Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The full case caption appears at the end of this opinion. COFFEY, Circuit Judge. In February and March of1996, Pamela Jean Tylka, H. Joshua Chaet, CherylKeller, Jeanette DeLeon, Toni Cainkar, Elaine T.Hyneck, and Barbara F. Berg filed almostidentical class-action lawsuits against GerberProducts in the Circuit Court of Cook County,Illinois. In their complaints, the plaintiffsalleged that Gerber engaged in a pattern of falseand deceptive advertising concerning thenutritional value and content of its baby foodproducts, in violation of the Illinois ConsumerFraud and Deceptive Business Practices Act, 815Ill. Comp. Stats. 505/1, the Uniform DeceptiveTrade Practices Act, 815 Ill. Comp. Stats. 510/1,and Illinois common law fraud. Pursuant to 28U.S.C. sec. 1446, [FOOTNOTE 1] Gerber removed these casesto the United States District Court for theNorthern District of Illinois, alleging thatdiversity jurisdiction existed. Obviously unhappy with their lawsuits beingremoved to federal court, the plaintiffs moved toremand their cases back to the state courtsystem, arguing that the amount in controversyrequirement of 28 U.S.C. sec. 1332 ($50,000 atthe time the suit was filed) [FOOTNOTE 2] was not met. Thedistrict court judge denied the plaintiffs’motion for a remand to the state courts because,according to the court, the injunctive reliefsought by at least one plaintiff would costGerber more than $50,000, and therefore diversityjurisdiction existed. [FOOTNOTE 3] Subsequently, the judgeentered summary judgment in favor of Gerber.Plaintiffs appeal the trial court’s determinationof subject matter jurisdiction; that is, thejudge’s conclusion that the requirements fordiversity jurisdiction were met. Because Gerberhas failed to take the steps necessary to ensurefederal jurisdiction, a surprising failure giventhis court’s direction at oral argument, we VACATEthe district court’s opinion and REMAND this casewith instructions to REMAND these lawsuits back toIllinois state court. Because the basis for the resolution of thisappeal lies in Gerber’s failure to perfectsubject matter jurisdiction as directed by thecourt, only the facts relevant to that issue willbe addressed in this opinion and we will leave itup to the Illinois courts to determine theprecise nature of the plaintiffs’ claims. In February and March 1996, seven plaintiffsfiled six virtually identical lawsuits againstGerber in the Circuit Court of Cook County,Illinois, [FOOTNOTE 4] in which they claimed that Gerber’sadvertising describing its baby food products asnutritious and of high quality was false andmisleading. All six complaints soughtcompensatory damages, punitive damages,injunctive relief, and attorney’s fees. But, asmentioned earlier, the complaint filed by Tylkaand the one jointly filed by Chaet and Kellerrequested, in addition to the relief sought bythe other plaintiffs, that Gerber “run correctivemarketing, publicity, and advertising for anappropriate period of time.” Gerber removed the actions to federal court inthe Northern District of Illinois. See 28 U.S.C.sec. 1441(a). [FOOTNOTE 5] However, in its notice ofremoval Gerber referred to the residence of theindividual plaintiffs, not their citizenship asrequired by 28 U.S.C. sec. 1332(a)(1). Despitethis obvious shortcoming, none of the partiesbrought this to the trial judge’s attention andthe cases were allowed to proceed in federalcourt. Instead of focusing on the obvious deficiencyof Gerber’s notice of removal, the parties (andthe district court) directed their attention tothe question of whether the jurisdictionalminimum for diversity jurisdiction was satisfied.Given that determinations as to the exact natureof the plaintiffs’ claims are now better left tothe sound discretion of the Illinois statecourts, it is enough to say that the judge was ofthe opinion that the demand for correctiveadvertising made by three of the named plaintiffssatisfied the jurisdictional minimum of $50,000and thus the court had subject matterjurisdiction. The trial judge then grantedsummary judgment in favor of Gerber. We review the propriety of the removal of astate action to federal court de novo, see Chasev. Shop ‘N Save Warehouse Foods, Inc., 110 F.3d424, 427 (7th Cir. 1997) (citing Seinfeld v.Austen, 39 F.3d 761, 763 (7th Cir. 1994)),keeping in mind that federal courts are always”obliged to inquire sua sponte whenever a doubtarises as to the existence of federaljurisdiction.” Mt. Healthy City Board of Educ. v.Doyle, 429 U.S. 274, 278 (1977) (emphasis added)(citations omitted). We begin with the well-known rule that removalis proper over any action that could have beenfiled originally in federal court. See 28 U.S.C.sec. 1441; Grubbs v. General Elec. Credit Corp.,405 U.S. 699, 702 (1972). Here, Gerber removedthe case on diversity grounds, and as the partyseeking to invoke federal diversity jurisdiction,Gerber bears the burden of demonstrating that thecomplete diversity and amount in controversyrequirements were met at the time of removal. SeeIn Re County Collector, 96 F.3d 890, 895 (7thCir. 1996); NLFC, Inc. v. Devcom Mid-America,Inc., 45 F.3d 231, 237 (7th Cir. 1995). As statedbefore, the parties have ignored the fact thatthe notice of removal was ineffective in terms ofproperly alleging diversity because allegationsof residence are insufficient to establishdiversity jurisdiction. See Guaranty Nat’l TitleCo. v. J.E.G. Assocs., 101 F.3d 57, 58 (7th Cir.1996) (It is well-settled that “[w]hen theparties allege residence but not citizenship, thecourt must dismiss the suit.”); see alsoSteigleder v. McQuesten, 198 U.S. 141 (1905);Denny v. Pironi, 141 U.S. 121 (1891); Robertsonv. Cease, 97 U.S. 646 (1878). While it is surprising that a counsel wouldfail to follow the simple step of allegingcitizenship, what is even more surprising isGerber’s counsel’s failure to follow theinvitation and direction given to it at oralargument. At oral argument, this court advised theparties that “28 U.S.C. sec. 1653 permits theallegations of jurisdiction to be amended even inthe Court of Appeals. . . . But until thathappens we certainly don’t have [jurisdiction] onthe allegations in this record.” [FOOTNOTE 6] After Gerberassured the court that there was diversity ofcitizenship, counsel was informed that: “You maythen be able to amend the complaints undersection 1653, and should count your lucky starsbecause this case should have been remandedinstantly.” Surprisingly to say the least, Gerber has yetto file a section 1653 amendment of pleadingsaddressing the jurisdictional problem despite thefact that this court has given Gerberapproximately two months to do so. On a number of occasions we have dismissedactions where litigants fail to make section 1653amendments to correct deficient allegations ofdiversity of citizenship after being instructedto do so. For example, during oral argument inAmerica’s Best Inns, Inc. v. Best Inns ofAbilene, L.P., 980 F.2d 1072, 1073 (7th Cir.1992), as in this case, “the court reminded theparties of the need to establish completediversity of citizenship.” But “[d]espitereceiving express directions about what they hadto do, counsel did not do it. At some point thetrain of opportunities ends.” Id. at 1074.Consequently, we vacated the district court’sjudgment on the merits and remanded withinstructions to dismiss for lack of subjectmatter jurisdiction. See id.; see also Guaranty,101 F.3d at 59; see, e.g., Held v. Held, 137 F.3d998, 1000 (7th Cir. 1998); Dausch v. Ryske, 9F.3d 1244, 1245 (7th Cir. 1993); Chicago StadiumCorp. v. State of Indiana, 220 F.2d 797, 799 (7thCir. 1955). As we have stated in the past, These lawyers knew what they had to do, and theydid not do it. Failure in one round ofsupplemental filings leads us to doubt that asecond would be any more successful. Anyway, itis not the court’s obligation to lead counselthrough a jurisdictional paint-by-numbers scheme.Litigants who call on the resources of a federalcourt must establish that the tribunal hasjurisdiction, and when after multipleopportunities they do not demonstrate thatjurisdiction is present, the appropriate responseis clear. Counsel have only themselves to blameif they must now litigate this case from scratchin state court. Guaranty, 101 F.3d at 59. Gerber, in this case, has neglected to