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Levine v. BIC USA

August 19, 2007

KEVIN T. LEVINE, AN INDIVIDUAL AND ON BEHALF OF THE GENERAL PUBLIC, PLAINTIFF,
v.
BIC USA, INC., A DELAWARE CORPORATION, AND DOES 1 THROUGH 100, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING MOTION TO REMAND [Dkt No. 14]

This putative class action is before the court on plaintiff Kevin T. Levine's ("Levine") Motion To Remand For Lack Of Subject Matter Jurisdiction ("Motion") on grounds defendant BIC USA ("BIC") has not carried its removal burden to demonstrate the amount in controversy exceeds $5,000,000 exclusive of interest and costs. BIC filed Opposition, and Levine filed a Reply. Pursuant to Civil Local Rule 7.1(d)(1), the court finds the issue presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is DENIED.

Levine filed this putative class action in San Diego County Superior Court on May 14, 2007, and a First Amended Complaint ("FAC") on June 14, 2007 (see Dkt No. 7), seeking damages and injunctive relief under four causes of action based on alleged violations of California consumer laws.*fn1 He alleges he purchased over time disposable BIC lighters bearing the designation "Made In USA," whereas the lighters are entirely or substantially made, manufactured, or produced outside the United States. FAC ¶ 1. On that basis, he alleges BIC has engaged in "a fraudulent, unlawful, deceptive and unfair course of conduct." FAC ¶ 1. He purports to represent California residents who purchased BIC disposable lighters with the product or packaging label "Made in USA" within the last four years. BIC removed the case to federal court on June 15, 2007. BIC acknowledged Levine does not specify the total amount of damages sought by the putative class, but alludes to Levine's statement in the complaint the amount in controversy "does not exceed 74,999.99" as to any individual class member. See FAC ¶ 16. The removal notice justified the propriety of removal based on "the breadth of the purported class, as well as amount in controversy by virtue of Plaintiff's Complaint." Dkt No. 1, 2:13-18.

Levine's Motion challenges the court's subject matter jurisdiction over this dispute.*fn2 Federal courts are courts of limited jurisdiction. Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 997 (9th Cir. 2007). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Under the removal statute, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States. . . ." 28 U.S.C. § 1441(a). The Class Action Fairness Act of 2005 ("CAFA") provides that federal courts have "original jurisdiction" over class actions where there is diversity of citizenship, there are at least 100 class members, and the combined claims of the class members exceed $5,000,000 exclusive of fees and costs. 28 U.S.C. § 1332(d). The Notice of Removal in this case establishes the diversity of citizenship element and that the number of putative class members far exceeds 100.*fn3 The Motion challenges only satisfaction of the jurisdictional amount in controversy element.

When a plaintiff institutes the case in state court, there is a presumption against removal.*fn4 See Gaus v. Miles, 980 F.2d 564, 567 (9th Cir. 1992) (substantiating a defendant seeking removal and to avoid remand must identify specific factual allegations or provisions in the Complaint that might support its assertion the amount in controversy exceeds the jurisdictional minimum amount); Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 375 (9th Cir.1997). All doubts and ambiguities are resolved against removal and in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941). A plaintiff desiring to avoid removal jurisdiction can allege facts specific to the claims in the pleading which would narrow the scope of the putative class or the damages sought.

As pertinent here, the inquiry in deciding removal disputes is what amount is put "in controversy" by the plaintiff's complaint, not what a defendant will actually owe a successful plaintiff. See Sherer v. Equitable Life Assurance Soc. of the U.S., 347 F.3d 394, 397-98 (2nd Cir. 2003). The court does not consider the amount of damages that may ultimately be recovered. Rather, the court accepts as true plaintiff's allegations as pled in the complaint and assumes plaintiff will prove liability and recover the damages alleged.

The proponent of federal jurisdiction has the burden of establishing removal jurisdiction. Lowdermilk, 479 F.3d at 997; see Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 682-83 (9th Cir. 2006)*fn5 (in cases removed from state court, the removing defendant has "'always' borne the burden of establishing federal jurisdiction, including any applicable amount in controversy requirement"), quoting Gaus, 980 F.2d at 566; see also Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021 (9th Cir. 2007). "Normally, this burden is satisfied if the plaintiff claims a sum greater than the jurisdictional requirement." Gaus, 980 F.2d at 566. In a class action, when the plaintiff does not specify an amount of damages, for removal purposes "Defendant must prove by a preponderance of the evidence that the damages claimed exceed $5,000,000." Lowdermilk, 479 F.3d at 998, 994 (deciding a question left open in Abrego Abrego and holding that when the plaintiff has pled damages less than the jurisdictional amount, the party seeking removal must prove to a "legal certainty" the amount in controversy is satisfied, notwithstanding the prayer for relief in the complaint). When the preponderance of the evidence standard applies -- that is, when the plaintiff does not specify an amount of damages in the pleading -- the defendant need only make a factual showing it is more likely than not the amount in controversy exceeds $5 million dollars. Singer, 116 F.3d at 376; Sanchez, 102 F.3d at 404.

