Graiser v. Visionworks of Am., Inc.

• Decision Date: 06 April 2016
• Docket Number: No. 16–3167.,16–3167.
• Citation: 819 F.3d 277
• Parties: Elliott GRAISER, Plaintiff–Appellee, v. VISIONWORKS OF AMERICA, INC., Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

819 F.3d 277

Elliott GRAISER, Plaintiff–Appellee,

v.VISIONWORKS OF AMERICA, INC., Defendant–Appellant.

No. 16–3167.

United States Court of Appeals, Sixth Circuit.

April 6, 2016.

ON BRIEF:John B. Nalbandian, Taft, Stettinius & Hollister LLP, Cincinnati, Ohio, Ronald D. Holman, II, Michael J. Zbiegien, Jr., Taft Stettinius & Hollister LLP, Cleveland, Ohio, for Appellant. Drew Legando, Jack Landskroner, Landskroner Grieco Merriman, LLC, Cleveland, Ohio, for Appellee.

Before: GUY, MOORE, and McKEAGUE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant–Appellant Visionworks of America, Inc. ("Visionworks") appeals from the district court's grant of Plaintiff–Appellee Elliott Graiser's motion to remand. Visionworks removed this case under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d), claiming that the amount in controversy recently surpassed CAFA's jurisdictional threshold of $5,000,000. Graiser moved to remand, arguing that Visionworks removed the case more than thirty days after it could have first ascertained that the case was removable, and thus Visionworks's removal was untimely under 28 U.S.C. § 1446(b)(3). Determining whether removal was timely requires us to answer two questions of first impression in our Circuit. First, what documents, if any, triggered § 1446(b)(3)'s thirty-day clock for removal under CAFA? Second, does § 1446(b)(3) provide defendants with one thirty-day window for removability that begins once any ground for removal is discovered, or can a defendant remove upon ascertaining that CAFA jurisdiction exists, even if a thirty-day removal window has expired under a different theory of federal jurisdiction? For the reasons discussed below, we hold that § 1446(b)'s thirty-day window for removal under CAFA is triggered when the defendant receives a document from the plaintiff from which it can first be ascertained that the case is removable under CAFA. We also hold that the presence of CAFA jurisdiction provides defendants with a new window for removability, even if the case was originally removable under a different theory of federal jurisdiction. Accordingly, the order of the district court is VACATED and this case is REMANDED back to the district court for further proceedings.

I. BACKGROUND

On April 30, 2014, Graiser, an Ohio citizen, saw a "Buy One, Get One Free" eyeglasses advertisement at the Beachwood, Ohio location of Visionworks, a Texas eye-care corporation operating in over forty states. R. 1–3 (Am. Compl. at 2) (Page ID # 232). According to Graiser, upon entering the store and inquiring about the promotion, a Visionworks salesperson quoted Graiser "a price of $409.93 for eyeglasses, with a second eyeglasses ‘free.’ " Id. Alternatively, the salesperson told Graiser that he could purchase a single pair of eyeglasses for $245.95. Id. From this relatively simple factual background, we now confront two challenging procedural questions.

A. Graiser's First State–Court Complaint, Removal, and Remand

Graiser filed a proposed class-action complaint against Visionworks in the Court of Common Pleas of Cuyahoga County, Ohio on June 24, 2014. R. 1–2 (Original Compl. at 1) (Page ID # 10). Graiser's complaint alleged that Visionworks's "Buy One, Get One Free" promotion violated Ohio Administrative Code § 109:4–3–04 and the Ohio Consumer Sales Practices Act, Ohio Rev.Code Ann. § 1345.01 et seq., because the price of the second pair of eyeglasses was not truly "free." Id. at 3–4 (Page ID # 12–13). Graiser sought to represent a proposed class of "all consumers who (1) have purchased or who may yet purchase eyeglasses at a Visionworks store in Ohio or (2) have seen or may yet see an advertisement published by ... Visionworks purporting to offer" the promotion. Id. at 6 (Page ID # 14). Graiser requested only declaratory and injunctive relief, in addition to statutory attorney's fees. Id. at 10 (Page ID # 18).

On July 25, 2014, Visionworks removed the case to the United States District Court for the Northern District of Ohio under diversity jurisdiction, 28 U.S.C. § 1332(a). R. 1–2 (07/25/14 Notice of Removal) (Page ID # 49). According to Visionworks, the district court had original jurisdiction over the complaint because Graiser and Visionworks are citizens of different states and "Plaintiff seeks injunctive relief and attorneys' fees properly valued well in excess of $75,000." Id. at 2 (Page ID # 50). Graiser moved to remand. Graiser argued that, under Article III of the United States Constitution, he lacked standing in federal court to seek injunctive relief. See R. 1–2 (01/20/15 D. Ct. Order at 3) (Page ID # 60). The district court agreed, finding that "on the particular facts of this case, it does not appear that an injunction would remedy any cognizable future harm" to Graiser. Id. at 6 (Page ID # 63). In remanding the case, the district court noted that "state courts are not bound by Article III's strictures," and thus Graiser's injunction claim "may still be viable in state court after remand." Id. at 8 (Page ID # 65). The district court also recognized that "claims for damages could be viable in federal court if sufficient amounts were in controversy," though Graiser had "specifically disclaimed" monetary damages. Id.

