Billy Joe Shaw v. Dow Brands, Inc.

ROVNER, Before CUMMINGS and SHADUR, Judges, and Senior Circuit Judge.* District CUMMINGS, Judge. Circuit Billy lungs per- Joe Shaw claims were when, manently damaged August clean his mixed he-tried to bathroom. Shaw something “X-14 called Instant Mildew Stain Cleaner, a Remover” with Dow Bathroom product manufactured defendant. windows, Though opened the set the ceil- he swirling fan and let the air conditioner blow, was twice overcome Shaw an hour later he found it hard fumes. When breathe, and even- Shaw went to doctor put hospital lung tually was to treat Obliterans, known as Bronchiolitis condition allegedly by exposure to toxic fumes. caused companies including sued a series of Shaw (“Dow Brands”), Brands, parent Inc. its Dow owner, Co. percent Dow Chemical (“Dow Chemical”), along manufac- with the remover, X-14 stain turer of the mildew (which had Products Co. Block Household when the and was not existence dissolved filed), Drug Inc. Block Co. (“Block”), sold the stain and the store that remover, filed his suit in Wal-Mart. Illinois; had it County, Dow Brands Massac in the Southern to federal court removed judge decid- The district District of Illinois. liability and state law strict ed that Shaw’s to warn were claims for failure negligence Insecticide, Fun- pre-empted the Federal Act, commonly gicide and Rodenticide * Shadur, designation. ting by Milton I. Senior District The Honorable Illinois, Judge is sit- in the Northern District FIFRA, easily action is between citizens of different states referred to as U.S.C. controversy Fifty the amount in exceeds seq.. 136 et Based on a recent ($50,000)” (plaintiffs Thousand Dollars brief decision, we affirm the district court’s 1). questioned But after we finding.

