United States District Court, S.D. California
IZABELLE J. DOUCET, et al., Plaintiff,
INTERNATIONAL HAIR INSTITUTE, LLC, et al., Defendant.
ORDER OF REMAND
Alan Burns United States District Judge
removed this case from state court, citing diversity
jurisdiction under the Class Action Fairness Act. After
Plaintiffs amended their complaint, Defendants moved to
dismiss or stay the action in favor of bilateral arbitration.
briefing on this motion brought to the forefront some reasons
to doubt whether the Court had jurisdiction over this case.
In particular it appeared Izabelle Doucet and Charlotte
Dukich, the two named Plaintiffs,  may lack standing. Where no
named plaintiff has standing, the Court cannot exercise
jurisdiction over the case, and the defect cannot be cured by
substitution of another plaintiff. Lierboe v. State Farm
Mut. Auto. Ins. Co., 350 F.3d 1018, 1023 (9th Cir.
2003). The Court therefore issued an order (Docket no. 31
(the “OSC”)) directing both parties to address
jurisdiction. The parties have now filed their responses.
Court is obligated to confirm its jurisdiction, sua
sponte if necessary, whenever doubts arise. Mt.
Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 278 (1977). In this case, as in every other case in
federal court, jurisdiction is presumed to be lacking unless
it is affirmatively shown. DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 342 n.3 (2006). As the OSC pointed
out, each party bears the burden of establishing
jurisdiction, for different reasons.
must show that the Court has jurisdiction over their claims.
See Bates v. United Parcel Serv., Inc., 511 F.3d
974, 985 (9th Cir. 2007). This includes a showing of standing
as to each type of industry and form of relief they seek.
See Friends of the Earth v. Laidlaw Envtl. Servs.
(TOC), 528 U.S. 167, 185 (2000). Because no class has
been certified, Plaintiffs must establish standing on their
own behalf; the standing of putative class members does not
come into play. Warth v. Seldin, 422 U.S. 490, 502
(1975); LaDuke v. Nelson, 762 F.2d 1318, 1325 (9th
Cir. 1986). And Defendants, as the removing parties, bear the
burden of showing that removal was proper, which includes
establishing jurisdiction. Gaus v. Miles, 980 F.2d
564, 566 (9th Cir. 1992).
of standing cannot be cured by substituting in new class
representatives. Lierboe v. State Farm Mut. Auto. Ins.
Co., 350 F.3d 1018, 1022- 23 (9th Cir. 2003).
If the Court lacks jurisdiction, the case must be remanded.
28 U.S.C. § 1447(c); Polo v. Innoventions,
Int'l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016).
III standing contains three elements: an injury-in-fact,
causal connection of the injury to the defendant's
actions, and a likelihood that the injury will be redressed
by a favorable decision. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Although the
standing inquiry is not the same as an inquiry into the
merits, the two often overlap. See Steel Co. v. Citizens
for a Better Env't, 523 U.S. 83, 97 n.2 (1998);
Sun Valley Gasoline, Inc. v. Ernst Enterprises,
Inc., 711 F.2d 138, 139 (9th Cir. 1983)
(holding that the question of jurisdiction and the merits of
an action will be considered intertwined where a statute
provides the basis for both the subject matter jurisdiction
of the federal court and the plaintiff's substantive
claim for relief). Where jurisdiction is intertwined with the
merits, the Court assumes the truth of the allegations in a
complaint unless controverted by undisputed facts in the
record. Warren v. Fox Family Worldwide, Inc., 328
F.3d 1136, 1139 (9th Cir. 2003).
the Supreme Court has explained, is not commutative.
DaimlerChrysler Corp., 547 U.S. at 352. That is, a
plaintiff's standing to bring one claim does not mean she
has standing to bring all claims that arise from the same
nucleus of operative fact. Id. Rather, standing must
be shown as each claim, id., and each type of relief
sought. Summers v. Earth Island Inst., 555 U.S. 488,
493 (2009). This means that injury-in-fact, causal
connection, and redressability must be shown as to each claim
and type of relief sought. The fact that plaintiffs might
have been injured in ways not connected to their claims does
not confer standing. Such injuries would not be redressed by
a favorable decision. See Lujan, 504 U.S. at 560-61.
And injuries to supposed interests that are not
legally-protected do not amount to an injury-in fact. See
id. This also means that standing can only be
based on claims a plaintiff is actually bringing, not on
claims she hypothetically might have brought but didn't.
state courts may afford plaintiffs broad standing, in federal
court standing is limited by Article III's requirements.
Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)
(“State courts may afford litigants standing to appear
where federal courts would not, but whether they do so has no
bearing on the parties' Article III standing in federal
court.”); Lee v. American Nat'l Ins. Co.,
260 F.3d 997, 999-1000, 1001-02 (9th Cir. 2001). This,
together with the principle that standing must be established
on the basis of a plaintiff's actual claims, means that
while Article III standing can be narrower than the state law
would permit, it cannot be broader.
alleging that standing requirements are met does not
establish standing. Lujan, 497 U.S. at 888 (refusing
to find standing based on the “conclusory allegations
of an affidavit”); Carrico v. City & Cnty. of
San Francisco, 656 F.3d 1002, 1006 (9th Cir. 2011)
(refusing to find standing based on conclusory allegations).
Similarly, the mere fact that a plaintiff has asked for
relief for an alleged injury does not necessarily mean she
has standing to seek that relief. This is true for both
injunctive and monetary relief. See generally Lujan
(holding that plaintiffs lacked standing to seek the
injunctive relief they were asking for). See also Somers
v. Apple, Inc., 729 F.3d 953, 962 (9th Cir.
2013) (indirect purchasers of products lacked standing to sue
for damages); Chuck v. Hewlett Packard Co., 455 F.3d
1026, 1038 (9th Cir. 2006) (non-participant in
benefit plan lacked standing to seek statutory damages under
the Court is not examining Plaintiffs' adequacy as class
representatives, and does not rely on it as a basis for this
order, it should be remembered that under either federal or
state law, a named plaintiff must be a member of the class
she purports to represent. Representatives who are not
members of the class lack standing to bring class claims.
E. Tex. Motor Freight Sys, Inc. v. Rodriguez, 431
U.S. 395, 403 (1977) (class representative must be a part of
the class, possess the same interest, and suffer the same
injury as class members); First Am. Title Ins. Co. v.
Superior Court, 146 Cal.App.4th 1564, 1573 (2007).
Ordinarily, this is examined in terms of a class
representative's adequacy under Fed.R.Civ.P. 23. But the
reason for Rule 23's requirement is to satisfy standing
requirements. Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348-49 (2011). See also Kremens v.
Bartley, 431 U.S. 119, 131 n.12 (1977) (reasoning that,
allowing a class action to be litigated by named plaintiffs
without live claims would do away with Article III standing
claims in this case arise from the purchase of hair products.
The amended complaint alleges:
when consumers respond to one of Defendants'
“riskfree” trial offers, Defendants require the
consumer to provide his or her credit card or debit card
billing information, purportedly to pay nominal shipping and
handling fees (typically less than $5.00) to receive the
advertised product. However, 30 days after the consumer
receives the product, Defendants charge the consumer the full
price of the “trial” product, imposing charges
that often amount to $159.90 or more onto the consumer's
credit or debit card. Moreover, when a consumer accepts a
“risk-free” trial offer, Defendants enroll the
consumer in a negative option “auto shipment”
plan, in which Defendants periodically ship additional
products and charge the consumer's credit or debit card
the full cost of the products, often $79.95 per month or
more. To make matters worse, after consumers discover credit
or debit card charges they did not authorize, and/or when
consumers receive shipments they did not request, Defendants
resist consumers' requests to return product for a refund
and/or cancel further shipments.
(Am. Compl., ¶ 2.) The putative class consists of:
All individuals in California who, within the statute of
limitations period, were either (i) charged the full price
for a Defendants' Product that was represented as a
“free” trial, a “risk-free” trial, or
at a discounted price, and for which Defendants charged a
higher price if the product was not returned within a limited
period of time, and/or (ii) enrolled in Defendants' auto
(Id., ¶ 33.) None of the briefing identifies,
even approximately, the number of class members or the amount
they spent; the notice of removal merely says that over 100
California residents purchased Defendants' products
during this time period, and that the sales of products as
part of an automatic renewal program “well
exceeds” $5 million. (Notice of Removal, ¶¶
complaint identifies four California statutes as the basis
for Plaintiffs' claims: the Automatic Renewal Law, Cal.
Bus. & Prof. Code ''17600, et seq.; the
False Advertising Law, Cal. Bus. & Prof. Code
''17500, et seq.; the California Consumers
Legal Remedies Act, Cal. Civ. Code ' 1750, et
seq.; and the Unfair Competition Law, Cal. Bus. &
Prof. Code ''17200, et seq.
claims do not allege any defect in the products, or that the
products did not live up to their claims. Instead, the claims
depend solely on the price charged for the products, and
customers' enrollment in the auto shipment program. Nor
do the claims arise from any other behavior by Defendants,
such as fraudulently inducing customers to hand ...