Anthropologie, a chain of pricey retail clothing stores, wanted to open a store in the wealthy Chicago suburb of Highland Park. So in 1996 it leased 13,000 square feet in a building, owned by BEM, that was under construction. The lease was to run for 10 years, at an annual rental of almost a quarter of a million dollars. Under the terms of the lease, Anthropologie’s obligation to pay rent did not arise until 90 days after “substantial completion,” defined as the date of completion of the landlord’s work, pursuant to the lease, in making the premises fit for occupancy, “all as certified by the Landlord’s Architect.” The architect certified the work as complete on June 20,1997, but in fact the work was not complete until August 19, and Anthropologie could not occupy the premises during this period. BEM insisted, *551 nevertheless, that Anthropologie owed it rent from September 18, 90 days after June 20, rather than from 90 days after the actual (as distinct from the architect-certified) date of completion, a difference of some $48,000. BEM sued Anthropolo-gie under Illinois law in an Illinois state court seeking damages in that amount plus an order of eviction. Anthropologie removed the case to federal district court, the parties being of diverse citizenship. Pursuant to a clause in the lease, the judge referred the parties’ dispute to a panel of arbitrators, which found in favor of An-thropologie, awarding it more than half a million dollars in damages and attorneys’ fees. The judge confirmed the arbitrators’ award and so Anthropologie remains in possession under the lease. BEM claims that the removal of the case to federal court was improper, and, alternatively, that the arbitrators’ awards were improper and should not have been confirmed.
Removal was proper only if the amount in controversy exceeded $75,000 on the date of removal.
In re Shell Oil Co.,
BEM reminds us that the subject-matter jurisdiction of a federal court may be questioned at any time until the litigation becomes final, and sometimes even later. True; but deliberately to avoid raising the issue is improper, indeed sanctionable,
In re Brand Name Prescription Drugs Antitrust Litigation,
What makes BEM’s conduct at once egregious and harmless is that its challenge to the district court’s subject-matter jurisdiction was frivolous, quite apart from the fact that even while withdrawing its motion for the additional rent it continued to claim that the additional rent was owed it. Illinois practice, like that of the federal courts, does not limit the plaintiffs possible recovery to the amount of damages stated in its complaint, 735 ILCS § 5/2-604;
Barbers, Hairstyling for Men & Women, Inc. v. Bishop,
A further complication is that the additional $40,000 in rent that BEM was seeking was the rent due on January 1, which was several days after the suit was filed, and there are cases (none appellate, however) which are said to hold “that in a suit to recover accrued installments, those payments that become due between the date of filing the state court complaint and the date on which removal is sought cannot be considered.” 14C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3725, p. 115 (3d ed.1998). Unless the payor had repudiated his future obligations (and we are given no reason to suppose that An-thropologie' was unwilling to pay the January rent, since it had been in occupancy of the leased premises for well over 90 days at that point), the amount would not be in controversy on the date the complaint was filed. But the Wright and Miller treatise is wrong; the relevant date for determining whether the minimum amount in controversy is present is the date of removal, not the date of the original complaint in state court, as Workman, Shell, and De Aguilar make clear. The cases Wright and Miller cite are ones in which the installment was due after removal, not, as the treatise implies, before.
Events subsequent to removal that merely reveal whether the required amount was in dispute on the date of filing, rather than alter the current amount in controversy, can be considered in deciding what that original amount in controversy was.
State Farm Mutual Automobile Ins. Co. v. Powell,
The question how much damages BEM was seeking is anyway a red herring, since the jurisdictional minimum in diversity cases is not the amount sought by the plaintiff but the amount at stake to either party to the suit. Not all courts take this view but ours certainly does.