pre-emption We also hold that discrepancies about this other between properly despite two Shaw is complaint court the state the removed that, jurisdictional vexing inexplicably, issues action, jurisdictional up took issue Shaw up not come until raised the matter did we vengeance; steadfastly with a now main- he argument. oral with the complaint that his is worth than tains less jurisdictional claim Plaintiffs first $50,000 threshold. Thus at oral (when 29, by prodded our order of December privilege witnessing we had the a comic 1992) $50,000 jurisdictional is that-the mini plaintiffs personal injury lawyer pro- scene: diversity mum in a case has not been met. up injuries tests down his client’s 1332(b).1 Any in 28 U.S.C. defect the re be, insignificant are as minor and can subject procedure, moval or the lack of mat attorneys paint while for the manufacturer a jurisdiction, requires ter a remand. In re story plaintiffs sob about how life has been Co., Petroleum Additives F.2d Amoco 964 wrecked. (7th Cir.1992). 706, in 708 Jurisdiction exists explains, As the dissent a might if a removal action the case have been position inis the best to know how much his brought begin in federal court with. worth, plaintiffs claim is and we deem Corp., v. General Elec. 405 Grubbs Credit request damages for to have been made in 699, 702, 1344, 1347, 92 S.Ct. 31 U.S. L.Ed.2d good Mercury faith. St. Paul Indem. Co. v. (1972). Normally, 612 in a federal court Co., 283, 288, 586, Red Cab 303 U.S. action in removal determines amount (1938). 590, 82 L.Ed. 845 Even this under controversy by merely looking plaintiffs because, states the law as Justice Holmes complaint, Davenport court Proctor said, party brings “the who a suit is master Co., (2d 511, Mfg. & Gamble 241 F.2d 513 rely upon.” to decide what law he will Fair Cir.1957), along with the record as a whole. 22, Specialty v. Kohler Die & 228 U.S. 275, 272, Oglesby Corp., 752 See RCA F.2d 25, 410, 411, (1913). 33 57 L.Ed. It S.Ct. 716 (7th Cir.1985). Illinois, however, In tort plaintiff may follows evade federal may specify damages claimants exact in by simply asking for less than the beyond complaint their a limit set amount, Paul, jurisdictional 303 U.S. local circuit court rule. Ill.Rev.Stat. long plaintiff, so as the complaint, ILCS Thus Shaw’s 5/2-604. prevail, legally should she isn’t certain to which in accordance with Illinois law and the Oil, recover more. re Shell only damages local rule asked “in excess (7th Cir.1992). Indeed, the bur (R. $15,000” 18), gives no hint whether in den rests the defendant a removal controversy greater real amount is prove action to that the amount controver $50,000, than in which case we have sy Republic is sufficient. Wilson v. Iron & jurisdiction, $15,000 or between 92, 97, 35, 37, Steel $50,000, in which case we don’t. (1921). seeking L.Ed. Defendants re petition good Dow’s for removal stated a by preponder moval meet that burden controversy evidence, faith belief that the amount in ance of the McNutt v. General (R. 2). greater than 1 at Acceptance Corp., Shaw Motors (1936), didn’t take issue with this claim but 80 L.Ed. 1135 blithely stated proof proba statement we take to mean to a reasonable Court, opening bility jurisdiction of his brief to this exists.2 “This reject perfunctory argument certainty actually 1. We Dow's claim is worth less question jurisdiction. FIFRA confers federal than the 303 U.S. at amount. 58 S.Ct. at 590. standard should not be This 2. St. Paul holds that when a asserts confused, however, with what a defendant must jurisdiction, may challenge the defendant prove to invoke in a action. plaintiff’s controversy, the amount but the A have number of district courts this circuit legal appears contentions will stand unless it to a Permitting a plaintiff pry to dictate the forum moval it had to a firm number out of difficult, however, is more when the interrogatory. recently We dis- necessarily ambiguous because cussed another simple alternative to remand: (and A of state law. most absurd unsatisfac- stipulation by plaintiff after removal that if tory) deny result would be to remanded, the case is he will not seek more each tort case from Illinois because com- $50,000 damages. Oil, Shell plaint filed in state court is unclear about at 1131-1132. rejected We ultimately controversy. Judge amount an- Shadur’s stipulation procedure in Shell Oil writ of that, swer is before the defendant seeks mandamus. 970 F.2d case, request specif- remove a she should curiam). (per Stipulation problematic be- controversy ic plaintiff by amount from the cause conflicts with legal maxim that interrogatory. interroga- Illinois allows such jurisdiction depends on the situation at the despite generalized cap tories dam- removal, Paul, 293, time of St. 303 U.S. at 58 ages complaints. claims in Thus a before 592; Carter, 1093, S.Ct. In re 618 F.2d case is ever it will removed how clear (5th Cir.1980), denied, 1101 certiorari 450 plaintiff requesting much the is and the de- 949, 1410, U.S. 67 L.Ed.2d 378 may proceed fendant accordingly. Judge (1981), that once a successfully case is suggestion eminently Shadur’s sensible plaintiff removed a anything cannot do and we recommend to removal-minded de- jurisdiction defeat federal and force a re- short, however, stop fendants in Illinois. We Paid, 294, mand. St. 303 U.S. at 58 S.Ct. at declaring only by that this means 592; Keith, 568, see Kellam v. 12 which defendant can establish to a reason- 922, 36 L.Ed. 544 (suggesting probability jurisdiction able that exists. that basis removal must exist both at Judge Shadur’s solution also tell a doesn’t time is filed and at time of remov- court federal to deal with how cases that al). It seems unfair to plain- defendants if a removed, already have been such as this one. tiff simply can wait to see if her case is punish could figur We Dow Brands for not then, is, removed and once it have it sent ing out that it should have fired off an inter by back to state court agreeing stipula- to a rogatory removal, seeking Shaw before tion that controversy the amount in will not and remand the case to state court. But the $49,999. surpass interrogatory procedure in option Illinois is al, not appellate if We need decide judges whether such cases as not mind read ers, Additives, a general Amoco 964 should be Petroleum F.2d at remanded for (to litigants. factfinding neither are more A.O. state or See federal district court) Lewis, Furman, Corp. Smith v. Overbeck & because this instance Shaw has 546, Cir.1992). already 549 We cannot conceded that his claim is worth expect $50,000: Dow in this case to have by divined more than contesting not remov- reading tea seeking leaves made, re- al when originally the motion was 191, (N.D.Ill.1992) held that the F.Supp. must defendant establish more than 802 (certainty 193-194 $50,000 controversy probabili required). Supreme "reasonable We think the Court dictated See, ty.” e.g., Corp., proper v. Core-Vent Johnson 90 C the No. standard in McNutt v. General Motors 613, 51253, 178, 1990 WL Acceptance Corp., 1990 U.S.Dist.Lexis 4225 S.Ct. 780: "If 56 (N.D.Ill.1990); Boring allegations jurisdictional Robert Kulasik Assoc. v. challenged CBS his facts are Co., Inc., 0425, manner, & 65800, adversary Machine No. 90 C any appropriate 1990 WL his he (N.D.Ill.1990); 1990 support U.S.Dist.Lexis 5551 competent proof. must them And 89-2170-0, Freightliner Corp., Cole v. 42163, they No. WL challenged, where are not may 1991 so the court (N.D.Ill.1991); U.S.Dist.Lexis 3408 still insist facts be established Montgomery dismissed, Motor C purpose Ford No. 90 or the case and for (N.D.Ill. WL may 1991 1991). party alleging jurisdic U.S.Dist.Lexis 282 demand suggested stringent justify Others have allegations by tion preponderance his See, e.g., test. Navarro v. LTV Steel (emphasis evidence." Id. at 56 S.Ct. at 785 (N.D.Ill.1990) F.Supp. added). (requiring certain holdWe that the test set in McNutt forth Indus., Inc., ty); v.Maki Keller F.Supp. is satisfied if defendant in a action can removal (N.D.Ill.1991) (high degree probability probability not suffi show to a reasonable that more than cient); Operations Corp., controversy. Navarro