United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
defendant recently filed its motion for summary judgment and
supporting materials. When the parties were before me on a
discovery motion in early November 2016, I expressed a number
of concerns about whether this case - which the defendant
removed from state court - was properly in federal court on
the basis of diversity jurisdiction. In an order issued later
that day, I reiterated these concerns and cited a number of
cases, including the Seventh Circuit's reversal on
jurisdictional grounds of an opinion by this court in which
the parties had essentially conceded, or at least not raised
the question of jurisdiction. The order focused on whether
the requisite jurisdictional amount of $75, 000 was
established - under the unique facts of this case. (The
parties had indicated at the motion hearing that medical
expenses were only about $20, 000). I expected that the issue
of federal jurisdiction would be addressed in the
defendant's then upcoming motion for summary judgment.
[See my comments and cited cases in Dkt. # 22, at
all, the first issue in any case is jurisdiction, and a court
is bound to take note of it regardless of whether the parties
do or their joint willingness to have the court proceed.
See e.g., Tisza v. Communications Workers of
America, 953 F.2d 298, 300 (7th Cir.1992);
In re UAL Corp., 408 F.3d 847, 849 (7th
Cir.2005)(“Appellate jurisdiction is the initial
question.”); Sonii v. General Elec.
Co., 359 F.3d 448, 449 (7th Cir. 2004).
turns out, the defendant's memorandum is silent on this
question. The court, of course, has its own responsibility to
raise and address jurisdictional issues and act only when the
limited jurisdiction of the federal courts allows. Grupo
Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 593
(2004). If need be, the court must do this sua
sponte. But as courts ought not act alone and without
input from counsel, briefing on the issues should be
required. See Evergreen Square of Cudahy v. Wisconsin
Hous. & Econ. Dev. Auth., 776 F.3d 463, 465 (7th
Cir. 2015). And that is the path that will be taken here.
Indeed, we thought we had urged the parties earlier that they
should brief the jurisdictional question. Unfortunately, the
suggestions in the November 2016 order were perhaps not
sufficiently instructive. Hence, this Opinion will be more
defendant is the proponent of federal jurisdiction, it has
the burden of establishing its elements. Walker v.
Trailer Transit, Inc., 727 F.3d 819, 824-25 (7th Cir.
2013); Travelers Prop. Cas. v. Good, 689 F.3d 714,
722 (7th Cir. 2012). Here, the defendant claims that federal
jurisdiction is proper under 28 U.S.C. §1332(a), which
provides for federal jurisdiction over suits between citizens
of different states where the amount in controversy exceeds
$75, 000. In her complaint, however, the plaintiff says
nothing about the citizenship of the parties and asks for
damages “in excess of fifty thousand dollars.”
[Dkt. ##1-1, 1-2]. That could still be below the $75, 000
floor. Defendant's sole basis for removing this case was
plaintiff's failure to respond to its requests to admit
served upon her while the case was in state court. The
defendant asked that she admit that she was a
citizen of Illinois and was seeking damages in
excess of $75, 000. [Dkt. ##1, ¶ 12; 1-3]. The plaintiff
failed to respond either way within 28 days. Under Illinois
Supreme Court Rule 216, that meant that those facts - that
she was a citizen of Illinois and was seeking damages in
excess of $75, 000 - were deemed admitted. See P.R.S.
Int'l, Inc. v. Shred Pax Corp., 184 Ill.2d 224, 235,
703 N.E.2d 71, 76 (1998). But, a party cannot simply consent
to federal jurisdiction or waive its requirements. See
Evergreen Square, 776 F.3d at 465 (“. . the
parties' united front is irrelevant since the parties
cannot confer subject-matter jurisdiction by agreement . .
