Calvert v. Office Depot, Inc.

Filing 19

MEMORANDUM Opinion and Order, Signed by the Honorable John W. Darrah on 12/11/2014. (ea, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTOINETTE CALVERT,
Plaintiff,
v.
OFFICE DEPOT, INC.,
Defendant.

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Case No. 14-cv-6145
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiff, Antoinette Calvert, filed a Motion to Remand this case to the Circuit Court of
Cook County, Illinois. Defendant, Office Depot, Inc., is opposed; and the issue has been fully
briefed. For the following reasons, the Plaintiff’s Motion to Remand [9] is denied.
BACKGROUND
The Plaintiff filed a Complaint in the Circuit Court of Cook County on June 2, 2014.
(Dkt. 1-1). The Complaint alleges: one count of negligence, one count of premises liability, and
one count of res ipsa loquitur. (Dkt. 1-1.) The Complaint was served on Defendant by the
Cook County Sheriff on June 9, 2014. (Dkt. 1-4.) On July 8, 2014, Defendant filed a Request to
Admit Facts (the “Request”) which contained the following:
1. Admit that Plaintiff is seeking damages in an amount greater than $75,000.00,
exclusive of interests or costs.
2. Admit that the amount in controversy exceeds the sum or value of $75,000.00,
exclusive of interests or costs.
3. Admit that the Plaintiff is a citizen of Illinois.
4. Admit that the Plaintiff is not a citizen of Delaware or Florida.
(Dkt. 9-4.) Plaintiff filed her answer to the Request on August 5, 2014. (Dkt. 1-3.) For each of
the four requests Plaintiff responded: “Admit. Insofar as Defendant attempts to use this
admission as a basis for federal subject matter jurisdiction, Plaintiff objects on the basis that

there is a lack of complete diversity, as Defendant Office Depot, Inc. is a citizen of Illinois.”
(Dkt. 1-3.) Defendant filed a Notice of Removal on August 11, 2014. (Dkt. 1.) Plaintiff filed
the current Motion to Remand on September 9, 2014. (Dkt. 9.)
LEGAL STANDARD
In order for a case to be removable to federal court, the citizenship of the parties must be
diverse and the amount in controversy must exceed $75,000. See 28 U.S.C. §§ 1332, 1441.
Normally a notice of removal must be filed within thirty days of receipt of a copy of the
complaint by a defendant or within thirty days of the service of summons upon the defendant.
See 28 U.S.C. § 1446(b)(1). However, “if the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days after receipt by the defendant,
through 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.”
(Emphasis added.) 28 U.S.C. § 1446(b)(3).
The proponent of federal jurisdiction “bears the burden to show that the removal was
timely and that it meets all the criteria.” Douthitt v. Arvinmeritor Inc., No. 13-cv-754, 2013 WL
5255677, at *2 (S.D. Ill. Sept. 17, 2013) (citing Ruppel v. CBS Corp., 701 F.3d 1176, 1179 (7th
Cir. 2012)). The thirty-day time limit for removal “forces the defendant to make a prompt
decision about removal once a pleading or other litigation document provides clear notice that
the predicates for removal are present.” (Emphasis added.) Walker v. Trailer Transit, Inc., 727
F.3d 819, 823 (7th Cir. 2013). The removal clock begins only when the defendant receives a
“pleading or other paper that affirmatively and unambiguously reveals that the predicates for
removal are present.” (Emphasis added.) Id. at 824.
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ANALYSIS
Plaintiff argues that, on its face, her Complaint was sufficient to trigger the thirty-day
removal clock under 28 U.S.C. § 1446(b)(1). Under this theory, the Defendant had until
July 9, 2014, to file a notice of removal. Plaintiff’s Complaint alleged that she suffered
“permanent and severe injuries which has caused Plaintiff to endure pain, suffering, disability,
disfigurement, loss of a normal life, which requires her to seek medical care which continues in
the future and to incur medical expenses.” (Compl. ¶¶ 21, 24.) Courts have held that “when
plaintiffs allege serious, permanent injuries and significant medical expenses, it is obvious from
the face of the complaint that the plaintiffs' damages exceeded the jurisdictional amount, thus
triggering the 30–day removal period.” McCoy by Webb v. General Motors Corp.,
226 F. Supp. 2d 939, 941 (N.D. Ill. 2002). The Complaint was sufficiently clear on its face that
the damages sought exceeded the jurisdictional amount.
However, the Complaint did not allege Plaintiff’s citizenship. The Complaint refers to
Plaintiff as “an invitee on the premises of 6 South State Street in Chicago, Illinois 60603.”
(Dkt. 1-1 at ¶ 4). Plaintiff argues that Defendant had clues regarding her citizenship including an
incident report from February 16, 2013, that listed her address in Illinois and the fact that she
was in an Office Depot in Illinois. (Dkt. 9, p. 11.) However, the Seventh Circuit recently held
that, “[a]ssessing the timeliness of removal should not involve a fact-intensive inquiry about
what the defendant subjectively knew or should have discovered through independent
investigation.” Walker, 727 F.3d at 825. Rather, “the 30–day clock is triggered by pleadings,
papers and other litigation materials actually received by the defendant or filed with the state
court during the course of litigation.” Id.
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Nothing in the Complaint establishes that the Plaintiff is an Illinois resident. The bare
assertion that the Plaintiff was in Chicago when her injury occurred does not establish residency,
much less citizenship. Further, the incident report was not a paper or pleading received during
the course of investigation. Even if the Court construed the incident report “as other papers, they
simply list an address for [Plaintiff], and as [Plaintiff] should know, complete diversity is based
upon citizenship not residency.” Hernandez v. Schering Corp., No. 05-cv-0870, 2005 WL
1126911, at *2 (N.D. Ill. May 5, 2005). The mere listing of an address on a report filed sixteen
months prior to the Complaint may establish residency, but it does not establish citizenship. See
America’s Best Inns, Inc. v. Best Inns of Abeline, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992)
(“[C]itizenship means domicile, not residence.”) (citing Gilbert v. David, 235 U.S. 561 (1915)).
Plaintiff also argues that correspondence between a corporate liability officer and Plaintiff’s
attorney put Defendant on notice that she was an Illinois citizen. But this correspondence is not
pleadings, papers, or other materials received by Defendant “during the course of litigation.” See
Walker, 727 F.3d at 825. Again, assessing timeliness is not a fact-intensive inquiry about what
Defendant subjectively knew but is based on the materials received in the course of litigation.
The answers to the Request are materials actually received by Defendant during the
course of litigation. Thus, when the Request was answered on August 5, 2014, the Defendant
had information that affirmatively and unambiguously revealed that the predicates for removal
were present. The removal clock started when Defendant received the answers; accordingly, the
Defendant was within the thirty-day window when it filed its Notice of Removal on
August 11, 2014.

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CONCLUSION
For the reasons discussed above, Plaintiff’s Motion to Remand [9] is denied.

Date:

December 11, 2014

/s/
JOHN W. DARRAH
United States District Court Judge

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