Am. Subaru is in this, away permit get in were to with by jurisdictional statements to this Court Shaw noted, manipulate allowing would be him to de- must we his first brief. As Paul, removal, very prohibit- fendants in the manner that is exist at the time ed the rule in St. once removal is and once Paul: U.S. at suddenly manip- perfected, plaintiff cannot de- perfected plaintiffs has been that, all, controversy cide after the amount in process to the removal. As ulate the void emphasized: is less than the amount so that go shuttling case must back could, how bona If the no matter court.3 court, in the state original his claim fide demand to defeat jurisdictional argu reduce the amount his Shaw’s second sup- defendant’s ment is that removal is defective because statutory right consented, posed they of removal would be all defendants must. caprice. The Chicago, Ry. Rock Island & Pac. Co. v. fact, claim, Martin, 854, 855, ill well or founded whether U.S. remove, (1900). right instance, of the defendant to fixes the L.Ed. 1055 ought not to be able to and the against filed suit four defendants and bring one, Brands, the cause back signed defeat peti Dow the removal election. to the state court petition tion. A defective if it is considered explain why fails to the other defendants Paul, 294, at at 303 U.S. have not consented to removal. Northern suggests The dissent that we must trust Gases, Ill. Gas Co. v. Airco Industrial lawyer, superior position in a Shaw’s who is Airco, Inc., 270, Division 676 F.2d claim, to know the value of his client’s be- (7th Cir.1982). gave Dow Brands no such cause from oral and from “[b]oth therefore, explanation; petition its was defec affidavit, lawyer it clear that [an] ] is Shaw’s L face, although tive on its neither the knowledgeable practitioner per- is a nor the district court raised the matter until injury sonal field who knows all about his ” * * * shortly argument. our order before oral In (dissent 21). p. presum- But case meantime, Dow Brands has submitted ably lawyer knowledgeable Shaw’s was as purports explain affidavit that to the absence opening when he assured us in his brief that Block, Wal-Mart and Dow Chemical. The $50,- client’s claim was worth than his questions: affidavit raises two should we al later 000 as when he assured us that his explanation, expla low this belated and is the $50,000. client’s case was worth less than convincing? nation dissent, Again, according to the coun- Shaw’s petitions may freely not have sel could filed suit federal court Removal amended begin violating thirty days to with without for Rule be- after a defendant receives a copy complaint, cause he knew that his client’s case could not of the state court or is served, equal amount. But Shaw’s whichever comes first. 28 U.S.C. 1446(b). course, signed thirty § also days the brief that assured us Of intact; elapsed long ago Although was is indeed wonder this case. strictly that he applied, shouldn’t be to sanctions for time limit is said to be Gas, 273, swearing thing one in one brief and then Northern Ill. the time swearing opposite thing subsequent jurisdictional, Ryan in a limit is not v. State Bd. Ill., 1130, telling affidavit after it became clear that Elections the State 661 F.2d (7th story Cir.1981), might new benefit his If we client. fact amendments (also opinion printer, Judge objected "timely" 3. After this was sent to the to removal in a fashion Shaw). Shadur located a recent decision from Fifth holding against unlike Since our Shaw supposedly Circuit that conflicts with our view of premised having on his conceded that more jurisdiction: Asociacion Nacional de Pescadores a $50,000 controversy, than inis and there are no (AN Pequena Escala o Artesanales de Colombia remotely facts in Asociación Nacional even lar, simi- PAC) S.A., Quimica v. Dow de Colombia 988 F.2d why we do not understand this case is rele- (5th Cir.1993). ease, however, In that agree implica- vant and do not with the dissent's pains point Fifth Circuit took to out majority opinion tion that the somehow creates plaintiff never asserted his claim was worth more conflict between the circuits. (unlike Shaw), and that the voluntarily before removal Dow jurisdic Chemical allegations of “defective to correct that, event, con- Dow Chemical 1653 and under U.S.C. permitted are tion” this dismissal to Whether question [the sents removal. “The is whether any time. rec- actually isn’t obvious occurred was so defective removal] for petition Savings ord, think that one would Kinney v. Columbia but be incurable.” 30, 80, Ass’n, 78, disappearance of a noticed the would have & Loan (1903). way ap- In this determina 31, L.Ed. 103 defendant somewhere Again, record pellate at the entire court. seems not court look Shaw tion the issue; v. Chesa proceedings. Powers we raised the have minded until of state styled Ry. submissions to this Court peake Ohio own & (1898). Here, Shaw, 42 L.Ed. 673 “Billy Plaintiff-Appellant, vs. Dow Joe plainly sloppy was petition Brands, Inc., men- Defendant-Appellee” Dow Brand’s —no other happened to the short, what explaining the agree- not tion of Dow Chemical. defendants, was since issue Chemical, but drop Dow Dow ment of Shaw McKay v. stage, appellate until consent, raised the fact Chemical’s belated Boyd nominal, Constr. probably Dow Chemical challenge may waive (party acquiescence all to convince combine removal), of the other the absence and since the re- parent’s missing signature on us the explain justified we will defendants jurisdiction. —as petition does not defeat moval willing punish Dow shortly are—we Turning the substantive last all, is, technicality what after Brands whether federal question, we must decide jurisdiction. go to the heart that doesn’t regulation also of an area of pre-emption January was not served until Block tort prohibits common law actions. nearly a month after the FI- judge district found because 23, 1991, so on December petition was filed FRA, question, law in the federal could v. was not needed. Richards consent its claiming bring damages action (9th Cir.1988); 85, P.P. 87 Harper, 864 F.2d Bathroom Cleaner was defec label on Dow Farmers Elevator Elevator Co. v. Farmers’ may regulate Congress alone tive because Co., 546, 547-548 Mut. Ins. 395 warnings products. such on the labels and Cir.1968). had been Similarly, Wal-Mart FIFRA, 1947, originally in in enacted removal. the suit dismissed for licensing labeling statute as a and tended jurisdic subject to the longer nowas Since it Co., v. Monsanto pesticides. Ruckelshaus court, it could not be re the state tion of 2862, 2866, 991, 986, 81 104 S.Ct. 467 U.S. 14A to federal court. moved Alan CHARLES (1984). in 1972 Amendments L.Ed.2d 815 Wright, H. R. Miller & Edward Arthur law, it a com strengthened the and became Cooper, and Procedure FEDERAL Practice regulation the sale and use prehensive (1985). Chemical, § That leaves Dow 3721 including such other chemicals pesticides and percent of Dow parent and 100 owner cleaners. Wisconsin products as bathroom parties need not Nominal or formal Brands. Mortier, --, v. U.S. Public Intervenor A Ryan, 661 F.2d 1134. join in removal. 2476, 2480, -, 115 532. 111 L.Ed.2d S.Ct. if there is no reasonable is nominal defendant (1991). it will be held liable. predicting that basis for Clause, Ar found at Supremacy The Cooper § n. Wright, 3731 10. 14A Miller & Constitution, proclaims cl. 2 of ticle VI corporations are parent whether It is unclear with, or “interfere that state laws in case Dow parties. But per se nominal in congress, contrary laws of made manu with the had no connection Chemical are invalid. the constitution” pursuance facture, Bathroom sale or distribution Dow (9 Wheat.) 1, 6 Ogden, U.S. Gibbons al Cleaner; independent in no engaged it (1824). a federal statute Whether L.Ed. 23 solely joined be wrongdoing but was leged congressional law turns on pre-empts state subsidiary. the acts of its cause of McClendon, v.Co. Ingersoll-Rand event, intent. sworn for Dow Brands has counsel 482, 478, 111 S.Ct. 498 U.S. it undisputed by Shaw —that an affidavit — to dismiss agreement had Shaw’s obtained —Inc., -, (1990). Group, may Liggett U.S. That intent

