Kathryn Collier v. SP Plus Corporation

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2431
KATHRYN G. COLLIER AND BENJAMIN M. SEITZ, individually
and on behalf of others similarly situated,
Plaintiffs-Appellants,
v.
SP PLUS CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 10587 — Charles R. Norgle, Judge.
____________________
ARGUED APRIL 25, 2018 — DECIDED MAY 14, 2018
____________________
Before MANION, HAMILTON, and BARRETT, Circuit Judges.
PER CURIAM. This case presents an unusual circumstance:
both parties insist that the plaintiffs lack Article III standing
to sue. They draw opposing conclusions from this premise,
however. The plaintiffs say that without standing their case
could not be removed from state court using 28 U.S.C. § 1441;
the defendant justifies removal but says the case then re-
quired dismissal for lack of standing. The district court agreed
2 No. 17-2431
with the defendant and dismissed the case. But the case was
not removable, because the plaintiffs lack Article III stand-
ing—negating federal subject-matter jurisdiction. Accord-
ingly, we vacate the judgment and remand for the district
court to return the case to state court.
SP Plus operates public parking facilities at Dayton Inter-
national Airport and is headquartered in Chicago. Collier and
Seitz allege that they used these parking lots in 2015 and re-
ceived receipts that included the expiration date of their credit
or debit cards. Printing that information, they say, violated
the Fair and Accurate Credit Transaction Act (“FACTA”),
15 U.S.C. § 1681c(g)(1).
Collier and Seitz filed a class-action complaint in the Cir-
cuit Court of Cook County alleging that SP Plus willfully vio-
lated FACTA. They requested statutory and actual damages,
stating that actual damages “exceed Twenty-Five Thousand
Dollars.” The complaint did not describe any concrete harm
that the plaintiffs had suffered from the printed receipts’ ex-
posure of their cards’ expiration dates; no one, for example,
had experienced credit-card fraud or identity theft.
SP Plus removed the action to federal court, see 28 U.S.C.
§ 1441(a), arguing that the district court had federal-question
jurisdiction because the claim arose under a federal statute.
A week later SP Plus moved to dismiss the complaint under
Federal Rule of Civil Procedure 12(b)(1) for lack of Article III
standing because the plaintiffs did not allege an injury in fact,
thereby “depriv[ing] this Court of subject matter jurisdic-
tion.” Collier and Seitz responded by moving to remand to
state court, arguing that it was SP Plus’s responsibility to es-
tablish subject-matter jurisdiction and that, without it,
No. 17-2431 3
28 U.S.C. § 1447(c) required the district court to return their
case to state court. Because Article III does not apply in state
court, they presumably hoped that their case could stay alive
there despite their lack of a concrete injury.
The district court denied the motion to remand because
“FACTA is a federal statute, so the case arises under federal
law” and the court had jurisdiction under 28 U.S.C. § 1331.
The court then analyzed the standing question. Collier and
Seitz had failed to allege an actual harm, the court stated, be-
cause they did not support their request for actual damages
with factual allegations. Relying on Spokeo, Inc., v. Robins,
136 S. Ct. 1540 (2016), and Meyers v. Nicolet Restaurant of De
Pere, LLC, 843 F.3d 724 (7th Cir. 2016), the court determined
that Collier and Seitz could not establish standing by stating
only that the defendant had violated statutory requirements.
Thus, the court reasoned, Collier and Seitz “ha[d] not estab-
lished subject matter jurisdiction.” The court granted Collier
and Seitz leave to amend their complaint. When they did not,
the court dismissed the case with prejudice.
As the party invoking federal jurisdiction, SP Plus had to
establish that all elements of jurisdiction—including Arti-
cle III standing—existed at the time of removal. See Lujan v.
Def. of Wildlife, 504 U.S. 555, 561 (1992) (“The party invoking
federal jurisdiction bears the burden of establishing” Arti-
cle III standing); Tri-State Water Treatment, Inc., v. Bauer,
845 F.3d 350, 352–53 (7th Cir. 2017) (cert. denied) (“the party
seeking removal” must establish federal jurisdiction). Re-
moval is proper only when a case could originally have been
filed in federal court. 28 U.S.C. § 1441(a); Ne. Rural Elec. Mem-
bership Corp. v. Wabash Valley Power Ass’n, Inc., 707 F.3d 883,
890 (7th Cir. 2013). SP Plus reasons that was true of Collier
4 No. 17-2431
and Seitz’s federal-law claim because § 1441(a) allows re-
moval of cases over which federal courts would have had
“original jurisdiction” and 28 U.S.C. § 1331 grants district
courts “original jurisdiction” over claims “arising under” a
federal statute. But reliance on the phrase “original jurisdic-
tion” is not enough, because federal courts have subject-mat-
ter jurisdiction only if constitutional standing requirements
also are satisfied. See Spokeo, Inc., 136 S. Ct. at 1547–48 (plain-
tiff lacks standing, and court lacks jurisdiction, without “con-
crete and particularized” invasion of legally protected interest
that is “actual or imminent”); Dunnet Bay Const. Co. v.
Borggren, 799 F.3d 676, 688–89 (7th Cir. 2015) (unlike pruden-
tial standing, constitutional standing is jurisdictional).
