McMahon v. Bunn-O-Matic Corp.

• Citation: 150 F.3d 651
• Decision Date: 02 July 1998
• Docket Number: BUNN-O-MATIC,No. 97-4131,97-4131
• Parties: Prod.Liab.Rep. (CCH) P 15,298 Angelina and Jack McMAHON, Plaintiffs-Appellants, v.CORPORATION, James River Paper Company, and Wincup Holdings, L.P., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 651

150 F.3d 651

Prod.Liab.Rep. (CCH) P 15,298

Angelina and Jack McMAHON, Plaintiffs-Appellants, v. BUNN-O-MATIC CORPORATION, James River Paper Company, and Wincup Holdings, L.P., Defendants-Appellees.

No. 97-4131.

United States Court of Appeals Seventh Circuit.

Argued May 27, 1998.

Decided July 2, 1998.

Robert J. Palmer (argued), May, Oberfell & Lorber, Edmond W. Foley, Foley & Small, South Bend, IN, for Plaintiffs-Appellants.

David Cerven (argued), Burke, Murphy, Costanza & Cuppy, East Chicago, IN, Defendant-Appellee.

Before BAUER, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

During a break from a long-distance auto trip, Jack McMahon bought a cup of coffee from the mini mart at a Mobil station. Jack asked Angelina McMahon, his wife, to remove the plastic lid while he drove. Angelina decided to pour some of the coffee into a smaller cup that would be easier for Jack to handle. In the process the coffee flooded her lap; Angelina suffered second and third degree burns that caused her pain for months and produced scars on her left thigh and lower abdomen. Angelina believes that the Styrofoam cup collapsed, either because it was poorly made or because inordinately hot coffee weakened its structure. The McMahons' claims against the producers of the cup and lid have been settled. The third defendant is Bunn-O-Matic Corporation, which manufactured the coffee maker. According to the McMahons, the temperatures at which Bunn's apparatus brews and serves coffee--195? F during the brewing cycle and 179? F as the "holding" temperature of a carafe on its hotplate--are excessive, and its design therefore defective.

The McMahons filed suit in state court. Bunn-O-Matic removed it to federal court under 28 U.S.C. § 1441(a), asserting that the district court would have had original jurisdiction. Removal was improper, because only Bunn among the three defendants signed the notice. But no one paid any attention to the requirement that all defendants (or none) join a notice of removal, see Hanrick v. Hanrick, 153 U.S. 192, 14 S.Ct. 835, 38 L.Ed. 685 (1894); Torrence v. Shedd, 144 U.S. 527, 12 S.Ct. 726, 36 L.Ed. 528 (1892); Roe v. O'Donohue, 38 F.3d 298 (7th Cir.1994), and any defect in the removal process other than the lack of subject-matter jurisdiction must be raised within 30 days or is forfeited. 28 U.S.C. § 1447(c). As it happens, no one paid attention to subject-matter jurisdiction either. Bunn's notice of removal states that it is a Delaware corporation with its principal place of business in Illinois and that the McMahons are residents of Indiana. An allegation of residence is inadequate. Steigleder v. McQuesten, 198 U.S. 141, 25 S.Ct. 616, 49 L.Ed. 986 (1905). Of what state are the McMahons citizens? And what about the other two defendants? One is a limited partnership, a notorious source of jurisdictional complications. See Carden v. Arkoma Associates, 494 U.S. 185, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990); Guaranty National Title Co. v. J.E.G. Associates, 101 F.3d 57 (7th Cir.1996); America's Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072 (7th Cir.1992). The notice of removal did not mention their citizenships, yet no one gave jurisdiction a second thought. James River Paper Company and Wincup Holdings, L.P., did not bother to put the details of their own citizenships into the record, and the district court neither assured itself that jurisdiction exists nor flagged the issue for the parties' attention. On appeal Bunn and the McMahons did not comply with Circuit Rule 28(a)(1), which reads in part:

If jurisdiction depends on diversity of citizenship, the [jurisdictional] statement [in each party's brief] shall identify the jurisdictional amount and the citizenship of each party to the litigation. If any party is a corporation, the statement shall identify both the state of incorporation and the state in which the corporation has its principal place of business. If any party is an unincorporated association or partnership the statement shall identify the citizenship of all members.

The jurisdictional statements covered Bunn and the McMahons but neglected the other two parties. When the subject arose at oral argument, both sides reacted as if the thought that all parties' citizenship matters was a revelation.

After a false start, Bunn has filed a proposed amendment to the notice of removal to put the jurisdictional details in the record. See 28 U.S.C. § 1653. As amended, the notice alleges that the McMahons are citizens of Indiana and that on the date of removal James River Paper Company was incorporated in Virginia and had its principal place of business there, and that Wincup Holdings, L.P., had two partners: its general partner was Wincup Holdings, Inc., and its limited partner was James River Paper Company. According to the amended notice, Wincup Holdings, Inc., was incorporated in Delaware and had its principal place of business in Arizona. These facts--we have no reason to doubt that they are facts--mean that the suit comes within federal jurisdiction under § 1332(a)(1). The motion to amend the pleadings under § 1653 to show the existence of jurisdiction is accordingly granted, and we move on to the merits--with a reminder to the district court and future litigants that it is best to attend to this issue at the outset, before unpleasant discoveries about jurisdictional facts require the parties and the judge to bemoan the waste of the time and money invested in the litigation.

The McMahons have two theories of liability under Indiana law (which the parties agree supplies the rule of decision): (i) that Bunn failed to warn consumers about the severity of burns that hot coffee can produce; and (ii) that any coffee served at more than 140? F is unfit for human consumption (and therefore a defective product) because of its power to cause burns more severe than consumers expect, aggravated by its potential to damage the cup and thus increase the probability of spills. After the parties agreed to accept the decision of a magistrate judge, see 28 U.S.C. § 636(c), the court entered summary judgment for the defendants. 1997 U.S. Dist. L EXIS 22318. The magistrate judge observed that both McMahons conceded during their depositions that "hotness" was one of the elements they value in coffee and that they sought out hot coffee, knew it could burn, and took precautions as a result. These concessions--which any adult coffee drinker is bound to make--foreclose the possibility of recovery, the opinion concluded. Other, similar suits have come to the same summary end, see Barnett v. Leiserv, Inc., 968 F.Supp. 690 (N.D.Ga.), affirmed without opinion, 137 F.3d 1356 (11th Cir.1998); Greene v. Boddie-Noell Enterprises, Inc., 966 F.Supp. 416 (W.D.Va.1997); Lamkin v. Braniff Airlines, Inc., 853 F.Supp. 30 (D.Mass.1994); Oubre v. E-Z Serve Corp., 713 So.2d 818 (5th Cir.1998); Huppe v. Twenty-First Century Restaurants of America, Inc., 130 Misc.2d 736, 497 N.Y.S.2d 306 (N.Y.Sup.1985), although one published opinion has held that a claim of this sort is triable, see Nadel v. Burger King Corp., 119 Ohio App.3d 578, 695 N.E.2d 1185 1997 Ohio App. LEXIS 2144 (1st Dist.), review denied, 80 Ohio St.3d 1415, 684 N.E.2d 706 (1997), and a suit in New Mexico (Liebeck v. McDonald's Restaurants, P.T.S., Inc.) produced a widely publicized jury verdict of some $3 million but not a published opinion (the case was settled before appeal).

Before taking up the McMahons' objections to the district court's conclusions, we offer a prefatory note about the parties' litigation strategy. Plaintiffs proceed on the assumption that Bunn-OMatic made and sold coffee, as opposed to a tool that retailers use to make coffee. Bunn's failure to challenge this perspective is puzzling. Why should a tool supplier be liable in tort for injury caused by a product made from that tool? If a restaurant fails to cook food properly and a guest comes down with food poisoning, is the oven's manufacturer liable? Our concern is rooted not in the privity doctrine of bygone years but in the belief that tort doctrine must reflect the way in which different actors cooperate to improve safety. Consider the plaintiffs' claim that they should have received warnings. How is a manufacturer of coffee-making machines to deliver them? Many consumers of coffee never see the machine that made it--someone brings coffee to the customer in a cup or pot (as in Lamkin); a fast food outlet may deliver a sealed container to a take-out window (as in Greene and Nadel) or place the coffee maker so far behind the counter that customers cannot read whatever warnings it bears. And coffee makers are small; where would a warning more elaborate than "Hot!" go? If warnings are in order, then, they belong on a restaurant's menu, or on the cups containing take-out coffee. Consider, too, plaintiffs' contention that hot coffee is extra dangerous to take-out customers who are more likely to spill it, or because it destabilizes Styrofoam cups. What has this to do with the claim that a machine is defective, as opposed to a claim that the vendor used the wrong machine for the job? Restaurants that serve coffee in china cups would not worry about the effect of a liquid's temperature on foam, or about the jostling of a moving car. They could serve at whatever temperatures their clientele preferred. Thus it cannot be that producing hot liquids makes a machine defective any more than a knife is defective because its blade is sharp; the theory has to be that vendors with a more mobile trade and weaker cups must use machines that brew and hold coffee at lower temperatures (or must use cups capable of holding liquids at the temperatures they have chosen to serve). Perhaps Bunn advertised the machine used by the Mobil station as suitable to businesses serving carry-out coffee in flimsy cups; that would be a better basis of liability, but it is not one to which plaintiff...