The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
Plaintiff, Melissa Pinson, commenced this personal injury action on August 16, 2006 in New York State Supreme Court, Bronx County. On February 28, 2007, Defendant, Knoll, Inc., filed a Petition for Removal to the United States District Court for the Southern District of New York based on the diversity of the parties, pursuant to 28 U.S.C. § 1332 and § 1441. On March 26, 2007, Plaintiff filed this Motion to Remand to State Court on the ground that Defendant failed to remove the case within the thirty day removal period prescribed by 28 U.S.C. § 1446(b). For the following reasons, Plaintiff's Motion to Remand is denied, and Defendant's Petition for Removal is granted .
On or about August 16, 2006, Plaintiff filed a summons and complaint in this personal injury action against Defendant in New York State Supreme Court, Bronx County. Defendant was served with the Summons and Complaint on August 29, 2006 and September 1, 2006. (See Pl. Mot. to Remand, dated March 26, 2007, Ex. C (Affidavits of Service).) The injury claimed in the Complaint is as follows:
[P]laintiff was caused to suffer severe and permanent personal injuries, including injury to her left foot . . . and left hand; partial ACL tear, left knee; injury to her left hand; possible ganglion cyst; plaintiff may require surgery on her left knee and wrist, plaintiff required medical care and attention and will require such care and attention in the future; extreme pain and suffering; mental anguish and distress; unable to attend to her usual duties and vocation; and plaintiff has been otherwise damaged, all of which damages are permanent in nature and continuing into the future. (Compl. ¶ 8.) In accordance with New York law, the Summons and Complaint contained only a general statement of Plaintiff's injuries and did not contain an ad damnum clause alleging a specific amount of damages. See N.Y.C.P.L.R. § 3017(c) (McKinney's 2007)("In an action to recover damages for personal injuries . . .the complaint . . . shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled.").
Pursuant to N.Y.C.P.L.R. section 3017(c)*fn1 , Defendant sent a letter to Plaintiff on October 9, 2006, to ascertain the exact amount of damages Plaintiff sought. (Defendant's Pet. for Removal, dated February 27, 2007 ("Def. Removal Pet.") Ex. C.). In this letter, Defendant alerted Plaintiff that it wished to remove the case to federal court once it had sufficient information to establish that the amount in controversy exceeded the $75,000 threshold required under 28 U.S.C. § 1332.*fn2 Plaintiff did not respond to this request until February 5, 2007, stating that Plaintiff sought damages: "not expected to exceed the sum of 3.5 million dollars." (Id. Ex. D (Plaintiff's Response to Discovery and Inspection, dated February 5, 2007) at 4.)
Thereafter, on February 28, 2007, Defendant filed a Notice of Removal, stating that it "now ha[d] some basis that the value of Plaintiff's injuries . . . [exceeds] the $75,000 amount in controversy requirement." (Def. Removal Pet. ¶ 6.) On March 26, 2007, the Plaintiff filed this Motion to Remand to State Court and accompanying Memorandum of Law ("Pl. Mem.") alleging that Defendant's removal petition was filed more than thirty days after receipt of the Summons and Complaint in violation of 28 U.S.C. § 1446(b). On April 16, 2007, Defendant filed its Opposition to Plaintiff's Motion to Remand and an accompanying Memorandum of Law ("Def. Mem.").
There are three issues presented: (1) Whether the Plaintiff's Complaint qualifies as an "initial pleading" sufficient to trigger the thirty day removal period under U.S.C. § 1446(b); (2) if not, what document does suffice to begin that statutory period; (3) based on the foregoing, does the Defendant establish that the case is within the original jurisdiction of United States courts under 28 U.S.C. § 1332.
A. Standard for Determining Whether the Thirty Day Removal Period Began with the Filing of the Complaint or the Filing of Some Other Document
According to 28 U.S.C. § 1446(b), "the notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant . . . 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 defendant." However, "[i]f the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt . . .of . . . [an] other paper from which it may first be ascertained that the case is one which is or has become removable." Id. In this case, (1) the Summons and Complaint did not allege a specific damages amount and thus was not sufficiently precise to state a removable case; and (2) the Response to Notice for Discovery and Inspection, dated February 5, 2007, which contained an estimate of the damages Plaintiff sought, was the first document that indicated to Defendant that the case was removable, commencing the thirty day period. Defendant filed its Notice of Removal, on February 27, 2007, within thirty days of receipt of the triggering document.
1. The Summons and Complaint was not an "Initial Pleading" for Removal Purposes
The Second Circuit addressed the requirements of an "initial pleading" to support a removal proceeding in Whitaker v. American Telecasting, Inc., 261 F.3d 196 (2d Cir. 2001). In Whitaker, the defendant's notice of removal had been filed over thirty days after the summons, but less than thirty days from the filing of the complaint. Id. at 199. The district court had held that the "relevant event for triggering the thirty day removal clock under § 1446(b) is the defendant's receipt of the complaint." Id. at 198. The Second Circuit disagreed, holding that the "triggering event" was the receipt of the "initial pleading," which the court defined as "any pleading (and not necessarily the complaint) containing sufficient information to enable the defendant to intelligently ascertain the basis for removal." Id. The court further held that
In cases where removal is based upon diversity, the facts required to support the removal petition include the amount in controversy and the address of each party. While this standard requires a defendant to apply a reasonable amount of intelligence in ascertaining removability, it does not require a ...