.”); Carter v. Hodge, 726 F.3d 917, 919 (7th
Cir. 2013)(“A jurisdictional rule is not
waivable.”); Smoot v. Mazda Motors of Am.,
Inc., 469 F.3d 675, 678 (7th Cir. 2006)(“. . . the
fact that limits on subject-matter jurisdiction are not
waivable or forfeitable-that federal courts are required to
police their jurisdiction-imposes a duty of care that we are
not at liberty to shirk.”).
the plaintiff standing mute arguably smacks of waiver or
consent by silence - at least it could be interpreted in that
way. Combining that with the parties' concession that
medical expenses are only about $20, 000 - well short of $75,
000 - makes for a flimsy jurisdictional reed. See Dart
Cherokee Basin Operating Co., LLC v. Owens, ___ U.S.
___, ___, 135 S.Ct. 547, 554 (2014)(“Evidence
establishing [requirements of diversity jurisdiction] is
required . . . when the plaintiff contests, or the court
questions, the defendant's allegation.”). Hence, it
is an issue that the parties - or at the very least, the
defendant, as it is the defendant's burden - must
problem with the defendant's removal of this case to
federal court is timeliness. The plaintiff filed her suit in
the Circuit Court of Cook County on May 2, 2014. [Dkt. #1-1].
The defendant didn't file its notice of removal for over
a year and a half, on November 10, 2015. [Dkt. # 1].
Generally, a defendant has 30 days to petition for removal of
a case, see 28 U.S.C. §1446(b), but, in this
instance, it was not immediately apparent that the case was
removable to federal district court - again, there was no
suggestion of citizenship of the parties and the amount
sought could have been well shy of the $75, 000
jurisdictional minimum. In this regard, the defendant has
pointed out that, under 29 U.S.C. §1446(b)(3):
if the case stated by the initial pleading is not removable,
a notice of removal may be filed within 30 days after the
receipt by defendant . . . of an amended pleading, motion,
order, or other paper from which it may first be ascertained
that the case is one which has become removable.
defendant's way of thinking, given subsection (b)(3),
defendant had 30 days after plaintiff's failure to
respond resulted in the defendant's asserted facts being
admitted. But, defendant ignores the very next section of 28
U.S.C. §1446, which states that “[a] case may not
be removed under subsection (b)(3) on the basis of
jurisdiction conferred by Section 1332 more than 1 year after
commencement of the action, unless the district court finds
that the plaintiff has acted in bad faith in order to prevent
a defendant from removing the action.” Here, the
defendant clearly waited well over a year after the
commencement of plaintiff's action before even serving
its requests to admit on the plaintiff. There is no hint of
any bad faith on the plaintiff's part.
timeliness, too, must be addressed, and, in so doing, the
parties - particularly the defendant, should bear in mind
that at least two judges here in the Northern District of
Illinois have determined that the one-year time limit is
jurisdictional, meaning they have concluded it cannot be
waived, and the case must be remanded. See PNC Bank, Nat.
Ass'n v. Seliga, 2013 WL 5336236, at *2 (N.D. Ill.
Sept. 24, 2013); Foiles by Foiles v. Merrell Nat. Labs.,
a Div. of Richardson Merrell, Inc., 730 F.Supp. 108, 110
(N.D. Ill. 1989).
the briefing schedule set on December 15, 2016 is amended as
follows: the present briefing schedule is stricken and the
parties should not address summary judgment issues until they
have briefed and this court has ruled on the jurisdictional
issue. The defendant, as the removing party, bears the
jurisdictional burden and accordingly, its brief is due
2/10/17. The plaintiffs response brief shall be due 3/10/17.
The reply brief, if any, shall be due 3/24/17. Ruling will be
 In its petition for removal, the
defendant uses the terms “citizen” and
“resident” interchangeably. Jurisdiction based on
diversity of citizenship requires exactly that: diversity of
citizenship. 28 U.S.C. § 1332(a). Mere residency is not
enough to establish citizenship. Winforge, Inc. v.
Coachmen Indus., Inc., 691 F.3d 856, 867 (7th Cir.
2012). Fortunately for the defendant, it was not so cavalier