Opposition Brief — Gerber Products Co. v. Tylka
Supreme Court brief2000
Ask Donna
What actually matters in this document.
Text
5%
a
»
4
2
>
4
a
ai
fay ocT 19 200
SY
No. 00-387
IN THE
Supreme Court of the United States
GERBER PRODUCTS COMPANY,
Petitioner,
v.
PAMELA G. TYLKA, et ai.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
BRIEF IN OPPOSITION
CLINTON A. KRISLOV
Counsel of Record
KENNETH T. GOLDSTEIN
KrisLov & ASSOCIATES, LTD.
Attorneys for Respondents
Civic Opera Building
20 North Wacker Drive
Suite 1350
Chicago, Illinois 60606
(312) 606-0500
(Additional Counsel for Respondents
listed on signature page)
162861 @J Counsel! Press LLC
(800) 274-3321 + (800) 359-6859
i
QUESTION PRESENTED
Whether the Appellate Court correctly remanded this
case to state court after it identified, at oral argument, a fatal
jurisdictional defect in Petitioner’s removal notices, cited
Petitioner to 28 U.S.C. § 1653 as the proper method of
correcting that defect, directed Petitioner to do so, warned
Petitioner that failure to amend would lead to remand to state
court, and allowed Petitioner more than two months to act,
following which the Appellate Court remanded the case to
state court?
li
TABLE OF CONTENTS
Page
Question Poemeted ......is 5 cvacs cel i
gt TR a ee li
Table of Cited Authorities .................... vi
PRMGNOR » oo ibs i ee 1
Jurisdiction is lacking to review this remand
| er Perer er rrr rey ie rere l
PP ere 2
os q
puneinneh of Gia CONS 6 ois ocd ee 3
ematy Of ALR niin kk oho deen 7
Reasons for Denying the Writ ................. 8
I. The Supreme Court Lacks Jurisdiction to
Review Gis Cost... siete 8
II. The Seventh Circuit Correctly Read the
Petitioner’s Notice of Removal. .......... 9
A. Petitioner’s Argument that the Seventh
Circuit Disregarded Petitioner’s
Removal Language Is Wrong. ....... 9
B. The Seventh Circuit Did Not Apply a
Heightened Pleading Standard. ...... 11
ili
Contents
Page
The Petitioner Alleges a Conflict —
Between the Circuits Regarding the
Pleading Requirements in Removal,
but Cites No Authority In Support
fg Sere ae
Cases Cited by Petitioner are
Distinguishable out of Hand, and Do
Not Demonstrate the Existence of
Ce Ee ee
Petitioner’s Argument that the
Seventh Circuit Did Not Consider
Any of the Evidence Produced in
Discovery Is Wrong. ...........
a. The Court of Appeals Allowed
Petitioner to Amend Its
Defective Notices of Removals
based Upon Purported Facts
Obtained During Discovery,
Which Petitioner Refused to Do
Until After the Remand was
ie a oo Ska k ta wes
b. The Seventh Circuit’s Decision
to Deny Petitioner’s Amended
Notice of Removal Was Within
its Sound Discretion .........
12
13
13
14
15
iv
Contents
Page
4. Petitioner’s Alleged Belated Evidence
Does Not Establish Citizenship. ... 16
Ill. The Seventh Circuit’s Unanimous Decision
Is Accurate, Correct, and in Accord with
Peet SS oie ey eo 16
Ee ee re re pie 16
TOUS a ids Oe Nee ewe 20
C. The Decision Below Is in Accord with
the Federal Rules and the Local Rules
of the Northern District of Illinois. ... 20
IV. The District Court Did Not Acquire
Jurisdiction After Petitioner’s Fatally
Defective Notices of Removal and Beforethe _
District Court Entered Summary Judgment
ET EE ws ep ee Ore 22
V. Petitioner’s Refusal to Correct Its Mistake is
Not an Important Question That Merits
DINO 0 5-66'< 54 e ERAS 6 Bs —
VI. The Zahn v. International Paper Co., 414
U.S. 291 (1973) Issue Raised Last Term in
_ Free v. Abbott Laboratories Inc., No. 99-391,
Is Not Ripe For Review. ................ 24
Contents
Page
A. The Supreme Court Should Not Decide
Issues Not Raised or Decided In the
Court of Appeals ..............-6-- 24
B. Respondent Is the True Petitioner on the
Zahn Issue and Should Be Designated
as Such If That Issue Is Reached. .... 27
Se aoe nen ey Oe Pure ee mare ee rs 27
Appendix .......... eee e cere cece ee eeeeeeee la
vi
TABLE OF CITED AUTHORITIES
Page
Cases:
Aetna Ca. & Sur. Co. v. Flowers, 330 U.S. 464
Ns 6 be ROR RES ee Ek 1,9
Allen v. Wright, 468 U.S. 737 (1984) ........... 18
American Fire & Casualty Co. v. Finn, 341 U.S. 6
NE 6 hss Ss Leia aoe eon Rae aOR 16
America’s Best Inns, Inc. v. Best Inns of Abilene,
LP., 980 F.2d 1072 (7th Cir. 1992) ........... 12a: 80
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996) .....
Ee lecicc enh ata ook cae Ok ba ee eee 16, 17, 22, 23
Denny v. Pironi, 141 U.S. 121 (1891) ........... 12
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ..... 22
Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) ... 18
FDIC v. Santiago Plaza, 598 F.2d 634 (ist Cir.
SP xe oo ha kd ve ENS EK EO OES Ce Ee 15
Free v. Abbott, 146 L. Ed. 2d 306 (2000) ........ 24
Fry v. Layne-Western Co., 282 F.2d 97 (8" Cir.
PERSP eae ke ey mre yt re ar 16
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215
nee ee 18
vii
Cited Authorities
Page
Gilbert v. David, 235 U.S. 561 (1915) .......... 13
Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723
1h] eee Pere eere ete er rere ole sek 2
Guaranty National Title Company, Inc., v. J.E.G.
Associates, 101 F.3d 57 (7™ Cir. 1996) ........ 12, 23
Handy v. Uniroyal, Inc., 298 F. Supp. 301 (D. Del.
PGs ae De reer Tree ree Seer Oe te 15
Harris v. American Legion, 162 F. Supp. 700 (S.D.
Ind. 1958) 261 F.2d 594 (7 Cir. 1958), rehearing
NSS Pee er Orr rere Ty he ee ee ee ee Te 19
Hormel v. Helvering, 312 U.S. 552 (1941) ....... 26
In re Brand Name Drugs Antitrust Litig., 123 F.3d
$99 (7® Cir. 1997) ......ccee cc encerccnncces 26
In re County Collector, 96 F.3d 890 (7" Cir. 1996)
oe Gn heise dee As hh RK Re eye 18
Joy v. Hague, 175 F.2d 395 (1* Cir 1949), cert.
dented, 336 U.S. B70 oc. i ccs cesieweve ys 20
Kaufman v. Western Union Tele. Co., 224 F.2d 723
(3* Cie... 1953) 30s Be lis aa an a 16
Kinney v. Columbia Savings & Loan Ass'n.,191 USS.
rt). Serpe or eer reeericS tor rec 10, 11
vill
Cited Authorities
Page
Lindros v. Fortuna, 157 F.3d 945 (2 Cir. 1998)... 13
Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S.
PRESS hive cdieneiee eiehteieea §
Razdan v. General Motors Corp., 99-3012 (7" Cir.