Following remand, Visionworks filed a motion for judgment on the pleadings, arguing that Graiser also lacked standing to seek an injunction under state law. R. 1–2 (Mot. for J. on Pleadings at 1) (Page ID # 151). The state court conditionally granted Visionworks's motion on April 9, 2015, but provided Graiser with fourteen days to amend his complaint. R. 1–3 (04/9/15 State Ct. Op. at 8) (Page ID # 229).

B. Graiser's Amended State–Court Complaint and Visionworks's Removal Under CAFA

Graiser filed an Amended Complaint on April 23, 2015, adding requests for actual and punitive damages; Graiser also maintained his requests for statutory attorney's fees and "[d]eclaratory, equitable, and injunctive relief." R. 1–3 (Am. Compl. at 5) (Page ID # 235). The Amended Complaint sought to certify a class of "[a]ll consumers who purchased eyeglasses from Visionworks in Ohio during a ‘Buy One, Get One Free’ promotion since June 24, 2012, but who did not receive any benefit of a truly-free offer." Id. at 3 (Page ID # 233).

Graiser's lawyers sent a letter to Visionworks's lawyers on September 18, 2015, seeking "to open the door to class-wide settlement negotiations." R. 6–9 (9/18/15 Letter at 1) (Page ID # 1099). The letter stated that Graiser's "theory of damages is that consumers who consummated a multiple-pair transaction during a ‘buy one, get one free’ promotion actually overpaid by 40%," and thus "these consumers should recover 40% of the prices paid." Id. The letter then applied this theory of damages to the sales figures that Visionworks provided in response to Graiser's first set of interrogatories, calculating that "the total damages as of Jan[uary] 31[, 2015] are $3,940,042." Id. at 1–2 (Page ID # 1099–1100).

On September 28, 2015, counsel for Graiser requested "that Visionworks provide it with up-to-date sales figures" prior to participating in mediation. R. 11–1 (Zbiegien Decl. at 1) (Page ID # 1143); see also R. 11–1 (9/28/15 Legando Letter) (Page ID # 1145–46). Visionworks "compiled the specific sales information requested by counsel for Plaintiff, up to and including October 15, 2015, as the cut-off date," and sent this sales data to Graiser as "supplemental interrogatory answers." R. 11–1 (Zbiegien Decl. at 1–2) (Page ID # 1143–44). According to Visionworks, it then applied Graiser's "proposed damage formula"—the formula sent by letter on September 18, 2015—to the October 15, 2015 sales data, and calculated that the "potential class's alleged damages were ascertained to be $5,011,005.60." Id. at 2 (Page ID # 1144).¹

Visionworks removed the case to the United States District Court for the Northern District of Ohio on November 10, 2015, asserting jurisdiction under CAFA. R. 1 (Notice of Removal at 1, 4) (Page ID # 1, 4). According to the Notice of Removal, "Visionworks was able to first ascertain that this case became removable after the receipt of the October 15, 2015 sales figures," and thus the Notice of Removal was timely filed within thirty days of ascertaining removability, as required by 28 U.S.C. § 1446(b)(3). Id. at 4 (Page ID # 4).

Graiser moved to remand on November 13, 2015, arguing that Visionworks's removal was untimely. R. 6 (Mot. to Remand) (Page ID # 1049). According to Graiser, the Amended Complaint was removable under diversity jurisdiction, and thus the Notice of Removal—filed over six months later—was far outside of the thirty-day window. Id. at 1–2 (Page ID # 1049–50). Moreover, Graiser claimed that Visionworks "sat upon the sales figures in its possession for months" and could have first ascertained removability under CAFA by applying its own sales figures earlier, particularly given that Graiser informed Visionworks on September 18th that, under January sales data, the damages were $3,940,042, and that this "figure would have to be brought current for sales" occurring afterwards. Id. at 2, 9 (Page ID # 1050, 1057). Visionworks opposed Graiser's motion on December 17, 2015, R. 11 (Def. Opp. to Pl. Mot. to Remand) (Page ID # 1117), and Graiser replied on January 4, 2016. R. 12 (Pl. Reply to Opp. to Mot. to Remand) (Page ID # 1155).

The district court granted Graiser's motion to remand on January 11, 2016. R. 13 (01/11/16 D. Ct. Order) (Page ID # 1168). The district court noted that Graiser made "persuasive arguments" that the Amended Complaint was originally removable under diversity jurisdiction, and thus Visionworks should have removed within thirty days of the amended complaint. Id. at 2–3 (Page ID # 1169–70). Moreover, the district court found that Visionworks "possessed its own sales data at the time the Amended Complaint was filed," and thus "was able to ‘ascertain’ CAFA jurisdiction" from the filing of the Amended Complaint or from...