Barrios v. Fashion Gallery, Inc.

Filing 30

MEMORANDUM Opinion and Order Signed by the Honorable Jeffrey Cole on 1/10/2017:Mailed notice(jms, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GLORIA BARRIOS,
Plaintiff,
v.
FASHION GALLERY, INC.
Defendant.

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No. 15 C 10193
Magistrate Judge Cole

MEMORANDUM OPINION AND ORDER
The defendant recently filed its motion for summary judgment and supporting materials.
When the parties were before me on a discovery motion in early November 2016, I expressed a
number of concerns about whether this case – which the defendant removed from state court – was
properly in federal court on the basis of diversity jurisdiction. In an order issued later that day, I
reiterated these concerns and cited a number of cases, including the Seventh Circuit’s reversal on
jurisdictional grounds of an opinion by this court in which the parties had essentially conceded, or
at least not raised the question of jurisdiction. The order focused on whether the requisite
jurisdictional amount of $75,000 was established – under the unique facts of this case. (The parties
had indicated at the motion hearing that medical expenses were only about $20,000). I expected that
the issue of federal jurisdiction would be addressed in the defendant’s then upcoming motion for
summary judgment. [See my comments and cited cases in Dkt. # 22, at 3-4].
After all, the first issue in any case is jurisdiction, and a court is bound to take note of it
regardless of whether the parties do or their joint willingness to have the court proceed. See e.g.,
Tisza v. Communications Workers of America, 953 F.2d 298, 300 (7th Cir.1992); In re UAL Corp.,
408 F.3d 847, 849 (7th Cir.2005)(“Appellate jurisdiction is the initial question.”); Sonii v. General

Elec. Co., 359 F.3d 448, 449 (7th Cir. 2004).
As it turns out, the defendant’s memorandum is silent on this question. The court, of course,
has its own responsibility to raise and address jurisdictional issues and act only when the limited
jurisdiction of the federal courts allows. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567,
593 (2004). If need be, the court must do this sua sponte. But as courts ought not act alone and
without input from counsel, briefing on the issues should be required. See Evergreen Square of
Cudahy v. Wisconsin Hous. & Econ. Dev. Auth., 776 F.3d 463, 465 (7th Cir. 2015). And that is the
path that will be taken here. Indeed, we thought we had urged the parties earlier that they should
brief the jurisdictional question. Unfortunately, the suggestions in the November 2016 order were
perhaps not sufficiently instructive. Hence, this Opinion will be more specific.
As the defendant is the proponent of federal jurisdiction, it has the burden of establishing its
elements. Walker v. Trailer Transit, Inc., 727 F.3d 819, 824–25 (7th Cir. 2013); Travelers Prop.
Cas. v. Good, 689 F.3d 714, 722 (7th Cir. 2012). Here, the defendant claims that federal jurisdiction
is proper under 28 U.S.C. §1332(a), which provides for federal jurisdiction over suits between
citizens of different states where the amount in controversy exceeds $75,000. In her complaint,
however, the plaintiff says nothing about the citizenship of the parties and asks for damages “in
excess of fifty thousand dollars.” [Dkt. ##1-1, 1-2]. That could still be below the $75,000 floor.
Defendant’s sole basis for removing this case was plaintiff’s failure to respond to its requests to
admit served upon her while the case was in state court. The defendant asked that she admit that she
was a citizen1 of Illinois and was seeking damages in excess of $75,000. [Dkt. ##1, ¶ 12; 1-3]. The

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In its petition for removal, the defendant uses the terms “citizen” and “resident” interchangeably.
Jurisdiction based on diversity of citizenship requires exactly that: diversity of citizenship. 28 U.S.C. §
1332(a). Mere residency is not enough to establish citizenship. Winforge, Inc. v. Coachmen Indus., Inc., 691
F.3d 856, 867 (7th Cir. 2012). Fortunately for the defendant, it was not so cavalier in its request to admit,
where it did employ the term, “citizen.” [Dkt. #1-3, at 3].

