In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3488

JANET RUBEL,

Plaintiff-Appellee,

v.

PFIZER INC and WARNER-LAMBERT COMPANY,

Defendants-Appellants.

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Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 03 C 2674—Robert W. Gettleman, Judge.

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ARGUED FEBRUARY 23, 2004—DECIDED MARCH 24, 2004

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Before BAUER,EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge. Janet Rubel filed in

state court a complaint alleging that Pfizer and WarnerLambert had improperly promoted the prescription drug

Neurontin for off-label uses (i.e., medical conditions not

covered by the Food and Drug Administration’s finding that

the drug is safe and effective). She sought restitution of the

amounts she had paid for the drug, an injunction forbidding

future promotion for off-label uses, disgorgement of all

profits Pfizer had made from these sales, and punitive

damages. Rubel also sought to represent a national class
2 No. 03-3488

including everyone who had purchased Neurontin for

off-label uses. Consistent with Illinois practice, the complaint did not attempt to estimate the amount in controversy.

Defendants removed the case to federal court under 28

U.S.C. §1441(a), alleging that the district court would have

had original jurisdiction under 28 U.S.C. §1332(a)(1). The

parties are of diverse citizenship (Rubel is a citizen of

Illinois; the defendants are incorporated in Delaware and

have their principal places of business in New York), and

the notice of removal asserted that the amount in controversy exceeds $75,000. That is a plausible position, quite

apart from any doubt about the potential for disgorgement

and punitive damages, given this circuit’s rule that the cost

to the defendant of complying with an injunction counts

toward the jurisdictional minimum. See In re Brand Name

Prescription Drugs Antitrust Litigation, 123 F.3d 599, 609

(7th Cir. 1997). Sales of Neurontin exceed $1 billion

annually, and an injunction curtailing the size of the

market could be quite costly to the defendants (though the

record does not show what portion of all prescriptions are

for off-label uses). But the defendants did not attempt to

quantify the losses to which disgorgement or an injunction

would expose them. Nor did they comply with the Northern

District of Illinois’s Local Rule 81.2(a), which provides:

Where one or more defendants seek to remove an

action from an Illinois state court based upon diversity of citizenship, and where the complaint does

not contain an express ad damnum, as to at least

one claim asserted by at least one plaintiff, in an

amount exceeding the jurisdictional amount in

controversy, exclusive of interest and costs, specified in 28 U.S.C §1332 (the “jurisdictional

amount”) that is based on express allegations in

that claim in conformity with that ad damnum, the
No. 03-3488 3

notice of removal shall include in addition to any

other matters required by law:

(1) a statement by each of the defendants previously served in the state court action that it is

his, her or its good faith belief that the amount

in controversy exceeds the jurisdictional

amount; and

(2) with respect to at least one plaintiff in the

Illinois action, either—

(A) a response by such plaintiff to an interrogatory or interrogatories (see Ill.S.Ct. Rule

213) as to the amount in controversy, either (i)

stating that the damages actually sought by

that plaintiff exceed the jurisdictional amounts

or (ii) declining to agree that the damage award

to that plaintiff will in no event exceed the

jurisdictional amount; or

(B) an admission by such plaintiff in response

to a request for admissions (see Ill.S.Ct. Rule

216(a)), or a showing as to the deemed admission by such plaintiff by reason of plaintiff’s

failure to serve a timely denial to such a request (see Ill.S.Ct. Rule 216(c)), in either event

conforming to the statement or declination to

agree described in subparagraph (2)(A) of this

rule.

Receipt by the removing defendant or defendants of

the response by a plaintiff referred to in subparagraph (2)(A) or of the admission by a plaintiff

referred to in paragraph (2)(B), or the occurrence of

the event giving rise to a deemed admission by a

plaintiff referred to in subparagraph (2)(B) shall

constitute the receipt of a “paper from which it may

first be ascertained that the case is one which is or

has become removable” within the meaning of 28
4 No. 03-3488

U.S.C. §1446(b). Where the defendant or defendants

do not include the statement required by paragraph

(1) of this rule, or do not comply with one of the

alternatives described in paragraph (2) of this rule,

the action will be subject to remand to the state

court for failure to establish a basis of federal

jurisdiction.

Although this rule initially requires removing parties to

submit not only the defendants’ statement (subsection (1))

but also at least one plaintiff’s acknowledgment (subsection

(2)), the final sentence of the trailing unnumbered paragraph implies that either will suffice. Thus even if no

plaintiff will concede that the stakes exceed $75,000 or

refuse to accept a cap on recovery—neither option is helpful

when removal is based on the cost to the defendant of an

injunction or other equitable relief—a defendant can satisfy

the rule by supplying “a statement by each of the defendants . . . that it is his, her or its good faith belief that the

amount in controversy exceeds the jurisdictional amount”.

Because neither Pfizer nor Warner-Lambert has made such

a representation—and did not offer any other evidence

about the stakes, such as an affidavit estimating the cost of

an injunction against off-label uses—the district court found

that subject-matter jurisdiction had not been established

and remanded the proceeding to state court. 276 F. Supp.

2d 904, 907-09 (N.D. Ill. 2003).

Pfizer and Warner-Lambert have appealed. Their immediate problem is 28 U.S.C. §1447(d), which provides: “An

order remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise”. The

Supreme Court has been unwilling to take this language

literally. A series of cases beginning with Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336 (1976), and

culminating in Things Remembered, Inc. v. Petrarca, 516

U.S. 124 (1995), had produced this conclusion:
No. 03-3488 5

§1447(d) must be read in pari materia with

§1447(c), so that only remands based on grounds

specified in §1447(c) are immune from review under

§1447(d). As long as a district court’s remand is

based on a timely raised defect in removal procedure or on lack of subject-matter jurisdiction—

the grounds for remand recognized by §1447(c)—a

court of appeals lacks jurisdiction to entertain an

appeal of the remand order under §1447(d).

