NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1


# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued August 8 , 201 8 Decided August 27 , 2018



### Before

W ILLIAM J. B AUER , Circuit Judge

F RANK H. E ASTERBROOK , Circuit Judge

M ICHAEL B. B RENNAN , Circuit Judge

No. 18

- 1430

A NGELO P ECORARO and A NTONINA P ECORARO , Plaintiff s

- Appellant s ,

v

.

M ENARD , I NC

. , Defendant

- Appellee

. Appeal from the United
States District Court for the Northern District of Illinois,
Eastern Division.

No. 16 CV 6637
Manish S. Shah

, Judge

.

Order

Angelo Pecoraro, and his wife Antonina Pecoraro, filed this suit in Illinois againstMenard, which they alleged had failed to maintain a safe place for Angelo to shop. Angelo contends that, while he was retrieving some wooden trim, a misshapen pi ece caused others to fall and injure him. (Antonina’s claim for loss of consortium is derivative from Angelo’s.) Menard removed the suit to federal court under the diversity jurisdiction, 28 U.S.C. §1332, and the district judge granted summary judgment to Menard.

The notice of removal i s defective. It assert s that each plaintiff has a claim alleged (in state court) to be worth at least $50,000, and that adding the two together brings the to-No. 18

- 1430 Page 2

tal to at least $100,000, exceeding the federal threshold of $75,000. Yet it has long been
established that the claims of multiple plaintiffs cannot be aggregated to meet the jurisdictional minimum. See, e.g., Clark v. Paul Gray, Inc ., 306 U.S. 583 , 589 (1939); Stewart v. Dunham , 115 U.S. 61, 64

– 65 (188 5); Bernards Township v. Stebbins , 109 U.S. 341, 355 (1883).
The notice of removal also asserts that Illinois treats a victim’s tort claim and a spouse’s claim for loss of consortium as one undivided whole, but at oral argument counsel for
Menard conceded that this is not so; Illinois treats these as legally distinct claims, which may be sued on and collected separately.

We directed the parties to file supplemental jurisdictional memoranda after argument, drawing their attention to 28 U.S.C. §1653, which permits jurisdictional allegations to be amended even while a suit is on appeal. Both Menard and the Pecoraros responded by amend ing the jurisdictional sections of their appellate briefs. Menard did
not file an amended notice of removal ; neither sid e amended any of the other jurisdictional pleadings that had been filed in the district court . That’s not what we contemplated, nor is it what §1653 authorizes. It is tempting to throw up our collec tive hands
and direct a remand to state court.

Despite our frustration with the conduct of both sides’ counsel, a remand to state court would not be productive. The case would come back to federal court like a yo

- yo, this time with the proper allegations. Menard’s current assertions about the nature of Angelo’s i njury and the need for long

- term treatment , if put in a notice of removal (or some other amended jurisdictional pleadi ng) would suffice to show a non frivolous claim by Ang elo alone to more than $75,000 in damages. T he Pec oraros do not disagree;
their amend ed brief does not assert that Angelo’s damages fall below the jurisdictional
minimum. Section 1332 accordingly has been satisfied. Cf. Willingham v. Morgan , 395 U.S. 402, 407 n.3 (1969); Schlesinger v. Councilman , 420 U.S. 738, 745 n.9 (1975).

With respect to the merits, the district court’s opinion explains why plaintiffs’ claim depends on speculation of a sort that Illinois substantive law does not permit. We agree
with that conclusion and need not add to it.

A FFIRMED