L.Ed.2d (1992). itself, 2608, 120 That v. Rath S.Ct. L.Ed.2d explicit in the statute Jones 519, 525, sweeping congressional opinion held that ef Packing 97 S.Ct. (1977); pre-empt regulation bar Fidelity Fed. forts to state also 51 L.Ed.2d 604 Cuesta, damages Although claims. v. de la state Court Sav. & Loan Ass’n 141, 153, 102 general, L.Ed.2d 664 said that “there is no inherent con S.Ct. (1982); is, pre-emption flict of state at least as far as between this case warning requirements The and the continued vi labeling packaging are concerned. and actions,” impose tality damages common law says flatly: shall not state Act “Such State at -, any requirements it also held that id. S.Ct. or continue effect prohibit to or differ a broad statement a federal law labeling packaging addition does, fact, wipe away required subchap- ing regulation state ent from under this those 136v(b). impose liability attempts The common law ter.” 7 U.S.C. top regulation. at - recently the absolutist nature of of the federal Id. noted -, labeling in the and at 2619-2621. pre-emption FIFRA’s FI- packaging even as it held that context Cipollone The federal laws at issue were pre-empt generalized FRA does not Cigarette Labeling Federal Advertis - Mortier, regulation pesticides. U.S. (“1965 Act”) Cigarette Act Public at -, 2486. Since (“1969 Smoking Cigarette Health Act of 1969 dispute Congress exclusive do not Act”), §§ Cigarette 15 U.S.C. 1331-1340. labeling packaging, for, responsible among These laws are other only question is: how exclusive is exclusive? things, surgeon general’s warnings maintains that there is still room for grace cigarette packages. the sides of common law tort actions for defective labels. pre-emption provision Cigarette in the 1965 because, appealing un said, quite Act was “No narrow state regulations like federal which firms are re relating smoking ment and health shall be follow, quired common law duties required advertising [properly la See, e.g., simply ignored defendants. Fer at -, cigarettes.” Id. beled] ebee v. Chevron Chemical Congress’ emphasis on the words (D.C.Cir.1984), denied, 1540-1541 certiorari “advertising” “statement” and led the Court 83 L.Ed.2d 432 U.S. Cigarette conclude that the 1965 Act FIFRA, (despite pre-emption under pre-empted state and federal rules that may decide that manufacturer state should might require warnings, additional not but losses). compensating bear the risk for In damages Ciga state law actions. The 1969 deed, they are smart to do so if the cost of Act, broader; however, rette much was compensating victims is less than the cost of merely any barred not “re “statements” but * * * altering gives the behavior that rise to the quirement[s] prohibition^] imposed or hand, actions, damages suit. On the other at -, 112 under State law.” Id. S.Ct. at mandates, just regulatory compa like cause held, language, sig- 2619. This modify It nies to their economic decisions. legislative nalled intent to ban common law silly pretend would be that federal law along regulat tort with direct actions state makers, seeking occupy a whole field ion.4 As wrote: Justice Stevens regulation, wouldn’t also be concerned about phrase requirement prohibi- The or “[n]o distorting effects of tort actions. sweeps broadly suggests tion” no dis- event, positive about com- tinction between enactments and law; evaporated contrary, mon law actions last summer common those words Supreme Cipollone easily encompass obligations that when the Court decided take opinion part). coupled 4. This We take section Justice Stevens' this concurrencc/dissent others, joined by only justices. three Two other opinion with Stevens’ to constitute a ma- Justice however, complete pre-emption advocated based jority proposition sweeping for the that such a Cipollone, on the 1969 Act. U.S. at - provision damages pre-emption bars -, (Scalia, J., 112 S.Ct. at 2632-2634 concur claims. ring judgment dissenting part SHADUR, law Judge, of common rules. As we noted Senior District form context, regulation dissenting. can be “[state] another effectively through as exerted an award of Judge Cummings has done an admirable damages through preven- some form of job explaining why majority believes obligation pay compen-

