In Re: Ford Motor Co., PLAINTIFFS-APPELLEES

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtWallace
Citation264 F.3d 952
Parties(9th Cir. 2001) IN RE: FORD MOTOR COMPANY/CITIBANK (SOUTH DAKOTA), N.A., CARDHOLDER REBATE PROGRAM LITIGATION JOHN B. MCCAULEY, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED; GERALD ESSIG; THOMAS WALTERS, ON BEHALF OF THEMSELVES AND ON ALL OTHERS SIMILARLY SITUATED; JEFFREY SCOTT MERRICK; JOHN LAGROU; HOWARD S. HORNREICH; LYNETTE M. HORNREICH, HUSBAND AND WITH ON THEIR OWN AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND RICKY A. COPELAND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED,, v. FORD MOTOR COMPANY, A DELAWARE CORPORATION, CITIBANK (SOUTH DAKOTA), N.A.,, FORD MOTOR COMPANY, A DELAWARE CORPORATION; CITIBANK (SOUTH DAKOTA), N.A.; CITIBANK, A NEW YORK CORPORATION; DOES 1 THROUGH 10 INCLUSIVE; FORD MOTOR COMPANY, A CORPORATION, DEFENDANTS. ,, 99-36206, (Consolidated)
Decision Date08 June 2001
Docket NumberPLAINTIFFS-APPELLEES,DEFENDANT-APPELLANT,No. 99-36115

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264 F.3d 952 (9th Cir. 2001)
IN RE: FORD MOTOR COMPANY/CITIBANK (SOUTH DAKOTA), N.A., CARDHOLDER REBATE PROGRAM LITIGATION
JOHN B. MCCAULEY, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED; GERALD ESSIG; THOMAS WALTERS, ON BEHALF OF THEMSELVES AND ON ALL OTHERS SIMILARLY SITUATED; JEFFREY SCOTT MERRICK; JOHN LAGROU; HOWARD S. HORNREICH; LYNETTE M. HORNREICH, HUSBAND AND WITH ON THEIR OWN AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; AND RICKY A. COPELAND, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
v.
FORD MOTOR COMPANY, A DELAWARE CORPORATION, CITIBANK (SOUTH DAKOTA), N.A., DEFENDANT-APPELLANT,
FORD MOTOR COMPANY, A DELAWARE CORPORATION; CITIBANK (SOUTH DAKOTA), N.A.; CITIBANK, A NEW YORK CORPORATION; DOES 1 THROUGH 10 INCLUSIVE; FORD MOTOR COMPANY, A CORPORATION, DEFENDANTS.
No. 99-36115,, 99-36206, (Consolidated)
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted June 8, 2001--Seattle, Washington
Filed September 6, 2001

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Counsel Sidney R. Snyder, Jr., Esq., Merrick, Hofstedt & Lindsey, Seattle, Washington; John H. Beisner, Esq., O'Melveny & Myers, Llp, Washington, D.C., for defendant-appellant Citibank.

Steve W. Berman, Esq., Hagens and Berman, Seattle, Washington; John H. Alexander, Alexander, Fennerty & Associates, Chicago, Illinois; Michael J. Rosenfeld, Kalb, Rosenfeld & Essig, Commack, New York; Roger W. Kirby, Kaufman, Malchman, Kirby & Squire, New York, New York; James G. Lewis, Los Angeles, California; Michael L. Williams, Williams & Troutwine, Portland, Oregon; Russell Jackson Drake, Cooper, Mitch, Crawford, Kuykendall & Whatley Llc, Birmingham, Alabama, for the plaintiffs-appellees.

Bruce M. Berman, Natacha D. Steimer, and Christopher R. Lipsett, Wilmer, Cutler & Pickering, Washington, D.C.; Thomas L. Boeder, Esq., Perkins Coie Llp, for defendant Citibank (South Dakota), N.A.

Appeal from the Decision of the United States District Court for the Western District of Washington William L. Dwyer, District Judge, Presiding D.C. Nos. MD-98-01199-WLD; (lead) CV-97-01293-WLD; CV-98-00151-WLD; CV-98-00152-WLD; CV-98-00153-WLD; CV-98-00226-WLD; CV-98-00817-WLD

Before: James R. Browning, J. Clifford Wallace, and Thomas G. Nelson, Circuit Judges.

Wallace, Circuit Judge

Ford Motor Company (Ford) and Citibank (South Dakota), N.A. (Citibank) appeal from the district court's order dismissing the consolidated complaint of several underlying state court lawsuits under 28 U.S.C. §§ 1332 for lack of subject matter jurisdiction, and remanding these state suits to the courts from which they were removed. We must decide two questions. First, whether the minimum amount in controversy required to maintain a diversity suit in federal court ($75,000) is present in the consolidated action. We have jurisdiction under 28 U.S.C. §§ 1291 to review the district court's order dismissing the consolidated complaint for lack of subject matter jurisdiction, and we affirm. Second, we must determine whether we have jurisdiction to entertain a challenge to the district court's order remanding the original actions to the state court from which they came. We do not.

