holding that plaintiff's post-removal stipulation has no legal effectSummary of this case from Plunkett v. Ill. Farmers Ins. Co.
Submitted July 24, 1992.
Decided August 6, 1992.
Vincent H. Venker, II, Coburn, Croft Putzell, St. Louis, Mo., Thomas M. Zulim, Houston, Tex., for petitioner.
Joseph A. Bartholomew, Cook, Shevlin, Keefe, Ysursa, Brauer Bartholomew, Belleville, Ill., for respondent.
Appeal from the United States District Court for the Southern District of Illinois.
Before CUDAHY, COFFEY, and EASTERBROOK, Circuit Judges.
In compliance with the partial writ of mandamus issued on July 1, 966 F.2d 1130, the district judge has explained why he remanded this case to state court. That explanation appears as an appendix to this opinion.
After Congress amended 28 U.S.C. § 1332 to raise the jurisdictional amount in diversity cases to $50,000, the district judge adopted the practice of remanding any case in which the plaintiff files an affidavit or stipulation limiting the recovery to less than the jurisdictional amount. This practice is inconsistent with St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938), which holds that a post-removal amendment to the complaint limiting the plaintiff's claim does not authorize a remand. Because jurisdiction is determined as of the instant of removal, a post-removal affidavit or stipulation is no more effective than a post-removal amendment of the complaint.
When a district judge remands a properly-removed case because of subsequent events, this court has both the authority and the duty to rescind that remand. See In re Amoco Petroleum Additives Co., 964 F.2d 706, 708-09 (7th Cir. 1992). This case was properly removed. Whatever one makes of Kliebert v. Upjohn Co., 915 F.2d 142 (5th Cir. 1990), vacated on grant of rehearing in banc, 923 F.2d 47, dismissed after settlement, 947 F.2d 736 (1991), which our original opinion discusses, the district judge did not rely on its theory. Instead the district judge wrote that the allegation in plaintiff's complaint was unauthorized by Illinois law — is indeed forbidden by Illinois law — and could have been stricken from the complaint by the state court. This means that the factual allegations of the complaint, and not empty words setting an illusory cap on damages, inform the jurisdictional inquiry. Plaintiff's complaint, alleging breach of a contract to pay $70,000 per year, shows that the amount in controversy exceeds $50,000, putting the post-removal stipulation to one side. Because the complaint itself satisfies the jurisdictional requirements, we need not decide what weight to give to allegations in the petition for removal. Litigants who want to prevent removal must file a binding stipulation or affidavit with their complaints; once a defendant has removed the case, St. Paul makes later filings irrelevant.
The petition for a writ of mandamus is granted. The district court shall rescind the order remanding the case to state court.