tive relief. principles that the long ago taught by normal be, be, designed sation can indeed is such cases as The Fair v. Kohler Die & potent governing method conduct and 22, 25, Specialty 228 U.S. 33 S.Ct. controlling policy.” (1913) 57 L.Ed. 716 and St. Paul Mercu- ry Indemnity v.Co. Red Cab 303 U.S. at -, (quoting Id. at 2620 S.Ct. San 283, 288-89, 586, 590-91, 82 L.Ed. Garmon, Diego Building Trades Council v. give plaintiff should not Shaw and 236, 247, 773, 780, 359 U.S. apple. his counsel a second bite With- (1959)). L.Ed.2d 775 question out Shaw has no real call on our equitable (except conscience Cipol- In order to succeed in the to the extent wake of lone, majority’s holding then, affords him less Shaw would have to show that equal rights, a matter dealt with later in pre-emption language FIFRA’s less opinion). perhaps goal And of effi- sweeping language Ciga than the of the 1969 ciency may sending be advanced not can significant rette Act. Yet we discern no might back for what judge’s well be a state says all—FIFRA distinction at that “[s]uch * * * decision to dismiss his case on the substan- impose any require State shall tive FIFRA preemption issue.1 labeling packaging ments for or in addition to * * *,’’ required or different those subject But matter is not a cigarette says law require while “[n]o equity matter of or of conscience or of effi- * * * prohibitionfs] imposed s] or un ciency. judicial ment! It is rather one of the lack of permitted. der State law” shall be Both power to controversy. decide a Both the emphatic: equally requirements seem “[n]o authority Court as the ultimate prohibitions” way or saying another this court spokesperson as its have consis- * * * impose any require “[s]tate shall tently juris- announced that ments.” Not even the hair most dedicated diction cannot be conferred or waived even splitter distinguish (see, Iowa, could by express these statements. e.g., consent Sosna v. 393, 398, If common law actions cannot survive under 419 U.S. S.Ct. (1975)) law, cigarette (see,

