CIVIL PROCEDURE

Timeliness • Venue • Damages • Personal Injury

McMillan v. Wilkie Trucking Inc., PICS Case No. 14-0352 (E.D. Pa. Feb. 21, 2014) Surrick, J. (10 pages).

Plaintiff Thomas McMillan moved to remand. Motion granted.

On Sept. 24, 2013, McMillan filed a complaint against defendant Wilkie Trucking, Inc. and Randy Lovell alleging careless and negligent operation of defendants’ tractor trailer. On May 15, 2013, McMillan was riding his bicycle on Second Street in Philadelphia. Lovell was driving a tractor trailer owned and maintained by his employer, Wilkie Trucking. At the corner of Second and Callowhill Streets, Lovell made a right turn and ran over McMillan and his bicycle with the tractor trailer. McMillan alleged he suffered catastrophic and life-altering permanent personal injuries as a result of the accident. McMillan brought this action to recover from defendants “jointly and severally, separate sums in excess of $50,000 in damages.”

Defendants filed an answer to the complaint with a new matter asserting the recoverable damages was less than $75,000. McMillan responded and denied the damages were less than said amount. Defendants subsequently filed a notice of removal on the basis of diversity jurisdiction pursuant to 28 U.S.C. §1332. McMillan filed this motion to remand.

A district court has subject matter jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds $75,000. Here, McMillan was a Pennsylvania resident where Wilkie and Lovell were residents of New Jersey. In order to be removed to federal court, the defendant as the removing party bears the burden of proving to a legal certainty that federal subject matter jurisdiction exists and must request removal within thirty-days upon notice that removal is available.

Lovell claimed his removal was filed timely upon notice of available removal through McMillan’s answer to his answer to a new matter as McMillan’s complaint merely stated the amount in controversy was in excess of $50,000.

The court was to determine whether McMillan’s complaint put defendants on notice that the case was removable and if the thirty-day period to file a notice of removal commenced upon service of the complaint. Here, the complaint stated “in excess of $50,000 in damages;” the complaint further detailed the injuries sustained, including multiple major surgeries, two-week hospital stay, two-week in-patient rehabilitation, multiple injuries, physical therapy, pain medication, and continued pain and suffering. The court found defendants should have reasonably and intelligently concluded from a fair reading of the damages alleged in the complaint that the damages would well exceed the $75,000 jurisdictional amount.

Therefore, defendants were put on notice at the time of service of the complaint and the thirty-day time frame to file a notice of removal began to run at such time. Defendants failed to timely file a notice of removal during that thirty-day period and therefore McMillan’s motion to remand was granted.