Thus, to establish federal subject-matter jurisdiction,
SP Plus must also show that Collier and Seitz have Article III
standing—specifically, that they suffered an injury beyond a
statutory violation. The company disagrees and suggests that
once removal based on a federal question gets a defendant’s
foot in the door of a federal court, the slate is wiped clean and
the defendant can challenge jurisdiction. But § 1447(c) makes
clear that the district court must remand the case to state court
if “at any time before final judgment it appears that the district
court lacks subject matter jurisdiction.” (Emphasis added.)
Here, it is clear that Collier and Seitz’s complaint did not
sufficiently allege an actual injury. A mere reference to “ac-
tual damages” in the complaint’s prayer for relief does not es-
tablish Article III standing. See Diedrich v. Ocwen Loan Servic-
ing, LLC, 839 F.3d 583, 588 (7th Cir. 2016) (requiring “suffi-
cient factual allegations of an injury resulting from defend-
ants’ conduct” to state a plausible claim for relief); Silha v.
ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015) (adopting Twombly-
No. 17-2431 5
Iqbal standard for evaluating Rule 12(b)(1) motions). The sin-
gle reference here falls far short of an allegation that the plain-
tiffs suffered a concrete harm or appreciable risk of harm
apart from the statutory violation. See Spokeo, 136 S. Ct.
at 1548; Meyers, 843 F.3d at 727–29.
SP Plus next contends that the conclusory request for “ac-
tual damages” is unfair because it allows Collier and Seitz to
clarify what concrete injury they suffered “after it is too late”
for removal. So SP Plus requests that we order Collier and
Seitz to “amend their Cook County Complaint to support
their allegations of actual damages or strike these allegations
from that Complaint.” This is impossible. We have no basis to
order these plaintiffs how to plead their case in state court af-
ter remand. Further, a state’s standing doctrine is “the busi-
ness” of its own courts; “it is not for [this court] to venture
how the case would there be resolved.” Smith v. Wis. Dep’t of
Agric., Trade, & Consumer Prot., 23 F.3d 1134, 1142 (7th Cir.
1994).
In any event, there is no unfairness here. If, after remand,
Collier and Seitz were to amend their complaint to state an
injury in fact, 28 U.S.C. § 1446(b)(3) would permit SP Plus to
then remove the case to federal court. See Walker v. Trailer
Transit, Inc., 727 F.3d 819, 820–21 (7th Cir. 2013) (observing
that, if an initial pleading is not removable, defendant has
30 days to remove once it becomes clear “the case is or has
become removable”). And even if Collier and Seitz do not
amend, SP Plus could remove if they receive any “paper that
affirmatively and unambiguously reveals that the predicates
for removal are present.” Walker, 727 F.3d at 824.
6 No. 17-2431
Thus, § 1447(c) required the district court to remand this
case to state court, because it does not satisfy Article III’s re-
quirements. See Smith, 23 F.3d at 1142; see also McIntyre v. Fal-
lahay, 766 F.3d 1078, 1082 (7th Cir. 1985) (“If the case did not
belong in federal court at all, it should be remanded rather
than dismissed” under § 1447(c)); Maine Ass’n of Interdepend-
ent Neighborhoods v. Comm’r, Maine Dep’t of Human Res.,
876 F.2d 1051, 1053–54 (1st Cir. 1989) (concluding § 1447(c) re-
quires district court to remand, not dismiss, for lack of stand-
ing). Additionally, we note that this case should not have been
dismissed with prejudice. “A suit dismissed for lack of juris-
diction cannot also be dismissed ‘with prejudice’; that’s a dis-
position on the merits, which only a court with jurisdiction
may render.” Frederiksen v. City of Lockport, 384 F.3d 437, 438
(7th Cir. 2004); see Morrison v. YTB Int'l, Inc., 649 F.3d 533, 535
(7th Cir. 2011) (stating that jurisdictional dismissal under Rule
12(b)(1) is without prejudice). Nor was dismissal with preju-
dice warranted as a sanction under Federal Rule of Civil Pro-
cedure 41(b) because Collier and Seitz opted not to amend
their complaint. A Rule 41(b) dismissal is a harsh sanction ap-
propriate only when there is a clear record of delay or contu-
macious conduct, or where other less drastic sanctions have
proved unavailing. Kasalo v. Harris & Harris, 656 F.3d 557, 561
(7th Cir. 2001). A willful failure to prosecute can fit the bill,
see Bolt v. Loy, 227 F.3d 854, 856 (7th Cir. 2000), but no finding
of willfulness in this case justified a punitive dismissal on
the merits.
Finally, we decline to award Collier and Seitz attorney fees
or expenses under § 1447(c), since their brief does not ade-
quately develop a basis to do so. But we note that, SP Plus’s
No. 17-2431 7
justifications aside, its dubious strategy has resulted in a sig-
nificant waste of federal judicial resources, much of which
was avoidable. See Martin v. Franklin Capital Corp., 546 U.S.
132, 140 (2005); Micrometl Corp. v. Tranzact Tech., Inc., 656 F.3d
467, 472 (7th Cir. 2011).
We VACATE the judgment and REMAND with instructions
to return the action to state court.