643 F.3d 994 (7th Cir. 2011), 10-3462, Walton v. Bayer Corp.

Docket Nº:10-3462.
Citation:643 F.3d 994
Opinion Judge:POSNER, Circuit Judge.
Party Name:Cathy M. WALTON, Plaintiff-Appellant, v. BAYER CORPORATION, et al., Defendants-Appellees.
Attorney:Thomas G. Maag (argued), Attorney, Maag Law Firm, LLC, Wood River, IL, for Plaintiff-Appellant. Sherry A. Knutson (argued), Attorney, Sidley Austin LLP, Chicago, IL, Kim Roger Luther, Luther & Associates, P.C., St. Louis, MO, for Defendants-Appellees.
Judge Panel:Before CUDAHY, POSNER, and MANION, Circuit Judges.
Case Date:May 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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643 F.3d 994 (7th Cir. 2011)

Cathy M. WALTON, Plaintiff-Appellant,


BAYER CORPORATION, et al., Defendants-Appellees.

No. 10-3462.

United States Court of Appeals, Seventh Circuit.

May 23, 2011

Argued March 31, 2011.

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[Copyrighted Material Omitted]

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Thomas G. Maag (argued), Attorney, Maag Law Firm, LLC, Wood River, IL, for Plaintiff-Appellant.

Sherry A. Knutson (argued), Attorney, Sidley Austin LLP, Chicago, IL, Kim Roger Luther, Luther & Associates, P.C., St. Louis, MO, for Defendants-Appellees.

Before CUDAHY, POSNER, and MANION, Circuit Judges.

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POSNER, Circuit Judge.

The plaintiff, a citizen of Illinois, brought suit in an Illinois state court against a number of Bayer affiliates, all citizens of states other than Illinois, plus Niemann Foods, Inc., an Illinois citizen. The suit charges the defendants with violating Illinois tort law by failing to warn of dangerous side effects of Yazmin, a prescription oral-contraceptive drug manufactured by a German affiliate of the Bayer defendants (the manufacturer is not a defendant) and bought by the plaintiff at a pharmacy operated by Niemann; she claims to have been seriously injured by the side effects. Despite the absence of complete diversity of citizenship because Niemann was joined as a defendant, the Bayer defendants removed the case to federal district court, arguing that the plaintiff had improperly joined Niemann to eliminate complete diversity of citizenship— a precondition to removing this case to federal court because there is no federal-law claim. The plaintiff asked the district judge to remand the case to state court. He refused, instead dismissing Niemann as a defendant, with prejudice, thus restoring complete diversity. The plaintiff seeks reversal of the judge's order.

The defendants challenge our jurisdiction. They point out that the appeal is not from the order dismissing Niemann and denying the's motion to remand the case to state court. That order did not end the litigation in the district court, and so was an interlocutory order— and not an appealable interlocutory order either. The plaintiff hadn't asked the district court to make the dismissal of Niemann a partial final judgment appealable under Fed.R.Civ.P. 54(b) or invoked any other exception to the final-decision rule (28 U.S.C. § 1291). The appeal is not from the order that the plaintiff wants us to appraise but from the district court's subsequent dismissal of the entire suit, with prejudice, as punishment for her failure to comply with the district judge's subsequent order to respond to a discovery demand by the defendants. Fed.R.Civ.P. 37(b)(2)(A)(v); Société Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 206-08, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958); Dotson v. Bravo, 321 F.3d 663, 667 (7th Cir.2003). She ignored that order because she'd abandoned the litigation when the judge refused to remand the case to state court.

The dismissal of the entire suit as a discovery sanction was of course a final and therefore appealable judgment. But the defendants, citing Sere v. Board of Trustees, 852 F.2d 285, 288 (7th Cir.1988), argue that a plaintiff should not be permitted to convert an interlocutory order to a final judgment by walking away from the litigation. Sere, however, was a peculiar case that bears only superficial resemblance to this one. The plaintiff had advanced two claims. The district court dismissed one under Rule 12(b)(6) and the case continued on the other claim until the plaintiff flouted a discovery order, whereupon the district court entered a final judgment dismissing the entire case with prejudice. The plaintiff argued on appeal that this punitive dismissal should have been limited to the second claim, thus allowing him to appeal from the dismissal of the first. We rejected the argument, 852 F.2d at 288-89, noting that the violation of the discovery order had deprived the defendant of discovery relating to the first claim as well as to the second.

There is nothing like that here. Nor is this a case in which a litigant tries to get an interlocutory appeal on one claim by seeking dismissal of another one, without prejudice, that he plans to reinstate— an impermissible tactic for circumventing the final-decision rule. E.g.,

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Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir.1984). Because our plaintiff wagered her entire claim on being proved right about jurisdiction, considerations of judicial economy justified immediate appellate review. For had she complied with the discovery order and continued to prosecute her case in the district court, and lost, and then had successfully appealed on the ground that the district court lacked jurisdiction, the case would have had to be remanded to the state court— and since the basis of the remand would have been an absence of federal jurisdiction over the suit, the parties would have had to relitigate the case from scratch. Board of Trustees, Sheet Metal Workers' National Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031, 1034-35 (7th Cir.2000).

So we have jurisdiction over the appeal, but is there federal jurisdiction over the case? The plaintiff makes three arguments that there isn't. The first is that she has not alleged that her damages exceed $75,000, only that they exceed $50,000, and so the case does not satisfy a prerequisite of federal diversity jurisdiction. But the litany of injuries she claims to have sustained, which include but are not limited to " future thromboembolic events, which are permanent and lasting in nature, physical pain and mental anguish, diminished enjoyment of life, medical, health, incidental and related expenses, the need for lifelong medical treatment, monitoring and/or medications, and the fear of developing any of the above named health consequences," makes clear that she is seeking damages in excess of $75,000. A plaintiff can defeat removal of a diversity case by irrevocably committing (before the case is removed) to accepting no more than $75,000 in damages, Back Doctors Ltd. v. Metropolitan Property & Casualty Ins. Co., 637 F.3d 827, 830-31 (7th Cir.2011), no matter how great her...

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