We’re thinking of posting entries called “There’ll Always Be Posner,” comments on opinions by Judge Posner, which typically are brilliant and snappily written, typically address jurisdictional issues that nobody raised, typically take a journey through various far-flung areas of law, and, finally, typically arrive at a clear-cut result – all the while disdaining footnotes and oozing disappointment with the quality of advocacy.
The parties apparently agreed that there was diversity jurisdiction. Not so fast, says the Seventh Circuit. There is no way the plaintiff could have in good faith claimed damages in excess of $75,000. Why? The court does not disclose that until the end of the opinion. Instead, at this point the court explores other issues. (It’s like a Tarantino movie, only without the gunplay).
So where are we? Still in federal court, because the state law claims were litigated, neither side is arguing for relinquishment, and judicial economy suggests that we simply get on with it. Whew! (Isn’t this sort of like Marbury v. Madison, an intellectual tour de force that, when you get right down to it, is breathtaking dicta?) But we're not done with jurisdiction quite yet. It continues to lurk off-stage.
- There is no fraud
- There are no damages
- There really shouldn’t be diversity jurisdiction.
2009 WL 4894242, at *4. The problem for Nightingale is that there really wasn't a problem. The lamp-devices that Nightingale bought to replace the Anodyne lamps were “materially identical.” Id. They were just as effective, and no more. They were just as off-label, and no more (or less). By buying materially identical devices, Nightingale is in no way mitigating damages and is pretty much admitting that there weren’t any actual damages. So it could not in good faith have believed there was an amount in controversy. So no diversity jurisdiction. And since federal jurisdiction cannot be conferred by consent, the Seventh Circuit thought about dismissing the case for want of jurisdiction. That would mean that Nightingale could file the case again in state court. A do-over!
Only it doesn’t end so happily for Nightingale, which had, after all, originally filed in state court. Anodyne had removed the case to federal court, where it had the burden of persuading the court that the amount in controversy was satisfied. It didn’t do so, but nobody noticed. Nobody, that is, until the Seventh Circuit. But somewhere along the way Nightingale got clever and added the federal claim. A little too clever, for in doing so, it created federal question jurisdiction without a minimum amount in controversy requirement … and thereby lost the case. Id.
Now we switch from Tarantino to Keats: “Adieu! Adieu! Thy plaintive (plaintiff?) anthem fades.” (Shouldn’t be hard to guess which Ode that is from.) One’s mind reels at the conclusion of the Seventh Circuit opinion. It’s all so tightly wrapped, maybe a little circular or even contradictory, taking flight on the “viewless wings of Poesy” (or should we say "viewless wings of Posner"?) and seems to reach the right result. (Just be grateful that the plaintiff wasn't called "Grecian Urn.")
And there is this rather prosaic takeaway: If you’re litigating in the Seventh Circuit, think long and hard about damages issues and think just as much about federal jurisdiction.