Shell Oil Co., Matter of

Decision Date06 August 1992
Docket NumberNo. 92-1709,92-1709
PartiesIn the Matter of SHELL OIL COMPANY, Petitioner.
CourtU.S. Court of Appeals — Seventh Circuit

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.

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.


In the United States District Court

for the Southern District of Illinois

EARL DENNLER, Plaintiff,



NO. 91 916 WLB


At the direction of the Court of Appeals for the Seventh Circuit in the matter of "Shell Oil Company, petitioner, No. 92 1709" by their order of July 1, 1992, we expand the order of this court entered on March 3, 1992 remanding the cause to the state court.

Paragraph 2-604 of Chapter 110, Illinois Revised Statutes, prohibits the pleading of a specific ad damnum except to the minimum extent necessary to comply with the circuit rules of assignment. What this means as a practical matter is that the plaintiff, in filing his complaint,...

To continue reading

Request your trial
279 cases
  • Pratt Central Park Ltd. Partnership v. Dames & Moore, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 19, 1995
    ...a district court of jurisdiction. The Court answered "no." See also In re Shell Oil Co., 966 F.2d 1130, after remand, 970 F.2d 355 (7th Cir.1992). Later cases converted the observation to a holding, see Bell v. Preferred Life Assurance Society, 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943), ......
  • Morales v. Fagen, Inc.
    • United States
    • U.S. District Court — Central District of Illinois
    • July 31, 2009 the entire record available at the time of removal. Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.1993); In re Shell Oil Co., 970 F.2d 355, 355 (7th Cir.1992). ANALYSIS When a plaintiff files a civil complaint in state court, the defendant can remove the case to federal court if the fe......
  • Mbia Ins. Corp. v. Royal Bank Of Canada
    • United States
    • U.S. District Court — Southern District of New York
    • December 30, 2009
    ...time the removal notice” was filed. Vera v. Saks & Co., 335 F.3d 109, 116 n. 2 (2d Cir.2003) (per curiam); see also In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992) (“Because jurisdiction is determined as of the instant of removal, a post-removal affidavit or stipulation is no more eff......
  • Shaw v. Dow Brands, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • July 13, 1993
    ...Shell Oil, 966 F.2d at 1131-1132. We ultimately rejected the stipulation procedure in Shell Oil by writ of mandamus. 970 F.2d 355, 356 (7th Cir.1992) (per curiam). Stipulation is problematic because it conflicts with a legal maxim that jurisdiction depends on the situation at the time of re......
  • Request a trial to view additional results
1 firm's commentaries
2 books & journal articles
  • Amount in controversy and removal: current trends and strategic considerations.
    • United States
    • Defense Counsel Journal Vol. 62 No. 4, October 1995
    • October 1, 1995
    ...or affidavit with their complaints: once a defendant has removed the case, St. Paul makes later filings irrelevant." In re Shell Oil Co. 970 F.2d 355, 356 (7th Cir. 1992) (per The court ultimately concluded that the plaintiffs in De Aguilar II had failed to meet the "legal certainty" standa......
  • Establishing the Amount in Controversy in Removed Actions Under 28 Usc Section 1332
    • United States
    • Colorado Bar Association Colorado Lawyer No. 41-8, August 2012
    • Invalid date
    ...17 at 1216-17. 35. Id. at 1217. 36. See, e.g., De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995), citing In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.1992); Angus v. Shiley Inc., 989 F.2d 142, 145 (3d Cir. 1993); Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 873 (6th Cir. 200......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT