IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JANET JANIS,

Plaintiff,

v.

WORKHORSE CUSTOM CHASSIS, LLC, and

BARRINGTON MOTOR SALES AND 

SERVICE, INC.

Defendants.

)

) 

) 

)

)

) No. 12 C 3016

)

)

)

)

)

MEMORANDUM OPINION AND ORDER

Defendant Workhorse Custom Chassis, LLC (“Workhorse”)

removed this case to federal court two days before trial was set

to begin in Cook County Circuit Court. Plaintiff Janet Janis and

co-defendant Barrington Motor Sales and Service, Inc.,

(“Barrington”) have moved to remand. They argue: (1) Plaintiff

limited her damages under the Magnuson-Moss Warranty—Federal

Trade Commission Improvement Act (“Magnuson-Moss Act”), 15 U.S.C.

§ 2301, et seq., so as to avoid federal jurisdiction; (2)

Workhorse failed to secure Barrington’s consent to removal; and

(3) Workhorse’s removal was not timely. For the reasons stated,

the motion to remand is granted.

I.

Plaintiff initially filed suit in Cook County Circuit Court

on Aug. 26, 2008. Named in the complaint were Workhorse,

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 1 of 12 PageID #:609
Winnebago Industries, Inc., and Barrington. The suit alleged

that the recreational vehicle (“RV”) Janis purchased from

Barrington, Workhorse, and Winnebago had a defective fuel

pressure regulator, and spilled gasoline in the passenger

compartment of the RV. Workhorse contends that it designed, but

did not sell, the vehicle, which was built by Winnebago based on

an incomplete vehicle it purchased from Workhorse.

In her initial four-count complaint, Janis specifically

limited her damages under the Magnuson–Moss Act to no more than

$49,999. She did so in her amended complaint as well, although

her second amended complaint (the operative complaint) does not

include a specific limitation on damages. Under the MagnusonMoss Act, federal jurisdiction exists only for claims of $50,000

or more. 15 U.S.C. § 2310(d)(3)(B). 

Winnebago was dismissed from the case with prejudice. On

March 6, 2012, the state court granted Barrington’s motion for

summary judgment on Plaintiff’s state-law claim for revocation of

acceptance, the only remaining claim against Barrington. The

court declined, however, to enter an order under Ill. Sup. Ct. R.

304(a) that would have made that ruling immediately appealable.

Plaintiff contends that she never removed her cap on

damages, while Workhorse contends that she did so through her

second set of proposed jury instructions, which Workhorse

received on April 10, 2012.

2

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 2 of 12 PageID #:610
The jury instruction at issue, proposed instruction No. 18,

states:

The measure of damages for breach of warranty is the

difference at the time and place of acceptance between

the value of the goods accepted and the value they would

have had if they had been as warranted, or revocation of

acceptance damages, meaning return of the goods and

return of the money. (emphasis added).

Additionally, Plaintiff’s proposed jury verdict form

states the following alternatives for damages.

a. Difference in value of the vehicle as represented and

as it was on the date of sale;

b. Alternatively, return of the purchase money;

c. Aggravation and inconvenience.

Workhorse contends that these instructions expressed, for

the first time, Plaintiff’s intention to seek revocation of

acceptance damages from it, and “plainly show” that she abandoned

her self-imposed limit on recovery.1 Notice of Removal, ¶ 17. 

On that basis, Workhorse filed a notice of removal on April 24,

2012.

 Plaintiff argues that her proposed jury instructions did

not give Workhorse a basis for removal because revocation is

merely an alternative remedy for breach of warranty under the

Magnuson-Moss Act and it was clear throughout the case that

Plaintiff capped her damages under the Act at $49,999. 

Additionally, the parties dispute whether Workhorse’s removal was

1 Workhorse asserts that on April 16, 2012, it received

another set of proposed instructions from Plaintiff that also

included the revocation of acceptance theory.

3

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 3 of 12 PageID #:611
timely and whether Barrington’s consent to the removal was

necessary, given that it had obtained summary judgment prior to

the removal.

II.

Removal is proper if the case could have been originally

brought in federal court. Schimmer v. Jaguar Cars, Inc., 384

F.3d 402, 404 (7th Cir. 2004) (citing Chase v. Shop ‘N Save

Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir. 1997)). As

noted above, what this means terms of the Magnuson-Moss Act is

that the amount in controversy must be at least $50,000,

exclusive of interest and costs. Id. (citing 15 U.S.C. §

2310(d)(3)).

When a defendant removes a case from state to federal court,

it must establish by a preponderance of the evidence facts

suggesting that the jurisdictional amount has been satisfied. 

Carroll v. Stryker Corp., 658 F.3d 675, 681 (7th Cir. 2011)

(internal citations omitted). In determining whether this

jurisdictional threshold has been met, I must evaluate the

plaintiff’s complaint and the record as a whole as of the time

the case was removed. Schimmer, 384 F.3d at 404 (internal

citations omitted). 

 The Seventh Circuit has instructed that in so doing, I

should construe the removal statute narrowly and presume that the

plaintiff may choose her own forum. Higbee v. Malleris, 470 F.

4

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 4 of 12 PageID #:612
Supp. 2d 845, 849 (N.D. Ill. 2007) (citing Doe v. Allied-Signal,

Inc., 985 F.2d 908, 911 (7th Cir. 1993)).

A notice of removal generally must be filed within 30 days

after the defendant seeking removal receives the initial pleading

setting forth the claim upon which such action is based. 28

U.S.C. § 1446(b)(1). That timeline is extended if a matter that

was non-removable becomes removable by virtue of the defendant’s

receipt of “a copy of an amended pleading, motion, order or other

paper from which it may first be ascertained that the case is one

which is or has become removable.” 28 U.S.C. § 1446(b)(3). 

Proposed jury instructions may be “other paper” for the purposes

of this rule. See Parker v. Cty. of Oxford, 224 F. Supp. 2d 292,

294 (D. Me. 2002) (noting that other paper has been broadly

interpreted to include “letters from opposing counsel,

correspondence between parties, affidavits, proposed jury

instructions, answers to interrogatories, motions for summary

judgment, and documents produced in discovery.”).

Typically, however, all defendants must consent to removal. 

MB Financial, N.A. v. Stevens, 678 F.3d 497, 499 (7th Cir. 2012)

(citing 28 U.S.C. § 1446(b)(2)(A)). Nominal parties need not

join in removal, however. H.F. Vegter Excavation Co. v. Village

of Oak Brook, 790 F. Supp. 184, 186 (N.D. Ill. 1992).

5

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 5 of 12 PageID #:613
III.

Under Illinois law, plaintiffs cannot include an ad damnum

in their complaints except to the extent necessary to comply with

the rules of the circuit court where the claim is filed. See

Jacobson v. Browne, No. 11 C 4841, 2011 WL 6934829, at *2 (N.D.

Ill. Dec. 29, 2011) (citing 735 ILCS 5/2-604). Despite this,

Plaintiff originally included a limitation of $49,999 for her

Magnuson-Moss claim. Although that proviso is not included in

the second amended complaint, Plaintiff points to a Sept. 25,

2011, letter to Cook County Circuit Judge Allen Goldberg and

copied to all counsel in the case in which she reiterated that

she was limiting her damages under the Magnuson-Moss Act to

$49,999, even though she estimated her claim to be worth more

than $61,000. (Dkt. No. 25, Ex. C.) The parties also engaged in

settlement discussions, and in an Oct. 10, 2011, letter

documenting those discussions, counsel for Workhorse acknowledged

the limitation on damages. (Dkt. No. 25, Ex. D.) Workhorse does

not question that this limitation was in place until the receipt

of the proposed jury instructions at issue here.

The Magnuson-Moss Act allows consumers to bring suit when

they are damaged by the failure of a supplier, warrantor, or

service contractor to comply with a written warranty, implied

warranty, or service contract. Schimmer, 384 F.3d at 405

(internal citations omitted). Here, Plaintiff is bringing suit

6

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 6 of 12 PageID #:614
against Workhorse for breach of implied warranty of

merchantability. The Act allows consumers to enforce implied

warranties by borrowing state law causes of action. Id. In such

a case, courts must look to state law to determine the remedies

available, which in turn informs the potential amount in

controversy. Id. The measure of damages for breach of warranty

is typically the difference at the time and place of acceptance

between the value of the goods accepted and the value they would

have had if they had been as warranted. 810 ILCS 5/2–714(2); see

Razor v. Hyundai Motor Am., 854 N.E.2d 607, 626 (Ill. 2006). 

Illinois law also provides for revocation of acceptance under

certain circumstances. See 810 ILCS 5/2-608, 5/2-711(1). 

Plaintiff does not dispute that absent a limitation on

damages, her damages under a revocation of acceptance theory

could be more than the jurisdictional minimum. Damages under

this theory are calculated using a formula: the price of a

replacement vehicle, minus both the present value of the

allegedly defective vehicle and the value that the plaintiff

received from its use. Schimmer, 384 F.3d at 405–06 (internal

citations omitted). In this case, the price of the RV was

$88,415. The present value of the RV, based on figures from

plaintiff’s appraiser, is at most $17,977, with the use value she

7

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 7 of 12 PageID #:615
received from the vehicle $16,459. That means that her damages

under this theory would be $53,979.2

But it is hardly clear from the record that by seeking

damages under this alternate theory of recovery Plaintiff

abandoned her long-standing limitation on damages. Based on her

counsel’s letter to Judge Goldberg, Plaintiff always asserted her

actual damages under the Magnuson-Moss Act were greater than

$50,000, but that she was voluntarily limiting her claim to

$49,999. It is unclear why the addition of an alternate way to

calculate damages should amount to an abandonment of that

limitation. Plaintiff could have avoided any question by putting

her limitation on damages in the jury instructions,3 but the

instructions do not seek a specific amount in damages, nor do

they include a disavowal of the limitation that had been in place

since the beginning of this case.4 Additionally, Workhorse cites

2

Plaintiff’s appraiser revised his conclusion as to the

value of the vehicle, ultimately finding that the defect made the

RV worthless. Notice of Removal, at 6 n.2. This would increase

the potential damages.

3 Notably, Plaintiff’s counsel has supplied evidence that

Plaintiff served amended jury instructions including the

limitation on April 25, 2012, the day after removal. Plaintiff’s

counsel asserts that he was unaware of the removal at that time,

and I will accept his representation as an officer of the court.

4

 Plaintiff and her counsel have submitted affidavits

stating that her cap on damages remained in place throughout the

litigation and is still in place. Ordinarily, I would consider

only the information available at the time of removal in

determining jurisdiction. See Chase, 110 F.3d at 428. But when

the facts available at the time of removal are ambiguous, I may

consider information submitted after removal, such as an

8

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 8 of 12 PageID #:616
no authority for the proposition that Plaintiff’s limitation on

damages was required to be included in the jury instructions,

rather than being given effect by the trial court following the

verdict.5 

Workhorse has the burden of showing removability, and has

failed to meet that burden. In light of this, I need not

consider Plaintiff’s and Barrington’s alternative arguments for

remand, but I note that Barrington’s argument that its consent

was required for removal is well-taken. Workhorse cites cases

holding that dismissed defendants need not consent to removal,

including Shaw v. Dow Brands, Inc., 994 F.2d 364, 369 (7th Cir.

1993), overruled on other grounds by Meridian Sec. Ins. Co. v.

Sadowski, 441 F.3d 536, 540 (7th Cir. 2006). However, the Shaw

affidavit by the plaintiff, in order to determine jurisdiction. 

Jacobson, 2011 WL 6934829, at *3 (internal citations omitted);

see In re FEMA Trailer Formaldehyde Prods. Liab. Litig., MDL No.

07–1873, 2011 WL 2118726, at *2 (E.D. La. May 25, 2011) (“An

affidavit, however, may suffice to defeat removal if it merely

clarifies, rather than reduces, the demand asserted in a

previously ambiguous petition.”).

5

 Additionally, although neither Plaintiff nor Workhorse

addresses it, I am uncertain as to whether revocation of

acceptance is even a viable theory of recovery against Workhorse.

Plaintiff argues that the Magnuson-Moss Act allows her to pursue

this equitable remedy under state law. See 15 U.S.C.

§2310(d)(1). But if, as Workhorse contends, it was a supplier or

manufacturer of an incomplete vehicle and not a seller of the RV,

Plaintiff is not entitled to pursue a revocation of acceptance

theory. See Mydlach v. DaimlerChrysler Corp., 875 N.E.2d 1047,

1064–65 (Ill. 2007) (noting that revocation of acceptance

“contemplates a buyer-seller relationship.”).

9

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 9 of 12 PageID #:617
court relied on the fact that a dismissed defendant was no longer

subject to the jurisdiction of the state court. Id.

A summary judgment is not a dismissal, and Ill. Sup. Ct. R.

304(a) provides that in case involving multiple parties or

multiple claims, a judgment as to one party is not immediately

appealable unless the trial court makes a finding in writing that

there is no just reason for delaying appeal or enforcement. In

the absence of such a finding, the trial court retains

jurisdiction over the entire action, including the power to

revise the judgment at any time prior to the entry of a judgment

adjudicating all the claims. McDonald v. Health Care Serv.

Corp., --- N.E. 2d ---, 2012 WL 2366402, at *3 (Ill. App. Ct.

2012). In this case, Barrington asserts that it opposes removal

because it will delay the entry of a final order in its favor,

and because it planned to pursue a motion for sanctions against

Plaintiff in the state court. Given that Barrington was still

subject to the jurisdiction of the trial court, its consent to

removal was required. For all of these reasons, remand is

appropriate. 

Plaintiff and Barrington seek costs, expenses, and

attorney’s fees related to removal. “An order remanding the case

may require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the removal.” 

28 U.S.C. § 1447(c); see Garbie v. DaimlerChrysler Corp., 211

10

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 10 of 12 PageID #:618
F.3d 407, 409–10 (7th Cir. 2000). Bad faith is not required to

obtain fee and costs under this statute because it is not a

sanction, although an opponent’s bad faith may strengthen the

argument for costs. Garbie, 211 F.3d at 410. “Unjustified

removal complicates and extends litigation; the American Rule

requires parties to bear their expenses in one set of courts, but

when their adversary wrongfully drags them into a second judicial

system the loser must expect to cover the incremental costs.” 

Id. at 411. In my discretion, I order Workhorse to pay fees and

costs related to removal. I deny, however, Plaintiff’s request

for sanctions under 28 U.S.C. § 1927, as well as Plaintiff’s

pending motion for sanctions under Fed. R. Civ. P. 11.

IV. 

For these reasons, Plaintiff’s amended motion to remand

(Dkt. No. 25) and Barrington’s motion to remand (Dkt. No. 23) are

granted. The parties shall meet and confer on the appropriate

amount of costs and fees, and if necessary, Plaintiff and

Barrington shall file a fee petition consistent with the

requirements of Local Rule 54.3. Workhorse’s pending motion for

summary judgment (Dkt. No. 6) is denied as moot, as is

Plaintiff’s original motion to remand. (Dkt. No. 19) 

Plaintiff’s motion for sanctions (Dkt. No. 32) is denied.

 ENTER ORDER:

11

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 11 of 12 PageID #:619
 ____________________________

 Elaine E. Bucklo

 United States District Judge

Dated: July 5, 2012

12

Case: 1:12-cv-03016 Document #: 39 Filed: 07/05/12 Page 12 of 12 PageID #:620