MEMORANDUM OPINION AND ORDER
Ethicon, Inc. ("Ethicon") has filed a timely Notice of Removal ("Notice") to bring to this District Court an action originally filed against it by Nadine Schacht ("Schacht") in the Circuit Court of the Nineteenth Judicial Circuit, Lake County, Illinois. For the reason stated in this sua sponte memorandum opinion and order, this Court is constrained to direct a remand of this action to the state court for lack of subject matter jurisdiction.
Ethicon seeks to invoke federal jurisdiction on diversity-of-citizenship grounds, and Notice P 3 identifies Schacht as an Illinois citizen while Notice P 4 confirms Ethicon's Ohio and New Jersey citizenship under 28 U.S.C. § 1332(c)(1).
Those representations meet half of the jurisdictional requirements. But Ethicon's difficulty here is the familiar one of satisfying the more-than-$ 50,000 amount-in-controversy requirement: Because of the mandate of Illinois pleading law (735 ILCS 5/2-604), all that Schacht has been able to say in each of the three counts of her personal injury Complaint is that she "prays for judgment against Defendant Ethicon, Inc. in an amount in excess of $ 30,000.00, together with the costs of this action." And of course the existence of federal jurisdiction is something that must be established expressly, not simply in terms of surmise or guesswork (with the burden of such establishment resting on the party that seeks to invoke such jurisdiction).
Whenever a suit for personal injuries is involved, the plaintiff's lawyer tends to recite the familiar drill of "serious and personal injuries of a personal and pecuniary nature" (Complaint Count P 5, Count II P 8 and Count III P 15) or something pretty close to that, even when that characterization may well be a substantial overstatement of what the plaintiff has actually suffered. Thus a defense lawyer in a personal injury case that is a potential candidate for removal to federal court is confronted by a dilemma: whether to wait until it can actually be verified that more than $ 50,000 is at stake, thus running the risk that plaintiff's counsel may then claim defendant's noncompliance with the 30-day timetable prescribed for removal by Section 1446(b), or whether to file a prompt Notice (as Ethicon has done here), running the risk that the removal may be deemed fatally flawed because federal jurisdiction has not yet been established.
It was because of this Court's recognition of just that dilemma that it wrote (sitting by designation with our Court of Appeals) what proved to be a dissenting opinion in Shaw v. Dow Brands, Inc., 994 F.2d 364, 371-78 (7th Cir. 1993). In Shaw this Court proposed a bright-line solution that would eliminate the dilemma entirely, while at the same time protecting both the jealously-guarded limits of federal jurisdiction and the rights of any defendant seeking to invoke that jurisdiction in an appropriate case.
After all, with limited exceptions (none of which applies to the situation presented by this and like cases) the law remains as Justice Holmes long ago stated it in his famous aphorism in The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 57 L. Ed. 716, 33 S. Ct. 410 (1913):
Of course, the party who brings a suit is master to decide what law he will rely upon, and therefore does determine whether he will bring a "suit arising under" the patent or other law of the United States by his declaration or bill. That question cannot depend upon the answer, and accordingly jurisdiction cannot be conferred by the defense, even when anticipated and replied to in the bill.