SOO 556d PECK Veh ren Ronee ke eae 20, 27
Robertson v. Cease, 97 U.S. 646 (1878) ......... 12
Seedman v. United States District Court for the
Central District of California, 837 F.2d 413
Coe aly COON 5s <5 00% pancaee Rene o aa eas 15
Singleton v. Wulff, 428 U.S. 106 (1976) ......... 26
Stanley v. Kelly, 758 F. Supp. 1487 (S.D. Fla.
LOPES ns cuceeves bay eases eee 14, 15
Steigleder v. McQuesten, 198 U.S. 141 (1905) .... = 12
Stromberg Metal Works, Inc. v. Press Mechanical,
Bae. 57 Fan Be Ck ee GS 26
Taylor v. Appleton, 30 F.3d 1365 (11% Cir. 1994)
SESS Ee WRK SRM a earns 13
Thermtron Products, Inc. v. Hermansdorfer, 423
Ady BOWLED kok os Khe ee ee 12,3
Things Remembered, Inc. v. Petrarca, 516 U.S. 124
CE 65k 6 eR eae ee a ee 2,8
ix
Cited Authorities
Page
Three J Farms, Inc. v. Alton Box Board Co., 609
F.2d 112 (4th Cir. 1979), cert. denied, 445 U.S.
911, 100 S. Ct. 1090, 63 L. Ed. 2d 327 (1980)
ES its 1h eA Rare mean yy VoD SCURRY GRMN pein 15
Volvo of America v. Schwarzer, 429 U.S. 1331
SE ai Ss a CRE ARE U MAN aero Ok eeen 1,8
Zahn v. International Paper Co., 414 U.S. 291
PPE ECOL icukhe ci newa Chace ins 24, 25, 26, 27
Statutes:
RY a oe Pere eG eed eri wee en 3
RA Ee ED fs A ere eer 9
RR EE cis hep eRG eee ads Chad ea ee 27
poe Se ane pea ere eee eee 10, 21
ee ee NE Ws eh reid SRS eee ved wss wae 1,9
A a | ee er ere 8
p SRE ewe OT : en re ee Ae
ee et Rs wis oo ks We ke ae xiepiee & bo passim
Title 28 U.S.C., 1940, ed. § 399, Mar. 3, 1911,
c. 231, § 274c, as added Mar. 3, 1915, c. 90, 38
a Oe ee me 15
x
Cited Authorities
Page
Rules:
Pee eee Ge. Gee; RAE os ve sewaseaieria. 23
I So an a ke ea een ack Na 10, 21
Northern District of Illinois Local Rule 81.2
Removals; Remands of Removals (West 2000)
‘See neenteURheks 0b bekWaeee AOE RENO Sees 21
United States Supreme Court Rule 10 ........... 25
Other Authorities:
http://www.ca7.uscourts.gov/dkt.htm, (last visited
a EOE 6h ce cet skeen neces eases rinse 27
http://www.thesaurus.com/ (last visited October 5,
PEED Vonceiwekaneewe bee va eeekaaieses ee 10
Kirszner & Mandell, The Holt Handbook, Second
Ed., Holt, Rinehart & Winston, Inc. (1989) .... 11
Webster’s Encyclopedic Unabridged Dictionary of
the English Language, (Ed. 1996) ............ 4,10
Webster’s Ninth New Collegiate Dictionary,
Merriam-Webster, Inc. 1989 ................ 11
xi
Cited Authorities
Page
Wright & Miller: Fed. Prac. & Proc. § 3611, The
Requirement and Meaning of Citizenship-in
CURR TAGE 6 hoes Sean ig eet ea aeors 19
Wright, Miller, Cooper, Fed. Prac. and Proc. § 3602,
Jurisdiction and Related Matters, 2000 Pocket Part
Fr re ee re et pe eee 19
Wright, Miller, & Cooper, 14A Fed. Prac. & Proc.
Breed ty eee (Neda eSMGCs swans cen ee
Wydick, Plain English for Lawyers, Fourth Ed.,
Carolina Academic Press, (1998) ............ 11
1
JURISDICTION
Jurisdiction is lacking to review this remand order.
There is no jurisdiction for the Court to grant certiorari.
This case is within the statutory prohibition of review
of remand orders to state court. Under 28 U.S.C. § 1447(d)
“{a]n order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise. . .”.
Petitioner’s only case cited in support of this Court’s
jurisdiction is Aetna Ca. & Sur. Co. v. Flowers, 330 U.S.
464 (1947) which applies 28 U.S.C. § 1447(d)’s predecessor,
which limited jurisdiction to review remands by the district
courts. Subsequent to the Aetna decision, Congress amended
the statute to delete the distinction between the district courts
and the appellate courts, thus precluding jurisdiction to
review remands by either one. When Aetna was decided the
statute read, “and no appeal or writ of error from the decision
of the district court so remanding.” Thermtron Products, Inc.
v. Hermansdorfer, 423 U.S. 336, 357 (1976) (Emphasis
added) (quoting § 1447(d)’s predecessor statute) (Rehnquist,
J. dissenting). The current statute withdraws the limitation
held in Aetna by deleting the “district court” language and
substituting the much broader prohibition of review of
remand orders now found in the statute — “not reviewable
on appeal or otherwise,” 28 U.S.C. § 1447 (historical and
statutory notes), and thus limits the review of remand orders
even in the Supreme Court of remand orders from Appellate
Courts.
Most similar is Volvo of America v. Schwarzer, 429 U.S.
1331 (1976), where the applicant in a class action sought a
stay from the Northern District Court of California’s remand
2
to the California state court system. But this Court
denied the stay, rejecting to hear the case as “not subject to
review” ... “presumptively barred by the operation of
28 U.S.C. § 1447(d).” See Thermtron Products, Inc. v.
Hermansdorfer, 423 U.S. 336, 351 (1976) (regarding roots
of § 1447(d) and recodification in 1948, “neither disturb[ing]
nor tak[ing] issue with the well-established geaeral rule that
1447(d) and its predecessors were intended to forbid by
appeal ... any order remanding a case on the grounds
permitted by the statute.”). In Thermtron, Chief Justice
Rehnquist’s dissent (writing as an Associate Justice) stated,
“[b]Jecause I am convinced that both the Court of Appeals
and this Court are without jurisdiction to consider the merits
of Petitioners’ claims, I would affirm the judgment below.”
Thermtron, 423 U.S. at 361 (Rehnquist, J. dissenting)
(Emphasis added). See also Things Remembered, Inc. v.
Petrarca, 516 U.S. 124 (1995); and Gravitt v. Southwestern
Bell Tel. Co., 430 U.S. 723 (1977) (per curiam) (describing
statute as unmistakable command).
Accordingly the Court lacks jurisdiction to review the
Seventh Circuit’s remand order.
STATUTES INVOLVED
Petitioner’s brief omits 28 U.S.C. § 1447(d) which provides:
An order remanding a case to the State court from
which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a
case to the State court from which it was removed
pursuant to section 1443 of this title shall be
reviewable by appeal or otherwise.
3
The former version of 28 U.S.C. § 1447(d) was
28 U.S.C. § 71 (1946 ed.) which provided:
Whenever any cause shall be removed from any
State court into any district court of the United
States, and the district court shall decide that the
cause was improperly removed, and order the
same to be remanded to the State court
from whence it came, such remand shall be
immediately carried into execution, and no appeal
or writ of error from the decision of the district
court so remanding such cause shall be allowed.
cited in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.
336, 357 (1976) (Rehnquist, J. Dissenting).
