United States District Court, N.D. Illinois, Eastern Division
JEROME TREADWELL, individually, and on behalf of all others similarly situated, Plaintiff,
POWER SOLUTIONS INTERNATIONAL, INC., Defendant.
MEMORANDUM OPINION AND ORDER
JORGE ALONSO UNITED STATES DISTRICT JUDGE
the Court is plaintiff Jerome Treadwell's motion to
remand this action to the Circuit Court of Cook County,
Illinois pursuant to 28 U.S.C. § 1447(c) . Plaintiff
argues that this Court lacks subject matter jurisdiction
under the Class Action Fairness Act (“CAFA”). For
the reasons set forth below, the motion is denied.
October 30, 2018, plaintiff filed a putative class action
complaint against Power Solutions International Inc. and
NOVAtime Technology, Inc., alleging violations of the
Illinois Biometric Information Privacy Act
(“BIPA”), 740 ILCS 14/1 et seq. and
common law negligence. Plaintiff is a citizen of Illinois.
Power Solutions is a Delaware corporation with its principal
place of business in Illinois. NOVAtime is a California
corporation with its principal place of business in
30 days of being served, defendant removed the action to this
Court pursuant to 28 U.S.C §§ 1441, 1446, 1332(d),
and 1453(b). On its Notice of Removal, NOVAtime stated that
this Court has jurisdiction under the Class Action Fairness
Act (“CAFA”) because minimal diversity exists and
the maximum amount in controversy exceeds $5 million.
See 28 U.S.C. § 1332(d)(2).
February 25, 2019, plaintiff and NOVAtime jointly stipulated
to the voluntary dismissal without prejudice as to NOVAtime
only. The following day, the Court entered an order
reflecting the stipulation. Power Solutions remains the sole
defendant in this Case.
April 11, 2019, plaintiff filed a first amended complaint. On
May 9, 2019, Power Solutions filed a motion to dismiss
pursuant to Fed. R. Civ. Pro. 12(b)(6). Two weeks later,
plaintiff filed a motion to remand, arguing that, because
NOVAtime is no longer a party, minimal diversity no longer
exists under CAFA. Alternatively, plaintiff argues that
remand is required because the home-state controversy
exception to diversity jurisdiction under CAFA is met. Power
Solutions opposes the motion.
28 U.S.C. § 1441 allows removal to federal court of
actions over which the district courts have “original
jurisdiction[.]” 28 U.S.C. §1441(a). Section
1447(c) provides that “[i]f at any time before final
judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.” 28
U.S.C. 1447(c). A district court's “first duty in
every lawsuit” is to establish the existence of subject
matter jurisdiction. McCready v. White, 417 F.3d
700, 702 (7th Cir. 2005); Johnson v. Wattenberger,
361 F.3d 991, 992 (7th Cir. 2004).
argues that this action must be remanded to the Circuit Court
of Cook County because this Court lacks subject matter
jurisdiction under CAFA. Plaintiff says that there is no
minimal jurisdiction between the remaining parties and,
alternatively, the home-state controversy exception to
diversity jurisdiction under CAFA requires remand.
says that because he is a citizen of Illinois and defendant
Power Solutions has its principal place of business in
Illinois and therefore is a citizen of Illinois, minimal
diversity does not exist under CAFA and this action must be
remanded. Defendant responds that jurisdiction was properly
established at the time of removal and that any subsequent
events (in this case, the stipulation between plaintiff and
NOVAtime Technology) have no effect on jurisdiction. The
Court agrees. “A federal court's jurisdiction under
CAFA is determined at the time of removal.” Cleary
v. Philip Morris Inc., 656 F.3d 511, 515 (7th Cir. 2011)
(citing In re Burlington N. Santa Fe Ry. Co., 606
F.3d 379, 380 (7th Cir. 2010)). Section 1332(d)(2) provides
that federal courts have original jurisdiction in class
actions when “(1) the aggregate amount in controversy
exceeds $5, 000, 000; (2) any member of the plaintiff class
is a citizen of a state different from any defendant
(‘minimal diversity'); (3) the primary defendants
are not states, state officials, or other government entities
against whom the district court may be foreclosed from
ordering relief; and the number of members of the plaintiff
class is 100 or more.” 28 U.S.C. § 1332(d)(2).
Here, the parties agree that federal jurisdiction existed
under CAFA at the time of removal. Accordingly, this Court
retains jurisdiction over this matter. See Cleary,
656 F.3d at 515 (district court properly retained
jurisdiction of case after a certain defendant was dismissed,
and the district court did not err when it declined to remand
the case to state court). While plaintiff urges this Court to
exercise its discretion and remand this matter to state
court, the Court declines to do so.
plaintiff argues that remand is necessary based on the
home-state controversy exception to diversity jurisdiction
under CAFA. See 28 U.S.C. § 1332(d)(4)(B).
“[T]he party seeking to take advantage of the
home-state or local exception to CAFA jurisdiction has the
burden of showing that it applies.” Hart v. FedEx
Ground Package Sys. Inc.,457 F.3d 675, 680 (7th Cir.
2006). Under this exception, “a district court shall
decline to exercise jurisdiction . . . [when] two-thirds or
more of the members of all proposed plaintiff classes in the
aggregate, and the primary defendants, are citizens of the
State in which the action was originally filed.”
Id. However, as previously noted, jurisdiction under
CAFA is determined at the time of removal. See
Cleary, 656 F.3d at 515. Plaintiffs attempts to attack
jurisdiction in his first amended complaint, filed after this
action had already been removed to federal court, is
improper. See In re Burlington N. Santa Fe Ry. ...