Aken, Sarah et al v. Polaris Industries Inc. et al

Filing 28

OPINION and ORDER denying 7 Motion to Remand to State Court. Signed by District Judge Barbara B. Crabb on 4/7/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - SARAH AKEN, ANDREW AKEN and
UNITY HEALTH PLANS INSURANCE
CORPORATION,

OPINION and ORDER
16-cv-48-bbc

Plaintiffs,
v.
POLARIS INDUSTRIES, INC., POLARIS
SALE, INC. and POLARIS INDUSTRIES
MANUFACTURING LLC,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiffs Sarah Aken and Andrew Aken filed this civil action asserting negligence and
strict liability claims against defendants Polaris Industries, Inc., Polaris Sales, Inc. and Polaris
Manufacturing LLC. Plaintiffs allege that Sarah Aken was burned on her lower body while
riding on an all-terrain vehicle manufactured and sold by defendants. Plaintiffs originally
filed suit in the Circuit Court for Dane County, but defendants have removed the case to
this court under 28 U.S.C. §§ 1446, 1441 and 1332.
Currently there are two housekeeping issues related to defendants’ removal that need
to be resolved. First, as noted in the court’s January 25, 2016 order, defendants’ notice of
removal failed to establish complete diversity of citizenship as required by 28 U.S.C. § 1332.
Specifically, defendants did not identify the citizenship of each of Polaris Industries
Manufacturing LLC’s members. Defendants have since filed an amended notice of removal

1

that resolves the problem, showing complete diversity between plaintiffs and Polaris
Industries Manufacturing LLC’s one member.
The second issue relates to the timeliness of defendants’ notice of removal. Plaintiffs
have filed a motion to remand this suit to the Circuit Court for Dane County on the ground
that defendants’ notice of removal was untimely. After reviewing the parties’ briefs and
evidentiary materials in support of their arguments, I am denying plaintiffs’ motion to
remand. As explained below, defendants did not receive notice sufficient to trigger the 30day removal period in § 1446(b) until plaintiffs tendered their formal “Offer of Settlement”
on January 14, 2016. Accordingly, I conclude that defendants’ notice of removal, which
they filed on January 20, 2016, was timely under § 1446(b) and that jurisdiction over this
case is proper.

OPINION
Plaintiffs contend that I should remand this case because defendants failed to file a
timely notice of removal. Under the general removal statute, a defendant’s notice of removal
must be filed within 30 days after it receives “a copy of the initial pleading setting forth the
claim for relief.” 28 U.S.C. § 1446(b)(1). However, in many instances it is unclear from the
face of a plaintiff’s initial pleading whether the case is subject to removal. In such a case, a
defendant’s 30-day deadline for removing the case does not begin until after the defendant
receives “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.” 28 U.S.C. §

2

1446(b)(3).
Defendants are relying on 28 U.S.C. § 1332 as the basis for removal because plaintiffs
are asserting only state law claims in this case. In addition to diversity of citizenship, § 1332
requires that the amount in controversy exceed $75,000. However, plaintiffs’ claims as set
forth in their initial pleading are not sufficient by themselves to establish that the federal
district courts have diversity jurisdiction over this case because plaintiffs did not plead that
the amount in controversy exceeds $75,000. Therefore, defendants’ receipt of that initial
pleading on November 2, 2015 did not start the 30-day removal period set forth in §
1446(b)(1).
Plaintiffs argue that defendants’ notice of removal is nevertheless untimely because
under § 1446(b)(3), defendants’ removal clock started on December 18, 2015 at the latest.
They contend that by this date, defendants had Sarah Akens’s medical bills, photographs of
her injuries and a copy of plaintiffs’ complaint, which requested punitive damages.
Plaintiffs’ counsel also asserts that he had conversations with defendants’ counsel in which
he stated that the case was worth at least “six-figures.” Haag Aff. ¶ 8, dkt. #9. According
to plaintiffs, when taken together, these materials and statements were sufficient to advise
defendants that the potential value of the case exceeded the $75,000 amount in controversy
requirement.
Although plaintiffs may be correct that they gave defendants enough information
from which they could have ascertained that 28 U.S.C. § 1332's amount in controversy was
met, the Court of Appeals for the Seventh Circuit held in Walker v. Trailer Transit, Inc., 727

3

F.3d 819 (7th Cir. 2013), that for the purposes of § 1446(b)(3), the defendants’ subjective
understanding as to the amount in controversy is irrelevant. The proper focus is instead on
the plaintiff’s actions and whether plaintiff gave the defendants “a post-complaint pleading
or other paper that affirmatively and unambiguously specified a damages amount sufficient to
satisfy the federal jurisdictional minimums.” Id. at 825 (emphasis added). This objective
inquiry, the court of appeals noted, “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. Simply put, the ball is in plaintiffs’ court when it comes to commencing the 30day removal period; if plaintiffs want to trigger it, they can easily do so by providing
defendants a clear written statement that they are seeking damages in excess of the
jurisdictional minimum.
Plaintiffs attempt to distinguish Walker on the ground that the court of appeals found
that under one interpretation of the remedy sought in the complaint in that case, the
damages could not possibly reach the jurisdictional threshold.

However, this factual

distinction was irrelevant to the court of appeals’ legal conclusion that § 1446(b)(3)’s 30-day
time period is not triggered until plaintiffs affirmatively and unambiguously indicate that the
amount in controversy is satisfied. In other words, the legal standard for when and how the
30-day removal period is triggered applies without regard to the facts the court of appeals
relied on in Walker in determining that the standard they adopted was not met in that case.
It is clear that plaintiffs’ motion to remand must be denied when the “affirmative and

4

unambiguous” standard set forth in Walker is applied to this case. The only reference in
plaintiffs’ complaint to the amount in controversy was a statement that plaintiffs’ damages
exceeded $5,000 dollars. Moreover, the medical bills plaintiffs tendered to defendants
totaled less than $10,000; the photographs of plaintiffs’ injuries, however horrific they may
be, do not establish how much plaintiffs were seeking; and plaintiffs’ counsel’s oral
statements that the case was worth “six figures” do not qualify as an “amended pleading,
motion, order or other paper” under the rule. 28 U.S.C. § 1446(b)(3). It was not until
plaintiffs tendered their formal “Offer of Settlement” on January 14, 2016 that they
“affirmatively and unambiguously” specified a damages amount sufficient to satisfy the
federal jurisdictional minimum. A mere six days later, well within the 30-day limit set forth
in § 1446(b)(3), defendants filed their notice of removal. Accordingly, defendants’ notice
of removal was timely and plaintiffs’ motion to remand must be denied.

ORDER
IT IS ORDERED that the motion to remand filed by plaintiffs Sarah Aken and
Andrew Aken, dkt. #7, is DENIED.
Entered this 7th day of April, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

5