The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on the court's independent evaluation
of whether or not the jurisdictional requirements are met. For the
reasons stated below we remand this case for lack of jurisdiction.
The instant case was initially filed by Plaintiff Joseph Anthony
Pancotto ("Pancotto") in the Circuit Court of Cook County, Illinois.
Pancotto alleges that on October 24, 2002 he was shopping in a store
owned by Defendant Home Depot U.S.A., Inc. ("Home Depot") located in the
Village of Bedford Park, Illinois. Pancotto claims that he stepped on
some pallets containing merchandise in the store and that the pallets either gave way or slipped. Pancotto alleges
that he fell and injured himself. Home Depot removed the case from state
court to the United States District Court Northern District of Illinois
on September 8, 2003. Home Depot contends in its notice of removal that
this court has diversity jurisdiction pursuant to 28 U.S.C. § 1332.
The "first duty in every case" in federal district court for a judge is
to "independently" determine whether or not the court has subject matter
jurisdiction. Belleville Catering Co. v. Champaign Marketplace, L.L.C,
350 F.3d 691, 692-94 (7th Cir. 2003)(criticizing judge for accepting
jurisdictional allegations at "face value" and then remanding case back
to judge for dismissal for lack of jurisdiction after a jury trial was
held by court). A court has diversity jurisdiction only if "the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest
and costs. . . ." 28 U.S.C. § 1332(a).
For cases filed in state court and removed to federal court "the amount
alleged in the plaintiff's complaint, if sufficient to meet the
jurisdictional requirements of § 1332, is presumed correct on the
assumption that a plaintiff would not fabricate the amount in controversy
to meet the federal diversity jurisdiction requirements and then file her
suit in state court relying on the defendant to remove the case to
federal court." Smith v. American General Life and Ace. Ins. Co., Inc.,
337 F.3d 888, 892-93 (7th Cir. 2003). The Seventh Circuit has adopted a rule that the removing
party must provide "evidence which proves to a reasonable probability that
jurisdiction exists." Id. (quoting Chase v. Shop `N Save Warehouse
Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997)). It is the removing
party's burden to establish that the amount in controversy requirement is
met. Id. at 893.
We have reviewed Pancotto's complaint in the state court case we note
that Pancotto alleged in his state court complaint that he was only
seeking "damages in an amount in excess of $50,000. . . ." Thus, under
the applicable Seventh Circuit standard we are to assume that Pancotto's
complaint is truthful and his complaint fails to allege an amount in
controversy in excess of $75,000. Home Depot's sole basis for its
assertion that the amount in controversy requirement is satisfied is
Pancotto's response to Home Depot's request to admit No. 1. In that
request Home Depot asks Pancotto to admit that the amount in controversy
does not exceed $75,000 and Plaintiff asserts in response that he is
seeking in excess of $75,000.
Plaintiff's response is not sufficient to meet the amount in
controversy requirement. The parties cannot confer federal subject matter
jurisdiction upon themselves and thus even Pancotto's admission is not
determinative because his speculation as to the amount he seeks to
recover is not sufficient to establish the amount in controversy
requirement. See Hill v. Jenkins, 603 F.2d 1256, 1260 (7th Cir.
1979)(stating that "it is axiomatic that parties cannot themselves confer
subject matter jurisdiction."). In fact, Pancotto's response to Home
Depot's request to admit indicating that he is seeking to recover in excess of $75,000 is
further suspect because in Pancotto's state court complaint he alleges
that he is only seeking to recover more than $50,000. Home Depot has not
provided an adequate explanation or documentation for its contention that
the amount in controversy is in excess of $75,000. Home Depot's only
basis for its contention is one sentence in its notice of removal
referring to Pancotto's response to the request to admit. (Home Depot
Notice of Removal par. 4). Such allegations are insufficient to meet the
amount in controversy requirement.
We also note that it is contrary to the nature of an advocate
representing a client to willingly limit the amount that his client is
entitled to recover and thus, simply because Pancotto's attorney would
not admit that his client's recovery will not be more than $75,000, is
not sufficient reason to conclude that the amount in controversy
requirement is met. Pancotto's attorney was understandably hesitant to
limit or even give the appearance that his client's recovery should be
limited. Home Depot has not met its burden of showing that we have
diversity jurisdiction and we therefore dismiss this action for lack of
subject matter jurisdiction. CONCLUSION
Based on the foregoing analysis we remand this case to the Circuit
Court of Cook County, Illinois.
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