Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 92 C 8192--John F. Grady, Judge.
Before FLAUM, EASTERBROOK, and RIPPLE, Circuit Judges.
EASTERBROOK, Circuit Judge.
Dames & Moore, an engineering firm, performed a series of environmental risk assessments for the Alter Group, Ltd., between 1988 and 1990. Early in 1989 D&M evaluated the premises of Lind Plastic Products; it reported some asbestos but no underground contamination. Alter Group formed Pratt Central Park Limited Partnership to purchase the property. Later it came to light that the Lind property has two underground storage tanks containing hazardous chemicals. Alter (as we call both Alter Group and the partnership) has incurred cleanup expenses that it pegs at $90,000; the property has also declined in value because of the risk that further expenditures will prove necessary. Alter filed this suit under the diversity jurisdiction seeking compensation for breach of contract, including D&M's warranty of competent performance. The district court dismissed the suit for want of jurisdiction, see Fed. R. Civ. P. 12(b)(1), (h)(3), ruling that a $5,000 limit of liability in the Alter - D&M contract keeps the stakes below the $50,000 jurisdictional minimum. 1994 U.S. Dist. LEXIS 8632. Alter protests that whether it assented to a $5,000 cap is debatable, and that controversy protects federal jurisdiction under St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938): "It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal."
This famous passage is a remark rather than a holding. The issue before the Court was whether events after removal from state to federal court--in particular, amendment of the complaint to reduce the amount demanded--divest a district court of jurisdiction. The Court answered "no." See also In re Shell Oil Co., 966 F.2d 1130, after remand, 970 F.2d 355 (7th Cir. 1992). Later cases converted the observation to a holding, see Bell v. Preferred Life Assurance Society, 320 U.S. 238 (1943), which serves as a logical counterpart to the conclusion of Bell v. Hood, 327 U.S. 678 (1946), that the failure of a claim on the merits does not divest the federal court of jurisdiction. Bell v. Hood held that if a claim purportedly based on federal law is not frivolous, then the court has jurisdiction even if the plaintiff ultimately loses. See also Crowley Cutlery Co. v. United States, 849 F.2d 273 (7th Cir. 1988). Similarly, if a complaint sets out a dispute substantial enough to come within the diversity jurisdiction, the plaintiff's inability to prove an injury exceeding the minimum amount in controversy does not affect jurisdiction. Mt. Healthy City School District Board of Education, 429 U.S. 274, 277 (1977); Rosado v. Wyman, 397 U.S. 397, 405 n.6 (1970); Pace Communications, Inc. v. Moonlight Design, Inc., 31 F.3d 587, 591-92 (7th Cir. 1994). The penalty for recovering less than $50,000 is the denial of costs, see 28 U.S.C. sec. 1332(b), not the loss of the whole judgment.
Requiring the plaintiff to prevail on the merits (or to recover more than $50,000) as a condition of federal jurisdiction would create two kinds of undesirable costs. First there would be a heightened cost of jurisdictional inquiry at the outset of the case. A judge would need to conduct proceedings, potentially complex, to determine whether the claim had sufficient substance to meet the jurisdictional requirements. In federal-question cases this inquiry would be a doppelganger of the inquiry on the merits. In diversity cases this inquiry would probe the gravity of the plaintiff's injury, calling for fact-finding proceedings that would presage the work of the jury. Yet the only purpose of making the inquiry would be to determine which court hears the case, a decision that ought to be taken swiftly. See Landreth Timber Co. v. Landreth, 471 U.S. 681, 696-97 (1985); In re Continental Casualty Co., 29 F.3d 292 (7th Cir. 1994). To make the "which court" decision expeditiously and cheaply, a judge must simplify the inquiry, and, as both St. Paul and Bell v. Hood observe, the judge must give the plaintiff the benefit of the doubt. The second kind of cost falls on the parties. If a judge dismisses a case for want of jurisdiction well into the litigation, the parties repair to state court--where they must bear the expense of litigation a second time, imposing unnecessary costs on the state tribunal in the process. By contrast, a conclusive decision on the merits, even if in the defendant's favor (or in the plaintiff's for less than $50,000), ends the controversy, promoting both public and private interests in achieving peace.
All that said, however, it does not follow that the court must accept the plaintiff's perspective and proceed to adjudicate on the merits every case in which the lawyers can keep straight faces when making their presentations. Such a latitudinarian approach creates other costs--particularly the evasion of jurisdictional lines drawn by Congress. Ross v. Inter-Ocean Insurance Co., 693 F.2d 659, 661 (7th Cir. 1982). Policing the border of federal jurisdiction is a necessity in any system having both limited (national) and general (state) courts. Set the barriers to federal adjudication too low, and the distinction collapses--for lawyers have a remarkable ability to propose improbable contentions with poker faces. The size of the federal bench, and the resources made available for adjudication, depend on assumptions about the ease of entry. To adjudicate a case fully just because the plaintiff has something of an argument may be the cheapest way to dispose of the current dispute, but it has costs for other litigants, who must wait in a longer queue, and the greater ease of access to the federal forum will attract new claimants for the limited time and resources of the federal bench. So there is necessarily a conflict between ready access to a federal court (the better to reduce costs in the immediate case) and rigorously enforcing the jurisdictional limits in marginal cases (the better to protect the interests of litigants whose claims are squarely within federal jurisdiction).
