DAVID R. HERNDON, District Judge.
Pending before the Court is plaintiff's motion to remand (Doc. 5) pursuant to 28 U.S.C. § 1447. Defendant opposes (Doc. 8). Based on the following, the motion to remand is
A. Complaint and Removal
In March 2015, plaintiff Toni Perrin ("Perrin") filed a personal injury complaint as an arbitration proceeding in the Circuit Court of the Twentieth Judicial Circuit of St. Clair County, Illinois, naming defendants Dillard's Inc. and Dillard's Store Services, Inc. ("defendants") (Doc. 1-1).
On February 23, 2017, the complaint was removed to this Court asserting initial non-removability—although diversity of citizenship was alleged—because the amount in controversy was less than $50,000.00 and, under 28 U.S.C. § 1446(b)(3), notice of removal may be filed within 30 days once defendants discovered the case became removable (Id. at 2). In support, defendants alleged receiving a letter from Perrin's attorney (Doc. 1-4) dated January 31, 2017 conveying a demand of $350,000.00 in restitution; and, up until receiving said demand, Perrin had not amended her complaint to reflect seeking damages in excess of the initial $50,000.00 requested relief (Doc. 1 at 2). Defendants contend Perrin failed to amend her initial complaint in bad faith in order to prevent removal within one-year of commencement as stipulated by section 1446(c) (Id. at 3).
B. Motion to Remand
Perrin argues improper removal due to defendants' delayed motion; and moreover, points to lack of presentation of facts which would toll the statutory one-year time period under section 1446(c)(1) (Doc. 5). Perrin proclaims defendants' removal was attempted after her case was pending in Illinois State court for more than one year, and more than thirty days after defendants knew the amount in controversy exceeded $75,000.00 (Id. at 1).
Specifically, she alleges that in April 2015, defendants received a summons and complaint describing—what was believed to be at the time—a soft tissue back injury claim seeking less than $50,000.00 in relief (Id.). On December 9, 2015, arbitration proceedings were conducted where Perrin testified back surgery may be beneficial to her injuries (Id. at 2).
(Id.). The motion was granted and the case was transferred to the law docket on January 21, 2016 (Id. at 2). Additionally, a copy of corroborating medical records was served on defendants January 14, 2016 (Id. at 2, 5). As a result, Perrin argues defendants knew or should have known the amount in controversy would exceed the $75,000.00 jurisdictional requirement once she testified in the December 9th arbitration proceeding (Id. at 2).
Perrin affirms providing defendants certified notice of increased damage claims by presenting the following:
In response, defendants assert, inter alia, their Notice of Removal was timely filed as stipulated under section 1446(b)(3), and furthermore purport Perrin deliberately concealed facts within the first year of litigation which would have established her claim would exceed $75,000.00 (Doc. 8). As a result, defendants claim violation of Rule 213(i) of the Illinois Supreme Court Rules because Perrin failed to amend her complaint upon determining the claim would be in excess of $75,000.00 (Id. at 4).
II. LEGAL STANDARD
A. 28 U.S.C. § 1441
Defendants may remove "any civil action brought in a State court of which the district courts of the United States have original jurisdiction [.]" 28 U.S.C. § 1441(a). The removing party bears the burden of demonstrating removal is proper, and removal statues are strictly construed, resolving all doubts in plaintiff's choice of state court forum. See Morris v. Nuzzo, 718 F.3d 660, 668 (7th Cir. 2013) (citing Schur v. L.A. Weight Loss Ctrs., 577 F.3d 752, 758 (7th Cir. 2009)).
B. 28 U.S. C. § 1446
In addition to satisfying jurisdictional requirements, defendants seeking removal must also satisfy procedural and timing requirements under section 1446(b). Timing requirements necessitate a notice of removal to be filed within 30-days of service of the initial pleading containing a removable cause of action. See § 1446(b)(1). If the initial pleading is not removable, the notice of removal must be filed within 30-days after defendant's receipt "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." § 1446(b)(3). A case may not be removed on the ground of diversity jurisdiction more than 1-year after commencement of an action unless a plaintiff acted in bad faith to prevent removal. See § 1446(c)(1).