the 1969 then common law L.Ed.2d e.g., or conduct Maurer, labeling 237, 244, packaging actions for defects Mitchell (1934)) estop- cannot under FIFRA. survive The Tenth L.Ed. 338 (see, pel recently e.g., thing. Circuit held the same Ar American Fire & Cas. Co. v. Finn, 6, 17-18, 541- Partnership kansas-Platte & v. Van Gulf (1951)). Inc., 95 L.Ed. 702 Rogers, As 13 Charles Waters & (“We Wright, Cooper, Arthur Miller & Edward prohibi believe also the Federal Practice & Procedure: ‘any’ requirement Jurisdiction tion of is the functional (2d 1984) (footnotes §2d at 66-68 ed. equivalent requirement. of ‘no’ We see no omitted) and numerous has summa- citations operative difference between effect of the acts”). principles: rized those immutable Cipollone destroyed two Because might whatever general have had parties rule is that the cannot pre-emption, compelled jurisdiction about af we to confer on a federal court firm the district court decision that FIFRA in has not been vested that court Congress. bars this action. Constitution and This means Incidentally, pending my that issue is now 123 L.Ed.2d is also 650.] It Supreme petition Court on a for certiorari to understanding petitions that other are on their the Nevada Court in Davidson v. Velsi way up Partnership Arkansas — Platte & Gulf Corp., col Chemical 108 Nev. 834 P.2d 931 Inc., Rogers, Van Waters & 981 F.2d 1177 (1992), petition filed, cert. 61 U.S.L.W. 3634 Papas Upjohn and (U.S. 1, 1993) opinion [Editor's Mar. Note: since (11th Cir.1993) curiam). (per - filed, -, was cert. was denied U.S. federalism, a juris- system In our of lack of cannot waive that the consent, conduct, right bring a surely great as byor by express diction his, in a state court retain her or its action by estoppel; even jurisdiction lacking as a where federal is too basic jurisdiction the federal court a state-filed case to defendant has remove system judicial to be left a concern a federal court where federal of the tactical concerns to the whims and that it was in It is no accident does exist.2 litigants. juris- subject matter deciding the course opening boilerplate that the And so question that Holmes stated dictional Justice jurisdictional that Shaw’s statement Fair, aphorism in The the now-famous initial brief at the outset of his included 411: 33 S.Ct. at U.S. majority page 3 of the (quoted this course, brings a party who suit is Of made before that was opinion), statement rely what law he will master to decide question to brought we upon, therefore does determine wheth- (as duty see, our attention counsel’s arising bring a “suit under” the er he will Mitchell, holding, among the host of cases so patent or other law the United States (“An appel- at 165 U.S. question can- his declaration or bill. That satisfy not of its itself late court must answer, depend upon the and accord- jurisdiction, of that of the lower own but also ingly cannot be conferred review”), cannot con- under courts a cause defense, anticipated even when counsel was asked trol here. Once Shaw’s replied in the bill. specifically, unequivo- he the matter address plaintiff, and not of the That notion of cally negated potential existence defendant, “the master” of the choice of as minimal amount. And he did by the upon law which to sue is reinforced terms, conclusory purely but for a so not (Franchise “powerful doctrine” Tax Bd. v. knowledge own specific reason tied to his Trust, 463 Construction Laborers Vacation damages and of the size of his client’s actual 1, 9, 2841, 2846, 77 L.Ed.2d U.S. returned in the area where counsel verdicts (1983)) complaint” “well-pleaded practices. Appellate courts are not factfin- originated in rule that such cases Louis ders, really position we are not Mottley, 211 ville & N.R. Co. v. U.S. reject valuation on our such informed L.Ed. 126 and that own. length in Franchise Tax was discussed Bd. itself. then, regret, With I am constrained to jurisdiction, my majority opinion in of removal two

express view that the the context (not really purposefully, case has done violence refinements have been added that re- course) to one or more of the most funda- inforce the seminal doctrines announced principles jurisdiction. “well-pleaded complaint” mental of federal The Fair and may perhaps regretful of those refinements is what has And what cases. One terms, pleader” (though jurisprudential what can come to be known as the “artful doctrine, power plaintiff may more serious than the exercise of in which state court exist?) simply does not is that the infliction of such not omit from the really protect expressly ques- that would call federal wounds is needed the words play, escape properly- defendant to remove tions into an effort to necessarily reality case from removable the state to the federal lawsuit (see, implicates questions e.g., court. Feder- urged year-end report 2. At the outset of his 1992 on the and that include serious reexamina- judiciary, federal play Chief Justice William Rehn- tion of the role federal courts should quist repeated his 1991 view on "how best to use system justice. of I cautioned our nationwide and administer the limited resource that is the rejection against substantial of traditional con- judiciary": federal cepts of federalism and advocated a vision of Thus, example, my year’s the federal courts as distinctive forums of lim- report for last was cautionary. jurisdiction, complement I ited meant to noted the commencement of the judiciary's long-range planning supplant federal them. effort courts rather than

