September 16, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:18-cv-02027 -
Ronald A. Guzman, Judge.
Bauer, Brennan, and St. Eve, Circuit Judges.
EVE, CIRCUIT JUDGE.
accepted Christine Dancel's petition under Federal Rule
of Civil Procedure 23(f) so that we could review the district
court's denial of class certification. Dancel, however,
has proceeded as though we gave her a free ticket to redo her
opposition to the removal of her suit from state court.
Although we refuse to entertain the bulk of her arguments,
she has drawn our attention to a critical hole in the notice
of removal-it does not allege the citizenship of even one
diverse member of the putative class. We therefore order a
limited remand so that the district court can patch this
hole, securing its jurisdiction over the case.
sued Groupon, Inc. in the Circuit Court of Cook County in
2016. She alleged that Groupon, an online marketplace that
sells discount vouchers to businesses, had used her
photograph on one of its pages to promote a voucher for a
restaurant in Vernon Hills, Illinois. Groupon had collected
this photograph automatically from Dancel's public
Instagram account based on data linking it to the
restaurant's location. Her complaint sought damages under
the Illinois Right of Publicity Act, 765 ILCS 1075/1, 30, on
behalf of a class of "[a]ll Illinois residents (1) who
maintain an Instagram account, and (2) whose photograph(s)
from such Instagram account have appeared on a Groupon Deal
parties litigated in state court for two years until Dancel
moved to certify a class that differed from the one in her
complaint. Her new class (which also had a subclass) was to
consist of "[a]ll persons who maintained an Instagram
Account and whose photograph (or photographs) from such
account was (or were) acquired and used on a
groupon.com webpage for an Illinois business."
Unlike the original class, this one was not defined by its
members' residency, though it was still limited to
advertisements of Illinois businesses.
response to the modified class definition, Groupon filed a
notice of removal under the Class Action Fairness Act, 28
U.S.C. § 1453 (CAFA). The CAFA permits removal of a
proposed class action to federal court as long as there is
minimal diversity, meaning just one member of the plaintiff
class needs to be a citizen of a state different from any one
defendant. Id. § 1332(d)(2)(A). (There are
other requirements regarding numerosity and the amount in
controversy, but they are met here-Dancel alleges each of the
tens of thousands of class members is entitled to $1000 in
statutory damages, 765 ILCS 1075/40(a)(2).) Groupon, the sole
defendant, is a Delaware corporation with its principal place
of business in Illinois and thus is a citizen of those two
states. To meet the minimal-diversity requirement, its notice
of removal stated that the new class "undoubtedly would
include at least some undetermined number of non-Illinois and
non-Delaware citizens as class plaintiffs." Groupon did
not identify any one of these class members or his or her
initially let this omission slide. She moved to remand on the
theory that Groupon's removal was improper not because
jurisdiction was lacking but because it had always existed,
and therefore Groupon had waived its right to remove.
See 28 U.S.C. § 1446(b). Indeed, she expressly
told the district court she did not challenge the existence
of minimal diversity, which, she argued, had been apparent
from her complaint's use of residency: some Illinois
residents are citizens of another state, and it was likely at
least one such person was within the original class
definition. She changed her tune in her reply in support of
remand, though, and argued there that Groupon was required to
"specifically identify some absent class member who is
not a citizen of Illinois or Delaware" to show minimal
diversity. In a sur-reply, Groupon insisted that it could
easily cure the deficiency, if pressed, but thought it
unnecessary to do so. The district court rejected
Dancel's waiver argument and denied the motion to remand
but did not address minimal diversity or direct Groupon to
cure its allegations. Dancel did not apply for leave to
appeal the denial. See 28 U.S.C. § 1453(c)(1).
the parties litigated the class certification motion, which
eventually the court denied on predominance grounds.
Fed.R.Civ.P. 23(b)(3). Dancel petitioned for review of that
denial, and we granted the petition. Fed.R.Civ.P. 23(f).
asking for and receiving only permission to appeal the
class-certification decision, Dancel begins this appeal by
relitigating her motion to remand. She repeats her assertion
of waiver based on Groupon's delay in seeking removal.
She also argues that Groupon's allegations of
jurisdiction were deficient, and therefore urges us to direct
that the case be remanded to state court.
refuse the invitation to expand the scope of this appeal.
Generally, in an appeal under Rule 23(f) we will consider
only "those issues related to [the] class certification
decision." DeKeyser v. Thyssenkrupp Waupaca,
Inc.,860 F.3d 918, 922 (7th Cir. 2017) (quoting
Andrews v. Chevy Chase Bank,545 F.3d 570, 576 n.2
(7th Cir. 2008)). Here, there is no overlap between the
denial of remand and the later denial of certification.
Rather than try to draw such a relationship, Dancel insists
that we must address her arguments because they go to the
district court's subject-matter jurisdiction. True, we
must, even on interlocutory review, be assured that the
district court has jurisdiction, for if it does not then
"we cannot decide the merits of an appeal; we can only
direct that the suit be dismissed." Isaacs v. Sprint
Corp.,261 F.3d 679, 683 (7th Cir. 2001). That gets her
only so far, though. Dancel concedes that the ...