Rosenfield v. Forest City Enters., L.P.
Rosenfield v. Forest City Enters., L.P.
Opinion of the Court
Under the removal statute,
In this case, Defendants' counsel first learned in pre-suit written communications with Plaintiff's counsel that the amount in controversy exceeded $75,000, and that therefore the case was removable. However, the amount in controversy was not apparent from the face of the barebones Complaint, subsequently filed and served. Sometime thereafter, Plaintiff submitted a case management conference memorandum (required by local procedure in state court) demanding $350,000. Thirty days after the case management memorandum was filed (but forty-nine days after the filing and service of the Complaint), Defendants removed the case to federal court. In response, Plaintiff filed the instant motion to remand the case back to state court.
Plaintiff's position is that the aforementioned pre-suit written communications made it apparent that the amount in controversy exceeded $75,000, and thereby constitute "other paper" under the removal statute. Given that, in Plaintiff's view, the Defendants already knew that the amount in controversy exceeded $75,000, the thirty-day removal period began when the Complaint was filed and served, thereby rendering removal untimely because removal was more than thirty days after the filing and service of the Complaint.
Defendants contend that it was not apparent that the amount in controversy exceeded $75,000 until Plaintiff filed the case management conference memorandum, making removal-thirty days thereafter-timely.
The issue in this case is whether the written pre-suit communications between counsel qualify as "other paper" under the removal statute. If so, then Defendants' thirty-day window to remove would have started on the date that the Complaint was filed and served. If not, then the time for removal would run from the filing of the case management conference memorandum.
For the reasons that follow, the Court finds that, under § 1446(b), the written pre-suit communications do not qualify as "other paper," and therefore Defendants' removal within thirty days of the filing of the case management conference memorandum was timely.
I. PROCEDURAL HISTORY
Plaintiff Bruce Rosenfield broke his patella (knee cap) when he slipped and fell on ice outside of his apartment at 1835 Arch Street in Philadelphia-which is owned by Defendants. The injury required surgery and extensive rehabilitation. See ECF Nos. 1, 3, 5.
A. Demand Letter
Prior to filing suit, Plaintiff's counsel sent a demand letter to Defendants via email on December 30, 2016. See Pl. Mot. Ex. A, ECF No. 3. The letter described the accident, injury, surgery, hospital care, and rehabilitation that Plaintiff underwent.
Expounding how valuable Plaintiff's missed work time was, the letter also included some of Plaintiff' professional qualifications.
Finally, the letter offered to release Plaintiff's claims in exchange for Defendants' agreement that Plaintiff live rent-free in his current apartment for five years.
After receiving the demand letter, Defendants' counsel requested via email that Plaintiff's counsel agree to cap damages at $75,000; and explained that if Plaintiff did not so agree, Defendants would likely remove to federal court.
B. Complaint
Plaintiff commenced this action in the Court of Common Pleas of Philadelphia County, Pennsylvania when he filed the Complaint on March 15, 2017. ECF No. 1. That same day, he served Defendants. Pl. Mot. 26, ECF No. 3.
The Complaint, which was largely boilerplate, included few of the details contained in the demand letter and other emails sent by Plaintiff's counsel to Defendants pre-suit. See Compl., ECF No. 1; Def. Resp. Ex. A, ECF No. 5. For example, it noted that Plaintiff had sustained a "fractured left patella." Compl. Ex. A ¶ 27. It also alleged that Plaintiff had incurred expenses for, inter alia, "surgery," and that his injury was "permanent."
C. Case Management Conference Memorandum
Plaintiff filed a case management conference memorandum on April 4, 2017. Def. Resp. Ex. B, ECF No. 5. In this memorandum, Plaintiff made a formal settlement demand of $350,000.
D. Removal
On May 3, 2017, thirty days after the case management memorandum was filed, but forty-nine days after the filing and service of the Complaint, Defendants removed this case on the basis that the *677parties were diverse and the amount in controversy exceeded $75,000. Def. Resp. 7, ECF No. 5. In turn, Plaintiff filed a motion to remand, arguing that removal was untimely. ECF No. 3.
E. Hearing
The Court heard oral argument on the Motion to Remand on December 20, 2017. See ECF No. 7. At that hearing, the Court afforded counsel additional time to file supplemental briefs.
II. LEGAL STANDARD
Any civil action brought in state court may be removed to the federal district court in the district where the action is pending, if the district court would have had original jurisdiction.
A district court has subject matter jurisdiction over civil actions between citizens of different states where the amount in controversy, exclusive of interest and costs, exceeds $75,000.
Under the removal statute,
[t]he notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever is shorter.
Where it is not apparent from the face of the initial pleading that a case is removable, "a notice of removal may be filed within 30 days after receipt by the defendant, *678through service or otherwise, of 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."
III. DISCUSSION
The parties do not dispute that they are diverse or that the amount in controversy exceeds $75,000. See
A. What is "Other Paper"?
The Third Circuit has not defined "other paper" under § 1446(b). See Bishop v. Sam's E., Inc., No. 08-4550,
Accordingly, district courts in this Circuit have held that correspondence between *679parties, made after filing suit, can constitute "other paper." See
B. Pre-Suit "Other Paper"
While it is true that informal correspondence between counsel, sent after the filing of a complaint, can constitute "other paper," the correspondence in this case was exchanged prior to the suit being filed. Although the Third Circuit has not yet addressed this issue, other circuits have held that a pre-suit communication cannot qualify as "other paper" under § 1446(b)(3). See Chapman v. Powermatic, Inc.,
As explained by the Ninth Circuit, the statute does not contemplate "other paper" exchanged by counsel before a complaint is filed or served:
It is axiomatic that a case cannot be removed before its inception. If the second paragraph of section 1446(b) were meant to include as "other paper" a document received by the defendant months before receipt of the initial pleading, the requirement that the notice of removal "be filed within thirty days after receipt by the defendant" of the "other paper" would be nonsensical.
Carvalho,
In support of his position that a communication exchanged pre-suit can qualify as an "other paper," Plaintiff cites to two district court cases, which, according to Plaintiff, "considered pre-Complaint writings in this very context." Pl. Br. at 10, ECF No 14.
The first case, Young, involved a slip and fall at a Wal-Mart store. Young v. Wal-Mart Stores E., LP, No. 14-06692,
The second case, Davis, involved a negligence claim arising from a motor vehicle accident. Davis v. Donnelly, No. 14-6163,
The Davis court first looked to the four corners of the complaint, and concluded that it was not apparent from the face of the complaint that the amount in controversy exceeded $75,000. Id. at *4. After discussing the boilerplate complaint, the court went on to note that "[t]he only concrete numbers produced by [p]laintiff pertaining to damages were contained in a letter from [p]laintiff's counsel to [d]efendants' insurer dated [prior to the suit being filed]." Id. at *5. The court then noted that that letter only listed damages totaling less than half of $75,000, so "[e]ven when viewed in conjunction with the alleged damages asserted in the [c]omplaint, we find that this sum would not place [d]efendants on notice that the amount in controversy requirement has been met." Id. The Davis court, like the Young court, did not address whether it mattered that the letter was sent prior to the suit. See id.
Considering that neither Young nor Davis discussed the distinction between pre-suit and post-suit written communications in the context of "other paper," nor the significance of that distinction, they do not support Plaintiff's position that a pre-suit letter can qualify as "other paper." Further, as discussed above, Plaintiff's position is at odds with the statutory language, which makes clear that only post-suit writings qualify as "other paper."
Because the relevant communications between counsel in this case were exchanged prior to the filing and service of the Complaint, they do not qualify as "other paper." Therefore, the first time that the grounds for removal were apparent under § 1446(b) was when the case management conference memorandum was filed on April 4, 2017. Thus, the case management conference memorandum is the "other paper" in this case. Because Defendants removed this action on May 3, 2017, removal was within thirty days of the filing of the case management conference memorandum, and therefore removal was timely.
IV. CONCLUSION
For the reasons discussed above, the Court will deny Plaintiff's Motion to Remand.
An appropriate order follows.
ORDER
AND NOW , this 28th day of March, 2018 , upon consideration of Plaintiff's Motion to Remand (ECF No. 3), Defendants' response in opposition thereto (ECF No. 5), Plaintiff's supplemental brief (ECF No. 14); after a hearing on the record with counsel for the parties; and for the reasons set forth in the accompanying memorandum opinion, it is hereby ORDERED that Plaintiff's Motion to Remand (ECF No. 3) is DENIED.
AND IT IS SO ORDERED.
The Court disagrees with Defendants' contention in that it is clear that Defendants learned that the amount in controversy exceeded $75,000 from the pre-suit emails described previously. However, because (as explained below) those communications were made prior to the filing of this law suit, Defendants' pre-suit knowledge is irrelevant to when the thirty-day removal period began.
The subject of the supplemental briefing was whether the Supreme Court's decision in Murphy Brothers foreclosed the possibility that pre-suit writings could constitute "other paper" under the removal statute. See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,
After reviewing Plaintiff's supplemental briefing, the Court agrees that the activities at issue in Murphy Brothers occurred after the complaint was filed, and, therefore, Murphy Brothers is not dispositive in this case, where the issue involves pre-suit communications.
Defendants had leave to file a response to any supplemental briefing by Plaintiff by January 29, 2018. ECF No. 10. In the interest of justice, the Court will overlook Defendants' counsel's failure to advocate for his client on this important issue in the case, and proceeds to address the issue on the merits.
Where, as in this case, a complaint fails to allege with specificity damages that permit a defendant to conclude, to a legal certainty, that the amount in controversy creates federal jurisdiction, the removal period is not triggered by service of the complaint. See, e.g., Bishop v. Sam's E., Inc., No. 08-4550,
In contrast to Young and Davis, at least one district court, not cited by Plaintiff, did hold that a pre-suit letter between counsel qualified as an "other paper." See Efford v. Milam,
Reference
- Full Case Name
- Bruce ROSENFIELD v. FOREST CITY ENTERPRISES, L.P.
- Cited By
- 11 cases
- Status
- Published