STATEMENT OF THE CASE
Petitioner’s notice of removal alleged that diversity
jurisdiction existed because, and only because, Plaintiffs had
alleged residency in their state court complaints:
2. According to the allegations of the Complaint
Plaintiff is an individual who resides in Illinois.
(Complaint, 92. ) Thus, Plaintiff is a citizen of
Illinois for jurisdiction purposes.
(Pet Appendix at 62a).
Petitioners notices of removal defectively alleged
residency rather than citizenship. The conclusion of
citizenship drawn from the allegation of residency alone,
however, is improper. It is a non sequitur. It is “an inference
or a conclusion that does not flow from the premises ...
4
a statement containing an illogical conclusion.” Webster’s
Encyclopedic Unabridged Dictionary of the English
Language, (Ed. 1996).
Petitioner failed to amend its jurisdictionally defective
allegation at any time before the remand order of the Seventh
Circuit and never created a factual record to establish
citizenship.
On February 22, 2000, when this case was argued before
the Seventh Circuit, the Court of Appeals advised Petitioner
of a fatal jurisdictional defect in its removal petitions and
gave Petitioner an opportunity to cure the defect by amending
its notices of removal under 28 U.S.C. § 1653 or face remand:
JUDGE EASTERBROOK: [hate to say this, but
it looks to me like there’s a jurisdictional problem
independent of that which none of the parties have
discussed. I can’t tell that the parties are a diverse
citizenship.
The complaints filed in state court all allege that
one or another Plaintiff is a quote resident of
Illinois. . .. Which is not the — . . . — pertinent
to the question of federal subject matter
jurisdiction. ... And the Supreme Court of the
United States has held repeatedly, as have we, that
an allegation of residence is jurisdictionally
insufficient. Looks to me like these cases were
removed from state court without proper
allegations of jurisdiction — without proper
allegations of diversity of citizenship....
5
[P]roblem is that 28 U.S.C. 1653 permits the
allegations of jurisdiction to be amended even in
the Court of Appeals. So if it is possible truthfully
to amend the allegations of jurisdiction to allege
domicile as opposed to residence, then maybe
there’s diversity. But until that happens, we
certainly don't have it on the allegations in this
record. (Transcript, Feb. 22, 2000, at 2 - 4,
Appendix at 1a). (Emphasis added).
The Seventh Circuit’s direction was clear. The Seventh
Circuit explicitly raised the issue and fairly allowed
Petitioner to cure its defect. It was Petitioner’s removal, so
it was Petitioner's obligation to amend the removal notice,
not the obligation of Plaintiffs or the Court of Appeals.
MR. WILHELM [Gerber’s counsel, Petitioner
here]: My plan, your Honors, is to emphasize
three points. The first is the point that I think has
already been emphasized —
JUDGE EASTERBROOK: The first plan ought
to be to talk about whether we have diversity of
citizenship.
MR. WILHELM: Yes, your Honor. After
removal when the —
JUDGE EASTERBROOK: The notices of
removal Gerber filed are amazing. They say, well,
the complaint alleges that X is a resident of
Illinois; therefore, X is a citizen of Illinois. That’s
Just not true. It’s a non sequitur.
6
The Supreme Court has — had the district court
been alert, these cases would have been remanded
in an hour, and that would have been the end
because you couldn’t have appealed that remand.
MR. WILHELM: The fact that you raise — that
you raise.an issue about though has been
confirmed in depositions where all of the named
Plaintiffs were deposed. All of them testified as
to their state of domicile. All of them testified
that they were — they were indeed citizens of the
state of Illinois — . ..
JUDGE EASTERBROOK: You then may be able
to amend the complaints —
MR. WILHELM: Correct.
JUDGE EASTERBROOK: Under Section 1653.
MR. WILHELM: Correct.
JUDGE EASTERBROOK: And you should
count your lucky stars because this case
should have been remanded instantly because
these notices were transparently defective.
(Oral Argument, Feb. 22, 2000, Transcript at
14-16, Appendix at 4a.). (Emphasis Added).
By May 1, 2000, more than two months after oral
argument, Petitioner still had not followed the Seventh
Circuit’s direction to amend its defective notices of removal
or face remand on the ground that the notices of removal
were defective. Accordingly, the unanimous Court ordered
7
the case remanded to the Illinois court system. (Pet. Appendix
at la). [he Seventh Circuit’s opinion emphasized the
admonishment given the Petitioner at oral argument,
“we certainly don’t have [jurisdiction] on the allegations in this
record.” Tylka v. Gerber, 211 F.3d 445 (7 Cir. 2000)
(Pet. Appendix at 7a). —
Even then, Petitioner waited 12 days after the Appellate
Court’s forewarned remand decision before filing an amended
notice of removal and simultaneously moving for rehearing
en banc on May 12, 2000. (Pet. Appendix at 8a). The Seventh
Circuit struck Petitioner’s then twice-tardy § 1653 amended
notice of removal and denied rehearing en banc on June 8, 2000.
SUMMARY OF THE ARGUMENT
This Court lacks jurisdiction to hear this remand
decision to state court by the Appellate Court pursuant to
28 U.S.C. § 1447(d).
The Petitioner, defendant-appellee below, seeks this Court’s
review to avoid the consequences of its own strategic decision
to disregard the Seventh Circuit’s explicit warning to file
amended notices of removal because its notices of removal were
facially defective. During oral argument, the Seventh Circuit
not only pointed out the defect but directed Petitioner’s counsel
to correct its faulty notices of removal (if it could). Judge
Easterbrook cited Petitioner’s counsel to the specific statute
permitting amendment at that time, 28 U.S.C. § 1653, to cure
the defect, and warned Petitioner that the Seventh Circuit would
send this case back to the state court if the jurisdictionally fatal
defects were not cured. After waiting two months for Petitioner
to act, the unanimous Court of Appeals, in an opinion authored
by Judge Coffey, remanded the case to state court.
8
Petitioner’s tardy attempt to amend its jurisdictionally
defective notices of removal after that decision and request for
reconsideration by the Court of Appeals en banc were correctly
rejected by the Seventh Circuit.
Petitioner inappropriately asks this Court to undo the result
of its own decision by disingenuously protesting confusion,
alleging fictitious splits between the circuits, and claiming
unfairness — all of which this Court can ignore. Further,
Petitioner presents a question addressed in Free v. Abbott, 99-
391, last term that was not reached by the Seventh Circuit below.
REASONS FOR DENYING THE WRIT
I. The Supreme Court Lacks Jurisdiction to Review this
Case.
The Supreme Court lacks jurisdiction to review the decision
to remand to the Circuit Court of Cook County, Illinois.
28 U.S.C. § 1447(d); Things Remembered, Inc. v. Petrarca,
516 U.S. 124 (1995) (only cases meeting the grounds in
§ 1447(c) are immune). In interpreting 28 U.S.C. § 1447(d),
this Court held that, “Congress has placed broad restrictions
on the power of federal appellate courts to review district
court orders remanding removed cases to state court.”
' Things Remembered 516 U.S. at 127. In aconsumer class action
which presented this same issue, Chief Justice Rehnquist denied
a stay of remand to state court under §§ 1447(c) and (d), holding
that the Court was presumptively barred and lacked jurisdiction.
Volvo of America Corp. v. Schwarzer, 429 U.S. 1331 (1976).
In Metropolitan Casualty Ins. Co. v. Stevens, 312 U.S. 563
(1941) the district court held the case was not removable and
remanded it to the state court. This Court held “we are not at
liberty to review the remand order.”
