Jeffrey Golin v. Neptune Management Corporation, et al

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Daniel A. Manion, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6865333-1] [6865333] [17-1262]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604

Argued August 9, 2017
Decided August 30, 2017
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-1262
JEFFREY R. GOLIN,
Plaintiff-Appellant,

Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.

v.
No. 16 C 4259
NEPTUNE MANAGEMENT
CORPORATION, and JAMES M.
GOLIN,
Defendants-Appellees.

William T. Hart,
Judge.

ORDER
Jeffrey Golin is convinced that foul play led to the death of his father and seeks
an autopsy to prove his suspicion, but his half-brother, James Golin, is adamantly
opposed. Jeffrey sued both James and Neptune Management Corporation, the
cremation provider that currently holds his father’s body, purportedly under the
diversity jurisdiction. Jeffrey seeks a declaration that he, not James, has the right to
decide if an autopsy should be performed. The district court concluded that both Jeffrey
and Neptune are citizens of California and dismissed for lack of complete diversity. We
conclude that Neptune has no stake in the autopsy dispute and should not have been
part of the suit from the outset. The inescapable jurisdictional defect, however, is that

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Jeffrey has not come close to alleging an amount in controversy exceeding the $75,000
minimum, see 28 U.S.C. § 1332(a). We thus affirm the district court’s dismissal for lack
of jurisdiction.
Jeffrey’s complaint provides an exhaustive (and obviously heartfelt) account of
the decline and death of his father, Milton, but the underlying facts are irrelevant to the
jurisdictional question before us. In brief, a year before he died, Milton was placed in an
Illinois nursing home by his son James, who had been given a medical power of
attorney by Milton “some years before.” Milton had been diagnosed with Alzheimer’s
disease but had not been adjudicated incompetent. According to Jeffrey, Milton hated
the nursing home and wished to live with him in California. Jeffrey and Milton retained
an attorney, who helped Milton revoke the medical power of attorney given to James,
execute a new medical power of attorney in favor of Jeffrey, and sign a document
demanding his discharge from the nursing home. But the facility’s management refused
to recognize the new documents, called the police when Jeffrey tried to help Milton
leave, and, at James’s behest, thwarted communication between Milton and Jeffrey.
Milton died shortly thereafter. Jeffrey insists that Milton’s death “was actually
euthanasia—based on James’ authorization and request.”
Milton’s body was taken to Neptune for cremation according to an advance
directive. Jeffrey says that he arranged for a private autopsy to be conducted at his own
expense, but James intervened and persuaded Neptune not to permit the autopsy.
Because of the quarrel over which brother has legal authority to control the disposition
of Milton’s remains, Neptune asked for “a court order or other suitable confirmation
that the dispute was resolved.” Neptune’s managing counsel affirmed that the company
“will be happy to follow the direction of the Court,” but, absent a legal resolution of the
conflict, “it would be inappropriate for Neptune Society to adjudicate the dispute.”
Jeffrey, who has earned a law degree but is not a licensed attorney, brought this
suit pro se against both James and Neptune. He sought a temporary restraining order
preventing Milton’s cremation, a judgment declaring that Milton had validly revoked
James’s power of attorney, and an injunction ordering James not to interfere with the
autopsy—but no damages. Jeffrey invoked the district court’s diversity jurisdiction,
pleading that he is a citizen of California, James is a citizen of Illinois, and Neptune is
incorporated in Florida with its principal place of business in Texas. Regarding the
amount in controversy, Jeffrey alleges that “the benefit to the plaintiff is the enhanced
monetary value of forthcoming litigation for damages included in a forthcoming
wrongful death and negligence action against several defendants,” which, his complaint

