Mocek v. AllSaints USA Limited
Filing
31
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 12/7/2016. Mailed notice. (mgh, )
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 1 of 10 PageID #:192
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Barbara Mocek, individually and )
on
behalf
of
all
others )
similarly situated,
)
)
Plaintiff,
)
v.
)
)
Allsaints USA Limited, a
)
foreign business corporation,
)
)
Defendant.
)
)
No. 16 C 8484
Memorandum Opinion and Order
This putative class action alleging violation of the Fair
and
Accurate
1681c(g),
Credit
Transactions
originated
in
the
Act
Circuit
(“FACTA”),
15
Court
Cook
of
U.S.C.
§
County.
Defendant removed the case under 28 U.S.C. § 1441, asserting
federal
subject
matter
and
diversity
jurisdiction.
One
month
later, without alleging any change in circumstances bearing on
jurisdiction, defendant moved to dismiss the case for lack of
federal
jurisdiction.1
Specifically,
defendant
asserted
that
plaintiff lacks standing pursuant to Spokeo, Inc. v. Robins, 136
S. Ct. 1540 (2016), without which there is no justiciable case
or
controversy—a
prerequisite
to
my
exercise
of
jurisdiction
under Article III of the Constitution.
1
Defendant also moved to dismiss under Fed. R. Civ. P. 12(b)(6),
but this portion of their motion has been stayed by agreement
pending resolution of the jurisdictional issue.
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 2 of 10 PageID #:193
In response, plaintiff moved for an order remanding the
case
to
state
court
pursuant
to
28
U.S.C.
§ 1447(c),
which
states: “If at any time before final judgment it appears that
the district court lacks subject-matter jurisdiction, the case
shall be remanded.”
Plaintiff does not dispute that I lack
jurisdiction, emphasizing that it is defendant who bears the
burden
view,
of
establishing
remand
disavowal
of
is
federal
required
in
jurisdiction.
jurisdiction.
view
In
of
In
plaintiff’s
defendant’s
affirmative
addition
to
remand,
plaintiff
seeks to recover the attorneys’ fees she incurred in connection
with defendant’s removal.
For the reasons explained below, I grant plaintiff’s motion
for
remand
and
for
attorneys’
fees,
and
I
deny
defendant’s
motion to dismiss.
I.
Neither side believes this case belongs in federal court.
Indeed, they agree that I lack jurisdiction over plaintiff’s
only claim. Their dispute boils down to whether, under these
circumstances, I must remand the case to state court or instead
dismiss it outright.
Although plaintiff’s claim arises under federal law, no one
questions
ASARCO
the
Inc.
state
v.
courts’
Kadish,
490
authority
U.S.
to
605,
adjudicate
617
(1989)
it.
See
(absent
provisions for exclusive federal jurisdiction, state courts are
2
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 3 of 10 PageID #:194
authorized
“to
render
binding
judicial
decisions
resting
on
their own interpretations of federal law.”). Moreover, even when
they adjudicate federal claims, state courts are not restricted
by Article III of the Constitution, although they may have their
own standing requirements. Id. See also Smith v. Wisc. Dep’t of
Agric., Trade & Consumer Prot., 23 F.3d 1134, 1139 (7th Cir.
1994). Accordingly, plaintiff’s ability to satisfy Spokeo does
not determine whether she may proceed with her suit in state
court.
Defendant
independent
insists
obligation
that
to
because
satisfy
federal
courts
themselves
of
have
their
an
own
jurisdiction before passing on the merits of a claim, it follows
that I must determine whether plaintiff has Article III standing
regardless
of
whether
some
other
threshold
matter
compels
remand. But that argument is belied by Meyers v. Oneida Tribe of
Indians
of
Wisconsin,
---F.3d---,
2016
WL
4698949
(7th
Cir.
2016), a case likewise arising under FACTA, in which the Seventh
Circuit declined to address standing under Spokeo, explaining
that a federal court is not required to “consider subject matter
jurisdiction
over
all
other
threshold
matters.”
Id.
at
*3.
Instead, the court explained, a federal court “has leeway to
choose among threshold grounds for denying audience to a case on
the
merits.”
sovereign
In
Meyers,
immunity—a
the
court
concluded
non-jurisdictional
3
that
threshold
because
issue—was
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 4 of 10 PageID #:195
“easily and readily” resolved in the defendant’s favor, it made
little
sense
to
waste
judicial
resources,
or
those
of
the
parties, resolving the Spokeo issue. Id. The court emphasized
that
its
approach
prohibition
on
did
not
run
“hypothetical
afoul
of
the
jurisdiction,”
Supreme
Steel
Court’s
Co.
v.
Citizens for a Better Environment, 523 U.S. 83, 101 (1998),
because “jurisdiction is vital only if the court proposes to
issue a judgment on the merits.” Meyer, at *3 (quoting Sinochem
Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422 (2007)
(alteration omitted).