9
Petitioner cites Aetna v. Flowers, 330 U.S. 464 (1947) as
alleged support of this Court’s jurisdiction to review decisions
to remand a cause to the state court. However, that case
interpreted 28 U.S.C. § 1447(d)’s predecessor statute which
bared review of remands from district courts which this Court
interpreted as not baring its own review of remands from an
appellate court. However, after the Aetna decision, that
distinction was deleted by Congress, and the current much
broader language was substituted as is currently found in
28 U.S.C. § 1447 (historical and Statutory notes). See supra
Jurisdiction at 1.
II. The Seventh Circuit Correctly Read the Petitioner’s
Notice of Removal.
A. Petitioner’s Argument that the Seventh Circuit
Disregarded Petitioner’s Removal Language Is
Wrong.
Petitioner attempts to misconstrue its own jurisdictionally
defective language. Petitioner attempts to construe its notices
- of removal as alleging citizenship because, and only because,
according to the Plaintiffs’ allegations in their state court
complaints, Plaintiffs are residents of Illinois. This does not
follow, as matter of law or as a matter of English usage and
grammar.
Petitioner claims that the Court of Appeals disregarded the
latter clause of its notice of removal. As the transcript of oral
argument and opinion by the Seventh Circuit clearly
demonstrate, Petitioner is wrong. The-Court of Appeals
considered the second clause, and found that it was
a conclusion that did not flow from the premise. The Seventh
Circuit correctly held that Petitioner’s notices of removal
referred to residence of the plaintiffs and not their citizenship
as required by 28 U.S.C. § 1332(a)(1). (Pet. Appendix at 4a).
10
As the Seventh Circuit correctly observed, Petitioner’s
averments of citizenship were based on a non sequitur.
A non sequitur is “an inference or a conclusion that does not
flow from the premises . . . a statement containing an illogical
conclusion.” Webster’s Encyclopedic Unabridged Dictionary
of the English Language, (Ed. 1996); a statement
“that does not follow logically from what preceded it.”
http://www.thesaurus.com/ (last visited October 5, 2000).
Moreover, before Petitioner filed its notices of removal,
it did not complete any discovery on the issue. For example,
Petitioner did not comply with the (then-numbered) Local
Civil Rule 3, calling for discovery regarding the diversity of
citizenship requirement. Petitioner also ignored the procedure
set by 28 U.S.C. § 1446(b), which contemplates removal
after discovery where the initial pleading is not removable -
(on “receipt” of-“other paper”). When Petitioner did take
discovery, it did not ask the question about citizenship of
any of the named plaintiffs, and Petitioner has not claimed
that it did. Yet, Petitioner states categorically, but incorrectly,
that citizenship had been demonstrated by discovery.
(Transcript, Oral Argument, Feb. 22, 2000, Transcript at
14-16) (Appendix at 4a.).
Indeed, Petitioner’s citation to Kinney v. Columbia
Savings & Loan Ass’n., 191 U.S. 78 (1903), undermines its
argument. (Pet. at 15). The phrase and allegation “a resident
and a citizen of the City of Denver and state of Colorado”
(emphasis added) in that case is absolutely materially
distinguishable from the Petitioner’s own averment in this
case. In Kinney, the allegation is one of citizenship in
addition to residency. By contrast, Petitioner here alleges
citizenship that is the same as residency, not an additional
allegation to residency. Petitioner’s confusion is with the
11
proper usage of the word “and” versus the usage of the word
“thus.” The word “[¢]hus means ‘in this way,’ not ‘therefore’
or ‘so.’ [i.¢.] In Joseph Conrad’s Heart of Darkness, Kurtz
becomes a man-god to the natives. Thus, he is able to collect
a fortune in ivory.” Kirszner & Mandell, The Holt Handbook,
Second Ed., Holt, Rinehart & Winston, Inc. (1989) at 759;
Webster’s Ninth New Collegiate Dictionary, Merriam-
Webster, Inc., 1989. The word “and” is “used as a function
word to indicate connection or addition . . .” Webster’s Ninth
New Collegiate Dictionary, Merriam-Webster, Inc., 1989.
Further, the Kinney averment has no period in it, while
Petitioner’s residency allegation does have a period in it. A
period is used “to end a declarative sentence.” Wydick, Plain
English for Lawyers, Fourth Ed., Carolina Academic Press,
(1998) at 105. Hence, when the Petitioner ended its allegation
of reside>ce with a period, it made a declaration. Petitioner
then made a presumption based on the previous declaration
by its use of the word “thus.” The allegation in Kinney is
materially distinguishable since it makes one declarative
statement using the connective word “and” without drawing
a conclusion that residence is the same as citizenship.
B. The Seventh Circuit Did Not Apply a Heightened
Pleading Standard.
Petitioner argues. that the Seventh Circuit required a
heightened pleading of citizenship by “demanding not only
that defendants allege the ‘citizenship’ of the plaintiffs but
also the factual basis for such allegation.” (Pet. at 10). Gerber
is wrong. The Seventh Circuit only required a proper
allegation of citizenship, that is, an allegation of citizenship,
not residence. Such a requirement is the uniform rule.
x 12
1. The Petitioner Alleges a Conflict Between the
Circuits Regarding the Pleading Requirements
in Removal, but Cites No Authority In Support
of Any Conflict.
Contrary to Petitioner’s claim, nowhere in its opinion
below, as alleged by the Petitioner, does the court state that
there is a heightened fact pleading requirement. The Seventh
Circuit’s opinion was correct that “[w]hen the parties allege
residence but not citizenship, the court must dismiss the suit.”
Guaranty National Title Company, Inc. v. J.E.G. Associates,
101 F.3d 57, 59 (7™ Cir. 1996).
As the decision by the Seventh Circuit to deny
reconsideration en banc reflects, there is no split of authority
within the Seventh Circuit and there is no deviation from
previous decisions by the Supreme Court. The Seventh
Circuit decision is amply supported by long standing
decisions of this Court. Judge Coffey’s opinion cited
numerous decisions by this Court that Petitioner does not
distinguish, including: Steigleder v. McQuesten, 198 U.S.
141 (1905) (“[I}t has long been settled that residence and
citizenship are wholly different things . . .”); Denny v. Pironi,
141 U.S. 121 (1891) (“an averment of residence is not the
equivalent of an averment of citizenship”); Robertson v.
Cease, 97 U.S. 646 (1878); America’s Best Inns, Inc. v. Best
Inns of Abilene, LP., 980 F.2d 1072 (7th Cir. 1992). The
Seventh Circuit also correctly cited its own previous
decisions. In Guaranty “[a]t oral argument we told counsel
that it is essential to put into the record the . . . citizenship.”
Guaranty, 101 F.3d at 58. And when in Guaranty the parties
“(hjaving received that aid from the bench” did not
follow the directions, as Petitioner failed to do here, the
judgment was vacated and the case remanded to state court.
13
See America’s Best Inns. Inc. v. Best Inns of Abilene, 980
F.2d 1072 (7 Cir. 1992) (“[flederal law citizenship means
domicile, not residence” citing Gilbert v. David, 235 U.S.
561 (1915), and where the litigants were told at “oral
argument” to file under § 1653 and “counsel did not do it”
the judgment was vacated with instructions to dismiss for
lack of subject matter jurisdiction.).
2. Cases Cited by Petitioner are Distinguishable
out of Hand, and Do Not Demonstrate the
Existence of Any Conflicts.