Conflicts of this sort between individual and systemic interests rarely yield to bright-line tests. Consider the "legal certainty" language of St. Paul itself. Does this mean "certain" knowing only what the plaintiff chooses to reveal in the complaint? Or does it mean "certain" after the judge has invested the energy needed to learn about the facts and the law? Many a case starts out looking uncertain to the judge, but as time passes and knowledge grows the outcome looks more and more inevitable. When does the "legal certainty" test apply? Surely not solely to the state of ignorance that prevails at the moment of filing; the judge must be allowed some time for legal research and factual inquiry. The plaintiff bears the burden of satisfying the judge's curiosity. McNutt v. General Motors Acceptance Corp., 298 U.S. 178 (1936). As soon as we begin to ask how much time may be invested the quandary is upon us: that investment will be wasted if the case is dismissed and the parties return to state court, but unless some effort to dispel the original state of ignorance is allowed, the limits on federal jurisdiction are unenforceable.
Today's case illustrates the conflict. Alter insists that D&M's liability is unlimited by contract, and in the alternative that the contractual limit is $100,000. D&M says that the maximum is $5,000, shown in a clause of its Form C contract that was sent to one of Alter's representatives. Alter replies that the parties actually used Form B, with a $100,000 limit, and that there was no written contract for the Lind work, implying no limit. All questions of jurisdiction to one side, this dispute would set the stage for cross-motions for partial summary judgment. The judge may be able to resolve the dispute without trial, and resolution in favor of the $5,000 limit would drive a stake through the heart of the litigation (legal costs would make continuation prohibitive). The jurisdictional overtones add two things: the court gains under Rule 12(b)(1) some factfinding power that it lacks under Rule 56, see Crawford v. United States, 796 F.2d 924, 928-29 (7th Cir. 1986), and a decision cast in jurisdictional terms does not foreclose renewal of the controversy in state court.
Several cases hold or imply that a court has the power to dismiss for want of jurisdiction after deciding that a limitation-of-liability clause (or a state statute) caps damages at less than the jurisdictional amount. Valhal Corp. v. Sullivan Associates, Inc., 44 F.3d 195, rehearing en banc denied, 48 F.3d 760 (3d Cir. 1995); Sanchez-Arroyo v. Eastern Airlines, Inc., 835 F.2d 407 (1st Cir. 1987); Pachinger v. MGM Grand Hotel Las Vegas, Inc., 802 F.2d 362 (9th Cir. 1986) (disagreeing with Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199 (2d Cir. 1982)); Morris v. Hotel Riviera, Inc., 704 F.2d 1113 (9th Cir. 1983); Sellers v. O'Connell, 701 F.2d 575 (6th Cir. 1983); Kalpakian v. Oklahoma Sheraton Corp., 398 F.2d 243 (10th Cir. 1968). See also Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, 14A Federal Practice & Procedure sec. 3702 at 48-49 (2d ed. 1985). We agree with this principle, implicit in our decision in Ross, which dismissed a case for want of jurisdiction even after the district judge had ruled on motions for summary judgment. Ross examined a contract, found no basis there for the plaintiff's claim to an essential element of damages, and held that jurisdiction was lacking. Sometimes a clause is so clear, or the legal means of undermining it so weak, that the plaintiff's demand is bound to come under the cap, and St. Paul would be satisfied at the inception of the case. See also Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971); Burns v. Anderson, 502 F.2d 970 (5th Cir. 1974); Sanders v. Hiser, 479 F.2d 71 (8th Cir. 1973). That leaves the question of timing: if it becomes clear some time into the litigation that the restriction has teeth, should the judge limit damages via partial summary judgment or dismiss the suit for want of jurisdiction? Here certainty fails, and the judge must exercise the informed discretion for which the masters of the craft are so valued.
