Civil Practice — Diversity Jurisdiction – Timely Removal – Amount in Controversy – Discovery Response

Sweatman v. Bringger (Lawyers Weekly No. 002-256-14, 6 pp.) (J. Michelle Childs, J.) 5:14-cv-00622; D.S.C.

Holding: The first unequivocally clear and certain evidence that the amount of damages exceeded the $75,000 threshold was not available to defendant until plaintiff submitted his response to defendant’s request for admissions on Feb. 21, 2014. As such, defendant’s notice of removal was timely filed on Feb. 28, 2014.

Plaintiff’s motion to remand to state court is denied.

A pre-suit demand letter to defendant’s insurance carrier demanded “$250,000 or your policy limits, whichever is less.” First, defendant alleges plaintiff did not send her the pre-suit demand letter. Second, the letter fails to clearly establish that plaintiff sought more than $75,000. While plaintiff’s counsel demanded up to $250,000, plaintiff presumably would have accepted less than $75,000 if the policy limits so restricted it. As such, the amount sought, in concert with a lack of specified damages in the complaint fails to clearly establish that plaintiff sought in excess of $75,000.

In plaintiff’s discovery responses on Dec. 12, 2013, plaintiff indicated he had incurred medical bills totaling $47,131.87, and included a statement from his surgeon that he was a “surgical candidate.” No dollar amount for future medical expenses is mentioned in the surgeon’s letter.

When asked to “State the nature and amount of all future expenses, including, but not limited to, medical expenses, you anticipate will be incurred as a result of the accident/incident,” plaintiff answered on Dec. 23, 2013, “Future surgery is pending. Plaintiff cannot reasonably be expected to know the answer to this Interrogatory.”

The 30-day removal period is not triggered at the instant the case becomes removable, or even when the defendant has enough evidence to surmise that the case might have become removable; rather, an amended pleading, motion, order, or other paper must be unequivocally clear and certain to start the 30-day time limit running for a notice of removal under the second paragraph of 28 U.S.C. § 1446(b).

In this case, the first unequivocally clear and certain evidence that the amount of damages exceeded the $75,000 threshold was not available to defendant until plaintiff submitted his response to defendant’s request for admissions on Feb. 21, 2014. As such, defendant’s Feb. 28, 2014 notice of removal was timely filed.

Motion denied.