The opinion
-UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Mary A. Overton Payne, as Legal Guardian
for Xavier L. Payne,
Plaintiff,
No. 25-cv-3036
v.
Judge Lindsay C. Jenkins
Southwest Airlines Co.,
Defendant.
MEMORANDUM OPINION AND ORDER
Mary Overton Payne, on behalf of her disabled adult son, Xavier Payne, sued
Southwest Airlines and a Southwest employee, Keith Dunn, in Illinois state court
alleging Southwest negligently caused injury to Xaiver when luggage fell onto his
head and shoulder. [Dkt. 1, ¶ 3; dkt. 1-1 at 7; dkt. 1-3, ¶ 13.]1 After Southwest and
Dunn moved to dismiss, Payne secured counsel and amended her complaint, dropping
Dunn from the lawsuit. [Dkt. 1, ¶¶ 5–7.] Southwest then filed a notice of removal.
[Dkt. 1, ¶14.] Payne now seeks remand. [Dkt. 14.] For the following reasons, the
motion is granted.
I. Background
On September 16, 2024, Payne filed suit in the Circuit Court of Cook County,
Illinois against Southwest and Dunn. [Dkt. 1-1 at 1.] In her pro se complaint, she
alleged that on September 15, 2022 she boarded a Southwest flight with her son,
Xaiver, who uses a wheelchair. [Id. at 7.] He was seated in the aisle seat, and she
took the middle seat next to him. [Id.] Later in the boarding process, a flight
attendant asked another passenger to place their luggage in the overhead
compartment. [Id.] The luggage fell, hitting and causing injury to Xavier’s head, ear,
and shoulder. [Id.] The blow caused great pain and resulted in him seeking medical
treatment from neurologists, ear specialists, and physical therpists, and having a
CAT scan and x-rays taken of his head and back. [Id.] Surgery was recommended for
his pain. [Id.] Xaiver underwent pain management but suffers anxiety and panic
attacks related to flying. [Id.] In her complaint, Payne requested a “$2,000,000.00
settlement for pain and suffering and permanent damage, surgery, physical therapy,
hospital bills, doctor bills, nursing care, and any future care regarding this injury.”
[Id.]
1 Citations to docket filings generally refer to the electronic pagination provided by
CM/ECF, which may not be consistent with page numbers in the underlying documents.
Payne served her complaint on Southwest and Dunn, and defense counsel filed
an appearance on behalf of both defendants on October 20, 2024. [Dkt. 20-2.] On
November 8, 2024, both Defendants filed a motion to dismiss. [Dkt. 1, ¶ 5.] After a
few extensions, Payne secured counsel who voluntarily dismissed Dunn from the
litigation. [Dkt. 1-2.] Dunn was not involved in Xaiver’s injury; his role was related
to risk management—interviewing Payne and Xavier after the incident and
attempting to reach a resolution. [Dkt. 20 at 3–4.]
On February 24, 2025, Payne filed her amended complaint against Southwest
only. [Dkt. 1-3.] The amended complaint, while providing less detail concerning
Xavier’s injuries, alleged that a Southwest “flight attendant assisted [a] passenger
with placing [their] luggage in the overhead bin directly above Xavier Payne’s seat”
and caused that “luggage to fall … onto Xavier Payne’s head and right shoulder.” [Id.,
¶¶ 12–13.] The amended complaint demanded a judgment in excess of $50,000 in
light of Xavier’s “severe and permanent injuries of a personal and pecuniary nature.”
[Id., ¶ 22.] Less than 30 days later, Southwest filed a notice of removal to this Court.
[Dkt. 1.] Payne filed a timely motion for remand. [Dkt. 14.]
II. Analysis
A defendant may remove an action filed in state court when the action could
have been brought in federal court in the first place. 28 U.S.C. § 1441(a). A federal
court has jurisdiction over claims “arising under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331. Jurisdiction also exists in diversity cases, that
is, “civil actions where the matter in controversy exceeds … $75,000” and the parties
are “citizens of different States.” 28 U.S. C. § 1332(a).
In this personal injury case, removal is premised on diversity jurisdiction. “As
the party seeking removal, [Southwest] bears the burden of establishing federal
jurisdiction.” Tri-State Water Treatment, Inc. v. Bauer, 845 F.3d 350, 352 (7th Cir.
