Food & Water Watch, Inc. v. Tyson Foods, Inc., Case No. 19-cv-2811 (APM)

CourtUnited States District Courts. United States District Court (Columbia)
Writing for the CourtAmit P. Mehta United States District Judge
PartiesFOOD & WATER WATCH, INC. et al., Plaintiffs, v. TYSON FOODS, INC., Defendant.
Decision Date05 March 2020
Docket NumberCase No. 19-cv-2811 (APM)

FOOD & WATER WATCH, INC. et al., Plaintiffs,
TYSON FOODS, INC., Defendant.

Case No. 19-cv-2811 (APM)


March 5, 2020


Plaintiffs Food & Water Watch, Inc. and Organic Consumers Association originally brought this action in D.C. Superior Court for declaratory and injunctive relief under the D.C. Consumer Protection Procedures Act, claiming that Defendant Tyson Foods, Inc. misleads consumers in its marketing. See generally, Compl., ECF No. 1-2 [hereinafter Compl.]. Defendant removed the case to this court, asserting original jurisdiction under 28 U.S.C. §1332, which confers federal jurisdiction on "all civil actions where the amount in controversy exceeds the sum or value of $75,000, and the parties are from different states." See Def.'s Not. of Removal, ECF No. 1, at 2-3 (citing 28 U.S.C. § 1441(a)). Plaintiffs now move to remand the case back to Superior Court, claiming that this court lacks jurisdiction because the amount in controversy does not exceed $75,000. Plaintiffs also seek fees and costs. For the reasons set forth below, the court grants Plaintiffs' motion to remand and denies its motion for fees and costs.


Plaintiffs Food & Water Watch, Inc. ("FWW") and Organic Consumers Association ("OCA") are two non-profit public-interest organizations. Compl. ¶ 1. FWW aims to "champion[]

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healthy food and clean water for all," "promot[e] the interest and rights of [ ] consumers," and "increase transparency about how factory farms operate." Id. ¶ 159. OCA "deals with crucial issues of truth in advertising, accurate food labeling, food safety, children's health, corporate accountability, and environmental sustainability." Id. ¶ 164. Plaintiffs' Complaint alleges that Defendant Tyson Foods, Inc., which produces chicken products, "makes marketing and advertising representations to convey to consumers that the Tyson brand chicken products [ ] are produced in an environmentally responsible way," id. ¶ 3, when in fact, according to the Complaint, "Tyson and its contractors systematically breed, hatch, raise, transport, and slaughter chickens in environmentally harmful and inhumane, disease-ridden factory-farm conditions," id. ¶ 5. Plaintiffs claim that statements made on Defendant's website, marketing materials, and in two promotional videos, id. ¶¶ 17-45, violate the D.C. Consumer Protection Procedures Act, D.C. Code § 28-3901, et seq. ("CPPA"), which "establishes an enforceable right to truthful information from merchants about consumer goods and services that are or would be purchased, leased, or received in the District of Columbia," Compl. ¶ 10 (quoting D.C. Code § 28-3901(c)). Plaintiffs bring this action on behalf of themselves, their members, and the general public, id. ¶¶ 11, 179, and they seek declaratory and injunctive relief, including "requiring corrective advertising," id. at 57.

On September 18, 2019, Defendant removed the case to federal court. Def.'s Not. of Removal, ECF No. 1 [hereinafter Removal Not]. In its Notice of Removal, Defendant invoked diversity jurisdiction under 28 U.S.C. § 1332(a) as the sole basis of federal jurisdiction. Id. at 2-3. According to Defendant, the parties are diverse and the amount in controversy exceeds $75,000, because the cost to Defendant of complying with Plaintiffs' sought-after remedy—corrective advertising—"far exceeds $75,000." Id. at 3-4. In support of its motion, Defendant submitted the

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declaration of Christopher Miles, the Vice President of Marketing Communications and Design at Tyson Foods, Inc. See Decl. of Christopher Miles, ECF No. 1-3 [hereinafter Miles Decl.], at ¶ 1. Miles states that "the requested corrective advertising campaign would require Tyson Foods to replace content on Tyson Foods' website, social media accounts, and in other non-traditional and traditional advertising channels," and estimates that implementing these changes would "exceed[] $400,000." Id. ¶¶ 3-4.

