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James Keller v. Gaspari Nutrition Inc et al

March 2, 2011

JAMES KELLER
v.
GASPARI NUTRITION INC ET AL



LINK: 7

CIVIL MINUTES - GENERAL

Present: The Honorable GARY ALLEN FEESS

Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys Present for Plaintiffs: Attorneys Present for Defendants:

None None

Proceedings: (In Chambers)

ORDER RE: MOTION TO REMAND

I. INTRODUCTION AND BACKGROUND

On November 10, 2010, Plaintiff James Keller ("Plaintiff") filed this putative class action against Gaspari Nutrition, Inc. ("GNI" or "the Company") alleging state law causes of action based on GNI's false and misleading advertisement practices with respect to the sale of its sports nutrition product, Novedex XT ("Novedex"). (Docket No. 1, Not. of Removal, Ex. A [Compl. ¶¶ 1, 2].) Specifically, Plaintiff claims that GNI (1) misrepresented to consumers that Novedex was a "dietary supplement" when in fact this product contained a "non-dietary" ingredient called "3,17-keto-etiocholetriene" ("Keto") and (2) failed to disclose that Keto was associated with several adverse side effects, including infertility, kidney failure, liver dysfunction, decreased rate of bone maturation and growth, aggressive behavior, and adrenal insufficiency. (Id. ¶¶ 9-13.) Based on these averments, Plaintiff seeks to represent a class defined as follows:

All persons residing in the [sic] California who purchased Novedex XT for personal use and not for resale during the time period November 2, 2006 through the present. Excluded from the Class are Defendants' officers, directors, and employees, and any individuals who received remuneration from the Defendants to act as an endorser of Novedex XT. ¶ 25.)

On December 27, 2010, GNI removed the present action to this Court pursuant to 28 James Keller v. Gaspari Nutrition Inc et al U.S.C. § 1446 and the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d). (Not. of Removal ¶¶ 6-8.) Subsequently, on January 31, 2011, Plaintiff filed his First Amended Complaint ("FAC"). Plaintiff now moves to remand and contends that GNI has failed to prove by a preponderance of the evidence that the amount in controversy requirement has been met for jurisdiction under CAFA. (Docket No. 7, Mem. at 1-2.) Because the Court agrees with Plaintiff, the motion to remand is GRANTED.

II. DISCUSSION

LEGAL STANDARD

"[A]ny 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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The Ninth Circuit "strictly construes the removal statute against removal jurisdiction." Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir. 1988) (citation omitted). As amended by CAFA, 28 U.S.C. § 1332(d) vests district courts with "original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which . . . any member of a class of plaintiffs is a citizen of a State different from any defendant . . . ." 28 U.S.C. § 1332(d)(2). "In any class action, the claims of the individual class members shall be aggregated to determine whether the matter in controversy exceeds the sum or value of ...


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