720 F.3d 1179 (9th Cir. 2013), 13-55755, Watkins v. Vital Pharmaceuticals, Inc.

Docket Nº:13-55755.
Citation:720 F.3d 1179
Opinion Judge:PER CURIAM:
Party Name:Gabe WATKINS, on Behalf of Himself and All Other Persons Similarly Situated, Plaintiff-Appellee, v. VITAL PHARMACEUTICALS, INC., Defendant-Appellant.
Attorney:Anthony G. Brazil, Richard H. Nakamura, Jr., and David J. Vendler, Morris Polich & Purdy LLP, Los Angeles, CA, for Defendant-Appellant. Lionel Z. Glancy, Marc L. Godino, and Casey E. Sadler, Glancy Binkow & Goldberg LLP, Los Angeles, CA, for Plaintiff-Appellee.
Judge Panel:Before: SIDNEY R. THOMAS, BARRY G. SILVERMAN, and RAYMOND C. FISHER, Circuit Judges. FISHER, Circuit Judge,
Case Date:July 02, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1179

720 F.3d 1179 (9th Cir. 2013)

Gabe WATKINS, on Behalf of Himself and All Other Persons Similarly Situated, Plaintiff-Appellee,

v.

VITAL PHARMACEUTICALS, INC., Defendant-Appellant.

No. 13-55755.

United States Court of Appeals, Ninth Circuit.

July 2, 2013

Submitted June 3, 2013.[*]

Anthony G. Brazil, Richard H. Nakamura, Jr., and David J. Vendler, Morris Polich

Page 1180

& Purdy LLP, Los Angeles, CA, for Defendant-Appellant.

Lionel Z. Glancy, Marc L. Godino, and Casey E. Sadler, Glancy Binkow & Goldberg LLP, Los Angeles, CA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. 2:12-cv-09374-SJO-JC.

Before: SIDNEY R. THOMAS, BARRY G. SILVERMAN, and RAYMOND C. FISHER, Circuit Judges.

OPINION

PER CURIAM:

Defendant-Appellant Vital Pharmaceuticals, Inc. appeals the district court's sua sponte order remanding this putative class action to state court for failure to establish the Class Action Fairness Act's (CAFA) requirement that at least $5 million is in controversy. We hold that we have appellate jurisdiction under 28 U.S.C. § 1453(c)(1) to consider the district court's sua sponte remand order, reverse the order remanding this case to state court, and remand to the district court with instructions to exercise jurisdiction over the case.

I.

Plaintiff Gabe Watkins filed this class action in the California Superior Court, County of Los Angeles, alleging that defendant Vital Pharmaceuticals, Inc. distributed ZERO IMPACT protein bars that were erroneously marketed and labeled as having little to no impact on blood sugar. Watkins asserts claims under California law on behalf of a nationwide class of " thousands of consumers throughout the United States." The complaint states that " the aggregate damages sustained by the Class are likely in the millions of dollars" and seeks damages, restitution, disgorgement and attorney's fees and costs.

Vital timely removed this action to federal court under CAFA, 28 U.S.C. § 1332(d)(2). As evidentiary support for its assertion that CAFA's $5 million amount in controversy requirement is met, Vital filed two declarations. First, Vital submitted a declaration by trial counsel David J. Vendler that states:

Plaintiff's Complaint alleges that the likely aggregate damages are in the " millions." (Complaint ¶ 15.) Plaintiff seeks restitution, disgorgement of profits, and attorneys' fees, based upon sales of the ZERO IMPACT® Protein Bars to " thousands" of consumers throughout the United States. Plaintiff also seeks attorneys' fees in addition to damages. There is thus a legal certainty that the amount in controversy in this matter consists of an aggregate in excess of $5 million.

Second, Vital submitted a declaration by Richard Cimino that states: " Nation-wide sales of the ZERO IMPACT® bars for the last four years exceed $5,000,000.

The district court sua sponte remanded the action to the state superior court. In its remand order, the district court concluded that Vital did not meet its burden of proving by a preponderance of the evidence that CAFA's amount in controversy requirement was met because Vital merely " aver[red in its Notice of Removal] that total sales of the Subject Bars in the last four years exceeded $5 million," and because Vendler's affidavit vaguely and conclusorily alleged that the amount in controversy is met. Although the district court's order expressly referred to the Vendler declaration, it made no mention of the Cimino declaration.

II.

As a threshold matter, we first address whether CAFA permits an appeal from a district court's sua sponte remand

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order. District court remand orders generally are not reviewable on appeal. See 28 U.S.C. § 1447(d). CAFA creates an exception to this general rule, and provides that " notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order." 28 U.S.C. § 1453(c)(1). Although we have previously exercised jurisdiction over sua sponte orders remanding cases that were removed under CAFA, see, e.g., Abrego Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir.2006), we have never expressly addressed the jurisdictional question of whether § 1453(c)(1) applies not just to district court remand orders that are granted or denied in response to a " motion to remand," but also to remand orders issued sua sponte.

We do not read § 1453(c)(1)'s authorization of an appeal as limited only to district court orders made in response to a party's " motion." 1 Sua sponte orders are, literally, orders issued when the court acts " on its own motion." See Black's Law Dictionary 1560 (9th ed.2009). Moreover, it is well established that district courts may address questions of subject matter jurisdiction sua sponte. See Peterson v. Islamic Republic of Iran, 627 F.3d 1117, 1133 (9th Cir.2010)....

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