516 U.S. at 127-28 (citation omitted). Pfizer and

Warner-Lambert observe that Local Rule 81.2(a) is not

among the grounds specified in §1447(c) and contend that

we therefore may entertain an appeal that questions the

rule’s validity and application.

The problem with this position is that the district court

did not remand the proceeding as a sanction for failure to

comply with a local rule. Judge Gettleman, no less than the

defendants, knows that §1447(c) does not mention local

rules. Local Rule 81.2(a) itself says that the remand is

“for failure to establish a basis of federal jurisdiction.” The

rule is designed to elicit information that will enable the

district court to determine whether the amount in controversy exceeds the jurisdictional minimum. If the removing

party does not supply vital information, then a remand follows—because it is the defendant, as the proponent of

federal jurisdiction, who bears the risk of nonpersuasion.

When the papers filed in the district court do not establish

subject-matter jurisdiction, remand is obligatory; and

appellate review of a remand based on the lack of federal

jurisdiction is securely blocked by §1447(d). See, e.g.,

Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723

(1977), in addition to the language we have quoted from

Things Remembered. See also Adkins v. Illinois Central

R.R., 326 F.3d 828 (7th Cir. 2003).

What appellants want us to do is look past the ultimate

ground (lack of jurisdiction) to the reasoning behind it. They

contend that if the line of reasoning is not itself mentioned
6 No. 03-3488

in §1447(c), then §1447(d) may be disregarded. That

contention is one we have entertained, and spurned, before.

See Phoenix Container, L.P. v. Sokoloff, 235 F.3d 352 (7th

Cir. 2000). As we observed there, no part of the Judicial

Code is self-contained. All depend for their operation on

assumptions about how the legal system works. A statute

saying “remand when jurisdiction does not exist” presumes

that the court has a means to determine jurisdictional facts.

Local Rule 81.2(a) is one such mechanism; Fed. R. Civ. P.

12(b)(1) is another, and no more mentioned in §1447 than

is Local Rule 81.2. If we could look past the conclusion (no

jurisdiction) to the procedures behind it, the norm of

§1447(d) would evaporate. If, for example, the district judge

had held a hearing under Rule 12(b)(1), accepted evidentiary submissions of all kinds (not just those listed in Local

Rule 81.2), found that the stakes are less than $75,000, and

remanded for lack of jurisdiction, by appellants’ reasoning

an appeal would lie from that decision. They would say

something like: “We are not contesting the judge’s understanding of federal jurisdiction but instead we seek review

of clearly erroneous finding of fact.” That sort of reasoning

would nullify §1447(d). We rejected it in Phoenix Container

and reject it again today. Appellate courts review judgments, not opinions. If the judgment is one remanding for

lack of jurisdiction, the reasoning in the opinion is not

independently reviewable. (Appellants do not contend that

the ostensible ground is other than the real one; instead

they challenge the reasoning behind the actual ground. We

need not decide whether appellate review would be available if a judge dissembled about the reason, slapping a “no

jurisdiction” label on a remand based on, say, a belief that

federal judges ought not hear tort suits.)

If a district judge were to construe Local Rule 81.2(a) in a

way that conditioned removal on plaintiff’s acknowledgment that the stakes exceed $75,000—i.e., if the court were

to understand the rule to require defendants to satisfy both
No. 03-3488 7

subsection (1) and subsection (2)—that would call its

validity into serious question. Removal is proper if the

defendant’s estimate of the stakes is plausible; plaintiffs

can’t prevent removal by refusing to concede that the

controversy exceeds the jurisdictional minimum or by

insisting that injunctions do not count toward the amount

in controversy. See The Barbers, Hairstyling for Men &

Women, Inc. v. Bishop, 132 F.3d 1203 (7th Cir. 1997); Shaw

v. Dow Brands, Inc., 994 F.2d 364 (7th Cir. 1993). Because

all local rules must be consistent with federal statutes, see

28 U.S.C. §2071(a), Fed. R. Civ. P. 83(a)(1), a rule blocking

the defendants from making an independent estimate of the

amount in controversy, or from relying on the costs of

equitable relief, could not be enforced. But the district court

did not use Local Rule 81.2(a) in that fashion—and, even if

it had done so, appeal would not be a remedy given

§1447(d). Pfizer and Warner-Lambert can ask the Supreme

Court of the United States for review if they are ultimately

unsuccessful in state court. In the meantime, the validity of

Local Rule 81.2 may come before this court in some other

case in which the judge declines to remand and enters

judgment on the merits adverse to plaintiff, who argues on

appeal that the case should have been litigated in state

court. The validity of Local Rule 81.2 also could be considered by the Judicial Council of this circuit. See 28 U.S.C.

§2071(c)(1). Although the Northern District of Illinois

promulgated Local Rule 81.2 in 1997, it did not then comply

with §2071(d) by presenting the new rule to the Council for

review. It did include Local Rule 81.2 in a package of rules

submitted to the Council in September 1999. Although the

Circuit Executive asked the Northern District for further

information on May 15, 2000, that court never responded,

so the validity of this rule has yet to be evaluated by the

Judicial Council. None of these considerations affects

appellate jurisdiction, however, so although some questions

about Local Rule 81.2 remain unanswered, this appeal is

DISMISSED FOR WANT OF JURISDICTION.
8 No. 03-3488

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—3-24-04