Petitioner cites the decision Lindros v. Fortuna, 157 F.3d
945 (2™ Cir. 1998) as support to illustrate a heightened
pleading standard requirement in the Seventh Circuit.
Lindros supports Respondents by holding that it is “hornbook
law that the party invoking federal jurisdiction bears the
burden of proving facts to establish{] jurisdiction.”
Petitioner also cites Taylor v. Appleton, 30 F.3d 1365
(11" Cir. 1994), as support of an alleged conflict between
circuits. Taylor, however, states the same proposition of law
set forth by the Seventh Circuit, namely, “[{c]itizenship, not
residence, is the key fact that must be alleged in the complaint
to establish diversity.” Taylor, 30 F.3d at 1367.
3. Petitioner’s Argument that the Seventh Circuit
Did Not Consider Any of the Evidence Produced
in Discovery Is Wrong.
Petitioner argues that the Court of Appeals “focused
exclusively on the notice of removal . . . and did not consider
evidence produced in discovery or memorandum subsequently
submitted . . . which conclusively established that plaintiffs were
14
citizens of Illinois at all times.” (Pet. at 11) (Emphasis in the
original). Petitioner is wrong. A simple review of the argument
and opinion belie this argument.
a. The Court of Appeals Allowed Petitioner
to Amend Its Defective Notices of Removals
based Upon Purported Facts Obtained
During Discovery, Which Petitioner
Refused to Do Until After the Remand was
Ordered.
First, the Seventh Circuit invited Petitioner to file an
amended notice of removal based upon evidence it obtained
during discovery, which Petitioner refused to do for more than
two months until after the Seventh Circuit ordered the case
remanded. Then, after the case was ordered remanded to state
court, Petitioner sought a rehearing en banc in which it presented
an out of time amended notice of removal which included the
deposition transcripts and interrogatory answers which
Petitioner alleged demonstrates Plaintiffs’ citizenship. The
Seventh Circuit correctly struck the amended notice of removal
as out of time and denied reconsideration.
Petitioner’s belated attempt to file an amended notice
of removal adding the missing allegation of diversity of
citizenship is an acknowledgment by Petitioner that its
original notices were defective. The amended notice was
correctly stricken and reconsideration en banc appropriately
was denied. Following Stanley v. Kelly, 758 F. Supp. 1487,
1488 (S.D. Fla. 1991) (a § 1653 amendment is not permitted
after case remanded to state court), the amended notice of
removal was out of time twice: first, after the Court of
Appeals warned Petitioner that “we certainly don’t
have [jurisdiction] on the allegations in this record,”
15
Tylka v. Gerber, 211 F.3d 445 (7™ Cir. 2000) (Pet. Appendix
at 7a); and second, when Petitioner then waited an additional
12 days before attempting to file its amended notice of
removal, after the court’s decision was delivered.
There is no split among authorities on this issue. Federal
courts “universally” construe this language to preclude
appellate review not only of a remand order, but also
reconsideration. Stanley, 758 F. Supp. at 1488 (emphasis
added) (citing Seedman v. United States District Court for
the Central District of California, 837 F.2d 413, 414
(9th Cir. 1988); FDIC v. Santiago Plaza, 598 F.2d 634, 636
(1st Cir. 1979); Three J Farms, Inc. v. Alton Box Board Co.,
609 F.2d 112, 115 (4th Cir. 1979), cert. denied, 445 U.S.
911, 100 S. Ct. 1090, 63 L. Ed. 2d 327 (1980); Wright,
Miller, & Cooper, 14A Fed. Prac. & Proc. § 3739, at 588-89
(1990)).
sis b. The Seventh Circuit’s Decision to Deny
Petitioner’s Amended Notice of Removal
Was Within its Sound Discretion
In Handy v. Uniroyal, Inc., 298 F. Supp. 301, 303
(D. Del. 1969), the court reviewed the legislative history
of § 1653’s predecessor statute. The legislative history
states amendments by parties in the appellate court
are “upon such terms as the court may impose.”
Citing, Title 28 U.S.C., 1940, ed. § 399, Mar. 3, 1911,
c. 231, § 274c, as added Mar. 3, 1915, c. 90, 38 Stat. 956.
(Emphasis added). Section 1653 retains the “upon terms”
language and should be similarly construed. Thus, when
Petitioner feigns confusion for its own strategic choice and
requests this Court’s intervention, its argument fails since
§ 1653 has never specified a time to file amendments. Case
16
law does not specify a specific time. Based on the
forcefulness of the Seventh Circuit’s direction, it was
surprising that Petitioner did not file a § 1653 amendment
the very day of oral argument. In some cases, courts have
directed counsel to amend within a specified time frame
(e.g. Kaufman v. Western Union Tele. Co., 224 F.2d 723
(5" Cir. 1955) (10 days) or Fry v. Layne-Western Co., 282
F.2d 97 (8" Cir. 1960) (30 days)), but the Appellate Court
is not required to do so. Regardless of the time given
Petitioner, the Appellate Court’s discretion to allow
amendments is “upon such terms as the court may impose”
was within the Appellate Court’s discretion under § 1653.
4. Petitioner’s Alleged Belated Evidence Does Not
Establish Citizenship.
The Seventh Circuit could not have given any weight to
the Petitioner’s alleged evidence since Petitioner failed to
demonstrate citizenship, as opposed to residency. Petitioner
merely showed residency since the discovery transcripts reveal
that not one plaintiff was asked at deposition or by written
interrogatory to state their citizenship. Each was asked to state
their “address” with “dates of residency.” Likewise, Petitioner
never requested an admission of citizenship.
Ill. The Seventh Circuit’s Unanimous Decision Is Accurate,
Correct, and in Accord with Other Decisions. —
A. The Court of Appeals Was Correct.
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996), recognizing
the decision in American Fire & Casualty Co. v. Finn, 341
U.S. 6 (1951), stated that, “the judgment could not stand because
the requisite diversity jurisdiction, it turned out, existed neither
17
at the time of removal nor at the time of judgment. . . . we held
that the absence of federal jurisdiction at the time of judgement
required the Court of Appeals to vacate the District Court
judgment.” Caterpillar, 519 U.S. at 70.
The decision of the Court of Appeals was correct and
supported by ample citation to precedent where it ordered the
parties to amend their pleading under § 1653, and dismissed
cases where those parties had failed to timely amend:
On a number of occasions we have dismissed
actions where litigants fail to make section 1653
amendments to correct deficient allegations of
diversity of citizenship after being instructed to
do so. For example, during oral argument in
America's Best Inns, Inc. v. Best Inns of Abilene,
L.P., 980 F.2d 1072, 1073 (7th Cir.1992), as in
this case, “the court reminded the parties of the
need to establish complete diversity of
citizenship.” But “[d]espite receiving express
directions about what they had to do, counsel did
not do it. At some point the train of opportunities
ends.” Jd. at 1074. Consequently, we vacated the
district court’s judgment on the-merits and
remanded with instructions to dismiss for lack of
subject matter jurisdiction. See id.; see also
Guaranty, 101 F.3d at 59; see, e.g., Held v. Held,
137 F.3d 998, 1000 (7 Cir. 1998); Dausch v.
Ryske, 9 F.3d 1244, 1245 (7" Cir. 1993); Chicago
Stadium Corp. v. State of Indiana, 220 F.2d 797,
799 (7 Cir. 1955).
Tylka v. Gerber Products Co., 211 F.3d 445 (7th Cir. 2000).