So, too, in this case, the jurisdictional issue is “easily
and
readily”
agreement
that
resolved
federal
based
on
the
jurisdiction
parties’
is
post-removal
lacking.
Indeed,
the
court remanded to state court sua sponte on that very basis in
Black v. Main Street Acquisition Corp., No. 11-cv-0577, 2013 WL
1295854 (N.D.N.Y. Mar. 27, 2013), concluding that when “no party
shoulders
the
burden
of
proving
jurisdiction,”
remand
is
required under § 1447(c). Id. at *1 (declining to dismiss the
case
with
prejudice).
Black
is
consistent
with
the
Seventh
Circuit’s holding in Meyers that district courts have “leeway”
to select among threshold grounds for disposing of a case and
should do so in a resource-efficient manner. Because the parties
are
now
aligned
in
the
view
4
that
I
lack
subject-matter
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 5 of 10 PageID #:196
jurisdiction,
I
need
not
accept
defendants’
invitation
to
undertake a Spokeo analysis to conclude that remand is required.
At all events, defendant admits that Article III standing
in the context of FACTA is “unsettled” after Spokeo, with cases
from various jurisdictions coming to disparate conclusions and
no
controlling
authority
on
point.
Def.
Opp.
at
3.
That
consideration alone supports remand, as “[a]ny doubt regarding
jurisdiction should be resolved in favor of the states.” Doe v.
Allied-Signal, Inc., 985 F.2d 908, 911 (7th Cir. 1993). Indeed,
as
a
general
removal
matter,
statute
federal
narrowly
and
courts
presume
“should
that
the
interpret
the
plaintiff
may
choose his or her forum.” Id. Here, plaintiff chose to litigate
her
FACTA
claim
in
state
court,
and
regardless
of
whether
federal jurisdiction was colorable at the time of removal, the
parties now agree that there is none. Section 1447(c) provides
the remedy for this state of affairs: I must remand the case to
state court. See 28 U.S.C. § 1447(c) (“If at any time before
final judgment it appears that the district court lacks subjectmatter
jurisdiction,
the
case
shall
be
remanded.”)
(Emphasis
added).
Hopkins v. Staffing Networks Holdings, LLC, No. 16-cv-7907,
2016 WL 6462095 (N.D. Ill. Oct. 18, 2016) (Gettleman, J.), is
not to the contrary. Indeed, upon concluding that the plaintiff
lacked Article III standing, Judge Gettleman remanded the case
5
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 6 of 10 PageID #:197
to
state
court,
noting
that
remand
is
“mandatory”
under
§ 1447(c). Id. at *4. Accordingly, he rejected the defendants’
request “simply to dismiss the case” outright, which is the
relief defendant seeks here. Id. While it is true that Judge
Gettleman examined the Spokeo issue—which, unlike in this case,
the parties disputed—and concluded that it warranted dismissal,
the
relief
he
ordered
was
remand.
Id.
Cont’l
Cas.
Co.
v.
Southern Co., 284 F. Supp. 2d 1118 (N.D. Ill. 2003), and Macon
County, Ill. v. Merscorp, Inc., 968 F. Supp. 2d 959 (C.D. Ill.
2013), likewise support remand.
I note that although the memorandum supporting defendant’s
motion to dismiss explicitly seeks dismissal with prejudice, and
does not limit that relief to a dismissal under Rule 12(b)(6),
defendant’s counsel acknowledged, at the hearing on plaintiff’s
motion
for
remand,
that
dismissal
with
prejudice
would
be
inappropriate under Rule 12(b)(1), stating “[s]o we are – we’re
not
saying
that
you
would
–
that
you
could
dismiss
with
prejudice based on 12(b)(1), but we are saying if you find that
there is no injury in fact in this court, we think that would
greatly shorten the proceedings in state court.” 10/13/2016 Tr.
at
11.
absence
Defendant
of
is
federal
correct
that
jurisdiction
“[d]ismissals
ordinarily
because
are
of
without
prejudice...because such a dismissal may improperly prevent a
litigant from refiling his complaint in another court that does
6
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 7 of 10 PageID #:198
have jurisdiction.” El v. AmeriCredit Financial Servs., Inc.,
710 F.3d 748, 751 (7th Cir. 2013) (internal quotation marks and
citation
omitted).
Accordingly,
if
defendant
seeks
dismissal
with prejudice, then Rule 12(b)(1) is not an appropriate avenue
for
that
relief.2
If,
on
the
other
hand,
defendant
seeks
dismissal without prejudice, then the only relief to which it is
entitled—as
its
counsel’s
in-court
statement
implicitly
acknowledges—is remand.
Lastly, to the extent counsel’s in-court statement suggests
that defendant’s real objective in pressing the Spokeo issue is
to “shorten the proceedings in state court,” I am not inclined
to resolve an issue that is not actually in dispute, solely for
the purpose of advancing, in some advisory fashion, an argument
defendant may wish to make in state court. See Smith v. Wisc.