Plaintiffs now move to remand the case back to Superior Court, arguing that Defendant "cannot demonstrate that the amount-in-controversy requirement for diversity jurisdiction is satisfied." See Mem. of P. and A. in Supp. of Pls.' Mot. to Remand, and for Fees and Costs, ECF No. 7-1 [hereinafter Pls.' Mot.], at 3. In Plaintiffs' view, Defendant cannot rely on the total cost of compliance with Plaintiffs' requested injunction to meet the amount-in-controversy threshold, because doing so would violate the non-aggregation principle set forth by the Supreme Court and run counter to the vast weight of case law in this District. Id. at 4-5. Plaintiffs argue that, in assessing the amount-in-controversy requirement, the court instead must divide the cost of compliance among its intended beneficiaries—here, District of Columbia consumers—and thus the estimated $400,000 total cost to Defendant falls far short of the $75,000 threshold. Id. at 6.


"Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant." Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987); see also 28 U.S.C. § 1441(a). Removal is effective when the defendant files a notice of removal in federal court with "a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders" from state court. 28 U.S.C. § 1446(a). However, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the

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case shall be remanded." Id. § 1447(c). A party may challenge the federal court's subject matter jurisdiction on a motion to remand to state court. Id.

"[T]he party opposing a motion to remand bears the burden of establishing that subject matter jurisdiction exists in federal court." RWN Dev. Grp., LLC v. Travelers Indem. Co., 540 F. Supp. 2d 83, 86 (D.D.C. 2008) (quoting Int'l Union of Bricklayers & Allied Craftworkers v. Ins. Co. of the West, 366 F. Supp. 2d 33, 36 (D.D.C. 2005)). "Because federal courts are courts of limited jurisdiction, the removal statute is to be strictly construed." Kopff v. World Research Grp., LLC, 298 F. Supp. 2d 50, 54 (D.D.C. 2003). Accordingly, in instances "[w]here the need to remand is not self-evident, the court must resolve any ambiguities concerning the propriety of removal in favor of remand." Johnson-Brown v. 2200 M St. LLC, 257 F. Supp. 2d 175, 177 (D.D.C. 2003) (citing Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 411 (11th Cir. 1999)); Nwachukwu v. Karl, 223 F. Supp. 2d 60, 66 (D.D.C. 2002)).


With these principles in mind, the court turns to the question at hand: Has Defendant carried its burden of establishing that the amount in controversy exceeds $75,000? When, as here, the party seeking remand contests the removing party's amount-in-controversy allegation, removal is proper "if the district court finds, by the preponderance of the evidence, that the amount in controversy exceeds the jurisdictional threshold." Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 88 (2014) (internal quotation marks omitted) (quoting 28 U.S.C. § 1446(c)(2)(B)).

The parties disagree on how to value the amount in controversy. Defendant contends that the D.C. Circuit has adopted the "either viewpoint" approach to calculating the amount in controversy in cases where, like here, injunctive relief is sought. Def.'s Opp'n to Mot. to Remand, ECF No. 13 [hereinafter Def.'s Opp'n], at 6. Under the either-viewpoint approach, this court may

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consider either the value of the injunctive relief to plaintiff or the defendant's potential cost of complying. See Smith v. Washington, 593 F.2d 1097, 1099 (D.C. Cir. 1978). Plaintiffs, on the other hand, argue that the court may not consider the defendant's potential cost of complying because doing so would violate the non-aggregation principle. Pls.' Mot. at 4-6. That principle states that "the separate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement." Snyder v. Harris, 394 U.S. 332, 335 (1969); see also Zahn v. Int'l Paper Co., 414 U.S. 291, 294 (1973) (stating that "multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount requirement for suit in the federal courts").

Defendant is correct that the D.C. Circuit appears to have adopted the "either-viewpoint" rule.1 In Tatum v. Laird, the D.C. Circuit held that "the test for determining the amount in controversy is the pecuniary result to either party which the judgment would directly produce." 444 F.2d 947, 951 n.6 (D.C. Cir. 1971), rev'd on other grounds, 408 U.S. 1 (1972) (quoting Ronzio v. Denver & R. G. W. R. Co., 116 F.2d 604, 606 (10th Cir. 1940)). The Tatum court remanded the case to the district court because "the cost to the [defendant] of complying with [an injunction] might well exceed" the jurisdictional threshold. Id. at 951. Since Tatum, the D.C. Circuit has reiterated this holding, and the district courts of this circuit have repeatedly adopted the either-viewpoint approach. See Smith, 593 F.2d...

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