Chochorowski v. Home Depot Usa, No. 4:08-CV-849 CAS.

• Decision Date: 05 September 2008
• Docket Number: No. 4:08-CV-849 CAS.
• Citation: 585 F.Supp.2d 1085
• Parties: Janet CHOCHOROWSKI, et al., Plaintiff, v. HOME DEPOT USA d/b/a The Home Depot, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

Page 1085

585 F.Supp.2d 1085

Janet CHOCHOROWSKI, et al., Plaintiff, v. HOME DEPOT USA d/b/a The Home Depot, Defendant.

No. 4:08-CV-849 CAS.

United States District Court, E.D. Missouri, Eastern Division.

September 5, 2008.

Gerald R. Walters, Mark L. Brown, Lakin Law Firm, Wood River, IL, for Plaintiff.

Russell K. Scott, Greensfelder and Hemker, Belleville, IL, for Defendant.

MEMORANDUM AND ORDER

CHARLES A. SHAW, District Judge.

This matter is before the Court on plaintiff's motion to remand the case to state court and defendant's motion to dismiss. The motions are fully briefed and ready for decision. Because the Court concludes that it lacks subject matter jurisdiction over this matter, it will grant the motion to remand. The motion to dismiss will remain pending for resolution by the state court following remand.

Background.

This putative class action was originally filed in the Circuit Court of Madison County, Illinois in 2002. Plaintiff sued Home Depot, claiming that she was automatically charged for a "damage waiver" when she rented a power tiller from a Home Depot store in Missouri, even though she never agreed to purchase the waiver, which was an optional charge. In 2006, plaintiff was granted leave to amend her petition to allege a cause of action under the Missouri Merchandising Practices Act, Mo.Rev.Stat. § 407.025 (2000). Defendant Home Depot then moved to dismiss the case on the basis of forum non conveniens. The Madison County court denied the motion but the Illinois Appellate Court reversed and remanded the case with directions for the trial court to dismiss it. The Illinois Appellate Court further directed that if plaintiff elected to file the action in another forum within six months of the dismissal, defendant must accept service of process and waive a statute of limitations defense in the other forum, and if the defendant refused to abide by those conditions, the case would be reinstated for further proceedings in Madison County. See Chochorowski v. Home Depot U.S.A, Inc., 376 Ill.App.3d 167, 314 Ill.Dec. 709, 875 N.E.2d 682 (2007).

Plaintiff refiled the action in the Circuit Court of St. Louis County, Missouri on March 20, 2008. On June 11, 2008, defendant filed a Notice of Removal to this Court, which alleges that the Court has jurisdiction based on the diversity jurisdiction provisions of the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d)(2). CAFA Section 4 permits removal of class action suits in which the "matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs," and in which "any member of a class of plaintiffs is a citizen of a State different from any defendant." See 28 U.S.C. § 1332(d)(2)(A). CAFA Section 9 states that it applies to "any civil action commenced on or after the date of enactment of this Act." See Pub.L. 109-2, § 9. Defendant's Notice of Removal also asserts that the Court has original jurisdiction over this action under traditional diversity jurisdiction, 28 U.S.C. § 1332(a), because plaintiff seeks injunctive relief that would cost defendant more than $75,000 to carry out.¹

Plaintiff moves to remand the case to state court on three grounds: (1) CAFA does not apply to this action because it applies only to actions commenced on or after February 18, 2005, and this action was commenced in Illinois in 2002 and was only refiled in Missouri in 2008 after Home Depot successfully argued that Missouri was a more convenient forum; (2) defendant has failed to prove by a preponderance of the evidence that more than $5 million is in controversy; and (3) with respect to traditional diversity jurisdiction, plaintiff does not seek injunctive relief and therefore defendant fails to prove that an amount in excess of $75,000 is in controversy.

Legal Standard.

The propriety of removal to federal court depends on whether the claim comes within the scope of the federal court's subject matter jurisdiction. See 28 U.S.C. § 1441(b). The party invoking jurisdiction bears the burden of proof that all prerequisites to jurisdiction are satisfied. Hatridge v. Aetna Cas. & Sur. Co., 415 F.2d 809, 814 (8th Cir.1969). Removal statutes are strictly construed, In re Business Men's Assurance Co. of America, 992 F.2d 181, 183 (8th Cir.1993), and any doubts about the propriety of removal are resolved in favor of state court jurisdiction and remand. Wilkinson v. Shackelford, 478 F.3d 957, 963 (8th Cir.2007) (quoting Transit Cas. Co. v. Certain Underwriters at Lloyd's of London, 119 F.3d 619, 625 (8th Cir.1997), cert. denied, 522 U.S. 1075, 118 S.Ct. 852, 139 L.Ed.2d 753 (1998)). In determining whether a claim "arises under" federal law, courts must be "mindful that the nature of federal removal jurisdiction—restricting as it does the power of the states to resolve controversies in their own courts—requires strict construction of the legislation permitting removal." Nichols v. Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir.2002) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction," the case must be remanded to the state court from which it was removed. 28 U.S.C. § 1447(c).