(Pet. Appendix at 6a).
iia
18
The Seventh Circuit was correct to rely on Jn re County
Collector, 96 F.3d 890 (7™ Cir. 1996), for the proposition
that it was duty bound to inquire into diversity of citizenship,
and to satisfy itself of the existence of jurisdiction. This Court
held, in Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868),
“[ without jurisdiction the court cannot proceed at all in any
cause. Jurisdiction is power to declare the law, and when it
ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause.”
The Supreme Court itself, as well as appellate courts,
are under the obligation to examine their own jurisdiction.
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230 (1990)
(citing, Allen v. Wright, 468 U.S. 737 (1984) (“perhaps
the most important of [the jurisdictional] doctrines.’’)).
In FW/PBS, quoting Wright, the Court held that the appellate
court has the obligation to satisfy itself of jurisdiction even
if the parties are prepared to concede it. FW/PBS, 493 U.S.
at 231. The scholarly journals are also in accord:
A court is not required to conduct a searching
inquiry into the truth of every uncontested
jurisdictional allegation. .. . But if the judge has
reason to believe that he lacks jurisdiction he is
not obliged, and indeed is not permitted, to close
his eyes and assume a jurisdiction that he doubts
he has. It is also a well established rule that a
challenge to the court’s jurisdiction may be raised
at any time during the litigation. When
jurisdiction is challenged on a factual basis, the
court is free to look at evidence outside the
pleadings, including affidavits, depositions,
testimony, documents, and other available extra-
pleading material, or to conduct a limited
19
evidentiary hearing, in determining whether it has
jurisdiction.
Wright, Miller, Cooper, Fed. Prac. and Proc. § 3602,
Jurisdiction and Related Matters, 2000 Pocket Part
(West 2000).
In this case, the Seventh Circuit followed its previous
holding in Harris v. American Legion, 162 F. Supp. 700
(S.D. Ind. 1958) at 261 F.2d 594 (7" Cir. 1958), rehearing
denied, that where the appellants refused to amend their
jurisdictional pleading as the District Court had invited them
to do, they thereby “knowingly” acquiesced and then could
not come to the Appellate Court “asking leave to do what
they failed to do below .. .”. Harris held that a
plaintiff should not be denied the right to amend
under Section 1653, 28 U.S.C., when jurisdiction
is questioned either by the court or by a party to
the action, yet when the court calls the plaintiff's
attention to a defective allegation as to citizenship
and affords the opportunity to amend, which is
not done, and further invites the plaintiff to submit
evidence showing jurisdiction at a separate
hearing for that purpose, but no proof is submitted,
the plaintiff's right to amend and submit proof
has been exhausted under said section.
Harris, 162 F. Supp. at 712; Wright & Miller: Fed. Prac. &
Proc. § 3611, The Requirement and Meaning of Citizenship-
in General (1982).
The result in this case is consistent with the holding in
Harris. The Court of Appeals called to Petitioner’s attention
20
the defective allegations regarding citizenship and afforded
Petitioner an extended window of opportunity to amend. This
Petitioner failed to do. The Seventh Circuit invited Petitioner
to submit its evidence showing jurisdiction found
in discovery, as Petitioner at oral argument had said it
could do, but Petitioner did not present that proof. Petitioner’s
right to amend under § 1653, thus, has been exhausted.
See Joy v. Hague, 175 F.2d 395 (1* Cir 1949), cert. denied,
338 U.S. 870 (where plaintiff did not accept opportunity to
supply missing allegation of jurisdictional amount, appellate
court would not allow amendment of defective allegations
of jurisdiction).
B. The Decision By the Seventh Circuit Was Fair.
The fairness of the decision is underscored by the
fact that there is no change in the manner of practice
regarding correction of faulty removals. Thus, Petitioner cites
Razdan v. General Motors Corp., 99-3012 (7® Cir. 1999),
where the same counsel who represents Petitioner in this case,
instead of ignoring the Court of Appeals’s direction, chose
to follow the court’s direction and corrected a notice of
removal. Petitioner’s choice here to not follow the Court of
Appeal’s direction to amend its notice of removal further
underscores that the facts of this case are peculiar and not
likely to reoccur.
C. The Decision Below Is in Accord with the Federal
Rules and the Local Rules of the Northern
District of Illinois.
Petitioner claims that the Court of Appeals “sets a trap
for unwary litigants.” Petitioner is wrong.
21
This is a patent mischaracterization of the simple matter
of amending the notices of removal — which Petitioner easily
did, not after being told by the Seventh Circuit to do so, but
only after the Seventh Circuit had ordered the remand.
Petitioner characterizes its predicament as navigating through
a “procedural Scylla and Charybdis.” However, Petitioner’s
analogy is wrong. If modern day lawyers could even be
likened to Odysseus, Petitioner has available to it the
traditional “map” available to all lawyers practicing in the
federal courts — the statutes and rule books. A practitioner
will find that 28 U.S.C. § 1446(b) and Northern District of
Illinois Local Rule 81.2 Removals; Remands of Removals
(West 2000) (Formally Local Civil Rule 3) provide a map
that contemplates simple discovery in this situation. For
example, Petitioner could have made a simple request to
admit citizenship (as distinguished from mere residence).
28 U.S.C. § 1446(b) states “[i]f the case stated by the initial
pleading is not removable, a notice may be filed within thirty
days after receipt by the defendant ... of ... other paper
from which it may first be ascertained that the case is one
which is or has become removable.” (Emphasis added).
Under the applicable local rule, “other papers” is understood
by the committee comment as written discovery and requests
for admission in context of § 1446(b). Thus, there is no
dangerous “procedural Scylla and Charybdis.” Practitioners
routinely follow the rules of civil procedure, and Petitioner
could have sent a request to admit citizenship without any
risk of missing the deadline to file its removal.
22
IV. The District Court Did Not Acquire Jurisdiction
After Petitioner’s Fatally Defective Notices of
Removal and Before the District Court Entered
Summary Judgment
Caterpillar Inc. v. Lewis, 519 U.S. 61 (1996), on which
Petitioner relies, stands for the proposition that where
jurisdiction does not exist at the time of removal but does
exist at the time of trial, based on considerations of finality,
efficiency and economy, the judgment at trial need not be
set aside and vacated. However, unlike Caterpillar, Petitioner
does not and cannot point to any intervening changes in facts
that gave rise to federal diversity jurisdiction at the time the
District Judge disregarded the finding of the Magistrate (who
denied summary judgment) and granted summary judgment
in favor of Petitioner. Unlike Caterpillar, where jurisdiction
did exist at the time the District Court entered judgement,
jurisdiction did not exist at the time the District Court
incorrectly granted summary judgment. Indeed, as the
Seventh Circuit found, jurisdiction never existed in this case.
Caterpillar, thus, cannot serve as the basis to rescue
Petitioner from its own fatally defective notices of removal.
The considerations of Erie R. Co. v. Tompkins, 304 U.S.
