good morning you made cleese the court thankful the heirs bringing this case before the court today or one of the areas bringing this case before the court today was the dismissal rather than the remand of a cause that the court below concluded it lacks subject matter jurisdiction over this point there's no disagreement that for man was the trial court's only proper remedy after determined it like subject matter pelleas can see this point page twenty one of their brief the reason we're here however is that pelleas in the process of making that concession in the court below also invited error by moving the district court or by suggesting to the district court that it could have jurisdiction if it simply dismissed plaintiff's case and then invited a amendment to the pleadings to create in essence actual damages sufficient to support article three standing this did three things in other words what happened when the court actually took this action it the court below issued a judgment on the pleadings in essence on action it also concluded in the same document that it  lacked article three standing over or excuse me article three subject matter jurisdiction over it also impermissibly shifted the burden of demonstrating jurisdiction on the non removing party so in this case the burden was federal statute without having standing under the federal statute well when you say it like that it sounds like it's a bad thing but tell me why it's not it's not because the statute that plaintiffs have brought their case under the fair and accurate credit transaction act says by its own terms it may be brought in any court with competent jurisdiction which there's no argument includes the state courts so let's suppose that happens you w n i don't know of these cases ever go to trial but let's indulge the hypothesis you go to trial you win the illinois supreme court ultimately affirms that the image award the defendant seeks review in the u s supreme court and you are you know standing well again we would be i would respond in two parts if i could the issue of futility even if the case is going to go nowhere in state court which we you know that he met me tonight but even the case we're going to go nowhere in state court that futility or if utility of the case if it gets remanded to state court is irrelevant consideration at this stage there are man statute says that shop for a man so the the court below should have remanded counsel can i ask you a question i'm sure and i constitution which i think goes to judge him with his point as well to the illinois constitution is part of the reason you think you can succeed in illinois that the illinois constitution does not itself have a standing requirement or an injury in fact requirement as some state constitutions do not that's correct and the statute that the plaintiffs are suing under creates statutory damages in fact review it because the united states supreme court would lack article three jurisdiction even though the illinois supreme court could render a decision under this federal statute it's an interesting hypothetical but yes your honor i believe that's not hypothetical it's your well yes but i mean at that point i mean again if we presumably we would have conditionally certified a class additional plaintiffs may join again it's all hypothetical at this point but there may be a plaintiff they could say hi yes my identity was stolen shortly after i was issued a receipt by police so yes i mean that at that point there would be additional plaintiffs presumably there would be a class there would be discovery that the current meaning plaintiffs may have damages at that point actual damages under article three it may be one does nothing but does and it is for as these plenty of sco does in the district court's decision resolve that issue definitively i'm sorry i don't follow resolves the actual the pleading stage that they had actual damages these so why is that not in essence an issue that is definitively decided in this case not subject to further resume anation it would however be evidence would be later on assuming remand happens we're in state court plaintiffs are able to demonstrate either through the passage through discovery or or the passage of time actual damages at which point the pleadings would be deemed to conform to conform to the evidence so you want to be able  still to get out from under this rule and i'm sorry you still want to be able to get out from under the jurisdiction ruling correct correct and could the case then be removed again if at effect and if the defendants are able to demonstrate presumably if that would serve their actual injury if if if plaintiffs were to join the case or these plaintiffs were to assert or be able to demonstrate article three you know damages sufficient to set up article three damages guess somebody so that's it when it comes down to you know court pretty much said there's really no injury there well the injury your honor is if somebody's identity gets  time in attorney fees and they have to go through credit issues did to to get their good name back which thankfully for these two particular plaintiffs they did not have to go go through that they had their identity stolen they did not they're not currently aware whether they had their identity stolen and it was i want to go twenty fifteen this was twenty fifteen the cases been pending for about you know not quite three years now  jobs so so that your honors in this case it's not a simple removal subject jurisdiction matter case and the reason is because the plaintiffs in this case allege an actual injury you will recall from the record that this case began in federal court in ohio with a nearly identical complaint that complaint was subject to a motion dismiss by this defendant on the grounds that they didn't satisfy the actual injury requirement under article three of the constitution plain that voluntarily dismissed after that motion was filed plaintiff refiled the case nearly identical in cook county illinois but there is a significant difference in the allegations between that federal complaint ohio and the cook county complaint here in paragraph fifty seven and fifty eight of the new complaint t cook county complaint they allege actual damage and it's not just a we have to go through all these additional efforts type of allegation paragraph fifty seven and fifty eight are nearly identical and each of them say we suffered but actually say they didn't suffer actually demonstrate in isn't that the reason why the dish a quite easy say they lack standing i didn't say that they didn't that the defendant didn't say that plaintiffs didn't suffer actual damages in this case what s p plus argues is that they allege that they've incurred an actual injury in excess of twenty five thousand dollars we don't know what it is we filed a motion to dismiss because we don't think that they had allegations sufficient they allege actual injury but our position is it's not sufficient what is the actual injury that they allege that's the basis of our motion to dismiss and frankly that's exactly what judge normal found below judge normal found they could allege sufficient facts to support their allegation of actual damages and it's not a mistaken allegation it's a purposeful allegation because they didn't a legend in their own file complain they allege it here in there's only one reason to do that judge the reason is to satisfy article three standing but they filed in state court  actual injury and actual damages twenty five thousand dollars it's a fact a case just like this court entertained in the miers case same same situation expiration date on a receipt almost identical to what this court considered in miers it's that they claim there are actual damages we say you haven't sufficiently pled those actual damages so on that date we filed our notice of removal there was a basis to remove federal question jurisdiction and for subject matter jurisdiction they allege actual damage where was the standing i'm sorry where was the standing if they in fact have facts to support their allegation which illinois supreme court rule to thirty seven in the similar rule federal rule leavened they have certified that they do then they would have standing in that case my motion the s p plus motion attack the sufficien of their allegation that this court federal courts all over the country always i remove all position petition can examine whether it has subject matter jurisdiction that's what happened in the g therefore did not remove the case but subsequent to having made the decision not to remove and then being barred from removing and judge you asked a question earlier after the thirty days is over i'm not aware of a technique or a method where i can see what the court found is that there was an open question as to whether the case was removable and you should have removed it by not removing it you forfeited your right to remove that's what happened in the g m case and keep in mind judge this case was decided or the notice for removal of this case was filed before judge mandaeans decision in the miers case came down so there was even a more of a question of standing so at that point the district court had no choice but to remand the lack of jurisdiction so i'm not understanding why you think that the district quite had the authority to do more than that you're honor i understand your question and i recognize i haven't answered it directly and i think the answer is as we say in our brief if in fact there is not subject matter jurisdiction the removal statutes plane then the case must be remanded what happened here though in the reason i think this case is unique is because here we have a plaintiff alleging actual damages which would establish standing and just is justice hamilton pointed out earlier what happens is is plainti conceding right now that it has no actual damages in the answer would be if we heard that well right now we don't or we may or we may not but we may later find that there are actual damages i don't think that's the case because to  directly answer your earlier question this is a case where the plaintiff kept the receipt there's no question here that the receipt is somewhere out there for some evildoer to get their hands on but going back to your question judge i haven't been able to find a that i can rely on to specifically say i disagree with you however as a practical matter under the removal statute and under the circumstances in this case we have a complaint that alleges actual damages it's not appropriate i submit to be forced to go back to the circuit court in cook county for plaintiffs to be able to establish or trying to establish actual damages and at which point i have lost my opportunity to review to remove in that case counsel it often happens in standing cases that plaintiffs filed complaints alleging that they've suffered an injury fact alleging that they've suffered actual damages and when the district court or if it gets to the court of appeals the court of appeals examines that contention may well then conclude despite the fact that the plaintiffs alleged damages in fact there has been no injury in fact and there's no standing so i don't think you get out of the problem simply by saying oh but in this case the plaintiffs did allege that they had suffered an injury in fact that doesn't mean they actually did in your honor i can't argue with that and i won't except to again repeat that this case is unusual because they have certified in their fleeting so that they've suffered actual damages here you know and under you've also  you've got a district court decision that says they don't write well the district court said that they could well support their factual allegations and therefore he gave them leave to amend their plea they chose not to and they get  but why should we not you know since treat that you know you don't want this trip to federal court to have been a total waste of your time so i understand correctly and what i'm thinking about in essence is simply the principle of the preclusion that that's that that issue has been resolved and by the way at least the way i read fourteen forty six b and see if the point is were to try to revive the had in state court to revive this theory of actual  plaintiffs of have prevailed by taking one position shouldn't be able to switch from that position in the future well john to stand your cautious as plaintiff has argued before you today judge hamilton it's not their burden i can see their position in the circuit court when we have this argument which will certainly arise them saying there wasn't the opportunity to argue because it wasn't my burden to go ahead and prove that absolutely was an opportunity to argue but will ok well that's  removal was proper once removal is made the federal court has the right obligation and duty to examine subject matter jurisdiction dirtier stiction which is exactly what happened here plaintiffs have made a claim that the removal was in bad faith at the time the notice of removal was filed there was a basis to remove this case and federal subject matter jurisdiction there was a legitimate issue as to i'm sorry on the basis of federal question jurisdiction there was a legitimate question and subject matter jurisdiction and under the law there was an objective really reasonable basis for removal therefore what we request is that the court let stand judge normals ruling finding that removal was proper that there was no bad faith in removal and we do ask and i recognize i don't have authority to point to but we do ask that this case be remanded give judge norval an opportunity to ask plaintiffs to either stand their allegation of actual damages or with wrong they have to have they certify that there's evidence to support those facts when they file those pleadings they should be held to that standard i appreciate the court's time by arguing as as the pelleas have regarding the allegations made in the illinois complaint vs the ohio complaint that actual damages are alleged in the illinois complaint as opposed to the ohio complaint defendants are having to sort of take that complaint how to contact are those allegations out of context but plaintiffs are saying is that through the passage of discovery these damages will be established and furthermore the the full amount that yes so your client who kept the receipt what's the basis for that allegation of actual damages if you're out i don't want to tip my hand at this point but it's really it's a red herring this would be a good time to work go ahead and took your hand and show that this kind of gamesmanship has a legitimate purpose the purpose your honor is that plaintiffs the plaintiffs believe that once they begin discovery they will they will discover actual damages and furthermore once again that's not an answer ok and what's the basis for believing that somebody who took the unlawfully and truncated receipt and kept it has suffered damages from that violation again and i breach as happens all the time again the actual damages are for these two particular plaintiffs yet to be determined but we have reasonable belief we have the plaintiffs have a reasonable basis to believe that actual damages exist out there in the potato class and other potential plaintiffs and that's simply what they're asking for the opportunity to find out and is is that sufficient for purposes of the illinois  mean to figure out how much gamesmanship was going on i mean is that would that have been sufficient you know even if you had not sustain this goes back to the question i asked you you have for the first time if they had since stains and injury in fact could you have proceeded in the illinois standing purposes in the illinois court or at least there's no indication that they aren't so illinois doesn't have the same kind of injury in fact requirement that's correct that ok that's correct again and i would just simply if i might  keep in mind that this particular case has been going on now for almost three years it'll be it'll turn three in many and at the time that a pelleas removed this case they had spent the last year and a half arguing that there was no article article three standing there was no article three standing and then then they turn around once once the removal happens these these are pelleas then turn around and say well there's enough article three standing here to decide i think talking about a they weren't they they simply filed a notice or move all and that and since there was that original jurisdiction it's a federal statute it perfunctorily get sent up to the northern district of illinois and as soon as they as soon as the case was in the northern district illinois they turned around and said nope there's no article three standing here these plaintiffs don't have these dant they don't have to don't have this these types of damages in closing i simply we would simply urge the court to follow its holding allege actual damages i actually agree with the appellee in this regard that that i'm not aware and i would certainly never presume to lecture this bench about judicial however my understanding is that until there is security until jurisdiction is established the board always has jurisdiction to determine its own jurisdiction right and issues decided along the way to concluding there's no jurisdiction or definitively decided i would i hate to disagree but i would say that that until the until the court has determined it has jurisdiction you can't issue any substantive rulings so do you think well how about the citizenship of a party going to diversity to raise you know take a definitive ruling can be made on that issue if the court determines in the process of making that determination that it has jurisdiction but it does not it does not have to and i apologize i don't deal with these issues as often as as you do but my understanding is of the law in terms of how issue preclusion works is that until the court