Peggy Zahn v. North American Power & Gas, LL

Filing

Filed opinion of the court by Judge Kanne. The district court's decision is REVERSED that it lacked jurisdiction to hear this case, its decision regarding the merits is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. Michael S. Kanne, Circuit Judge; Diane S. Sykes, Circuit Judge and J. Phil Gilbert,* District Court Judge. *(The Honorable J. Phil Gilbert, of the United States District Court for the Southern District of Illinois, sitting by designation.) [6817324-1] [6817324] [15-2332]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2332
PEGGY ZAHN,
Plaintiff-Appellant,
v.
NORTH AMERICAN POWER & GAS, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 8370 — Virginia M. Kendall, Judge.

____________________
ARGUED DECEMBER 2, 2015 — DECIDED FEBRUARY 8, 2017
____________________
Before KANNE and SYKES, Circuit Judges, and GILBERT, District Judge. ∗
KANNE, Circuit Judge. Peggy Zahn filed a class-action
complaint against North American Power & Gas, LLC
(“NAPG”)—an Alternative Retail Electric Supplier—alleging
violations of the Illinois Consumer Fraud and Deceptive
∗ The

Honorable J. Phil Gilbert, of the United States District Court for the
Southern District of Illinois, sitting by designation.

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Business Practices Act, breach of contract, and unjust enrichment. NAPG moved to dismiss the complaint for lack of
subject-matter jurisdiction and for failure to state a claim.
The district court granted NAPG’s motion to dismiss for lack
of subject-matter jurisdiction, believing that “Illinois law
grants the [Illinois Commerce Commission (“ICC”)] exclusive jurisdiction over the matter.” Zahn v. N. Am. Power &
Gas, LLC, No. 14 C 8370, 2015 WL 2455125, at *3 (N.D. Ill.
May 22, 2015). The district court alternatively granted
NAPG’s motion to dismiss for failure to state a claim, addressing the merits of the suit. This appeal followed.
In our original opinion in this case, we described NAPG’s
argument that the district court lacked subject-matter jurisdiction as “miscast.” Zahn v. N. Am. Power & Gas, LLC, 815
F.3d 1082, 1087 (7th Cir. 2016). 1 We explained that states, including Illinois, do not have the constitutional authority to
limit a district court’s jurisdiction; that power lies exclusively
with Congress. We noted, however, that states do “have the
power to prevent the federal court from granting relief in a
diversity case by denying the substantive right of action asserted.” Id. (quoting Begay v. Kerr-McGee Corp., 682 F.2d 1311,
1315 (9th Cir. 1982)). We thus recast NAPG’s jurisdictional
challenge as “one to the subject-matter jurisdiction of an Illinois state court. If an Illinois state court does not have jurisdiction to hear Zahn’s claim, then Zahn has failed to state a
claim upon which relief may be granted in a federal court
sitting in diversity.” Id.

1

The facts of this case are more thoroughly developed in our original
opinion.

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Because we viewed this jurisdictional issue as an important and unsettled matter of state law, we certified the
following question to the Illinois Supreme Court:
Does the ICC have exclusive jurisdiction over a
reparation claim, as defined by the Illinois Supreme
Court in Sheffler v. Commonwealth Edison Company,
955 N.E.2d 1110 (Ill. 2011), brought by a residential
consumer against an Alternative Retail Electric
Supplier, as defined by 220 ILCS 5/16-102?

Id. at 1095. The Illinois Supreme Court answered that question in the negative, holding that an Illinois trial court would
have subject-matter jurisdiction over this type of claim. Zahn
v. N. Am. Power & Gas, LLC, No. 120526, 2016 WL 7007876, at
*6–7 (Ill. Dec. 1, 2016). Because the district court had reached
the opposite conclusion, it erred in that regard: the district
court has jurisdiction to hear this case.
We next address the district court’s alternative conclusion
that “[e]ven if the Court had jurisdiction over the Complaint,
the Court would dismiss the Complaint for failing to state a
claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Zahn v. N. Am. Power & Gas, LLC, No. 14 C 8370,
2015 WL 2455125, at *3 (N.D. Ill. May 22, 2015). We first note
that the district court may have committed error by addressing the merits after concluding that it did not have jurisdiction to hear the case. Cf. Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (1
Wall.) 506, 514 (1868)) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function
remaining to the court is that of announcing the fact and
dismissing the cause.”). That said, we will not ignore the

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court’s merits analysis here because doing so would be an
obvious waste of judicial resources.
The district court dismissed all three of Zahn’s claims,
concluding that she had not pled sufficient facts to demonstrate that NAPG violated the Illinois Consumer Fraud and
Deceptive Business Practices Act, breached a contract, or was
unjustly enriched. “We review de novo a district court’s dismissal of a complaint for failure to state a claim.” Berger v.
Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 289 (7th Cir. 2016).
In so doing, we construe the complaint in the “light most favorable to the nonmoving party, accept well-pleaded facts as
true, and draw all inferences in [the nonmoving party’s] favor.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016)
(internal quotation marks omitted).
In dismissing Zahn’s complaint, the district court did not
address Zahn’s allegation that NAPG promised and their
contract reflected a “New Customer Rate” of $.0499 per kilowatt hour. Zahn alleged that NAPG “lures consumers into
switching to its electricity supply service by offering teaser
rates that are much lower than its regular rates.” (R. 2 at
¶ 13.) She alleged that the teaser rate NAPG offered her was
$.0499 per kilowatt hour (R. 2 at ¶ 15) and that she never received that initial rate but instead was charged $.0599 per
kilowatt hour on her initial bill. (R. 2 at ¶ 18.) She further alleged that “[a]t no time during this period did [NAPG]
charge less than $0.05990 per kilowatt hour.” (R. 2 at ¶ 18.)
That alone, if true, could constitute a breach of contract or a
deceptive business practice. Because the district court did
not address that allegation, it committed error.
For the foregoing reasons, we REVERSE the district
court’s decision that it lacked jurisdiction to hear this case,

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VACATE its decision regarding the merits, and REMAND
for further proceedings consistent with this opinion.