Angelo Pecoraro v. Menard, Inc. ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 8, 2018
Decided August 27, 2018
Before
WILLIAM J. BAUER, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 18-1430 Appeal from the United
States District Court for the
ANGELO PECORARO and ANTONINA PECORARO, Northern District of Illinois,
Plaintiffs-Appellants,
Eastern Division.
v.
No. 16 CV 6637
MENARD, INC., Manish S. Shah, Judge.
Defendant-Appellee.
Order
Angelo Pecoraro, and his wife Antonina Pecoraro, filed this suit in Illinois against
Menard, which they alleged had failed to maintain a safe place for Angelo to shop. An-
gelo contends that, while he was retrieving some wooden trim, a misshapen piece
caused others to fall and injure him. (Antonina’s claim for loss of consortium is deriva-
tive from Angelo’s.) Menard removed the suit to federal court under the diversity juris-
diction, 28 U.S.C. §1332, and the district judge granted summary judgment to Menard.
The notice of removal is defective. It asserts that each plaintiff has a claim alleged (in
state court) to be worth at least $50,000, and that adding the two together brings the to-
No. 18-1430 Page 2
tal to at least $100,000, exceeding the federal threshold of $75,000. Yet it has long been
established that the claims of multiple plaintiffs cannot be aggregated to meet the juris-
dictional minimum. See, e.g., Clark v. Paul Gray, Inc., 306 U.S. 583, 589 (1939); Stewart v.
Dunham, 115 U.S. 61, 64–65 (1885); Bernards Township v. Stebbins, 109 U.S. 341, 355 (1883).
The notice of removal also asserts that Illinois treats a victim’s tort claim and a spouse’s
claim for loss of consortium as one undivided whole, but at oral argument counsel for
Menard conceded that this is not so; Illinois treats these as legally distinct claims, which
may be sued on and collected separately.
We directed the parties to file supplemental jurisdictional memoranda after argu-
ment, drawing their attention to 28 U.S.C. §1653, which permits jurisdictional allega-
tions to be amended even while a suit is on appeal. Both Menard and the Pecoraros re-
sponded by amending the jurisdictional sections of their appellate briefs. Menard did
not file an amended notice of removal; neither side amended any of the other jurisdic-
tional pleadings that had been filed in the district court. That’s not what we contem-
plated, nor is it what §1653 authorizes. It is tempting to throw up our collective hands
and direct a remand to state court.
Despite our frustration with the conduct of both sides’ counsel, a remand to state
court would not be productive. The case would come back to federal court like a yo-yo,
this time with the proper allegations. Menard’s current assertions about the nature of
Angelo’s injury and the need for long-term treatment, if put in a notice of removal (or
some other amended jurisdictional pleading) would suffice to show a nonfrivolous
claim by Angelo alone to more than $75,000 in damages. The Pecoraros do not disagree;
their amended brief does not assert that Angelo’s damages fall below the jurisdictional
minimum. Section 1332 accordingly has been satisfied. Cf. Willingham v. Morgan, 395
U.S. 402, 407 n.3 (1969); Schlesinger v. Councilman, 420 U.S. 738, 745 n.9 (1975).
With respect to the merits, the district court’s opinion explains why plaintiffs’ claim
depends on speculation of a sort that Illinois substantive law does not permit. We agree
with that conclusion and need not add to it.
AFFIRMED