2017). Specific rules establish the timeliness of removal. “If a case is removable based
on the initial pleading, the notice of removal shall be filed within 30 days after the
receipt by the defendant … of a copy of the initial pleading setting forth the claim for
relief.” Rock Hemp Corp. v. Dunn, 51 F.4th 693, 697 (7th Cir. 2022) (cleaned up). But,
“if the case stated by the initial pleading is not removable,” the 30-day clock starts
when 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.” Id. at 697–98; Grandinetti v. Uber Techs., Inc., 476 F. Supp. 3d
747, 750 (N.D. Ill. 2020) (citing 28 U.S.C. § 1446(b)(2)(B)). When there are multiple
defendants, “all defendants who have been properly joined and served must join in or
consent to removal.” Grandinetti, 476 F. Supp. 3d at 750 (cleaned up).
The first question is whether the Payne’s pro se complaint filed in September
2024 stated a cause of action that was removable—that is, presented the predicates
for exercise of diversity jurisdiction (amount in controversy and diverse citizenship).
The parties do not dispute the diverse citizenship piece of the puzzle; their focus is on
whether Payne’s demand for a $2 million settlement was sufficient to put Defendants
on notice that the statutory amount in controversy was met.
“The 30–day removal clock is triggered by the defendant’s receipt of a pleading
or other paper that affirmatively and unambiguously reveals that the case is or has
become removable.” Walker v. Trailer Transit, Inc., 727 F.3d 819, 821 (7th Cir. 2013).
Southwest argues that the $2 million demand was insufficient where Payne’s
complaint failed to state a cognizable claim; the allegations in her original complaint,
according to Southwest, failed to tie Xaiver’s injury to any wrongdoing by Southwest
as opposed to a fellow passenger. [Dkt. 19 at 5.] That was the basis for Southwest’s
motion to dismiss in state court as well. [Dkt. 1, ¶ 5.]2
“[A] plaintiff’s good-faith estimate of the stakes controls unless it is legally
impossible for a court to award what the plaintiff demands.” McCormick v. Indep. Life
& Annuity Co., 794 F.3d 817, 818 (7th Cir. 2015). Courts generally consider whether
the evidence, or in this case allegations, make the demand estimate plausible.
Blomberg v. Serv. Corp. Int’l, 639 F.3d 761, 763 (7th Cir. 2011). Seeking to supplant
this black-letter law, Southwest cites Stewart v. Portfolio Recovery, LLC, 2018 U.S.
Dist. LEXIS 198221 (W.D. Wis. Nov. 21, 2018), an unpublished decision from the
Western District of Wisconsin, to argue that a demand in excess of the jurisdictional
minimum provides an insufficient basis for removal where the complaint “lacks a
legal basis to conclude that a plaintiff could recover more than $75,000.” [Dkt. 19 at
6.] Southwest misreads Stewart which is minimally instructive to begin with. In that
case, the pro se plaintiff demanded more than $200 million but her factual allegations
supported only slight injury in the form of wrongful withdrawals of $25 from her bank
account “on several occasions.” 2018 U.S. Dist. LEXIS 198221, at *2. The Court found
the basis for removal lacking not because of a potentially meritorious defense on the
part of the Portfolio Recovery but because Stewart’s factual allegations did not
support that the amount in controversy exceeded $75,000. Id.
When the Seventh Circuit discussed “legal impossibility” in Mcormick it was
referring to legal prohibitions on recovery, for example “[c]ontractual or statutory
caps on damages … [or] statutory prohibitions on recovering certain categories of
damages.” Sykes v. Cook Inc., 72 F.4th 195, 207 (7th Cir. 2023). Southwest’s reading
impermissibility supplants “legal impossibility” with likelihood of success. But “[t]he
relevant inquiry is not whether a recovery of more than $75,000 is likely.” Id. In fact,
2 Southwest separately argues that Payne’s $2 million demand was not unambiguous
because in several places in her pro se complaint the hand-written dollar figure isn’t clear.
[Dkt. 19 at 7, n.1.] The Court disagrees with that assessment. At the top of her complaint in
the section titled “amount claimed” Payne wrote “$2,000,000.00” after crossing out a different
figure. [Dkt. 1-1 at 6.] Then, in the type-written portion of her complaint, she wrote “I am
requesting $2,000,000.00 settlement for pain and suffering.” [Id. at 7.] Viewing the complaint
as a whole, Payne unambiguously valued her claims at more than the statutory minimum for
removal.
“[a] plaintiff’s inability to prove an essential element of her claim does not implicate
the court’s jurisdiction unless the record shows that the plaintiff did not make her
initial allegations about the amount in controversy in good faith.” Id. That is an issue
for a Rule 12(b)(6) motion but does not bear on removability. Applied to the facts of
this case, Southwest’s belief that there was no way Payne could receive more than
$75,000 due to her failure to identify any negligent actions by Southwest did not
modify its statutory obligation to timely remove the case.
Turning to the record—in this case, Payne’s original pro se complaint—it
described in detail the medical treatment Xaiver received as a result of the accident
as well as his pain and suffering. Xaiver underwent CAT scans and x-rays, visited
neurologists and ear specialists, sought assistance from pain management doctors,
and, among other things, suffered anxiety attacks and headaches. [Dkt. 1-1 at 7.]
These allegations, in tandem with Payne’s request for a $2 million settlement,
“affirmatively and unambiguously reveal[ed] that the case” was removable at the
time Southwest was served in October 2024. Walker, 727 F.3d 819, 821 (7th Cir.
2013). For its part, Southwest offers no reason to believe that these allegations were
not made in good faith.3 A case like this where injuries resulting from the incident
were severe enough for doctors to recommend surgery and to cause “permanent
injuries and pain and suffering” supports the reasonable and common-sense
conclusion that more than $75,000 is at issue. See, e.g., Freeland v. Wal-Mart Stores
E., LP, 2010 WL 1981642, at *3 (W.D. Wis. May 17, 2010).
Southwest offers one additional argument in favor of finding timely removal:
unanimity. It argues that in diversity cases with multiple defendants, the 30-day
clock does not begin running (despite receipt of a pleading establishing diverse
citizenship and the requisite amount in controversy) where the defendants do not all
consent to removal. [Dkt. 19 at 4.] Before Dunn was dismissed, Southwest argues he
didn’t agree to removal, so the case was not removable. [Id.] At the core, Southwest’s
argument is that in diversity cases with multiple defendants, the jurisdictional
requirements for removal are not met (and therefore the clock does not begin to tick)
until all defendants agree to removal.
That argument is not supported by the removal statutes or case law.
Removability refers to the jurisdictional requirements—diverse citizenship and
amount in controversy or a federal question. See § 1441(b)-(c); § 1441(a) (“[A]ny civil
action brought in a State court of which the district courts of the United States have
original jurisdiction[] may be removed …”). The statute imposing the so-called “rule
of unanimity,” 28 U.S.C. § 1446(b)(2)(A), imposes an additional barrier on removing
cases with multiple defendants: agreement.
3 Its only argument is the one only already disposed of concerning Payne’s failure to
allege that Xaivier’s injuries were caused by Southwest’s conduct. Sykes, 72 F.4th at 207.
The need for agreement is not a jurisdictional prerequisite to removal that
extends the time period for removability in a case like this where both defendants
were served at the same time. Jd. § 1446(b)(2). The statute is clear. When multiple
defendants have been joined in a single action and served, they all must “join in or
consent to the removal of the action.” § 1446(b)(2)(A). “The defendant seeking removal
must secure consent to removal from all of the other properly served defendants
within the thirty-day period.” Blake v. Celebrity Home Loans, LLC, 2024 WL 35252,
at *2 (N.D. Ill. Jan. 3, 2024), reconsideration denied, 2024 WL 1859405 (N.D. IL. Apr.
29, 2024). “A defendant’s failure to include other defendants’ consent may only be
cured within the 30-day time period.” Compassionate Pain Mgmt., LLC v. Frontier
Payments, LLC, 2017 WL 4423409, at *3 (N.D. IIL. Oct. 4, 2017) (citation and internal
quotation marks omitted). In other words, 30 days is all defendants have. As Walker
court explained, the defendants must “make a prompt decision about removal once
[they receive] clear notice that the predicates for removal are present.” 727 F.3d at
823.
If late-breaking unanimous agreement among defendants made a case
removable it would defeat the purpose of the 30-day window: “to deprive the
defendant of the undeserved tactical advantage that he would have if he could wait
and see how he was faring in state court ...; and to prevent the delay and waste of
resources involved in starting a case over in a second court.” Wilson v. Intercollegiate
(Big Ten) Conf. Athletic Ass’n, 668 F.2d 962, 965 (7th Cir. 1982). Southwest offers no
cases that disturb the clear statutory framework and courts’ interpretation of that
framework.
III. Conclusion
For the reasons stated herein, the Court grants Payne’s motion to remand
pursuant to 28 U.S.C. § 1447(c) in light of Southwest’s failure to timely file a notice
of removal. Southwest’s motion to dismiss [dkt. 16] is denied as moot.
Enter: 25 CV 3036
Date: June 5, 2025
Lindsay C. Jenkins