I.

In early 1993, Ford and Citibank issued a co-branded Ford/ Citibank credit card that offered cardholders the opportunity to save on the purchase or lease of a new Ford vehicle through a usage-incentive program. Under the program cardholders earned a 5% rebate on each purchase made using the Ford/ Citibank credit card and could accrue a maximum of $700 in rebates per year (representing $14,000 in purchases) over a five-year period, for a maximum possible rebate of $3,500, redeemable toward the purchase or lease of certain Ford vehicles. On December 31, 1997 -less than five years after the program's inception -Ford and Citibank terminated the rebate accrual feature of the Ford/Citibank credit card.

Six state actions were filed in Washington, Oregon, California, Illinois, Alabama, and New York, alleging generally that Ford and Citibank misrepresented or withheld information about the nature and duration of the rebate program and wrongfully discontinued it. Ford and Citibank removed each case to federal district court on the basis of diversity jurisdiction, then petitioned the Judicial Panel on Multidistrict Litigation (Panel) to consolidate

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and transfer the cases to a single district court for pre-trial proceedings, pursuant to 28 U.S.C. §§ 1407. "Under 28 U.S.C. §§ 1407,[the Panel] is authorized to transfer civil actions pending in more than one district involving one or more common questions of fact to any district court for coordinated or consolidated pretrial proceedings upon its determination that transfer `will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of such actions.' " Fed. Judicial Ctr., Moore's Federal Practice Manual for Complex Civil Litigation §§ 31.13 (3d ed. 2000).

On January 8, 1998, and June 12, 1998, the Panel transferred the six removed actions to the Western District of Washington "for coordinated or consolidated pretrial proceedings." The transferee district court consolidated the cases on July 16, 1998, and a consolidated complaint was filed on August 5, 1998. Purporting to sue on behalf of a nationwide class of six million Ford/Citibank cardholders, the consolidated plaintiffs alleged state law causes of action for breach of contract, unjust enrichment and consumer fraud, and plead diversity jurisdiction under 28 U.S.C. §§ 1332(a). The consolidated plaintiffs sought relief in the form of specific performance, disgorgement, and compensatory and punitive damages.

After transfer and consolidation, Ford and Citibank moved to dismiss the consolidated complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and the district court denied the motion. The consolidated plaintiffs moved for class certification. However, after discovery was completed and the issue had been fully briefed by the parties, the district court deferred judgment on class certification and instead issued an order to show cause why "the consolidated action . . . should not be dismissed for lack of jurisdiction, and why[the six underlying actions] should not be . . . remanded to state court." Though neither party had challenged the district court's jurisdiction at any point in the proceedings, the district judge properly raised sua sponte the issue of whether the consolidated complaint alleged more than $75,000 in controversy under 28 U.S.C. §§ 1332(a).

Ford and Citibank filed a memorandum in support of jurisdiction, raising three reasons why the amount in controversy requirement was met: (1) the cost of compliance with the request for injunctive relief would exceed $75,000; (2) the consolidated plaintiffs have a common and undivided interest in their compensatory damages claim, which exceeds $75,000; and (3) the consolidated plaintiffs have a common and undivided interest in their punitive damages claim, which exceeds $75,000.

In an order dated October 29, 1999, the district court held that it "lack[ed] subject matter jurisdiction over the consolidated complaint and the six removed cases." The district court dismissed the consolidated complaint for lack of jurisdiction and remanded the underlying actions to the several state courts of origin.

Pursuant to the Panel's rules of procedure, see R.P.J.P.M.L. 7.6(a), the district court sent a copy of the order to the Panel on November 8, 1999. In the attached letter, the district judge explained:

[T]his order dismisses, for lack of subject matter jurisdiction, a consolidated complaint filed by the plaintiffs in this court. The dismissal of the consolidated complaint necessitated a disposition of the six original actions filed in state court, removed to federal court on the basis of diversity of citizenship, and transferred by the Panel to the [Western District of Washington] for coordinated or consolidated pretrial proceedings. For lack of subject matter

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jurisdiction, the order remands those cases to state court.

Ford and Citibank timely appealed, challenging both the district court's dismissal of the consolidated complaint and its remand of the underlying actions.

II.

We must first consider whether we have jurisdiction to review the district court's order which states "[t]he consolidated complaint is hereby dismissed for lack of jurisdiction." Because the district court's order dismissed the"complaint" rather than the "action," the question arises whether the order is final and appealable. "Ordinarily an order dismissing a complaint but not dismissing the action is not appealable under section 1291 unless circumstances make it clear that the court concluded that the action could not be saved by any amendment of the complaint." Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n.1 (9th cir. 1984). However, "[i]f it appears that the district court intended the dismissal to dispose of the action, it may be considered final and appealable. " