Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3739, pg. 467 (West
1998). In other words, the court does not have authority to remand a case that is within its
jurisdiction, unless the removal statute permits the court to do so. See In re Continental Casualty
Co., 29 F.3d at 293-95; Buchner, 981 F.2d at 819-20; Commonwealth Edison Co., 961 F. Supp. at
1164-65. Generally, the removal statute is strictly construed, with an cye towards limiting federal

jurisdiction. Sec, e.g., Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 357 (1999)

(Rehnquist, J. dissenting); Getty Oil Corp. v. Insurance Company of North America, 841 F.2d 1254,

1263 n.13 (Sth Cir. 1988). At the same timc, however, the court does not have the authority to act
outside the bounds of the removal statute, so as to relinquish its properly invoked jurisdiction. Sce
Inre Continental Casualty Co., 29 F.3d at 293-95; Buchner v. F.D.LC., 981 F.2d 816, 819-20 (Sth
Cir. 1993); Commonwealth Edison Co., 961 F. Supp. at 1164-65; Casey, 815 F. Supp. at 267;
Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3739, pg. 467. With
these principles in mind, the court addresses Conway’s motion,
B. Subject Matter Jurisdiction

Conway argues that the court lacks subject matter jurisdiction over this matter, and therefore,
she asserts that the removal was improper. The Seventh Circuit has recently reiterated the need for
litigants to meticulously review the limits of federal jurisdiction to prevent the waste of federal

judicial resources. See Belleville Catering Co. v, Champaign Market Place, L.1.C., 350 F.3d 691

(7th Cir. 2003); see also Hart v. Terminex International, 336 F.3d 541, 541-42 (7th Cir. 2003). ‘The

federal courts are “always obliged to inquire sua sponte whenever a doubt arises as to the existence
of federal jurisdiction.” Tylka v. Gerber Prods. Co., 211 F.3d 445, 447-48 (7th Cir. 2000) (quotation

and internal marks omitted). “The first thing a federal judge should do when a complaint is filed is


MSN argues that because Conway agreed not to seek a compensatory damage award in

excess of $60,000; and because she is seeking punitive damages, which are allowed under Illinois
law; the amount in controversy requirement of $75,000 is satisfied. MSN reasons that if Conway
were to prevail on her claim and is awarded compensatory damages of $60,000, any additional award
of punitive damages, if any, would certainly be for more than $15,000. However, MSN’s reasoning
is flawed because it assumes that Conway is entitled to $60,000 in compensatory damages under the
law. But subject matter jurisdiction cannot be based on agreements made between the parties alone.
See id. at 893. The court must conduct an independent inquiry into whether the jurisdictional limit
has been satisfied. See id.

In this case, there is nothing before the court which indicates that Conway is entitled to an
amount of $60,000 in compensatory damages. For example, when asked the question, in effect, how
soon after leaving MSN did you find a new job, Conway stated she is presently employed. See
Def.’s Response to Pl.’s Mot. to Remand, Ex, A, at 2, 8-9, The obfuscation leads to the inference
that a clear answer would not support a claim of $60,000 in lost wages. The failure to indicate the
period of unemployment suggests, under the circumstances of this case, brevity. Additional
interrogatories from MSN provided the opportunity for Conway to say, for example, lost wages are
six months at the $5,000 monthly rate, my monthly pay at the time of my termination, However,
Conway provided no such details, and MSN took no judicial action to compel a clear response. The
lack of clarity on the issue is further established by Conway’s assertion that her claim for damage
to her reputation was included in the $60,000 figure. See Pl.’s Reply in Supp. of her Mot. to
Remand, at 3. Any potential damage figure at this stage is mere speculation, and, indeed, Conway

merely lumps it into the $60,000 figure. Sce Merriweather v. Family Dollar Stores of Indiana, 103


the time the complaint is filed in the district court), Where punitive damages are necessary to satisfy
the jurisdictional amount, the court considers the complaint and any discovery responses tendered

toit. See Anthony v. Security Pacific Financial Services, Inc,, 75 F.3d 311, 316 (7th Cir. 1996). Tn

making this inquiry, the court must ask two questions: “The first question is whether punitive
damages are recoverable as a matter of state law. If the answer is yes, the court has subject matter
jurisdiction unless it is clear beyond a legal certainty that the plaintiff would under no circumstances

be entitled to recover the jurisdictional amount.” Cadek v. Great Lakes Dragaway, Inc., 58 F.3d

1209,1211-12 (7th Cir. 1992) (quoting Risse v. Woodard, 491 F.2d 1170, 1173 (7th Cir. 1974)).

Jn other words, a complaint will be dismissed if it appears to a legal certainty that the claim is really

for less than the jurisdictional amount. See Del Vecchio, 230 F.3d at 978; see also Schlessinger v.

Salimes, 100 F.3d 519, 521 (7th Cir. 1996), ‘This critical inquiry is necessary to prohibit parties from

undermining the federal court’s jurisdiction. See Del Vecchio, 230 F.3d at 978-79.

Here, the first question the court must address is whether punitive damages are recoverable
on Conway’s retaliatory discharge claim. The tort of retaliatory discharge is alimited and narrow
cause of action in Illinois. Sce Beav. Bethany Home, Inc., 775 N.E.2d 621, 623 (Ill. App. Ct. 2002).
To establish a cause of action for retaliatory discharge, Conway must show that; “(1) [s]he was
discharged in retaliation for [her] activities; and (2) the discharge contravenes a clearly mandated
public policy.” Id, Essentially, Iinois law allows retaliatory discharge actions in two situations:
(1) where an employec is discharged for filing a claim for workers’ compensation, and (2) where an
employee is discharged for reporting illegal or improper conduct. See Howard vy. Zach Co., 637
N.E.2d 1183, 1190 (Il. App. Ct, 1994). Conway alleges that she was terminated for reporting the

suspected narcotics theft from a medical institution to IDPR, which she claims she was required to


check to see that federal jurisdiction is properly alleged.” Wisconsin Knife Works v. National Metal

Crafters, 781 F.2d 1280, 1282 (7thCir. 1986), In Market Street Assocs. Ltd. Partnership v. Frey, the

Seventh Circuit stated: “We remind the bench and bar of this circuit that it is their nondelegable duty
to police the limits of federal jurisdiction with meticulous care. ., .” Market Strect Assocs. Ltd
Partnership, 941 F.2d 588, 590 (7th Cir. 1991). The district court must therefore jealously guard its
limited jurisdiction. See In re Shell Oil Co., 966 F.2d 1130, 1133 (7th Cir, 1992); see also Douglas
v.E.G, Baldwin & Associates, Inc., 150 F.3d 604, 606 (6th Cir. 1998),

Where a party seeks remand by citing defects in the removal procedure, the burden is on the
patty attempting to invoke federal jurisdiction to demonstrate that the removal was proper. See Del
Vecchio vy. Conseco. Inc., 230 F.3d 974, 979 (7th Cir. 2000) (citing McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). Thus, in a removal case in which federal jurisdiction
is based solely upon diversity of citizenship, the defendant bears the burden of establishing that the
parties arc of diverse citizenship and that the amount in controversy satisfies the jurisdictional
requirement. Sce 28 U.S.C. § 1332; see also Del Vecchio, 230 F.3d at 979.

In this case, MSN asserts that the court has subject matter jurisdiction under §1332. Based
on the pleadings before the court, there is complete diversity between the parties. Conway is a
citizen of {llinois. MSN is a citizen of both Delaware and Florida. Therefore, the parties are of
diverse citizenship.

However, with respect to the amount in controversy, it is unclear as to whether the
jurisdictional limit of $75,000 is satisfied. Subject matter jurisdiction is determined at time of the
removal. See Johnson vy. Wattenbarger, -- F.3d --, No, 02-3707, 2004 U.S. App. LEXIS 5338, at *

4-5 (7th Cir, March 22, 2004) (noting that subject matter jurisdiction under §1332 is determined at


by MSN provide no additional facts which would justify an award of punitive damages, Conway
also does not pray for punitive damages in her Complaint, Although she did acknowledge her
intention to scek punitive damages in response to MSN’s interrogatory request, she has not sought
to amend her Complaint to reflect this claim. Thus, on the face of the Complaint, which docs not
specifically request punitive damages, MSN, wary as it may be, has not shown beyond mere
argument that a fact-finder might possibly award punitive damages, or that they are recoverable in
this instance. See Anthony, 75 F.3d at 316-17 (finding no competent proof of jurisdiction where
plaintiffs relied solely on facts alleged in complaint, which described conduct not egregious enough
lo justify punitive damages under Illinois law); see also McNutt, 298 U.S. at 189 (stating that when
“allegations of jurisdictional facts are challenged . . . in any appropriate manner, [the party alleging
jurisdiction] must support them by competent proof;” and if unchallenged, the federal courts “may
demand that the party alleging jurisdiction justify his allegations by a preponderance of evidence”).

Nevertheless, even if Conway were entitled to recover punitive damages on her retaliatory
discharge claim, the court is still not convinced it would have subject matter jurisdiction. In many
cases where punitive damages are possible, the amount in controversy will likcly exceed the
jurisdictional limit under §1332. However, the court cannot assume this is always the case. Where
the ratio of punitive to compensatory damages is imbalanced, the court must look closely to
determine whether it has jurisdiction, See Smith v. American General Life and Ace. Ins., 337 F.3d
888, 896 (7th Cir, 2003). “[I]f it appears to a legal certainty that the claim for the requisite level of
punitive damages cannot be sustained, then regardless of how much the plaintiff seeks in punitive
damages, relative to compensatory damages, she cannot count the punitive damages toward the

jurisdictional minimum.” Id. (citing Bell vy. Hood, 327 U.S, 678, 682-83 (1946)).



Minune Ot der Form (06/97)

AN

United States District Court, Northern District of Mlinois

Name of Assigned Judge 7 Sitting Judge if Other
or Magistrate Judge Charles Norgle than Assigned Judge
CASE NUMBER 04 C 1128 DATE 4/8/2004
CASE Conway vs. Medical Staffing Network, Inc.
TITLE
[In the following box (1) indicate the party filing the motion, e.g., plaintitY, defendant, 3rd party plaintifY, and (b) state briefly the nature
MOTION: of the motion being presented.)
Plaintiff's Motion to Remand
DOCKET ENTRY:
qa) im) Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) o Answer brief to motion due___. Reply to answer brief due____
(4) ag Ruling/Hearing on___ set for _,, at
(5) Q Status hearing[held/continued to] [set for/re-set for}on____—ssetfor__—s__at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oO ‘Trial[set for/re-set for} on ato.
(8) Oo [Bench/Jury trial] [Hearing] held/continued to__ at
(9) oa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CIFRCP4(m) (Local Rule 41.1 COOPRCP41(a)\(1) C1 FRCPAI(a)(2).
qo) «of (Other docket entry] Before the court is Plaintiff's Motion to Remand [2-1]. For the reasons stated
on the attached order, Conway's motion |2-1] is granted in part and denied in part. To the extent that
Conway’s motion seeks remand to the Circuit Court of Cook County, Illinois; the motion [2-1] is
GRANTED, To the cxtent that Conway’s motion seeks attorncy fees and costs; the motion [2-1] is
DENIED. ‘The Clerk shall remand this case to the Circuit Court of Cook County, Illinois, pyrsuant to
Local Rule 81.2(b). It is so ordered, (See reverse.) Ofna bn -
(1) @ [For further detail see order attached to the original minute order,]
No notices required, advised in open court.
No notices required,
Notices mailed by judge's staff,
Notified counsel by telephone.
| Docketing to mail notices.
Mail AO 450 form o
Copy to judge/magistrate judge. '

Gate mailed notice

courtroom:
deputy’s
initials

Date/time received in
central Clerk's Office

‘mailing deputy initials



In this case, an award of attorney fees and costs is not warranted. MSN’s attorneys sent
numerous requests to Conway’s attorney for clarification on the amount of damages sought. This
was a diligent attempt to discover information relevant to determine subject matter jurisdiction.
Conway’s responses to these requests were, at times, illusive and non-responsive to the questions
posed. This evasive conduct on the part of Con way’s counsel, no doubt to avoid litigating the matter
in the federal court, clearly contributed to the vague record which is now before the court. Therefore,
Conway is not entitled to attorney fees and costs incurred as a result of the removal.

Tl. CONCLUSION

For the foregoing reasons, Conway’s motion to remand is granted in part and denied in part.
To the extent that Conway’s motion seeks remand to the Circuit Court of Cook County, Illinois; the
motion is GRANTED. To the extent that Conway’s motion secks attorney fees and costs; the motion
is DENIED.

IT IS SO ORDERED. ENTER:

CHARLES RONALD NORGLE, Judge

y i, United States District Coturt
paren: 7’ Seg

il



F.3d 576, 581 (7th Cir. 1996) (indicating that damages must be proportional to the actual injury
caused by the defendant); sce also Avita v Metropolitan Club of Chicago, 49 F.3d 1219, 1229 (7th
Cir. 1995) (same). The possibility of recovery would be complicated by the application of the
doctrine of substantial truth. See Masson v. New Yorker Magazine, Inc., 501 U.S, 496, 516-17
(1991).

In keeping with the Seventh Circuits mandate to jealously guard the limited jurisdiction of
the federal court, the district court must conduct its own thorough inquiry into the facts supporting
jurisdiction. Where a generalized amount of lost wages for an undisclosed time is pleaded, and other
damages are vague, the potential for punitive damages to carry the total damages beyond $75,000
is not established for jurisdictional purposes. Asa result, MSN has not met its burden of establishing
that the jurisdictional limit under 28 U.S.C. § 1332 is satisfied.

C. Timeliness of Removal and Attorney Fees

Conway also argues that the removal was untimely because MSN did not comply with the
rules which authorize removal. Specifically, Conway argues that MSN filed its Notice of Removal
well after it was authorized to do so under 28 U.S.C. § 1446(b) and Local Rule 81.2(a). However,
for the reasons stated above, the court does not have sufficient information to determine whether
MSN’s Notice of Removal was timely filed. See supra, Part IIB.

Finally, Conway sceks attorney fees and costs incurred as a result of the unsuccessful
removal. Under 28 U.S.C. § 1447(c), upon issuing an order of remand, the court may award the
plaintiff attorncy fees, costs, and expenses incurred as a result of the removal. Such an award is

within the court’s discretion. See Tenner y, Zurek, 168 F.3d 328, 330 (7th Cir, 1999),



do under Illinois law. This is sufficient to plead a cause of action for retaliatory discharge in Illinois.
Sec Bea, 775 N.E.2d at 623; see also Howard, 637 N.E.2d 1190.

However, pleading a cause of action for retaliatory discharge in Illinois, by itself, is not
enough to confer federal subject matter jurisdiction. The court also must decide, based on the
pleadings before it, whether Illinois law allows Conway to recover punitive damages on her claim.
Sec Kelsay v, Motorola, Inc,, 384 N.E.2d 353, 359 (Ill. 1978) (noting that although the jury
determines the measure of punitive damages, the preliminary question of whethcr the facts justify
the imposition of punitive damages is a question of law). In Illinois, punitive damages arc allowed
in aretaliatory discharge case. See id. Although allowed, however, they are not automatic, See Bea,

775 N.E.2d at 623; see also Dixon Distributing Co. v. Hanover Insurance Co., 641 N.E.2d 395, 399

(Ill. 1994) (noting that punitive damages are not required in every retaliatory discharge action). For
Conway to recover punitive damages, a fact-finder must be able find that MSN’s actions were

committed with fraud, actual malice, deliberate violence or oppression, or that it acted willfully, or

with such gross negligence as to indicate a wanton disregard of the rights of others. See Kelsay, 384
N.E.2d at 359.

Conway’s Complaint does not allege that MSN’s actions were willful, fraudulent or
committed with actual malice, deliberate violence or oppression, or with gross negligence. The facts,
as alleged, only indicate that MSN terminated Conway because she reported the suspected narcotics
theft to IDPR. See Compl. {ff 14-22. These allegations, without anything more, arc not enough to
determine whether Conway is entitled to punitive damages on her retaliatory discharge claim. See,
e.g,, Dixon Distributing, 641 N.E.2d at 399 (finding that intentional retaliatory conduct does not

assume that the defendant acted with actual malice), Similarly, the discovery responses submitted



damages to her reputation in the industry, and punitive damages to punish and prevent the Defendant
from wrongfully terminating employees in the future.” Def.’s Resp. to Pl.’s Mot, to Remand, Ex.
D. When asked to clarify this response with more specificity, Conway’s counsel indicated that
Plaintiff would seek “compensatory” damages below $75,000. See id. On November 26, 2003,
MSN’s counsel once again requested clarification of the amount of damages sought by Plaintiff,
however they were unsuccessful in obtaining a satisfactory answer. On January 29, 2004, MSN
advised Conway’s counscl that it was planning (o remove the case to federal court unless, by January
30, 2004, Conway represented that the total damages sought in the case are below the $75,000
jurisdictional limit. Sce id., Ex. J. On February 13, 2004, without receiving any response to its
January 29, 2004 inquiry, MSN filed its Notice of Removal.

On February 20, 2004, Conway filed her Motion to Remand, Inher motion, Conway asserts
the following two arguments in support of her position that the removal was improper: (1) the court
lacks subject matter jurisdiction under 28 U.S.C. § 1332, and (2) the removal was untimely.
Additionally, Conway requests attorney {ees and costs pursuant to 28 U.S.C. § 1447(c). Conway’s
motion is fully briefed and now before the court.

II, DISCUSSION
A. Motions to Remand

The district court’s authority to remand a case to state court is determined by the terms of the
removal statute and the limits of the court’s subject matter jurisdiction. Sec In re Continental
Casualty Co., 29 F.3d 292, 293-95 (7th Cir. 1994); Buchner y. F.D.LC., 981 F.2d 816, 819-20 (Sth

Cir. 1993); Commonwealth Edison Co. v. International Broth. of Elec. Workers, 961 F. Supp, 1154,

1164-65 (N.D. Ill. 1996); Casey v. Hinckley & Schmitt, Inc,, 815 F, Supp. 266, 267 (N,D. Ill. 1993);



ILCS 65/28.' Compl. 9. Graff then informed Conway that she should “think long and hard” before
teporting the incident to IDPR because it may jeopardize MSN’s relationship with Provina St.
Joseph’s. Compl. { 11. On November 6, 2002, Conway reported the incident to LDPR. Id.

On November 7, 2002, a representative from Provina St, Joseph’s informed Conway of its
intention to terminate its staffing contract with MSN. Compl. 4 12. Conway then related this
information to Graff. Compl. 13. On November 11, 2002, Graff instructed Conway to prepare an
incident report about the suspected narcotic theft investigation. Compl. 9 16. Upon Graff's
insistence, Conway submitted the report indicating that she reported the incident to IDPR. Compl.
4917, 18, Several hours later, Graff terminated Conway’s employment. Compl, { 19. Ultimately,
Conway alleges that she was terminated because she reported the suspected narcotic theft to IDPR,
as she claims she is required to do under the law. Compl. 22.

On May 14, 2003, Conway filed this action in the Circuit Court of Cook County, Illinois.
The sole count in her Complaint alleges a state Jaw claim of retaliatory discharge. Conway’s
Complaint seeks compensatory damages in an amount “in excess of $50,000,” whichis the minimum
jurisdictional requirement for pleading in the Law Division in the Circuit Court of Cook County,
Illinois, and any “other relief the Court deems appropriate.” Def.’s Notice of Removal, Ex. A.

On July 24, 2003, MSN answered Conway’s Complaint in the state court. On August 1,
2003, MSN sought, by way of interrogatory, a specific damage award, including the amount and
manner of calculation. On October 3, 2003, Conway responded by indicating that she is seeking

“actual compensatory [sic] to compensate the Plaintiff for lost wages of approximately $60,000,

"Neither counsel has provided the court with the specific language upon which Conway
relies in construing the statute to prescribe such a duty. See 225 ILCS 65/28 (repealed by P.A.
90-742, § 20, effective July 1, 1998).


UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MAUREEN CONWAY, )
)
Plaintiff, ) wr
) Case No. 04 C 1128
v )
,) Judge Charies R. Norgle
MEDICAL STAFFING )
NETWORK INC., )
)
Defendant. }
OPINION AND ORDER

Before the court is Plaintiff's Motion to Remand. For the following reasons, Plaintiff's
motion is granted in part and denied in part.

I, BACKGROUND

Defendant Medical Staffing Network (“MSN”) supplies nurses to various clients, including
hospitals. Plaintiff Maureen Conway is a registered nurse who was employed by MSN as a branch
manager from December 2001 through November 2002. Compl. § 1. Conway’s duties included the
management and supervision of all operations within her branch, including the responsibility of
providing nurse staffing services (0 MSN’s clients. Compl. {[ 7.

On November 1, 2002, a representative of Provina St. Joseph’s, a site staffed by MSN,
notified Conway to discuss the investigation of a narcotics theft by one of MSN’s nurses. Compl.
8. Shortly thereafter, Conway informed her immediate supervisor at MSN, Pat Graff, that she
intended to notify the Illinois Department of Professional Regulation (“IDPR”) of the suspected

narcotic theft. Compl. 9, 10. Conway alleges that she is required to do so under Illinois law, 225