The amount in controversy is determined at the time of removal and is to be decided based on the allegations in the operative pleading, in this case, Levine's FAC. Lowdermilk, 479 F.3d at 994. In deciding the issue, the court treats claims for statutory damages by considering only those damages actually recoverable under the facts alleged. See Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404-05 (9th Cir. 1996) (defendant failed to carry its burden to show the amount in controversy exceeded the jurisdictional threshold despite plaintiff's suit for treble punitive damages under Cal. Civ. Code § 3345 because that code section did not allow for trebling of contract damages). The FAC seeks damages in the form of "actual and monetary damages pursuant to CAL. CIV. CODE § 1780"*fn6 in his First Cause of Action (FAC ¶¶ 29-30); attorneys' fees under CAL. CODE CIV. P. § 1021.5 (providing for attorneys' fees awards to prevailing plaintiffs who win relief for the general public) in his Second, Third, and Fourth Causes of Action; "reimbursement" to "Plaintiff and the general public" of the "gains defendants received because of the misdeeds described herein" (FAC ¶ 48);*fn7 "restitution of all monies paid to Defendants by Plaintiff and class members" (FAC ¶ 54); and punitive damages under CAL. CIV. CODE § 1780(a)(4) (FAC Prayer ¶ 8).

The Lowdermilk court reviewed the three "scenarios" discussed in Abrego Abrego that can arise with respect to ascertaining from a Complaint whether the amount in controversy for removal purposes is satisfied. Lowdermilk, 479 F.3d at 998. In the first scenario, when plaintiff fails to plead a specific amount of damages, the defendant "must prove by a preponderance of the evidence that the amount in controversy requirement has been met." Abrego Abrego, 443.F3d at 683, citing Gaus, 980 F.2d at 566. In the second scenario, if the complaint alleges damages in excess of the federal amount-in-controversy requirement, then the amount-in-controversy requirement is presumptively satisfied unless "it appears to a 'legal certainty' that the claim is actually for less than the jurisdictional minimum." Id. at 683 n.8, citing Sanchez, 102 F.3d at 402. Abrego Abrego did not decide the third scenario standard applicable when the complaint alleges damages less than the jurisdictional amount.

Lowdermilk resolved the question: "when the plaintiff has pled damages less than the jurisdictional amount, what must the defendant prove in order to remove the case to federal court?" Id. at 996. As a threshold matter, the Lowdermilk court first had to decide whether the manner of pleading -- referencing a specific dollar amount just below the jurisdictional limit -- qualified as an averment of a "specific amount in damages," and concluded it did, contrary to defendant's contention that because the pleading "failed to specify [plaintiff's] damages, Defendant must prove only by a preponderance of the evidence that the damages claimed exceed $5,000,000." Lowdermilk, 479 F.3d at 998.

Our starting point is "whether it is 'facially apparent' from the complaint that the jurisdictional amount is in controversy." Abrego Abrego, 443 F.3d at 690 . . . . We have reserved the preponderance of evidence standard for situations where a plaintiff "seeks no specific amount in damages," Abrego Abrego, 443 F.3d at 688 (footnote omitted), and a court is forced to look beyond the complaint to determine whether the suit meets the jurisdictional requirements.*fn8 Here, we need not look beyond the four corners of the complaint to determine whether the CAFA jurisdictional amount is met, as Plaintiff avers damages ("less than five million dollars") that do not reach the threshold for federal jurisdiction. We hold that Plaintiff did plead a "specific amount in damages," and therefore, the preponderance of the evidence standard does not apply.

Lowdermilk, 479 F.3d at 998 (emphasis added); see Singer, 116 F3d at 377 ("The district court may consider whether it is 'facially apparent' from the complaint that the jurisdictional amount is in controversy").

Informed by the principle that federal courts are courts of limited jurisdiction, so strictly construe their own jurisdiction, and by the well-established principle the plaintiff is "master of her complaint" and can plead to avoid federal jurisdiction," the Lowdermilk court held "a defendant will be able to remove the case to federal court by showing to a legal certainty that the amount in controversy exceeds the statutory minimum" in situations where a plaintiff has expressly pled a damages amount under the jurisdictional minimum.*fn9 Lowdermilk, 479 F.3d at 998-99. The parties here both proceed as if Levine has not pled an amount in controversy, which would place this dispute within the first Abrego Abrego / Lowdermilk scenario whereby the removing defendant must show by a preponderance of evidence that CAFA element is satisfied for removal purposes. The court is permitted in such circumstances to consider facts in the removal petition and "summary-judgment-type evidence relevant to the amount in controversy at the time of removal." See Singer, 116 F.3d at 377. Levine affirmatively represents his case is one where the Complaint "does not specify a particular amount of damages." BIC concurs "the specific amount of damages sought is not alleged in the [FAC]" so its burden is to "prove by a preponderance of the evidence that the amount in controversy prong is satisfied." Opp. 2:19-23. The parties' premise does not persuade the court.

The court makes its own threshold inquiry into which of the three pleading "scenarios" identified in Abrego Abrego and Lowdermilk exists and therefore which standard of proof attaches to the resolution of the amount in controversy dispute. The court adopts the "starting point" instructed by Lowdermilk: is it "facially apparent" from the FAC "the jurisdictional amount is in controversy?" Levine acknowledges: "Plaintiff did not specify an amount of damages in its Complaint other than to plead that the amount in controversy does not exceed $74,999.99 as to Plaintiff or any other Class Member and prayed for damages shall be [sic] 'according to proof." Mot. 4:8-10 (emphasis added). His papers make no representation squarely addressing whether he contends the amount in controversy does not exceed $5 million dollars.*fn10 Rather, he relies solely on the ...


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