fin.
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