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Dancel v. Groupon, Inc.

United States Court of Appeals, Seventh Circuit

October 9, 2019

Christine Dancel, Plaintiff-Appellant,
v.
Groupon, Inc., Defendant-Appellee.

          Argued September 16, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-cv-02027 - Ronald A. Guzman, Judge.

          Before Bauer, Brennan, and St. Eve, Circuit Judges.

          ST. EVE, CIRCUIT JUDGE.

         We 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.

         I

         Dancel 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 offer page."

         The 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.

         In 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 citizenship.

         Dancel 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).

         Instead, 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).

         II

         Despite 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.

         We 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 ...


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