64 (1938), finality, efficiency and economy do not offset
the complete absence of jurisdiction in this case and, in any
event, are not persuasive for the following additional reasons:
(1) the case was decided on a pre-trial summary judgement
motion, not after trial; (2) the Magistrate Judge ruled in favor
of the Plaintiffs on the merits on the state cause of action on
summary judgment; (3) Petitioner is not denied its day in
state court on a state law question for which the District Judge
and Magistrate Judge did not agree on a question of summary
judgment; (4) since the day this case was removed, Plaintiffs
23
fought federal jurisdiction — on two remand motions and
as the sole basis for appellate review; (5) the years improperly
spent litigating in the federal courts would not be wasted or
duplicated. All of the discovery taken in the federal court
would be preserved and usable in the state court. All that
would be lost to Petitioner is the pre-trial summary judgment
decision from the District Judge who overruled the
Magistrate. Petitioner, of course, would be free to resubmit
a motion for summary judgment to the state court where the
matter should have been pending all along; and (6) Petitioner
did not even attempt to cure its fatally defective notices of
removal until after the Seventh Circuit ordered that the
summary judgment be vacated and the case be remanded to
state court.
Caterpillar holds that, “at the end of the day and case, a
jurisdictional defect remains uncured the judgment must be
vacated.” Caterpillar, 519 U.S. at 77, citing, Fed. Rule Civ.
Proc. 12(h)(3). As the Seventh Circuit explained, “[{Petitioner]
have only themselves to blame if they must now litigate this
case from scratch in state court.” citing Guaranty, 101 F.3d
at 59.
a
V. Petitioner’s Refusal to Correct Its Mistake is Not an
Important Question That Merits Review.
The issue potentially raised by Petitioner is not sufficiently
important to warrant this Court’s attention. The decision below
raises no issue of national importance. The question for review
is whether Petitioner should be excused for disregarding the
clear instruction of the Court of Appeals. Respondents
respectfully submit that this question is not sufficiently
important to merit review by the Supreme Court.
24
VI. The Zahn vy. International Paper Co., 414 U.S. 291 (1973)
Issue Raised Last Term in Free v. Abbott Laboratories
Inc., No. 99-391, Is Not Ripe For Review.
A. The Supreme Court Should Not Decide Issues Not
Raised or Decided In the Court of Appeals
The Zahn issue raised last term in Free v. Abbott, 146
L. Ed. 2d 306 (2000), also is in this case though it was not
reached by the Court of Appeals. In remanding this case to the
state court, the Seventh Circuit stated:
[b]ecause the basis for the resolution of this appeal
lies in Gerber’s failure to perfect subject matter
jurisdiction as directed by the court, only the facts
relevant to that issue will be addressed in this
opinion...
Tylka v. Gerber, 211 F.3d 445 (7th Cir. 2000) (Pet. Appendix
at 3a).
The questions raised by Plaintiff-Appellants-Respondents
on appeal in the Seventh Circuit but not reached by the Court -
of Appeals are:
I. Whether the District Court improperly aggregated
the value of the requested injunctive relief to create
diversity jurisdiction.
II. Whether in applying supplemental jurisdiction,
28 U.S.C. §1367, to absent class members, the lower
court improperly aggregated claims, in violation of
the teachings of Snyder v. Harris, 394 U.S. 322
(1969), Zahn v. International Paper Co., 414 U.S.
25
291 (1973) and Jn re Brand Name Prescription
Drugs Antitrust Litigation, 123 F.3d 599 (7® Cir.
1997).
III. Whether the trial court incorrectly decided:
a) that plaintiffs’ complaint was primarily
a complaint for injunctive relief — and
ignored that it was primarily a complaint
for damages;
b) that the value of the injunctive relief
requested in the complaint should be
viewed from the defendant’s perspective
applied for injunctive relief; and
c) that when viewed from the defendant’s
perspective the request for injunctive
relief met the $50,000 amount in
controversy requirement.
IV. Whether the amount-in-controversy was
satisfied by requests for attorneys
fees and punitive damages.
V. Whether the District Court wrongly found
diversity jurisdiction upon a request for injunctive
relief that under Illinois law could not be granted
and thus had no value whatsoever.
Respondents Appellate Brief at 2. Because these issues were
not decided below, the Zahn issue is not ripe for review.
Sup. Ct. R. 10. (2000).
Ne
26
Petitioner's matter of fact presumption that Respondents
sought injunctive relief worth more than the jurisdictional
amount is a fact that is contested and left unaddressed.
Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77
F.3d 928 (7" Cir. 1996), therefore, is irrelevant since there
is no ruling below that any one plaintiff in this case satisfies
the amount in controversy requirement.
Certiorari on the Zahn issue further is not appropriate,
as Petitioner admits, because “the court of appeals did not
expressly address the supplemental jurisdiction issue.”
(Pet. at 29). “It is the general rule, of course, that a federal
appellate court does not consider an issue not passed
upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976)
citing, Hormel v. Helvering, 312 U.S. 552, 556 (1941).
Accordingly, Petitioner’s request for review of the Zahn issue
should not even be reached and Petitioner’s Petition for Writ
of Certiorari should be denied.
Should the Court grant review of the Seventh Circuit’s
decision, the Court nonetheless should not grant review of
the Zahn issue. Although raised in the Court of Appeals, the
Zahn issue was not decided by the Seventh Circuit and is
not ripe for review. The Zahn issue should be left for decision
by the Seventh Circuit before this Court entertains the issue
in this case — if that ever becomes necessary. Contrary to
Petitioner’s averment, there are issues to be raised and decide
by the Seventh Circuit, which Respondent respectfully
suggests will be decided in Respondents’ favor, following
the non-aggregation rule for computing the amount in
controversy in class action cases. Jn re Brand Name Drugs
Antitrust Litig., 123 F.3d 599 (7™ Cir. 1997).
27 ,
B. Respondent Is the True Petitioner on the Zahn Issue
and Should Be Designated as Such If That Issue Is
Reached.
Notwithstanding the foregoing, should the Court decide to
reach the Zahn issue now, Respondents should be redesignated
by the Court as petitioners on that issue. The Respondents in
this case were removed from state court protesting removal
under § 1367 aggregation in opposition to Zahn. Because the
District Court ruled against Respondents and the Seventh Circuit
did not address the issue, the standing decision on this appeal
would be adverse to Respondent and they, not Petitioner, would
be the true “petitioner.”
CONCLUSION
Jurisdiction is lacking for review of the Seventh Circuit’s
remand order under 28 U.S.C. § 1447(d). However, should the
Court conclude that it does have jurisdiction, Petitioner’s Writ
of Certiorari still should be denied. There is no conflict among
circuits, no heightened pleading standard has been imposed by
the Seventh Circuit, and Petitioner does not raise an important
question of law. The factual question raised is peculiar and
unlikely to be repeated (see e.g. Razdan v. General Motors
Corp., No. 99-3012 (7" Cir.) (the Petitioner’s own counsel in
this very case complied in that case with the court’s direction
of the court to file an amended Notice of removal under § 1653,
hitp:www.ca7.uscourts.gov/dkt.hitm, (last visited October 5,
2000)). Finally, the decision below was both fair and
meritorious. Petitioner chose this path after being sternly warmed
of the consequences while being directed to its cure. Finally,
the Seventh Circuit’s opinion fully considered all of Petitioner’s
arguments in support of granting the Petition for Writ of
Certiorari raised here.
Therefore, Respondents respectfully request this Honorable
Court to deny the Petition for Writ of Certiorari.
28
Respectfully submitted,
CLINTON A. KRISLOV
Counsel of Record
KENNETH T. GOLDSTEIN
KrisLov & AssociaTEs, LTp.
Attorneys for Respondents
Civic Opera Building
20 North Wacker Drive
Suite 1350
Chicago, Illinois 60606
(312) 606-0500
Bevery C. Moors, Jr.
