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Copeland v. North American Pipe Corp.

United States District Court, W.D. Wisconsin

January 24, 2018



          STEPHEN L. CROCKER Magistrate Judge

         This is 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.[1]


         Plaintiff 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[2] “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. 1, 2.

         On 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.

         In 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.

         Copeland 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 exhibit D.

         On July 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.[3] Dkt. 12.


         Ordinarily, 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.

         I begin 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.

         In 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.

         Importantly, 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. Servs. NA LLC, 707 ...

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