file thenecessary documents with the court despite ourwarning at oral argument that “we certainly don’thave [jurisdiction] on the allegations in thisrecord.” Consequently, the judgement of thedistrict court is VACATED, and this case is REMANDEDto the district court with instructions to REMANDthe plaintiffs’ lawsuits back to the Illinoisstate court system. :::FOOTNOTES::: FN1 28 U.S.C. sec. 1446(a) provides: A defendant or defendants desiring to remove anycivil action or criminal prosecution from a Statecourt shall file in the district court of theUnited States for the district and divisionwithin which such action is pending a notice ofremoval signed pursuant to Rule 11 of the FederalRules of Civil Procedure and containing a shortand plain statement of the grounds for removal,together with a copy of all process, pleadings,and orders served upon such defendant ordefendants in such action. FN2 28 U.S.C. sec. 1332(a)(1) (1995) (emphasis added)provides: The district courts shall have originaljurisdiction of all civil actions where thematter in controversy exceeds the sum or value of$50,000, exclusive of interest and costs, and isbetween– (1) citizens of different States . . . . FN3 Two of the complaints (the one filed by Tylka andthe one jointly filed by Chaet and Keller)requested that Gerber “run corrective marketing,publicity, and advertising for an appropriateperiod of time.” The trial judge was of theopinion that such an advertising campaign wouldeasily cost Gerber over $50,000. Because thisappeal is resolved on other grounds, we need notaddress this issue. FN4 Chaet and Keller jointly filed one lawsuit. FN5 28 U.S.C. sec. 1441(a) provides:Except as otherwise expressly provided by Act ofCongress, any civil action brought in a Statecourt of which the district courts of the UnitedStates have original jurisdiction, may be removedby the defendant or the defendants, to thedistrict court of the United States for thedistrict and division embracing the place wheresuch action is pending. For purposes of removalunder this chapter, the citizenship of defendantssued under fictitious names shall be disregarded. FN6 Under section 1653, “[d]efective allegations ofjurisdiction may be amended, upon terms, in thetrial or appellate courts.”
Tylka v. Gerber Products Company In the United States Court of Appeals for the Seventh Circuit Pamela J. Tylka, H. Joshua Chaet, Cheryl Keller, et al., Plaintiffs-Appellants, v. Gerber Products Company, a Michigan Corporation, Defendant-Appellee. No. 99-2893 Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 96 C 1647, 96 C 1648, 96 C 1649, and 96 C 1964–Charles R. Norgle, Sr., Judge. Argued: February 22, 2000 Decided: May 1, 2000 Before: COFFEY, EASTERBROOK and WILLIAMS, Circuit Judges.
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Pennsylvania Legal Awards (PALA) 2023

June 14, 2023

The Legal Intelligencer honors lawyers leaving a mark on the legal community in Pennsylvania with their dedication to law.

Learn More

Consulting Top Consultants 2023

June 15, 2023
New York, NY

Consulting Magazine identifies consultants that have the biggest impact on their clients, firms and the profession.

Learn More

Southeastern Legal Awards (SLA) 2023

June 22, 2023

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.

Learn More


We are seeking an attorney to join our commercial finance practice in either our Stamford, Hartford or New Haven offices. Candidates should ...

Apply Now ›

Attorneys-Solicitor General Division

Attorneys Solicitor General Division: The West Virginia Attorney General's Office is accepting applications for attorneys in the Solicitor...

Apply Now ›


Regional mid-sized firm with diverse civil litigation practice seeking hardworking and dedicated attorneys with 1-5 years experience for it...

Apply Now ›



Pond Lehocky Giordano LLP would like to announce that....

View Announcement ›



HARTMANN DOHERTY ROSA BERMAN & BULBULIA LLC's Matrimonial & Family Practice Warmly Welcomes the Honorable Peter J. Melchionne (Ret.) to Lead its New Family Law Dispute Resolution Team.

View Announcement ›



Gibbons PC would like to announce that...

View Announcement ›