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explains, “could ordinarily result in an award against the several defendants . . . of
anywhere from $100,000 to $4,000,000.”
Neptune answered that it “has no position in this dispute” and simply is
preserving, and will continue to preserve Milton’s remains by refrigeration “while this
dispute is pending.” But the company’s answer discloses that Neptune is actually
incorporated in California—which prompted the district court to order the parties to
explain why the case should not be dismissed for lack of complete diversity. Jeffrey
then acknowledged that Neptune is not diverse but asserted that “complete diversity
can be restored” by allowing him to amend his complaint to substitute Service
Corporation International (“SCI”), a Florida corporation with its principal place of
business in Texas. SCI is the proper defendant, Jeffrey contended, because it had
purchased a 70% share in Neptune several years earlier and, as soon as the dispute
between the brothers arose, SCI’s corporate counsel had “intervened and took over the
case … and made all the controlling decisions.” But once again Neptune insisted that it
isn’t taking sides in the dispute between the brothers and that it simply “needs an order
or other suitable confirmation that the dispute has been resolved or settled before it can
release the remains for autopsy or cremation.” Neptune also explained that it had asked
Jeffrey to voluntarily dismiss the company so he could proceed against James, but
Jeffrey refused. Then at a status hearing, Neptune’s counsel stated unequivocally that,
should his client be dismissed from the suit, it would “[a]bsolutely” abide by whatever
ruling the court made regarding which brother had the legal right to control Milton’s
remains. Neither James nor Neptune challenged Jeffrey’s assertion that the suit placed
more than $75,000 in controversy.
The district court dismissed the suit for lack of complete diversity. The court
rejected Jeffrey’s attempt to substitute SCI for Neptune, reasoning that Jeffrey had not
alleged “that a basis exists for piercing the corporate veil” of Neptune. Jeffrey appeals,
though James and Neptune have declined to participate.
As a quick initial matter, we don’t think that either Neptune or SCI should be
part of Jeffrey’s suit in any court. The Illinois Disposition of Remains Act shields a
“cemetery organization or funeral establishment” from liability for refusing to inter,
accept, or dispose of a “decedent’s remains, until it receives a court order or other
suitable confirmation that the dispute has been resolved or settled.” 755 ILCS 65/50.
And that statute has been interpreted to mandate the dismissal of suit against a funeral
home because it “is not the role of funeral homes and cemeteries to judge the relative
legal rights of feuding family members.” Carlson v. Glueckert Funeral Home, Ltd., 943

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N.E.2d 237, 242 (Ill. App. Ct. 2011). Jeffrey believes that either Neptune or SCI is an
indispensable party because, he contends, the district court must have personal
jurisdiction to enjoin the company. But Neptune has consistently expressed its intention
to abide by any decision rendered by “a court of competent jurisdiction,” as the statute
instructs, rendering an injunction unnecessary.
Turning to the jurisdictional question before us, the district court was correct that
Jeffrey cannot pursue his claim in federal court, but the answer does not turn on
whether he can pierce Neptune’s corporate veil. Veil-piercing “is not itself an action; it
is merely a procedural means of allowing liability on a substantive claim.” Int’l Fin.
Servs. Corp. v. Chromas Techs. Canada, Inc., 356 F.3d 731, 736 (7th Cir. 2004). In other
words, it is an equitable remedy available when respecting the corporate form “would
promote injustice or inequity” by allowing a targeted corporation to escape liability for
wrongdoing. Id. at 737; see also Judson Atkinson Candies, Inc. v. Latini-Hohberger
Dhimantec, 529 F.3d 371, 378–79 (7th Cir. 2008) (explaining that, under Illinois law,
piercing the corporate veil is disfavored and requires showing that target corporation is
a sham or no longer has separate existence from another entity or person). Thus veilpiercing is a rule of liability—a means of determining who pays for wrongdoing—not a
basis on which to determine citizenship for diversity purposes. Jeffrey would need to
pierce Neptune’s corporate veil if he was trying to obtain damages from SCI for
wrongful acts committed by the subsidiary, but even then he wouldn’t need to pierce
the veil simply to name SCI in his complaint. On this point the district court was
mistaken.
Jeffrey has two theories about why this court should remand and allow his case
to proceed. First he contends that the district court abused its discretion by not allowing
him to amend his complaint to name SCI, rather than Neptune, as the “real party”
because “SCI took over the action from its subsidiary Neptune” and should thus be
held liable under the “direct participant liability of a parent corporation.” This ignores
the fact that Jeffrey doesn’t allege that either Neptune or SCI is liable for anything—his
quarrel is with James alone, and Neptune has made crystal clear its willingness to allow
an autopsy if Jeffrey prevails. Alternatively, Jeffrey urges the court to find that Neptune
is a “passive neutral part[y] to the case” and “realign” it to be a plaintiff in his suit
against James, thus creating complete diversity. As we understand his argument, Jeffrey
contends that Neptune is a nominal party—the holder of the “stakes” of the litigation
but without any real interest in the outcome. It is true that a purely nominal party does
not affect diversity jurisdiction. See Walden v. Skinner, 101 U.S. 577, 589 (1879) (ignoring
citizenship of party named only “to perform the ministerial act of conveying the title if