Dep’t of Agric., Trade & Consumer Prot., 23 F.3d 1134, 1139 (7th
Cir. 1994) (“Wisconsin’s doctrines of standing and ripeness are
2
In El, the Seventh Circuit recognized limited circumstances in
which dismissal with prejudice may be appropriate in the absence
of federal jurisdiction, such as when a frivolous federal claim
is the basis for removal. See 710 F.3d at 751 (explaining that
because a frivolous claim “will go nowhere in any court,”
dismissal with prejudice is appropriate). But defendant does not
contend that such circumstances obtain here. Indeed, although
defendant challenges the sufficiency of plaintiff’s claim under
Rule 12(b)(6), it has not gone so far as to argue that her claim
is
frivolous.
That
defendant
also
asserted
diversity
jurisdiction in its removal papers does not change the analysis.
Because standing is an “essential and unchanging part of the of
the case-or-controversy requirement of Article III,” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992), it is required
in all cases in which a federal court exercises jurisdiction.
7
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the business of the Wisconsin courts, and it is not for us to
venture how the case would there be resolved.”).
In short, with no party willing to overcome the presumption
against
federal
jurisdiction,
remand
is
appropriate
on
any
analysis.
II.
I
now
turn
to
plaintiff’s
request
for
attorneys’
fees.
Section 1447(c) authorizes a court to require payment of just
costs, including attorney’ fees, as part of its remand order.
See Martin v. Franklin Capital Corp., 546 U.S. 132, 138 (2005);
28 U.S.C. § 1447(c) (“An order remanding the case may require
payment
attorney
of
just
fees,
costs
incurred
and
as
any
a
actual
result
of
expenses,
the
including
removal.”).
The
Supreme Court explained in Martin that the statute creates no
presumption
either
in
favor
of
or
against
fee-shifting,
but
instead strikes a balance that effectuates Congress’s intent of
allowing
“the
removal
in
attractiveness
appropriate
of
removal
circumstances
as
a
method
while
reducing
for
delaying
litigation and imposing costs on the plaintiff.” Id. at 140. In
this
case,
while
the
federal
nature
of
plaintiff’s
claim
facially entitled defendant to seek a federal forum, defendant’s
professed strategy of removing the case on the basis of federal
jurisdiction,
only
to
turn
around
and
seek
dismissal
with
prejudice—a remedy not supported by any of defendant’s cases—on
8
Case: 1:16-cv-08484 Document #: 31 Filed: 12/07/16 Page 9 of 10 PageID #:200
the ground that federal jurisdiction was lacking, unnecessarily
prolonged the proceedings.
To be clear, there is no question that if defendant wished
to litigate the merits of plaintiff’s federal claim in a federal
forum, it was free to remove the case and seek to establish
federal
jurisdiction,
regardless
of
whether
I
may
ultimately
have concluded that plaintiff lacked standing under Spokeo. See
G.M. Sign, Inc. v. Global Shop Solutions, Inc., 430 F. Supp. 2d
826 (N.D. Ill. 2006) (rejecting the argument that the defendant
could not remove a claim arising under a federal statute until
controlling
authority
affirmatively
settled
a
dispute
among
lower courts as to whether the claim could be brought in federal
court).
But
defendant
defendant
tried
immediately
to
did
have
disavowing,
not
it
pursue
both
federal
that
ways
avenue.
by
jurisdiction,
Instead,
asserting,
apparently
then
in
hopes of achieving outright dismissal, with prejudice, rather
than the remand required by § 1447(c). As noted above, no court
has
afforded
that
relief
under
similar
circumstances,
and
defendant’s own authority confirms that remand is “mandatory.”
In short, it should have been obvious to defendant, based
on well-settled law, that with no party asking for the merits of
plaintiff’s claim to be decided in federal court, and both sides
arguing against federal jurisdiction, the only possible outcome
was for the case to end up right back where it started: in state
9
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court. Under these circumstances, I have no trouble concluding
that
defendant
seeking
lacked
removal.”
an
“objectively
Martin,
546
U.S.
reasonable
at
141.
basis
for
Accordingly,
plaintiff is entitled to recover her attorneys’ fees incurred as
a result of removal.
III.
For the foregoing reasons, I grant plaintiff’s motion for
remand and attorneys’ fees and deny as moot defendant’s motion
to dismiss. Because defendant has not objected to the specific
fee amount plaintiff claims, which she supports with evidence in
the
form
of
affidavits
and
billing
records,
I
find
that
plaintiff is entitled to payment in the amount of $58,112.50
pursuant to § 1447(c).
ENTER ORDER:
_____________________________
Elaine E. Bucklo
United States District Judge
Dated: December 7, 2016
10
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