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Oberweis Dairy, Inc. v. Democratic Congressional Campaign Committee

October 21, 2008


The opinion of the court was delivered by: Hon. Harry D. Leinenweber


Plaintiff Oberweis Dairy ("Plaintiff") filed a one-count complaint against the Democratic Congressional Campaign Committee (hereinafter, the "DCCC," "Committee," or "Defendant") in Kane County Circuit Court. Following receipt of a settlement demand, Defendant DCCC filed a Notice of Removal in this Court, and Plaintiff now seeks to remand the action to the state court. For the reasons stated below, the Motion to Remand is denied.


Plaintiff Oberweis Dairy filed suit against the Committee in Kane County Circuit Court on March 6, 2008, alleging that ads run by the DCCC have placed it in a false light. According to the Complaint, the Committee has run numerous ads against candidate Jim Oberweis (not a party to this suit), and those ads wrongly state that Plaintiff Oberweis Dairy has hired and retained illegal immigrants as employees. The Complaint alleges that the false light in which the ads have placed Plaintiff is highly offensive to a reasonable person, and that the ads have damaged Plaintiff's business and business relationships, by "reduc[ing] and diminish[ing]" Plaintiff's reputation with its customers, clients, vendors, and stockholders. Plaintiff's complaint seeks an injunction against further use of the ads, compensatory damages exceeding $50,000, punitive damages, and the costs of this suit.

Defendant DCCC was served with the Summons and Complaint on April 18, 2008. Soon thereafter, counsel for Defendant contacted Plaintiff's counsel and inquired about the amount of damages suffered and whether the parties could settle the case prior to further litigation. After several further calls by Defendant's counsel (and two agreed motions to extend the time for Defendant to answer or otherwise plead in the Circuit Court), the Committee received a written settlement demand from Plaintiff on July 7, 2008. The written demand advised Defendant that, in addition to a public retraction and agreement not to run advertisements adverse to Oberweis Dairy, Plaintiff sought $100,000 to compensate for the damage to the company's business reputation and good will.

Defendant filed its notice of removal in this Court on July 31, 2008. Plaintiff asks that the case be remanded to the state circuit court, arguing that the notice of removal was untimely and that Defendant waived its right to remove.


Although Plaintiff implies that Defendant waived its right of removal by its actions in the state court, that argument is easily dismissed. Waiver of the right to remove is reserved for "extreme situations," Rothner v. City of Chicago, 879 F.2d 1402, 1416 (7th Cir., 1989), and is not implicated in a case such as this, where there have been no rulings on the merits. See Dorazio v. UAL Corp., 2002 WL 31236290, at *4 (N.D.Ill., Oct. 2, 2002) (no waiver where, prior to removal, motion to dismiss was filed in state court but not ruled upon). Nor do we find any merit or substance in either party's muted accusations of "gamesmanship" and forum shopping. The motivations of the parties in seeking their respective forums are irrelevant to this decision. See Rothner, 879 F.2d at 1408. The Court need only determine whether removal in this case was proper and timely.

A. Whether Removal Was Proper

To be able to remove a case to federal court, the removing party must show that the case is one over which the district courts of the United States have original jurisdiction, i.e., that the case involves either a federal question or that it satisfies the requirements of this Court's diversity jurisdiction. See 28 U.S.C. § 1441(a); Weatherall v. Weatherall, 83 F.Supp.2d 1003, 1004 (E.D.Wis., 1999). To establish diversity jurisdiction, the parties must be citizens of different states and must show that the amount in controversy exceeds $75,000, exclusive of interest and costs.

See 28 U.S.C. § 1332(a). The removing party need not demonstrate that the Plaintiff will actually recover the requisite amount. See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir., 2005). Instead, a party need only show that the stakes of the litigation (that is, the amount claimed by Plaintiff, or the amount Plaintiff hopes to recover) exceeds $75,000. See id. at 449; Rising-Moore v. Red Roof Inns, Inc., 435 F.3d 813, 816 (7th Cir., 2006).

Of course, it is relatively easy to determine the amount Plaintiff claims where the complaint contains a demand for a specific dollar amount, and that number is usually accepted as an adequate indication of the amount in controversy. See Rising-Moore, 435 F.3d at 815. However, where the complaint does not contain a specific dollar demand, and where it is the defendant rather than the plaintiff who asserts federal jurisdiction, ascertaining the amount in controversy is considerably harder. Defendant must find some other way to show not just what the stakes of the litigation could be, but what they actually are. See Brill, 427 F.3d at 449. Whatever the method, Defendant must establish that the amount in controversy exceeds $75,000 by a preponderance of the evidence. See Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 542 (7th Cir., 2006).

Here, there is no dispute that diversity jurisdiction is met. Plaintiff and Defendant are in agreement that they are citizens of different states, and Plaintiff's settlement demand of $100,000 is sufficient to demonstrate that the stakes of the litigation exceed the required minimum of $75,000. See Meridian, 441 F.3d at 541. The central basis on which Plaintiff rests its motion ...

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