Discussion.

A. CAFA Applies to Plaintiff's ReFiled Action

CAFA confers federal court jurisdiction over class actions where, inter alia, (1) there is minimal diversity, (2) the proposed class contains at least 100 members, and (3) the amount in controversy is at least $5 million in the aggregate. See 28 U.S.C. § 1332(d); Plubell v. Merck & Co., Inc., 434 F.3d 1070, 1071 (8th Cir.2006).

Plaintiff's first argument in support of remand is that CAFA does not apply to this action because it applies only to actions commenced on or after February 18, 2005, and this action was commenced in Illinois in 2002 and was only refiled in Missouri in 2008 after Home Depot successfully argued that Missouri was a more convenient forum. In its Notice of Removal, defendant asserts that plaintiffs filing of her petition in Missouri state court in March 2008 "commenced" a new case, removable pursuant to CAFA. Plaintiff conversely maintains the petition represents only a continuation of her original suit, filed in Illinois in 2002, prior to CAFA's effective date.

The issue is when this case "commenced." As plaintiff asserts, CAFA applies only to class actions commenced on or after February 18, 2005. 28 U.S.C. § 1332(d); Plubell, 434 F.3d at 1071. Following removal, state law continues to determine procedural issues such as when the suit was commenced. Plubell, 434 F.3d at 1071. Under Missouri law, a case is commenced upon the filing of a petition with the court. Mo. Sup.Ct. Rule 53.01. In this case, plaintiff filed a petition in Missouri state court in March 2008.

In her motion to remand, plaintiff argues without citation to legal authority that because her case was dismissed based on forum non conveniens after several years of litigation, and she was ordered to refile it in a more convenient forum within six months and defendant was ordered to waive any statute of limitations defense upon a timely refiling, the petition filed in Missouri did not "commence" a new action but rather continued the former action.

Defendant responds that under the plain language of Missouri Supreme Court Rule 53.01, "[a] civil action is commenced by filing a petition with the court." Defendant asserts that because CAFA applies to all actions commenced after February 18, 2005, it follows that CAFA applies to plaintiff s action and is a proper basis for removal. Defendant states that the prior case ended and six months later, plaintiffs actions in filing a new case, paying the filing fee, and requesting that summons be issued and defendant formally served, are consistent with the "obvious facts" that this case is distinct from the prior litigation and was "commenced" in 2008 when it was filed in Missouri.

Defendant cites Steinberg v. Nationwide Mutual Insurance Co., 418 F.Supp.2d 215 (E.D.N.Y.2006), in support of its position. In Steinberg, the plaintiff filed a class action in state court which was removed to federal court and litigated for several years. After plaintiffs motion for class ,certification was granted, the defendant appealed and the Second Circuit held that the federal court lacked subject matter jurisdiction and ordered the case remanded to state court. While the remanded case was pending in state court, the plaintiff filed a class action complaint in federal court under CAFA, based on the same facts and asserting identical claims and identical relief. Id. at 218. The defendant moved to dismiss the federal complaint for lack of subject matter jurisdiction, asserting that because the federal complaint concerned the same parties, claims and relief as the state court action, it "commenced" when the remanded state case was first filed. Id. at 218. The district court rejected this argument, holding that under Rule 3 of the Federal Rules of Civil Procedure a civil action is commenced by filing a complaint with the court, and for purposes of CAFA, the plaintiff "commenced" a new and independent action when he filed the complaint in federal court. Id. at 222.

Plaintiff replies that her 2008 Missouri petition is "nearly identical" to her 2002 Illinois petition, but asserts that even if it added new theories of recovery, it does not commence a new action under CAFA. Plaintiff asserts that under Federal Rule of Civil Procedure 15(c), the amendment of a pleading relates back to the original pleading when the claim asserted in the amended pleading arose out of the same conduct, transaction or occurrence set forth in the original pleading, citing Siew Hian Lee v. CitiMortgage, Inc., 2005 WL 2456955 (E.D.Mo. Oct.5, 2005) (Hamilton, J.). Plaintiff further asserts that the addition of an alternative theory of relief in order to sustain a claim does...