Alter protests that this cannot be so, because to decide whether the parties' contract contains the damages-limiting clause is to decide a (potentially) disputed issue of material fact, and thus to usurp the role of the jury in violation of the seventh amendment. Yet many contract cases can be and are decided on the papers; the parties agree what has happened and dispute only the legal significance of these facts. For the most part, that describes Alter's claim (we address the factual disputes later). Judges are entitled to decide such issues without the aid of juries. Malak v. Associated Physicians, Inc., 784 F.2d 277, 280 (7th Cir. 1986). Even when a jury would be required to make a decision on the merits, it is unnecessary to summon a jury to determine whether the court possesses jurisdiction: for example, the judge may take evidence and resolve conflicts to decide the citizenship of the parties. A judge equally may hear testimony and resolve conflicts to decide whether the parties' contract contains a particular clause limiting damages, when the only consequence is to move the case to another court. Allocation of issues between judge and jury is a question of federal law and not, as Alter supposes, of state law. Mayer v. Gary Partners & Co., 29 F.3d 330 (7th Cir. 1994); AM International, Inc. v. Graphic Management Associates, Inc., 44 F.3d 572, 576-77 (7th Cir. 1995). Alter is free to refile in state court and to argue there that D&M's damages are unlimited or that the cap is $100,000. Bunker Ramo Corp. v. United Business Forms, Inc., 713 F.2d 1272, 1277 (7th Cir. 1983); Harper Plastics, Inc. v. Amoco Chemicals Corp., 657 F.2d 939, 943 (7th Cir. 1981); cf. Reinke v. Boden, 45 F.3d 166 (7th Cir. 1995) (similar principle, under Illinois law, when first dismissal is based on another state's statute of limitations). This makes us wonder why D&M is so keen to expel the case from federal court, and why Alter has lavished such expense on the appeal--for if the district court has jurisdiction Alter is well on the way to a judgment for $5,000--but our curiosity is of no moment. It is enough to say that the district judge possesses the power to eject a case when a contract holds damages below the jurisdictional amount.
Did the district judge use that power properly? When the question is one of prudence, deciding whether to act under Rule 12(b)(1) requires the judge to consider these costs (for both the parties and the two judicial systems). The stronger the defendant's case, the lower the costs of making the decision, the more free the judge should be to act under Rule 12(b)(1). The more distinct the damages from the merits, the more readily the district court should determine matters under Rule 12(b)(1). And because from this perspective the decision whether to act under Rule 12(b)(1) or Rule 56 is itself highly fact-specific, appellate review is deferential. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 399-405 (1990) (identification of a "frivolous" argument is fact-specific, making review deferential); Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928, 932-37 (7th Cir. 1989) (en banc) (same). Whether a claim falls beneath the jurisdictional minimum "to a legal certainty" is a cousin to the question whether a particular argument is "frivolous," implying similarly deferential appellate review. So too with the question how late in the litigation it is prudent to go before switching from analysis under Rule 12(b)(1) to analysis of "the merits." What is more, both the question "what was the parties' contract?" and the question "what is the optimal way to resolve the former question?"are contextual, leading us to accept well-reasoned decisions of the district courts without attempting to solve the riddles for ourselves. Cf. Wilton v. Seven Falls Co., 1995 U.S. LEXIS 3908 (June 12, 1995).
The district court did not abuse its discretion. The case focused from the outset on the jurisdictional amount, which is logically distinct from the questions whether D&M breached its duty of competent inspection and how much injury any errors caused. We concluded in Pace Communications that when the district judge hears the entire case, and enters a judgment exceeding $50,000, it is inappropriate to ditch the suit on appeal for want of the jurisdictional minimum. Alter relies on Pace, but that situation is a far cry from the events here, where the district court granted the Rule 12(b)(1) motion before getting into the merits. Too, the district court was able to resolve the jurisdictional question without the need for an evidentiary hearing. Alter believes that its argument for damages exceeding $50,000, is more substantial than the district judge let on, but given deferential review it is enough to say that the district judge reached a sound conclusion.
D&M performed 14 inspections for Alter between April 1988 and February 1990. The first four times, the parties signed D&M's Form B contract, which sets a limit of $100,000 in liability. The fifth job was under Form D, with a $5,000 limit. The sixth and seventh were performed without the benefit of any separate signed contract. After the seventh job was under way, Donald J. Sodersten sent Alter a copy of D&M's Form C, which like Form D provides a $5,000 limit. Sodersten informed Alter that Form C, captioned "General Conditions", contains D&M's fallback terms. The letter stated: "All Dames & Moore projects are performed under our General Conditions and standard Schedule of Charges." Of course the parties may agree on other terms, as they had in the past, and as Form C itself invited. Section 3 of Form C provides for separate negotiation of limits of liability, and sec. 3.1 adds: "Client authorization to proceed without execution of this section indicates acceptance of standard terms and conditions described above in 2.0." Section 2.3 contains the $5,000 presumptive limit, and sec. 2.5 reads: "Increased liability limits may be negotiated upon client's written request, prior to commencement of services, and agreement to pay an additional fee." Before D&M takes a job, the client has superior information about the environmental risks at a site. Unlimited liability would not make commercial sense when one side holds all the pertinent information at the time of the negotiation; that is the principle behind Hadley v. Baxendale, 9 Ex. 341, 156 Eng. Rep. 145 (1854), and the genesis of liability limitations in contracts ...