The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS [DOC. # 5]
Now before the Court is the motion of defendant CVS Pharmacy, Inc. ("defendant") to dismiss the instant complaint. The motion has been fully briefed by the parties. After a thorough review of the pleadings presented, and for the reasons set forth below, this Court GRANTS defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Doug Chambers ("plaintiff"), filed the instant class action complaint on March 3, 2009, and an amended complaint, the operative pleading here, on March 30, 2009. In his amended complaint, plaintiff alleges he purchased an eyeglass repair kit manufactured, marketed and/or sold by defendant labeled "Made in USA". Doc. # 4 ¶ 10. The amended complaint alleges that the eyeglass repair kits contained component parts made in foreign countries. Id. ¶ 11. Plaintiff claims the purported "Made in USA" label was what induced him to purchase the product. Id. ¶ 16.
Plaintiff's class action complaint, filed on behalf of plaintiff as an individual and on behalf of other persons similarly situated in the State of California who purchased defendant's eyeglass repair kits, alleges causes of action for (1) violation of the Consumer Legal Remedies Act ("CLRA"), California Civil Code § 1750 et seq. (Count I); (2) violation of Business and Prof. Code § 17200 et seq. (Count II); and (3) violation of Business and Prof. Code § 17533.7 (Count III). Id. ¶¶ 25 - 63. On April 20, 2009, defendant filed the instant motion to dismiss. Plaintiff's opposition to the motion was filed on May 22, 2009 and defendant's reply brief was filed June 8, 2009. This Court subsequently took the motion under submission without oral argument. See CivLR 7.1(d.1).*fn1
Defendant moves to dismiss plaintiff's amended complaint on the grounds that (1) this Court lacks subject matter jurisdiction over plaintiffs' claims, and; (2) plaintiff lacks standing to pursue his claims.*fn2
The federal court is one of limited jurisdiction. SeeGould v. Mutual Life Ins. Co. of New York, 790 F.2d 769, 774 (9th Cir. 1986). As such, it cannot reach the merits of any dispute until it confirms its own subject matter jurisdiction. Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 93-94 (1998). "'Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'" Id. (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)); see In re Mooney, 841 F.2d 1003, 1006 (9th Cir. 1988) ("Nothing is to be more jealously guarded by a court than its jurisdiction. Jurisdiction is what its power rests upon. Without jurisdiction it is nothing."), overruled on other grounds byPartington v. Gedan, 923 F.2d 686, 688 (9th Cir. 1991).
Under Fed.R.Civ.P. 12(b)(1), the Court may dismiss a complaint for lack of subject matter jurisdiction. The plaintiff bears the burden of establishing subject matter jurisdiction. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (stating that the burden of establishing jurisdiction rests on the party asserting it). When considering a motion to dismiss under Fed.R.Civ.P. 12(b)(1), the district court "is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). "In such circumstances, '[n]o presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.'" Id. (quoting Thornhill Publishing Co. v. General Telephone & Electronic Corp., 594 F.2d 730, 733 (9th Cir. 1979)).
Defendant contends that subject matter jurisdiction is lacking in this case because plaintiff cannot reach the amount in controversy required for diversity jurisdiction. Jurisdiction in this case is based solely on diversity. See Doc. # 4 ¶ 7. For diversity jurisdiction to exist, the named plaintiff must meet the minimum amount in controversy ($75,000) and complete diversity must exist among all plaintiffs and defendants. See Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 546 (U.S. 2005). Alternatively, a federal court has subject matter jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"), when the class comprises of more than 100 members, minimal diversity of citizenship is present, and where the aggregate amount of all class members' claims exceeds $5,000,000 (exclusive of costs or attorneys' fees).*fn3 28 U.S.C. § 1332(d). Where a statutory authority provides for attorneys' fees, the fees are included in the amount in controversy to reach CAFA's $5,000,000 minimum. Lowdermilk v. United States Bank National Ass'n, 479 F.3d 994, 1000 (9th Cir. 2007).
In its motion to dismiss, defendant alleges that plaintiff fails to set forth facts establishing that this Court has subject matter jurisdiction because the jurisdictional amount required for diversity jurisdiction cannot be met on the facts plead. Doc. # 5-3 at 2. Defendant explains that CVS sold 17,207 kits between January 2007 and December 2008, for an average retail price of $2.45. Doc. # 5-4 at 4-7. Defendant argues that, even if the number of actual kits sold was doubled, at an average price of $2.45, the gross sales combined with punitive damages would total $843,140, a figure that falls short of the required jurisdictional minimum. Doc. # 5-3 at 6. In opposition, plaintiff points out that defendant fails to take into consideration the scope of the class. Doc. # 7 at 5. Plaintiff argues that the putative class extends to any CVS customer who purchased any eyeglass repair kit containing a false "Made in USA" designation. Id. ...