plaintiff failed to respond either way within 28 days. Under Illinois Supreme Court Rule 216, that
meant that those facts – that she was a citizen of Illinois and was seeking damages in excess of
$75,000 – were deemed admitted. See P.R.S. Int'l, Inc. v. Shred Pax Corp., 184 Ill. 2d 224, 235, 703
N.E.2d 71, 76 (1998). But, a party cannot simply consent to federal jurisdiction or waive its
requirements. See Evergreen Square, 776 F.3d at 465 (“. . the parties' united front is irrelevant since
the parties cannot confer subject-matter jurisdiction by agreement . . .”); Carter v. Hodge, 726 F.3d
917, 919 (7th Cir. 2013)(“A jurisdictional rule is not waivable.”); Smoot v. Mazda Motors of Am.,
Inc., 469 F.3d 675, 678 (7th Cir. 2006)(“. . . the fact that limits on subject-matter jurisdiction are not
waivable or forfeitable-that federal courts are required to police their jurisdiction-imposes a duty of
care that we are not at liberty to shirk.”).
Here, the plaintiff standing mute arguably smacks of waiver or consent by silence – at least
it could be interpreted in that way. Combining that with the parties’ concession that medical
expenses are only about $20,000 – well short of $75,000 – makes for a flimsy jurisdictional reed.
See Dart Cherokee Basin Operating Co., LLC v. Owens, – U.S. –, –, 135 S. Ct. 547, 554
(2014)(“Evidence establishing [requirements of diversity jurisdiction] is required . . . when the
plaintiff contests, or the court questions, the defendant's allegation.”). Hence, it is an issue that the
parties – or at the very least, the defendant, as it is the defendant’s burden – must address.
Another problem with the defendant’s removal of this case to federal court is timeliness. The
plaintiff filed her suit in the Circuit Court of Cook County on May 2, 2014. [Dkt. #1-1]. The
defendant didn’t file its notice of removal for over a year and a half, on November 10, 2015. [Dkt.
# 1]. Generally, a defendant has 30 days to petition for removal of a case, see 28 U.S.C. §1446(b),
but, in this instance, it was not immediately apparent that the case was removable to federal district
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court – again, there was no suggestion of citizenship of the parties and the amount sought could have
been well shy of the $75,000 jurisdictional minimum. In this regard, the defendant has pointed out
that, under 29 U.S.C. §1446(b)(3):
if the case stated by the initial pleading is not removable, a notice of removal may be
filed within 30 days after the receipt by defendant . . . of an amended pleading,
motion, order, or other paper from which it may first be ascertained that the case is
one which has become removable.
So, to defendant’s way of thinking, given subsection (b)(3), defendant had 30 days after
plaintiff’s failure to respond resulted in the defendant’s asserted facts being admitted. But, defendant
ignores the very next section of 28 U.S.C. §1446, which states that “[a] case may not be removed
under subsection (b)(3) on the basis of jurisdiction conferred by Section 1332 more than 1 year after
commencement of the action, unless the district court finds that the plaintiff has acted in bad faith
in order to prevent a defendant from removing the action.” Here, the defendant clearly waited well
over a year after the commencement of plaintiff’s action before even serving its requests to admit
on the plaintiff. There is no hint of any bad faith on the plaintiff’s part.
And so, timeliness, too, must be addressed, and, in so doing, the parties – particularly the
defendant, should bear in mind that at least two judges here in the Northern District of Illinois have
determined that the one-year time limit is jurisdictional, meaning they have concluded it cannot be
waived, and the case must be remanded. See PNC Bank, Nat. Ass'n v. Seliga, 2013 WL 5336236,
at *2 (N.D. Ill. Sept. 24, 2013); Foiles by Foiles v. Merrell Nat. Labs., a Div. of
Richardson Merrell, Inc., 730 F. Supp. 108, 110 (N.D. Ill. 1989).
Accordingly, the briefing schedule set on December 15, 2016 is amended as follows:
the present briefing schedule is stricken and the parties should not address summary judgment issues

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until they have briefed and this court has ruled on the jurisdictional issue. The defendant, as the
removing party, bears the jurisdictional burden and accordingly, its brief is due 2/10/17. The
plaintiff’s response brief shall be due 3/10/17. The reply brief, if any, shall be due 3/24/17. Ruling
will be by mail.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 1/10/17

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