The 30-day removal time limit: when does the clock start ticking?

• Author: Allen, Elizabeth P.
• Position: Removal to federal court - Florida

You are dealing with a matter that could turn into a lawsuit against your non-Florida corporate client. You have had telephone conversations with the potential litigant and then with his counsel. You have received letters and reports from claimant's counsel showing that damages to her client are in excess of $100,000. After discussions fail, suit is filed in state court and served on your client. The complaint only references the amount of damages using the generic "in excess of $15,000." You'd like to remove the case to federal court because your client prefers it. You have diversity of the parties but has the federal jurisdictional amount in excess of $75,000 been met? Has the 30-day removal time clock started ticking with service of the complaint on your client? Your client wants to remove the case, so when does your notice of removal have to be filed?

The U.S. Supreme Court in Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc., 119 S. Ct. 1322 (1999), stated that, regardless of any other issue, the 30-day removal time period cannot be triggered for a complaint removable on its face until a defendant has been served with legal process. In that case, Michetti, a Canadian corporation, was sued in Alabama state court by Murphy, an Illinois corporation, for breach of contract and fraud. Though suit was filed, Murphy did not serve Michetti initially, but did send counsel a courtesy copy of the complaint. When negotiations failed, service was perfected. Michetti removed the action based on diversity jurisdiction on the 30th day after service, but 44 days after receipt of the courtesy copy of the complaint. Murphy moved for a remand due to untimeliness under 28 U.S.C. [sections] 1446(b). The Supreme Court rejected Murphy's position and held that the 30-day time period for removal under [sections] 1446(b) does not begin to run until actual service on the defendant.(1)

Is it Removable on its Face?

The first issue then is to determine whether the complaint is "removable" on its face. It is the claim of the plaintiff which is determinative of the existence of the amount in controversy necessary for diversity jurisdiction and removal of a case.(2) When a state court complaint merely alleges damages in excess of the jurisdictional amount, i.e., "in excess of $15,000" or "in excess of the jurisdictional amount," the claim is indeterminate for purposes of "amount in controversy" and is not removable, at that time although it may be removable later, as explained below.

In Fleming v. Colonial Stores, Inc., 279 F. Supp. 933 (N.D. Fla. 1968), which involved a personal injury action, the plaintiff's complaint alleged the jurisdictional amount necessary for state court claim. Months after service of the complaint, the defendant received answers to interrogatories that identified a specific amount of damages in excess of the diversity jurisdictional amount. Based upon those answers, the defendant removed the action. Subsequent thereto, the plaintiff moved for remand stating the removal was untimely. The court rejected the plaintiff's argument and stated that so long as the plaintiff's complaint merely alleged general state jurisdictional allegations, it was not removable on its face pursuant to 28 U.S.C. [sections] 1446(b), and thus the 30-day removal period had not yet begun to run.(3)

In Essenson v. Coale, 848 F. Supp. 987 (M.D. Fla. 1994), the plaintiff sued in state court for tortious interference with a business relationship. The complaint alleged damages in excess of $15,000. Nine months later and within 30 days after receiving a demand for judgment in the amount of $165,000, the defendants removed the case pursuant to diversity jurisdiction. The court denied plaintiff's motion for remanding, rejecting the argument that the case was initially removable when filed. The court stated that it would not construe the words, "in excess of the...