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KANTER v. WARNER-LAMBERT CO.

June 9, 1999

SUSAN KANTER & SHARLON PLUNK, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
WARNER-LAMBERT CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Fern M. Smith, District Judge.

 
ORDER REMANDING CASE TO STATE COURT AND GRANTING PLAINTIFFS'
  REQUEST FOR FEES AND COSTS

INTRODUCTION

This class action suit, originally filed in the San Francisco Superior Court, was removed by defendant Pfizer on the basis of diversity of citizenship.*fn1 Plaintiffs have filed a motion to remand the case to state court and to recover from defendants their attorneys' fees and costs stemming from the removal to federal court. Defendant Pfizer filed an opposition, in which all defendants have joined. Plaintiffs' motion requires the Court to determine whether defendants have met their burden of demonstrating that the amount in controversy, exclusive of interest and costs, exceeds $75,000, and if not, whether the removal justifies charging defendants with plaintiffs' reasonable fees and costs incurred in obtaining remand.

BACKGROUND

Defendants manufacture and sell over-the-counter head lice remedies. Plaintiffs allege that defendants have continued to sell those products despite knowledge that head lice have developed resistance to their active ingredients, rendering the products useless. Plaintiffs seek to represent a class of all California residents who have purchased the allegedly offending products, and for whom the products failed to work. Plaintiffs' claims are all based on California law; they seek actual damages, punitive damages, injunctive relief and attorneys' fees.

DISCUSSION

I. Legal Standard

When a case is removed from state court, a district court must remand the case if it determines that it lacks subject matter jurisdiction. See 28 U.S.C. § 1447(c). There is a "strong presumption" against removal jurisdiction, Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992), Sullivan v. First Affiliated Securities, Inc., 813 F.2d 1368, 1371 (9th Cir. 1987), cert. denied, 484 U.S. 850, 108 S.Ct. 150, 98 L.Ed.2d 106 (1987), and any uncertainties are to be resolved in favor of remand, see Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir. 1988). Defendants bear the burden of proving, by a preponderance of the evidence, actual facts sufficient to support jurisdiction. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-404 (9th Cir. 1996); Gaus, 980 F.2d at 566. If the complaint does not already disclose a sufficient factual basis for jurisdiction, such facts must appear in the notice of removal. Schroeder v. Trans World Airlines, Inc., 702 F.2d 189, 191 (9th Cir. 1983).

When the assertion of subject matter jurisdiction is based on diversity of citizenship, defendants must prove: (1) that all plaintiffs are of different citizenship than all defendants, Carden v. Arkoma Associates, 494 U.S. 185, 187, 110 S.Ct. 1015, 108 L.Ed.2d 157 (1990); and (2) that the amount in controversy, exclusive of interest and costs, exceeds the jurisdictional minimum — currently $75,000, see 28 U.S.C. § 1332(a), Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 376 (9th Cir. 1997), Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-404 (9th Cir. 1996). Ordinarily, to satisfy the amount in controversy requirement in a class action suit, defendants must prove that each member of the proposed class has a monetary claim that exceeds $75,000. See Czechowski v. Tandy Corp., 731 F. Supp. 406, 409 (N.D.Cal. 1990) (amount in controversy requirement was then $10,000). Claims of class members may only be aggregated to satisfy the requirement if they are "joint and common" rather than "separate and distinct." United States v. Southern Pac. Transp. Co., 543 F.2d 676, 682 (9th Cir. 1976).

II. Analysis

A. Diversity of Citizenship

Defendants have failed to meet their burden of proving that the parties are of diverse citizenship. In the Notice of Removal, defendants allege sufficient facts to prove that plaintiffs are California citizens and that defendant Pfizer is a corporate citizen of Delaware and New York. Citing plaintiffs' complaint, the Notice asserts, without supporting facts, that "[n]one of the other defendants is a citizen of the State of California." Notice at ¶ 4. Plaintiffs' complaint, however, does not contain sufficient factual allegations to determine the citizenship of any of the three remaining defendants. See Complaint at ¶ 7 (alleging state of incorporation and principal executive offices, but not principal place of business, of defendant Warner-Lambert), ¶ 9 (alleging headquarters of defendant Care Technologies, but neither its state of incorporation nor principal place of business), ¶ 10 (alleging headquarters of defendant Hogil Pharmaceutical, but neither its state of incorporation nor principal place of business). Because a "sufficient factual basis for jurisdiction" appears neither in the complaint nor in the Notice of Removal, removal is improper. Schroeder, 702 F.2d at 191.

B. Amount in Controversy

Because it is possible that defendants could cure these defects and attempt to remove a second time, the Court moves on to their contention that the amount in controversy requirement has been met. On that score, defendants do not dispute that the actual monetary damages to each class member are between $9.00 and $17.00 — the approximate cost of a single package of one of the defendants' products. Instead they make three separate arguments that will be addressed in turn: (1) that compliance with the injunctive relief requested by plaintiffs will cost each defendant more than $75,000; (2) that the class members have a common and undivided interest in their claims ...


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