United States District Court, Northern District of Illinois, E.D
June 12, 1985
AVERIE STROMBERG LEVAL, PLAINTIFF,
PRUDENTIAL HEALTH CARE PLAN, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Averie Stromberg Leval ("Leval") sued Prudential Health Care
Plan, Inc. ("PruCare") and The Prudential Insurance Company of
America ("Prudential") in the Circuit Court of Cook County,
charging violation of Leval's privacy rights and breach of
contract.*fn1 Defendants removed the action to this District
Court on diversity-of-citizenship grounds and have now filed
1. Prudential moves for dismissal.
2. PruCare seeks summary judgment under Fed.R.Civ.P. 56.
For the reasons stated in this memorandum opinion and order,
this Court sua sponte remands the action to the state court for
want of subject matter jurisdiction.
PruCare, a wholly-owned subsidiary of Prudential, is engaged in
the health care services business in this area (Complaint ¶¶
1-2). Leval is a former employee of PruCare (Complaint ¶ 3)
whose photograph was used without her knowledge or consent on
an advertising promotional poster displayed in PruCare's
Lincoln Park Health Center (Complaint ¶ 9). Leval complained,
and PruCare agreed to Leval's demand not to use her photo or
likeness again without her prior permission and consent
(Complaint ¶¶ 10-11).
Despite that promise PruCare published a promotional booklet
(Complaint Ex. 1), on the back cover of which a
postage-stampsize photograph (1 7/16 inches X 1 inch) including
Leval was reproduced. In the photo Leval (in a white uniform)
and a child (obviously an outpatient) are shown in an
office, in the course of what appears to be taking an x-ray of
the child's arm.
Though the child's face is visible in the photograph (despite
its tiny size), because Leval is leaning forward toward the
camera with her head bent down, all that is really visible as a
means of "identification" — even in miniature — is her
hairstyle. Even under a magnifying glass, so little of her face
is discernible as to defy any real identification of the person
as Leval (except perhaps by someone who already knows she is in
Lack of Subject Matter Jurisdiction
Leval's state court complaint asks for compensatory and
punitive damages "in a sum in excess of this Court's minimum
jurisdictional amount" — apparently a reference to the $15,000
required to avoid hearing in the Circuit Court's Municipal
Department (Circuit Court of Cook County General Order 2.2(b)).
Ordinarily such a statement of the amount in controversy, if
asserted in good faith by a plaintiff, is not open to
challenge. St. Paul Mercury Indemnity Co. v. Red Cab Co.,
303 U.S. 283, 288, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938) still
states that controlling rule as to jurisdictional amount:
The rule governing dismissal for want of jurisdiction in cases
brought in the federal court is that, unless the law gives a
different rule, the sum claimed by the plaintiff controls if
the claim is apparently made in good faith.
It must appear to a legal certainty that the claim is really
for less than the jurisdictional amount to justify dismissal.
In Jeffries v. Silvercup Bakers, Inc., 434 F.2d 310, 312 (7th
Cir. 1970) our Court of Appeals Stated a slight variant:
[I]t is sufficient if there is a probability that the value of
the matter in controversy exceeds the jurisdictional amount.
But what the Prudential and PruCare motions demonstrate is
Leval's total inability to surmount even that low threshold.
Only brief discussion is needed to show that conclusion is
compelled by Leval's own allegations.
Prudential's motion states with total accuracy the Complaint
says nothing about that corporation except that it is PruCare's
parent. No allegations required for piercing the corporate veil
(Van Dorn Co. v. Future Chemical and Oil Corp., 753 F.2d 565,
569-70 (7th Cir. 1985)) or any other predicates for
Prudential's claimed liability are even hinted at. Though that
could well lead to Prudential's dismissal under Rule 12(b)(6),
for present purposes it clearly shows the absence of the
required amount in controversy as to Prudential.
As for PruCare, its summary judgment motion points to uniform
(and understandable) case law in the right-of-privacy field,
teaching a plaintiff cannot recover for a defendant's
commercial use of a photograph that lacks a clear and
identifiable likeness of the plaintiff recognizable from the
photograph itself. Branson v. Fawcett Publications, Inc.,
124 F. Supp. 429 (E.D. Ill. 1954) (applying Illinois law); Rawls v.
Conde Nast Publications, Inc., 446 F.2d 313, 318 (5th Cir.
1971) (citing Branson among other cases); Negri v. Schering
Corp., 333 F. Supp. 101, 103 (S.D.N.Y. 1971). It is true
PruCare's motion ignores — in a way that would be fatal to
summary judgment in its favor — the alternative
breach-of-contract basis advanced by Leval.*fn4 But on that
score the nonrecoverability of punitive damages for a contract
claim, plus the clear insupportability of any conceivable
compensatory damages (other than perhaps a nominal amount) for
the contract breach, cement the conclusion $10,000 cannot be at
Our Court of Appeals has dealt with a comparable jurisdictional
question in Ross v. Inter-Ocean Insurance Co., 693 F.2d 659
(7th Cir. 1982). It held that even after a judgment on the
merits the removed case had to be remanded. Much of what the
Court said in Ross could have been written for this case
(id. at 662-63):
We conclude that when it removed this case the defendant knew
with about as close an approach to certainty as one finds in
these matters that the plaintiff could not prove damages,
including attorney's fees, in excess of $10,000, as required by
the diversity statute. . . . Just as a plaintiff may not invoke
the diversity jurisdiction unless he believes in good faith
that the amount in controversy exceeds $10,000, so a defendant
in a state court action may not remove the action to federal
court unless he believes in good faith that the amount in
controversy exceeds $10,000. Ordinarily a defendant can rely on
the ad damnum in the complaint. But this is not an ordinary
We emphasize that mere suspicion on the part of the defendant
that the plaintiff could not prove a vexatious and unreasonable
refusal to pay would not be enough to defeat removal. If there
is a reasonable possibility that the plaintiff can recover more
than $10,000 on his claim, the jurisdictional minimum is
satisfied; otherwise every case that a defendant won on the
merits would be dismissed on jurisdictional grounds, allowing
the plaintiff to start over in state court. Hixon v.
Sherwin-Williams Co., 671 F.2d 1005, 1007 (7th Cir. 1982). But
where it is obvious to the defendant that even if the plaintiff
can establish liability he cannot obtain a judgment for more
than $10,000, exclusive of interests and costs, then the
defendant cannot remove the case; and if it is obvious to the
district court or the court of appeals that the defendant knew
from the outset that the jurisdictional minimum was not
present, the case must be remanded.
No subject matter jurisdiction exists in this District Court.
In statutory terms "it appears that the case was removed
improvidently and without jurisdiction" (28 U.S.C. § 1447(c)),
and this action is remanded to the Circuit Court of Cook