When the jurisdictional amount in controversy is uncontested, courts generally "accept the plaintiff's good faith allegation of the amount in controversy unless it `appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.'" McMillian v. Sheraton Chi. Hotel & Towers, 567 F.3d 839, 844 (7th Cir. 2009). However, "[a] plaintiff is required to supply `competent proof' of the amount in controversy if the `jurisdictional facts are challenged by his adversary in any appropriate manner.'" Enbridge Pipelines (Illinois) L.L.C. v. Moore, 633 F.3d 602, 605 (7th Cir. 2011) (quoting McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936).
C. ILCS S. Ct. Rule 213(i)
Rule 213 requirements regard written interrogatories, and under subsection (i) "[a] party has a duty to seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party." Rule 213(i). "Supreme Court Rule 213(i) imposes on each party a continuing duty to inform the opponent of new or additional information whenever such information becomes known to the party." Sullivan v. Edward Hosp., 209 Ill.2d 100, 109, 806 N.E.2d 645, 641 (2004). It is designed to give parties "a degree of certainty and predictability," thereby eliminating "trial by ambush." See White v. Garlock Sealing Tech., LLC, 373 Ill.App.3d 308, 869 N.E.2d 244, 257 (2007). "Rule 213 disclosure requirements are mandatory and subject to strict compliance by the parties." Id. (citing Seef v. Ingalls Mem'l Hosp., 311 Ill.App.3d 7, 21, 724 N.E.2d 115 (1999)).
Deciding this issue turns on whether the "bad faith" exception pursuant to § 1446(c)(1) applies. More specifically, whether—at some point prior to the January 31, 2017 demand letter—Perrin presented defendants with more than a theoretical availability of damages in excess of $75,000.00, see McMillian, 567 F.3d at 844; and if so, did she have a duty to supplement discovery responses in compliance with ILCS S. Ct. Rule 213(i).
In order to determine whether the "bad faith" exception applies, the Court will look to whether defendants could have figured out the severity of Perrin's injuries, i.e. ruptured lumbar discs, before the 1-year time limitation stipulated by § 1446(c)(1).
The "commencement of the action"
On August 31, 2015, defendants were served with "other papers," i.e., Perrin's Answer's to Defendant's First Set of Interrogatories, which included the following, as relevant:
State the parts of plaintiff's body, if any, injured in the incident mentioned in the Complaint.
What dollar amount of damages is plaintiff seeking as compensation for his/her injuries for each count of your complaint?
1. No Establishment of "Competent Proof"
Perrin points to the overall absence of "bad faith," and argues that even if she engaged in "bad faith," defendants were nevertheless required to remove the case within 30-days of receiving medical records and deposition testimony which she maintains put defendants on notice of sustained damages well in excess of $75,000.00. To prevail, she must prove "jurisdictional facts [of amount in controversy] by a preponderance of the evidence." McMillian, 567 F.3d at 844.
Typically, the face of a plaintiff's complaint indicates the claim's value in requested relief; however the Court "may look outside the pleadings to other evidence of jurisdictional amount in the record." Chase v. Shop `N Save Warehouse Foods, Inc., 110 F.3d 424, 427-28 (7th Cir. 1997) (court is limited to examining evidence of amount in controversy available at moment removal motion was filed). As such, Perrin relies on the following evidence in attempt to prove, to a reasonable probability, defendants knew or should have known the jurisdictional amount of $75,000.00 was alleged prior to the filing of defendants' notice of removal:
1. Motion to Transfer to Law Docket served on defendants December 16, 2015.
The Court agrees that defendants were put on notice regarding an increase in damages exceeding "the jurisdictional amount of the arbitration docket." However, under the local rules for the Circuit Court for the Twentieth Judicial Circuit
IL R 20 CIR Civil Actions(c). According to the local rule, an amount in controversy which exceeds the arbitration docket is any amount "exceeding $50,000.00." See id. (emphasis added). Certainly, cases are removed here routinely with ad damnum clauses that simply request amounts in excess of $50,000.00 which are not remanded, but they are accompanied by damage allegations which adequately establish the jurisdictional amount plus they do not have the history of this case which clearly caused the defendants to be lulled into believing the jurisdictional amount had not been met even with the motion to transfer. Had the motion to transfer been accompanied with an update in discovery a contrary conclusion may result. Accordingly, Perrin's Motion to Transfer to Law Docket does not constitute, by a preponderance of evidence, "competent proof" of a jurisdictional fact. See McMillian, 567 F.3d at 844.
2. Dr. Thomas K. Lee's Progress Note from a November 23, 2016 doctor's visit—received from Tesson Heights Orthopaedics and Arthroscopics, served on defendants January 14, 2016.
Plaintiff's arguments to the contrary about the medical records in this case, nothing contained in the November 23, 2016 Progress Note indicated Dr. Lee affirmatively concluded back surgery was necessary. In fact, the Note indicated "epidural steroids were effective" in relieving her pain; she experienced no acute distress, good range of lumbosacral spine motion, and normal gait. Most importantly, Dr. Lee's plan for treatment stated "[s]he will in all llklhood [sic] require additional [Epidural Steroid Injections], 6 [Epidural Steroid Injections] over the next 2 years is a reasonable estimate in my opinion." Therefore, the Court disagrees with the assertion that defendants were put on notice, and as a result the aforementioned Progress Note does not serve as "competent proof." See id.
3. Various Disarranged Medical Reports and Records served on defendants January 14, 2016; March 9, 2016; December 5, 2016; and February 15, 2017.
4. Discovery deposition of Dr. Lee taken December 8, 2016.
Dr. Lee surmised "an ongoing exercise program and periodic epidural injections will be what's in the future for [Perrin], in addition to [ ] oral medications," when directly asked about the most probable course of treatment. In contrast, he also stated she would ostensibly need surgical intervention at some point in the future in the form of a fusion at the L4-5 disc. He further speculated the cost of the entire procedure, including post-surgical related expenses, would amount to at least $175,000.00. Nevertheless, Dr. Lee's statements fail as "competent proof." See McMillian, 567 F.3d at 845 (failure to demonstrate documentary evidence showing necessity for future medical treatment for injuries or submission of factual examples of post-accident experience or cases where jury awarded pain and suffering damages in amount satisfying jurisdictional requirement precludes meeting amount in controversy requirement); see also Oshana v. Coca-Cola Co., 472 F.3d 506, 511 (7th Cir. 2006) (when plaintiff does not want to be in federal court and provides scarce information about value of claim, good-faith estimate is acceptable only if plausible and supported by preponderance of the evidence).
Perrin's proffered evidence failed to demonstrate with "competent proof" that defendants were put on notice that claims would surpass the $75,000.00 amount in controversy requirement. Based on the pleadings, defendants did not have knowledge of an increase in claimed damages surpassing the jurisdictional requirement until receipt of the January 31, 2017 letter conveying a demand of $350,000.00; and, within 30-days upon receipt of the new demand—defendants filed a notice of removal in compliance with § 1446.
2. Evidence of "Bad Faith"
"If the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith . . . ." § 1446(c)(3)(B).
Considering the facts, claims, and evidence presented, the Court finds that Perrin engaged in "bad faith" to prevent removal, by deliberately failing to disclose an amount in controversy in excess of the jurisdictional requirement within the 1-year timeframe following the commencement of the action. The Court's decision is chiefly grounded in the fact that no information regarding increased damages surpassing the $75,000.00 mark was communicated to defendants between March 12, 2015 and March 12, 2016.
The convoluted medical records provided to defendants, as well as the failure to supplement interrogatory responses,