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Park v. Webloyalty. Com, Inc.

United States District Court, Ninth Circuit

August 28, 2013

KEVIN PARK, Plaintiff,


LARRY ALAN BURNS, District Judge.

Plaintiff Kevin Park filed this putative class action, seeking remedies under California's Unfair Business Practices Act, Cal. Bus. & Prof. Code §§ 17200, et seq., as well as the Connecticut Unfair Trade Practices Act (CUTP). The claim arises from Defendant, Inc.'s alleged use of the "data pass" process, in which Park and others were misled into allowing charges to be placed on their credit cards. Webloyalty moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6) and 9(b).

In the course of reviewing the briefing, however, serious questions about the Court's jurisdiction to adjudicate Park's claims arose, and the Court is obligated to address those before considering the merits. Although neither party raised the question of subject matter jurisdiction, the Court is bound to do so, sua sponte, and to dismiss the complaint if jurisdiction is lacking. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 954 (9th Cir. 2011) (en banc).


Fed. R. Civ. P. 8(a)(1) requires that the complaint include "a short and plain statement of the grounds for the court's jurisdiction...." Here, the complaint relies on diversity jurisdiction under the Class Action Fairness Act (CAFA), and alleges that Park is a resident of California and Webloyalty is a Delaware corporation with its principal place of business in California.

Although the complaint alleges that "numerous class members are citizens of a state different from Webloyalty" and seeks to certify a nationwide class, no one else's citizenship is alleged. Normally, the party invoking the Court's jurisdiction is required to plead the citizenship of parties, sufficiently to show that diversity exists. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Merely pleading the conclusion that parties are citizens of different states is generally insufficient. See Valdez v. Asset Acceptance, LLC, 2012 WL 2905715, at *2 (S.D.Cal., July 16, 2012) (pleading that class certification would "result in at least one class member belonging to a different state than that of Defendant[ ]" was insufficient to satisfy pleading requirements). Additionally complicating the analysis is the uncertainty (discussed below) of which state's or states' laws govern this action, and whether there are any class members outside of California. See Marroquin v. Wells Fargo, LLC, 2011 WL 476540, at *2 (S.D.Cal., Feb. 3, 2011) (allegation that at least one class member would be diverse from defendant was undercut by limitation of class to California citizens).

While it seems likely Park can plead facts to establish diversity, it is for him to do so, not the Court. See Assoc. Gen'l Contractors of Calif., Inc. v. Calif. State Council of Carpenters, 459 U.S. 519, 526 (1983) ("It is not... proper to assume [the plaintiff] can prove facts that it has not alleged....") Park's failure to plead facts establishing diversity requires that the complaint be dismissed without regard to the merits.

Nature of the Class and Class Claims

Another issue that neither party raised but that requires clarification is why Connecticut law applies to any claim here, either Park's or the putative class members'. Neither the complaint nor the briefing explains this. The only time Connecticut is ever mentioned is when identifying this law or citing cases from Connecticut, as the location where a declaration in support of the motion to dismiss was signed (Pipkin Affidavit in Supp. of Mot. to Dismiss), and as a mailing address Webloyalty used on a web page. (Mot. to Dismiss, Ex. D.) It may be that counsel, having litigated against each other before, understand the nexus between Parks' claims and Connecticut. But Park needs to plead facts in the complaint showing why that law applies here, so that the Court can meaningfully evaluate this claim, as well as make determinations regarding its exercise of jurisdiction under CAFA. At some point, the Court will also be required to determine whether Park is an adequate class representative, which he cannot be if he has no claim under Connecticut law.

Although the complaint purports to name a nationwide class (Compl., ¶ 18), it is open to question whether class members who were not injured in California and did not reside in California can avail themselves of California's consumer protection laws. See Northwest Mortgage, Inc. v. Superior Court, 72 Cal.App.4th 214, 226-27 (Cal.App. 4 Dist. 1999) (citing Clothesrigger, Inc. v. GTE Corp., 191 Cal.App.3d605, 613 (Cal.App. 4 Dist. 1987)). It is possible they can, if the offending conduct occurred in California, but the presence of Webloyalty's offices in California does not by itself show that. See Diamond Multimedia Systems, Inc. v. Superior Court, 19 Cal.4th 1036, 1064 (1999) (under Clothesrigger, California law could be applied "to out-of-state parties harmed by wrongful conduct occurring in California"). The same concerns probably apply to Connecticut as well, assuming its laws are applicable to Park's claims.

In short, there is considerable confusion about who the putative class members are, where they are located, and what states' laws governs their claims. Under 28 U.S.C. § 1332(d), the Court may, or in some cases must, decline jurisdiction. In view of the confused state of the pleadings, the Court cannot do that. The Court realizes that specific information about the makeup of the class (how many members live in which states, etc.) is probably unavailable at the pre-discovery stage, but Park must make enough allegations that would allow the Court to make a meaningful evaluation of its jurisdiction.


In the course of reviewing the authority cited in the briefing, the Court discovered that one of the local decisions cited by both parties, Berry v., Inc., 2011 WL 1375665 (S.D.Cal., Apr. 11, 2011) (Huff, J.) was vacated and remanded by the Ninth Circuit for lack of standing. See ___ Fed.Appx. ___, 2013 WL 1767718 (9th Cir. Apr. 25, 2013). The Court is aware that counsel commonly neglect to inform the Court of new adverse authority, but counsel are reminded it is important to inform the Court if authority they rely on has been overruled, even if it is overruled after briefing is complete.[1] In this case, the Ninth Circuit's ruling potentially affects jurisdiction. In Berry, the Ninth Circuit noted that, while Webloyalty had charged Berry $36.00, it also fully compensated him for that charge. Therefore, Berry had suffered no cognizable injury and lacked Article III standing, and subject matter jurisdiction was absent. 2013 WL 1767718, at *1.

Here, the complaint merely says Park noted unauthorized charges on his credit card, and called Webloyalty to stop the charges and cancel his membership. (Compl., ¶ 17.) It doesn't say whether the money Park paid was refunded. Bearing in mind the time frame at issue-his membership ran for almost two years-it seems unlikely Webloyalty would have refunded the full amount. But Berry makes clear this is a jurisdictional issue, and it is up to Park to allege ...

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