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Rago v. Ing Direct

United States District Court, Seventh Circuit

August 30, 2013

MATTEO RAGO, Plaintiff,
ING DIRECT, Defendant.


THOMAS M. DURKIN, District Judge.

Plaintiff Matteo Rago filed a complaint against defendant ING Direct ("ING")[1] in the Circuit Court of Cook County, Illinois, for breach of a contract to refinance Rago's mortgage. R. 1-2. ING removed the case to this Court, R. 1, and Rago now seeks to have it remanded to state court, arguing that it does not meet the amount in controversy requirement of 28 U.S.C. § 1332(a). R. 13. For the reasons stated below, Rago's motion is granted.


In his initial complaint in state court, Rago alleged that he "entered into a new contract with [ING] to restructure his current loan from an interest only loan to an interest and principal loan." R. 1-2 ¶ 4. The contract allegedly provided for the loan to be restructured as a "5/1 ARM, " at a lower interest rate of 3.5%, decreasing Rago's monthly payments to $2, 352.19. Id. ¶ 6. Rago also alleged that the contract provided that he would pay ING a lump sum of $11, 300 to decrease the principal to $493, 700. Id. ¶ 5. Rago claims that ING has refused to "consummate this deal." Id. ¶ 7.

Rago used various language at several different points in the original complaint to express his demand for damages. He alleged that he "suffered damages in the loss of reduction of the monthly payment amount and monthly reduction in the principal in excess of [$20, 000]." Id. ¶ 8; see also id. ¶ 7 (Rago "has been damaged in excess of $20, 000 regarding this loan and continues to be damaged each month for the failure of ING to abide by and consummate the contract."). But he also asked the Court to find that ING "violated the condition[s] and terms of their contract and pay Mr. Rago [$493, 700.00] as [sic] breach of the agreement." Id. at ¶ 10. In the complaint's last paragraph, Rago reiterated his demand for $493, 700 "or in the alternative... [that ING] pay $88.06 per month to Plaintiff commencing May 1, 2011 with statutory interest of 9% and reduce the loan principal amount to reflect the monthly principal payments." Id. at 4.

At a hearing held nine days after ING filed its notice of removal, the Court noted that Rago's allegations regarding the amount in controversy were not clear, and questioned whether the allegations were sufficient to meet the statutory minimum amount. Rago stated that he would file an amended complaint to clarify that he was not seeking the full loan amount of $493, 000. Rago's amended complaint seeks "damages in the loss of reduction of the monthly payment amount and monthly reduction in the principal in excess of [$20, 000]." R. 9 ¶ 8. The amended complaint increases the difference in monthly payment amount from $88.06 to $120.21 per month, R. 9 at 4, but it does not seek $493, 700. See, generally, id.

Legal Standard

"[T]he party removing the case to federal court... ha[s] the initial burden of establishing by a preponderance of the evidence facts that suggest the jurisdictional amount has been satisfied." Carroll v. Stryker Corp., 658 F.3d 675, 680 (7th Cir. 2011). "All that is needed at the pleading stage to satisfy the jurisdictional amount requirement is a good-faith allegation...." Loss v. Blankenship, 673 F.2d 942, 950 (7th Cir. 1982) (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89 (1938)). "The basic criterion for determining whether the amount sought was not made in good faith is if it can be concluded beyond a legal certainty that the plaintiff would under no circumstances be entitled to recover the jurisdictional amount." Loss, 673 F.2d at 950 (quotation and citation omitted). Once the removing party has met its initial burden, "jurisdiction will be defeated only if it appears to a legal certainty that the stakes of the lawsuit do not exceed $75, 000." Carroll, 658 F.3d at 680; see also Back Doctors Ltd. v. Metro. Prop. & Cas. Co., Inc., 637 F.3d 827, 830 (7th Cir. 2011) ("[T]he estimate of the dispute's stakes advanced by the proponent of federal jurisdiction controls unless a recovery that large is legally impossible."). "The amount in controversy is evaluated as of the time of removal, although events subsequent to removal may clarify what the plaintiff was actually seeking when the case was removed." Carroll, 658 F.3d at 680-81 (internal citation omitted).


Rago states that the amount in controversy in his original complaint "was unclear due to a scrivener's error." R. 17 at 4. Rago argues that "[n]owhere has Defendant demonstrated to the contrary that at the time of removal that the matter in controversy was more than $3, 365.00 or $31, 110.00." R. 17 at 3. Rago asserts that what he "has always hoped to get out of this litigation, " id. at 4, is for ING "to pay back $120.21 per month commencing May 1, 2011... to present with statutory interest at 9% and reduce the loan principal amount from $493, 700.00 to the current amount of $466, 189.45." Id. at 2.[2]

ING argues that Rago "explicit[ly]... hoped to get $493, 700" in his original complaint, and that this "hope" is the salient factor for the purpose of ascertaining whether the amount in controversy is sufficient to support diversity jurisdiction. R. 16 at 5. ING cites case law holding that plaintiffs are not permitted to amend the jurisdictional amount alleged in order to escape diversity jurisdiction. R. 16 at 4 (citing Wujec v. AT&T Corp., 2004 WL 783249, at *2 (N.D. Ill. Jan. 23, 2004); Jennings v. Merril Lynch Pierce Fenner & Smith, Inc., 2003 WL 22290405, at *4 (N.D. Ill. Oct. 3, 2003)). ING contends that Rago's "purported excuse for his original demand is... irrelevant, " and because Rago is "master of his complaint, " the Court should not look beyond his demand of $493, 700. R. 16 at 5-6.

ING fails to address the real issue, which is not whether Rago is permitted to amend his complaint to foil diversity jurisdiction, but whether his original demand for $493, 700 had any legal basis to begin with. Even when a complaint explicitly seeks an amount in excess of $75, 000, the case should be remanded if it is legally impossible for the plaintiff to be awarded damages sufficient to support the federal court's jurisdiction. See Smith v. Am. Gen. Life and Accident Ins. Co., Inc., 337 F.3d 888, 894-96 (7th Cir. 2003) (instructing the district court to remand the case to state court after finding that it would be legally impossible for plaintiff to reach the jurisdictional minimum, despite the fact that the plaintiff sought $1 million in punitive damages and the parties and the district judge all agreed that the allegations were sufficient); Lawrence Crawford Ass'n for Exceptional Citizens, Inc. v. Conversource, Inc., 2008 WL 2557461, at *2, 4 (S.D. Ill. June 23, 2008) (remanding to state court a complaint that alleged $80, 580 in damages; the remand was based on "evidence which came to light during discovery regarding the true amount of lost profits [which] sheds light on what the actual amount at stake was in the suit at the time of removal"); see also Shaver ex rel. Ford v. Odell, 2012 WL 1077414, at *4 (S.D. Ill. Mar. 30, 2012) (plaintiff's "refus[al] to admit to damages less than $75, 000" was insufficient to establish the minimum amount in controversy, and the court "d[id] not find it plausible without some evidence that plaintiffs' claims of future medical expenses, or pain and suffering, will reach the rest of the way to $75, 000").

The Court finds that there was never any legal basis for Rago to be awarded an amount in excess of $75, 000, let alone the $493, 700 described in his original complaint. The $493, 700 damage figure was never, and will never be, even plausibly possible. Rago alleges that ING breached a contract to refinance his mortgage such that he lost the opportunity to pay a decreased monthly payment at a lower interest rate and to pay down the principal. On the basis of these allegations, the only damages Rago can possibly seek flow from the higher interest he has paid and the fact that no portion of his payments has been applied to the loan's principal.[3]

The alleged refinanced loan was structured as a "5/1 ARM, " meaning that the interest rate would be fixed for the first five years, and variable after that. Thus, the five year period during which Rago was certain to benefit from the lower ...

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