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adjudged to the complainant”); Matchett v. Wold, 818 F.2d 574, 575–76 (7th Cir. 1987)
(“The addition to a lawsuit of a purely nominal party—the holder of the stakes of the
dispute between the plaintiff and the original defendant—does not affect diversity
jurisdiction.”); see also 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure § 1556 (3d ed.). And it seems clear that Neptune has no
interest in whether James or Jeffrey is judged to have the operative power of attorney;
all parties agree that Neptune will eventually cremate Milton’s remains. The only
question is whether an autopsy will first be performed.
That Neptune may be a nominal party does not mean that Jeffrey has properly
invoked the diversity jurisdiction. Neither the district court nor the defendants
challenged Jeffrey’s assertion that more than $75,000 is at stake in the litigation, but
certainly there is not, and this is the incurable jurisdictional defect in the suit. Jeffrey
does not seek any money; rather, he wanted a temporary restraining order preventing
Milton’s cremation (a demand mooted by Neptune’s pledge to store the body until the
case is resolved), a judgment declaring that he holds the valid power of attorney, and an
injunction ordering James not to interfere with the autopsy. “In actions seeking
declaratory or injunctive relief, it is well established that the amount in controversy is
measured by the value of the object of the litigation.” Hunt v. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 347 (1977). In this circuit, that value may be calculated by
measuring the benefit to the plaintiff or the detriment to the defendant, but either way
the value must be reasonably determinable. Macken ex rel. Macken v. Jensen, 333 F.3d 797,
799–800 (7th Cir. 2003) (“When the monetary value of a controversy cannot be
estimated, litigation must commence in state court.”); see Morrison v. Allstate Indem. Co.,
228 F.3d 1255, 1268–70 (11th Cir. 2000) (explaining that injunctive relief sought in
diversity suit must not be too speculative or immeasurable to determine amount in
controversy because liberal pleading standard is not “license for conjecture”). At oral
argument Jeffrey insisted that the defendants have the burden to disprove subjectmatter jurisdiction, but that is incorrect; “the principle that a case may be dismissed
only if the court is certain that the plaintiff cannot recover the jurisdictional amount …
is the rule for damages actions, not equitable actions.” Macken ex rel. Macken, 333 F.3d at
800 (internal citations omitted). Yet Jeffrey hinges the alleged amount in controversy on
pure speculation that an autopsy will lead to evidence supporting tort claims in a
different suit against different defendants: “The benefit to the Plaintiff here is the enhanced
monetary value of forthcoming litigation for damages in a potential wrongful death,
survivorship and negligence action, which would easily exceed the jurisdictional
minimum.” Jeffrey cannot pin his invocation of federal jurisdiction on the hope that
he’ll be able to bring a later suit for more than $75,000. Cf. America’s Moneyline, Inc. v.

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Coleman, 360 F.3d 782, 785–87 (7th Cir. 2004) (rejecting argument that amount in
controversy in action to compel arbitration could be measured by stakes in underlying
class action, rather than individual claim subject to petition itself). The only monetary
benefit or detriment that will flow to either party from resolution of this lawsuit is the
cost of the autopsy itself, which Jeffrey acknowledges is $2,600. He has failed to allege
an amount in controversy anywhere near the statutory minimum.
We thus affirm the district court’s dismissal for lack of subject-matter
jurisdiction.