373 alone approaches Moitie, FIFRA in which Stores, 452 U.S. v. Inc. Dept. ated —let “unique” “powerful” and 2, 2424, matches —the 2427 n. 69 2, 394, 101 S.Ct. n. § or of LMRA status plead preemptive (1981), the “artful quoting L.Ed.2d (in ERISA. the current is now from what ing” phrase 3722, edition) Cooper &Miller Wright, 14A of principles of the boundaries Those basic 1985)). (2d is the the other And ed. at judicial power, and of the and state federal may so “Congress under situation they power rights to control which litigants’ that area particular pre-empt a completely equal play, apply with may properly call into group raising this select complaint any civil jurisdiction. too the diversity There force to necessarily character” federal is of claims to invoke party that is on the seeks burden Taylor, 481 v. Ins. Co. (Metropolitan Life jurisdiction to its existence. establish federal 1546, 1542, 63-64, 58, 107 S.Ct. U.S. in federal originally filed a suit is When (1987)) the concept that Su L.Ed.2d —a court, plaintiffs. And to fore that burden is “unique only to the applied preme Court any plaintiff entry of unwarranted stall the (id. 65) and, at of ERISA” pre-emptive force court, the burden the into federal that, of pre-emptive force to “the before by simply say automatically satisfied is not LMRA, powerful as is so which] § 301 of the f in controvers is ing that more of action entirely any state cause displace a colorable basis there must be y 3—-instead employ between ‘for violation contracts respect still an that for that assertion. ” (Franchise Tax organization’ a labor er and leading still the other seminal —and —deci speak Bd., 103 S.Ct. 463 U.S. Indemnity, sion, Mercury St. Paul Machinists, U.S. 39 v. Corp. of Avco (footnotes omitted), at 590 58 S.Ct. (1968)). L.Ed.2d teaches: score, be noted it should that On for want of governing The rule dismissal Dow major here that the issue turning to brought in the federal jurisdiction in cases that a com- assertion that, Brands’ late-tendered gives a differ- unless the law court is has been preemption created parable field plaintiff rule, the the sum claimed ent Even foundation. wholly without FIFRA is made in apparently claim is if the controls its ex- announced Supreme Court legal appear while to a It must good faith. holding narrowly-circumscribed ceptional really is for less certainty that the claim recon- Life, Metropolitan the Court there justify jurisdictional amount than the & N.R. Co. teaching of Louisville inability firmed to re- dismissal. Bank, First National Mottley Gully give the adequate amount cover an 81 L.Ed. his bad jurisdiction does show gov- rule that establishing the universal does jurisdiction. Nor faith oust or statutory special in the absence of erns discloses fact that history has led legislative language and to the claim. defense of a valid existence unique of LMRA treatment it is pleadings, if, face of the But from the 1546): (481 63, 107 S.Ct. at certainty, U.S. legal ERISA apparent, amount recover cannot ordinarily federal is pre-emption Federal claimed, if, proofs, the court from the or a de- plaintiffs suit. As defense plain- certainty that the like to a satisfied of a fense, appear on face it does not recover entitled was tiff never therefore, and, complaint, well-pleaded therefore amount, that his claim to federal not authorize does jur- conferring purpose of for the colorable court. isdiction, will be the suit dismissed. federal-ques- argument That scotches hand, plaintiff has where the the other On notions of federal tion based and defen- gone into a state court originally case, way no there is preemption in this Inns, v. Best Inns Inc. Best to in America's assumed Throughout it will be discussion L.P., Abilene, com- diversity citizenship shown (in removal) by curiam) jurisdiction. the notice plaint the case defeat (per exist to removal, those referred flaws such as and that no person, may pleaded no ad damnum be then seeks to remove to the federal the dant court, establishing except necessary the the exis burden to the minimum extent to tence becomes defen comply assignment with the circuit rules of again the is not satis dant’s. Once burden where the claim is filed.... actions for by merely pointing plain defendant’s to fied injury person, any complaint to the filed If that damnum tiffs boxcar ad damnum. ad damnum, except which contains ad colorable, plain so that it is that the is not necessary comply minimum extent jurisdictional requisite amount not in con assignment with the circuit where rules troversy, attempted removal does not filed, the claim shall be with- dismissed jurisdiction something confer federal prejudice upon out forthwith motion of a ability force results the loser’s upon defendant or the court’s own motion. court, square parties back to one the state compulsion statutory of that man- Under post-judgment appeal and even on even date, all that was able to (Ross Ins. v. Inter-Ocean Complaint include in count each of his (7th Cir.1982)). damage that defendants’ conduct was “to scenario, In still another variant on the if a money of Plaintiff in sums of in excess of deliberately plaintiff seeks to recover less $15,000.” amount, jurisdictional than The Fair’s circumstances, by Under those definition n concept mastery plaintiffs of the of the com- the defendant who is confronted with such a precludes plaint bringing the defendant from except by claim cannot sheer surmise— tell — by saying the case into federal court controversy: the amount in Is it more than larger could have tried to obtain a (so $15,000 $50,000 but not more than recovery. plaintiff may simply Thus a jurisdiction), there is no federal or is it more in the choose sue state court for less than (so than that such ex- jurisdictional the federal amount and be as- ists)? And remember that such a statute his, protection right sured her or its expressly plaintiffs forbids the exercise of Mercury to remain there. Paul Indem- right expressly granted that is as nity, put 58 S.Ct. at 593 has Mercury Indemnity: him or her St. Paul succinctly unequivocally: the matter ability specific to sue for a amount less plaintiff] try If he [the does not desire to than the threshold level and case in the federal court he resort thereby staying to be assured of in the state expedient suing less court. amount, though he would more, justly But the selfsame statute that entitled to creates the the defendant (at plaintiffs respect dilemma in that cannot remove. least majority’s analysis) provides under the also principles, All of those their na- because preserving, unimpaired, the solution for presence ture is to define the or absence of truly of removal defendant’s where jurisdiction, cannot of course Here exists. is how that statute concludes: bent broken. It remains to dis- application Nothing in this shall be principles cuss the of those Section construed when, here, prohibiting request- as the defendant situation is forbid- plaintiff by specific interrogatory den state law to ad dam- damages amount complaint. sought. num in the which will be Procedure, Illinois’ Code of Civil like cor- Shaw, And counsel for when the issue was states, responding legislation in some other posed argument, in the course of oral con- (Ill.Rev.Stat. provision includes this ch. availability regular firmed the and use ¶ 2-604, redesignated January as of 1993 practicing lawyers opportunity of that to ob- (“Section 2-604”)): as 735 ILCS 5/2-604 tain information about the real-world nature (a Every complaint practice prevalent and counterclaim shall of a claim so it, specific prayers might judicial contain for the relief to that we well take notice of pleader which the although approach given deems himself or herself is needless here). except injury entitled that in actions for record really epitomizes inappropri- case the This R.Civ.P. 11.5 And our decisions in In re

n ateness, terms, jurisdictional in permitting Amoco Petroleum Additives any removed from a case state to a and In re Shell Oil amorphous guess court based on the federal (7th Cir.1992) curiam) 970 F.2d 355 (per lawyer. Complaints personal in of a defense .(whichcarry forward teaching the of St. Paul injury regularly repeat a formulaic cases re- Mercury Indemnity, 303 U.S. at assertedly grievous cital of the harms suf- S.Ct. at 590-91 in respect) that mean that if giving plaintiffs, fered without a clue as to defense counsel were permitted nevertheless really controversy. in how much is When to court, remove the case to federal Shaw’s argument posed in before oral this case we then, by counsel could not post-removal fil parties the issue the the that ings that would acknowledgement set out his ip original had not addressed their that the verdict if he won the case would not briefs, experienced counsel filed an Shaw’s $50,000, exceed cause the case to be sent affidavit in which he swore that he had evalu- back to the state place court —the where it (one ated his client’s case in there belongs jurisdiction is as because injuries) permanent no and the were level of suredly- lacking. economically depressed area verdicts brought, where the case was and that he had On the other controversy, side of the concluded that the federal lawyer Dow’s majority’s under —who controversy. amount was not Here is 1446(b) (“Section view of 28 U.S.C. (emphasis in paragraph 5 of his affidavit 1446(b)”) days had to act to remove within 30 original): receiving complaint, after pain of los- 5. Affiant is familiar with the medical to remove—filed his notice of relating and bills to Plaintiffs records nothing removal at time that he knew injury. cognizant Affiant is also claimed except about the case for the recitals prior Plaintiffs medical condition (and Complaint particularly unaware of injury. alleged Affiant is familiar with condition). plaintiffs current As the now- personal injury verdicts and settlements removal, predicate for that claimed defense region lawsuits and area of (although has tendered to us he nev- counsel (Massac original County, venue of this case court) excerpts er to the district submitted Illinois).4 upon all relevant consid- Based jury reporter, reflecting from a verdict that erations, Affiant believes that verdict juries places other around the some some original proper in its venue this case wholly country dealing with different $50,000. would not exceed of over delivered verdicts facts —have (sometimes Both from oral and from that, ex- many times over where affidavit, lawyer is thus clear injuries in- permanent tremely serious knowledgeable personal practitioner volved). injury field who knows all about his case— those circum- under permit To injuries, fact that the extent of his client’s If head. jurisdiction on its turns stances recovered, fully his client is and the effect correct, would have we majority view were jury the size of the locale of the action on without a federal court'is in which situation belief, light sworn he verdicts. of his (who the behest could not have filed suit in the federal district facts) at the but knows actually violating without both the sub- not). (who It does of the defendant jective objective behest and the branches of Fed. $50,000” jurisdictional statement very tip County "more 4. Massac is at the southeastern seat, Metropo- court of course county us. This opening State Illinois. Its of the lis, brief 7,000. population In the every has a of some obligations of seriously the takes Illinois, cases from federal Southern District of view of lawyer's mistaken But a candid. (as county are heard in its Benton Division never inhibited jurisdiction has subject matter here). was true other) (or applying cor- this court waiver, rejecting the doctrine rule—hence rect page majority suggests Shaw's 5. At the law. estoppel .area consent ought for his counsel to be to sanctions prop- express provisions a takes no more than statement of that to run under the of Sec- 1446(b): unaeceptability. to demonstrate its tion osition by pleading If the case stated the initial is by majori- If a defendant is not driven the removable, may a notice of removal be rule, easy. Any ty-announced the answer is thirty days receipt by filed within after the a defendant who has not received demand defendant, otherwise, through service or of plaintiff before suit is filed6 and who is motion, copy pleading, an of amended then confronted with the indefinite “more may paper order or other from which it $15,000” recital in a than such as be that is one first ascertained the case Shaw’s, and who is therefore unable to know removable, except which is or has become plaintiff really seeking more than whether is that a case not be removed on the (so $50,000 30-day clock of Section by basis of conferred section 1446(b) tick), begun only need has year 1332 of this title more than after interrogatories direct a few well-chosen commencement of the action.8 plaintiff specifically by authorized the last as All example: of this has so self-evident to me of Section 2-604. For seemed sentence (issued my rulings that I fear that earlier damages 1. State the amount the wearing my more while accustomed robe as actually being sought in action. this consistently judge), require district you prepared 2. whether State by predicate showing such a defendant as a damage in agree that award will no removal, may cryptic for have been more $50,000.7 event exceed (see, they e.g., Navar than should have been (N.D.Ill.1990); F.Supp. ro v. LTV Steel If reflect a commit- both of those answers Keller, Inc., F.Supp. ki v. Ma (N.D.Ill.1991)). plaintiffs part on that no more than ment principles ap But the same $50,000 controversy, in un- is must follow pear equally Ap self-evident teaching Mercury Paul Indem- der the with peals for the Ninth Circuit. Confronted nity right that defendant has no to remove (for ago problem some months the identical (and plaintiff are thus the case and defendant provision Nevada has a statute similar to the jurisdic- placed equal footing in federal Procedure), in the Illinois Code Civil case). terms, But if as must be the tional swiftly dispatched a remov defendant’s limita- unwilling to commit to the is per opinion in a curiam al as ill-founded requested interrogatory, tion the second squarely Mercury Paul In grounded on St. ac- has defendant then knows demnity principles that have been and on the $50,000 may knowledged that more than (Gaus length greater here set forth if has the kind of dispute. And defendant (9th Cir.1992) Miles, Inc., (per F.2d 564 good faith belief to support information curiam)). effect, full has the defendant then the same analysis is I have set out And what 30-day period which to remove within by supported the views of the begin squarely case, time clock also does the for then jury gcnce, to limit the has been and a failure so and the been received 6. If such a demand has (15 less, $50,000 Damages by error” I.L.P. sought definition to be reversible is held amount there). Conversely, if the remove. cited What has there is no and cases interrog- defendant effectively demand is for more out in the text is been set viewing the demand good contemplated by no faith basis expressly atory counterpart, as unrealistic, right to wholly definition as It should earlier case law. Section thal litigation. of the at the outset remove exists nothing though, the anal- emphasized, law hinges that earlier case ysis on whether here noting parenthetically that before It is worth statute. the current Illinois viable under remains specific inclusion of 2-604 forbade the Section damnum, practice the consistent when it was ad defendant jeopardy created for a 8. No every prayer com- specific to include such limitation, add one-year which was clause's last an in- early law "held that plaint, Illinois case 1446(b). to Section 1988 amendment ed objec- damages question on the struction appropriate to transmit is free Defendant jury dam- to such it confines tionable unless very plaintiff at outset of interrogatories complaint and shown ages are claimed in court. in the state negli- case proximate of defendant's result to be the dispute soning), judges on both sides that had the lesson that the Fifth Circuit Appeals the Court for the Fifth clearly divided teaches there is consistent with the Circuit the now vacated decision Klie here, position urged that is while it does not Upjohn 915 F.2d 142 bert Cir. (if all) comfortably position with the fit 1990).9 original majority, To the Kliebert majority opinion taken in our ease. showing precise kind of that has been offered Certainly conclusory neither the initial juris- general here Dow Brands —a defendant’s dictional statement in Shaw’s brief nor Dow’s damage presentation ized awards that had generalized us, assertions later tendered to cases, obtained in other with no show been squarely both so particular- at odds with the their, comparability plaintiffs ing of to case— ized sworn statement has permitted plain to override the could not provided to negating us the tiffs counsel’s evaluation of his own case. amount, pass would muster under the Fifth majority Hence the had ordered that the analysis. Circuit’s having case be remanded as removed been (id. 146-47). this, Having without at all repeat To dis said I that it is Judge Jolly, senting that conclusion was not difficult majority’s to understand the lack wrong impermissible apply because it is to sympathy with the effort of Shaw and his differing standards to and defen attorney subject to attack matter determining removability dants in a case’s they where have nothing to lose and possibly (id. 147). at But what I have outlined here something gain they to this instance —in majority meets the concerns of both the opportunity persuade would have the an Kliebert, actually provides dissent in for it (a court) other court state to take a different litigants playing (Judge level field for the tack on question substantive of FIFRA the. concern) Jolly’s pre while the time same preemption. respect, But all with that is not integrity serving the of both federal and subject jurisdic at all unusual where matter contrast, jurisdiction. By sharp what Supreme tion is at issue. Thus majority does here is at with odds both Finn, American Fire & Cas. Co. v. dissent, majority the Kliebert and the for it is L.Ed, (1951) allowed opposed directly majority view and it defendants had who removed the case' directly Judge Jolly’s also conflicts with view court, federal and had then successfully re equal justice by conferring greater rights plaintiffs attempts sisted to remand the case on the less-informed defendant than on the (id. 7-8, 537), 71 S.Ct. at to raise —and to plaintiff. better-informed juris win on—the absence of Finally, in serendip one of the instances of diction had obtained a verdict after ity judicial process that mark the with sur (id. 541-542; at trial prising frequency, April opinion 3522, at Wright, Cooper § see 13 Miller & (Asociacion from the Fifth Circuit Nacional n. 10 for numerous eases to the identical Pequena de Pescadores a o Artesa Escala effect). Given Court’s adher (ANPAC) Quimi nales Colombia de v. Dow principle ence to that in a case that evokes (5th S.A., ca de Colombia 988 F.2d 559 Cir. party far sympathy less for the that chal 1993)) my just has come to attention as this lenges jurisdiction post-removal, opinion literally printer. at the There majority solicitude of the here for Dow’s required the Fifth Circuit of a remand perceived pales by comparison.. dilemma case under much removed circumstances ultimately light What troublesome akin to Although those involved here.10 it is majority that the finds with possible say difficulties course that there are some my suggested approach despite factual the fact distinctions between case (something possible, opinion suggestion this one that the finds that ahvays that is Levi, Legal “eminently see Edward Introduction to Rea- it to “recommend[s] sensible” rehearing granted startlingly, removing 9. En banc had 10. Even been in Kliebert defen- (923 (5th 1991) litigants F.2d Cir. Dow one when dants that case were Chemical and (947 subsidiaries, corpora- then settled case Cir. its other a Colombian 1991)). tion! that). strongly implies Again in realistic Illinois” —is defendants removal-minded (if terms, rarely majority adopt plaintiffs lawyer a stance will does not ever) in this give up potentially larger concerns for Dow that would meet its client’s assuring perceived at the same time specific recovery escape per- case while in all future removal playing field a level ils of a federal court—Shaw’s situation is rule, prospective Why announce extraordinary exception, cases: because at the subject matter to control the point that he came before us he had noth- cases, under in all such future determinations possibly something gain ing to lose and diversity removing defendant must which the by going back to the state court for a (1) court either a show- to the district submit opinion second chance. And as this (some- plaintiffs dollar demand out, already pointed really it is unfair to happens my experience in al- thing that deprive any plaintiff legitimate aof entitle- filed) suit is most all cases before ment to conduct his or her lawsuit in the interrogatory plain- quantifying result of impor- state court —a that is as showings of those to serve tiff—with either party’s right litigate tant as either of the precondition to the establishment as jurisdiction. if federal court we do have controversy pre- and hence as a amount 3.Importantly, procedure the kind of all, question to removal? After this condition suggested helpful here would be regularly amount is of the district courts. It would establish a presented recurring problem, one that is bright-line rule that would eliminate all diversity personal injury every Illinois-based questions of timeliness of removal all prohibiting the state law case because of (or all) nearly potential disputes about the complaint. specific ad damnum the Such controversy. amount It would also tend every promote legitimate identifi- rule would taking to lessen risk of our a case on prejudicing no able interest while one: removal, only to discover later on that defendants, every 1. For element of lacking forcing —thus uncertainty would be eliminated. Because litigants begin afresh the state court. statutorily ambiguity mandated of Illinois’ issue, 30-day as to the amount at time Unfortunately very fact that makes begin clock for removal would not to tick improper compara- this case—the until has committed himself or tively small amount that is at stake —renders herself to a real-world identification of the unlikely carry it counsel can controversy. amount in When a the case farther. And it would take a brave specifies either her demand or refus- again indeed to file the same lawsuit $50,- acknowledge es to that it over ignore a state court and ask it to aas days the 30 allowed for removal will nullity ruling having court’s been 1446(b), begin under 28 U.S.C. and the jurisdiction. prac- rendered without So the standard identified at footnote majority’s tical result is that the action has majority opinion apply. could sanctioned the creation of federal plaintiffs, 2. For there is no risk of respectfully where does not exist. I dis- being improperly thrust into federal court sent.11 where no more than really stake —a result that is at odds with The

Fair and Paul Mercury Indemnity cases).

(among other majority As the

opinion correctly points pages out at actually lodged once the case is

the federal court it is too late for the (Shell

plaintiff to correct the record Oil light my 11. In juris- views on the absence of should not be mistaken for an indication that I diction, I inappropriate believe that it would be majority's dissent from the resolution of that for me to ques- deal with the substantive FIFRA issue as well. Accordingly, my tion. silence on that

Case Details

Case Name: Billy Joe Shaw v. Dow Brands, Inc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 13, 1993

Citation: 994 F.2d 364

Docket Number: 92-2323

Court Abbreviation: 7th Cir.