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Brill v. Countrywide Home Loans, Inc.

United States Court of Appeals for the Seventh Circuit

October 7, 2005, Submitted ; October 20, 2005, Decided

No. 05-8024


 [*447]  EASTERBROOK, Circuit Judge. Countrywide Home Loans violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, by sending fax advertisements. James Brill, one of the recipients, filed suit in state court, seeking to represent a class of recipients. Countrywide filed a notice of removal under the Class Action Fairness Act of 2005, Pub. L. 109-2, 119 Stat. 4 (2005). Brill's suit was commenced after February 18, 2005, the Act's effective date. The class comprises more than 100 members, minimal diversity of citizenship is present, and Countrywide alleged in the notice of removal that the amount in controversy exceeds $ 5 million, the statutory threshold. Countrywide concedes that it sent [**2]  at least 3,800 advertising faxes, and § 227(b)(3) provides that the court may award $ 500 per fax, a sum that may be trebled if "the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection". The award thus could reach $ 5.7 million. If Brill can show that Countrywide sent more than the 3,800 junk faxes, it could be higher still. Yet the district judge remanded the case, ruling not only that Countrywide had not carried its burden of showing that the stakes exceed $ 5 million (Brill might be unable to prove wilfulness) but also that suits under the Telephone Consumer Protection Act never may be removed, because state jurisdiction is exclusive. 2005 U.S. Dist. LEXIS 19664 (N.D. Ill. Sept. 8, 2005). Countrywide has filed a petition for interlocutory review under 28 U.S.C. § 1453(c)(1) (as amended by the Class Action Fairness Act). We grant this petition, accept the appeal, and summarily reverse.

The district court began by allocating to Countrywide, as the proponent of federal jurisdiction, the burden of persuasion on the amount in controversy. That ] the proponent of jurisdiction [**3]  bears the risk of non-persuasion is well established. See, e.g., In re Brand Name Prescription Drugs Antitrust Litigation, 123 F.3d 599, 607 (7th Cir. 1997); Smith v. American General Life & Accident Insurance Co., 337 F.3d 888, 892 (7th Cir. 2003). Whichever side chooses federal court must establish jurisdiction; it is not enough to file a pleading and leave it to the court or the adverse party to negate jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). And the rule makes practical sense. If the burden rested with the proponent of remand, then Countrywide could have removed without making any effort to calculate its maximum exposure, and without conceding that it had faxed thousands of ads. That would have thrown on Brill the burden of showing that Countrywide could not possibly have sent more than 3,333 junk faxes (for if the award can reach $ 1,500 per fax then it is No. 3,334 that puts the stakes over $ 5 million). Brill would have no way to show this early in the litigation, and plaintiffs in other kinds of suits would encounter similar difficulty. When the defendant has vital knowledge [**4]  that the plaintiff may lack, a burden that  [*448]  induces the removing party to come forward with the information -- so that the choice between state and federal court may be made accurately -- is much to be desired.

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427 F.3d 446 *; 2005 U.S. App. LEXIS 22514 **; 36 Comm. Reg. (P & F) 1333

JAMES BRILL, Plaintiff-Respondent, v. COUNTRYWIDE HOME LOANS, INC., Defendant-Petitioner.

Subsequent History: As Amended November 7, 2005

Prior History:  [**1]  Petition for Leave to Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 2713. John W. Darrah, Judge.

Brill v. Countrywide Home Loans, Inc., 2005 U.S. Dist. LEXIS 19664 (N.D. Ill., Sept. 8, 2005)


removal, federal court, state court, fax, state jurisdiction, suits, amount in controversy, federal jurisdiction, district judge, the Class Action Fairness Act, proponent, threshold

Civil Procedure, Preliminary Considerations, Jurisdiction, Subject Matter Jurisdiction, Evidence, Burdens of Proof, Allocation, Governments, Legislation, Interpretation, Subject Matter Jurisdiction, Amount in Controversy, Business & Corporate Compliance, Communications Law, Federal Acts, Telephone Consumer Protection Act, Removal, Specific Cases Removed, Federal Questions, Jurisdiction Over Actions, Elements for Removal, Removability, Special Proceedings, Class Actions, Postremoval Remands, Appellate Review