Moore & BROWN
4900 Massachusetts Avenue, N.W.
Suite 230
Washington, D.C. 20016
(202) 364-1032
JONATHAN PLASSE
BARBARA J. HART
GoopkInD, LABATON, RUDOFF
& Sucuarow, LLP
100 Park Avenue
New York, New York 10017-5563
(212) 907-0700
Marvin A. MILLER
MILLER, FAUCHER & CAFFERTY, LLP
30 North LaSalle Street
Suite 3200
Chicago, Illinois 60602
(312) 782-4880
29
KENNETH A, WEXLER
KENNETH WEXLER & ASSOCIATES, LTD.
One North LaSalle Street
Suite 2000
Chicago, Illinois 60602
(312) 346-2222
LEE SQUITIERI
ABBEY, Garpy & Squitieri, LLP
212 East 39th Street
New York, New York 10016
(212) 889-3700
SHERRIE R. SAVETT
BERGER & MonrtaAGUE, P.C.
1622 Locust Street
Philadelphia, Pennsylvania 19103
(215) 875-4656
KENNETH L. Fox
1600 Market Street, Suite 3450
Philadelphia, Pennsylvania 19103 .
(215) 751-2681
MICHAEL J. FREED
MICHAEL B. HYMAN
Mucu, SHELIST, FREED, DENENBERG,
AMENT, & RUBENSTEIN, P.C.
200 North LaSalle Street, Suite 2100
Chicago, Illinois 60601
(312) 346-3100
30
Larry D. Drury
Larry D. Drury, LTp.
Two North LaSalle Street
Suite 700
Chicago, Illinois 60602
(312) 346-7950
BEN BARNOW
ALAN M. GOLDBERG
BARNOW AND GOLDBERG, P.C.
105 West Madison
22nd Floor
Chicago, Illinois 60602
(312) 621-2000
JONATHAN NACHSIN
THE Law OFFICE OF
JONATHAN NACHSIN
105 West Adams
Suite 3000
Chicago, Illinois 60603
(312) 327-1777
Martw D. Cuitwoop
Curtwoop & HARLEY
2900 Promenade II
1230 Peachtree Street, NE
Atlanta, Georgia 30309
(404) 873-3900
31
CHARLES R. WATKINS
SUSMAN & WATKINS
Two First National Plaza
Suite 600
Chicago, Illinois 60603
(312) 346-3466
ALLYN LITE
Lite, DEPALMA, GREENBERG & RIVAS
Two Gateway Center
12th Floor
Newark, New Jersey 07102-5003
(973) 623-3000
APPENDIX . ts
Ae
Fe
jou
la
APPENDIX — EXCERPTS FROM TRANSCRIPT OF
PROCEEDINGS OF THE UNITED STATES COURT
OF APPEALS FOR THE SEVENTH CIRCUIT
DATED FEBRUARY 22, 2000
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
CHICAGO, ILLINOIS 60604
No. 96 C 1647
PAMELA J. TYLKA, H. JOSHUA CHAET,
CHERYL KELLER, et al.,
Plaintiffs-Appellants,
VS.
GERBER PRODUCTS COMPANY,
a Michigan Corporation,
Defendant-Appellee.
TRANSCRIPTION OF THE TAPE RECORDED
PROCEEDINGS had at the hearing in the above-entitled
cause before the Honorable JOHN L. COFFEY, FRANK H.
EASTERBROOK, and ANN CLAIRE WILLIAMS, Judges
of said Court, commencing on the 22nd day of February,
A.D., 2000.
[2] JUDGE EASTERBROOK: Number 6, please. Tylka
versus Gerber. All right, Counsel.
2a
Appendix
MR. KRISLOV: Good morning, Judge Coffey, Judge
Easterbrook, Judge Williams. I’m Clint Krislov. I'll argue
the case on behalf of the Plaintiff-Appellants.
The issue in this case is whether a complaint — a class
action complaint asserting purely state law consumer fraud
claims in which the named plaintiffs have less than the
jurisdictional amount in damages is changed into a federal
diversity jurisdiction case by the mere request for injunctive
relief. There are four points which I’d like to addre —
JUDGE EASTERBROOK: [hate to say this, but it looks
to me like there’s a jurisdictional problem independent of
that which none of the parties have discussed. I can’t tell
that the parties are a diverse citizenship.
MR. KRISLOV: I believe the parties before the Court
were all of diverse [3] citizenship, your Honor. |
JUDGE EASTERBROOK: What in the record shows
that?
MR. KRISLOV: Not anticip —
JUDGE EASTERBROOK: The complaints filed in state
court all allege that one or another Plaintiff is a quote resident
of Illinois.
MR. KRISLOV: Yes.
JUDGE EASTERBROOK: Which is not the —
3a
Appendix
MR. KRISLOV: The same —
JUDGE EASTERBROOK: — pertinent to the question
of federal subject matter jurisdiction. That depends on
citizenship which means domicile. And the Supreme Court
of the United States has held repeatedly, as have we, that an
allegation of residence is jurisdictionally insufficient.
Looks to me like these cases were removed from state
court without proper allegations of jurisdiction — without
proper allegations of diversity of citizenship —
MR. KRISLOV: Your Honor —
[4] JUDGE EASTERBROOK: — independent of the
jurisdictional amount.
MR. KRISLOV: _Your Honor, if the three of you would
like to take a vote, I’ll be glad to sit down and wait for the
outcome, and we can all just go home and —
JUDGE EASTERBROOK: Of course your —
MR. KRISLOV: — send the case back.
JUDGE EASTERBROOK: — problem is that 28 USC
1653 permits the allegations of jurisdiction to be amended
even in the Court of Appeals. So if it is possible truthfully
to amend the allegations of jurisdiction to allege domicile
as opposed to residence, then maybe there’s diversity. But
until that happens, we certainly don’t have it on the
allegations in this record.
4a
Appendix
MR. KRISLOV: Your Honor, I'll be glad to address that
with my co-counsel while my opposition argues; and we will,
if necessary, cure that if we are able to, which I suspect we
will be.
\ .
* * *
[14]* * *
MR. WILHELM: [counsel for petitioner here]
Your Honors, may it please the Court, Richard Wilhelm
on behalf of the defendant and Appellee Gerber Products
[15] Company.
My plan, your Honors, is to emphasize three points. The
first is the point that I think has already been emphasized —
JUDGE EASTERBROOK: The first plan ought to be
to talk about whether we have diversity of citizenship.
MR. WILHELM: Yes, your Honor. After removal when
the —
JUDGE EASTERBROOK: The notices of removal
Gerber filed are amazing. They say well, the complaint
alleges that X is a resident of Illinois; therefore, X is a citizen
of Illinois. That’s just not true. It’s a non sequitur.
The Supreme Court has — had the district court been
alert, these cases would have been remanded in an hour, and
Sa
Appendix
that would have been the end because you couldn’t have
appealed that remand.
MR. WILHELM: The fact that you raise — that you
raise an issue about though has been confirmed in depositions
where all [16] of the named Plaintiffs were deposed. All of
them testified as to their state of domicile. All of them
testified that they were — they were indeed citizens of the
state of Illinois —
JUDGE EASTERBROOK: Well —
MR. WILHELM: — and there was no issue raised with
respect to —
JUDGE EASTERBROOK: You then may be able to
amend the complaints —
MR. WILHELM: Correct.
JUDGE EASTERBROOK: — under Section 1653.
MR. WILHELM: Correct.
JUDGE EASTERBROOK: And should count your
lucky stars because this case should have been remanded
instantly because these notices were transparently defective.
* * %* *
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.