Del Vecchio v. Conseco, Inc.,
It seems to us beyond absurd to allow a defendant to remove if the plaintiff is seeking damages of $75,000.01, but not if the plaintiff is seeking an injunction directing the defendant to tear down, as a nuisance, a $10 million building that the defendant owns. The purpose of a statute is often and here the essential clue to its meaning. The purpose of allowing removal in diversity cases is to enable a nonresident defendant to move the case against him from state to federal court, provided the case is not trivial. What is trivial from the defendant’s standpoint — and remember that it is for his benefit that removal is allowed; removal is a privilege of a defendant, not of a plaintiff, whose access to a federal court is by filing his suit in that court— depends on what he may lose in the suit.
McCarty v. Amoco Pipeline Co.,
BEM argues that if this is right, every eviction case is going to be removed to federal court. That is another absurdity, and not only or mainly because most tenants are citizens of the same state as their landlord. Most evictions are not that costly to the tenant, in part because of the tenant’s duty to mitigate his damages by seeking alternative premises. See
Bush v. Roadway Express, Inc.,
So the district court did have jurisdiction, and we can proceed to the merits. BEM’s argument against the arbitrators’ award is very simple, and very wrong. It is that the arbitrators misapplied Illinois law, even though the arbitration clause in the lease is explicit that they were to apply Illinois law. They misapplied it, BEM argues, first when they disregarded the architect’s certification that substantial completion of the landlord’s work had occurred by June 30, even though they thought the architect not guilty of fraud but merely mistaken and did not pronounce his mistake an evident mistake, although under Illinois law fraud and evident mistake are the only grounds for disregarding such a certification; second when they awarded lost profits in the operation of a new store at a new location; and third when they awarded prejudgment interest on those lost profits, though the lost profits were not a liquidated amount, and Illinois law allows an award of prejudgment interest only when the plaintiff is suing for such an amount.
We should distinguish between two types of case in which an arbitral award might be challenged for disregarding the law. In one, although the arbitration clause directs the arbitrators to apply the law of a specified state, they decide they don’t like that state’s law, they like another state’s law better and so they will apply that state’s law. That would be a case in which the arbitrators had exceeded the authority granted them by the arbitration clause in the parties’ contract, a ground for setting aside an arbitration award. 9 U.S.C. § 10(a)(4);
Northern Indiana Public Service Co. v. United Steelworkers of America,
Contrast that with a case in which the arbitrators conscientiously attempt to apply Illinois law, pursuant to the choice of law provision in the contract, but fail to apply it correctly. The loser has no judicial remedy in that case because it is merely a case of legal error, not of
ultra vires,
and there is no judicial review of arbitration awards for legal error.
IDS Life Ins.
*555
Co. v. Royal Alliance Associates, Inc.,
The arbitrators wrote a very brief, bare-bones opinion in which they did
not
say they were disregarding Illinois law or, what would amount to the same thing, trying to change it. The parties dutifully argued Illinois cases to them. The issues of Illinois law on which those cases bore were difficult. It’s true that Illinois law requires a finding of fraud or evident mistake to justify disregarding an architect’s certificate,
Weld v. First National Bank,
As for the award of prejudgment interest in apparent contradiction of the Illinois rule that limits such awards to cases in which the damages are a sum certain or readily calculable (as in a suit for the contract price),
Couch v. State Farm Ins. Co.,
Finally, BEM asks us to enter judgment for it on the basis of the arbitrators’ finding that the architect’s certification of substantial completion as of June 20 was not based on fraud and their implicit finding that it was not based on an evident mistake. (We don’t really know whether that was their implicit finding. They didn’t say it was an evident mistake, but they may have thought it was and used that as the premise for their conclusion that substantial completion did not occur until August 19.) That finding, BEM argues, compels the conclusion that Anthropologie’s obligation to pay rent commenced 90 days after June 20. Not so, for the reason we stated earlier and for another as well. At most, BEM has identified a contradiction in the arbitrators’ opinion, which, if it created a serious doubt as to the arbitrators’ bottom line, would be a basis for a remand to the arbitrators. 9 U.S.C. 10(a)(4);
IDS Life Ins. Co. v. Royal Alliance Associates,
Inc.,
supra,
AFFIRMED.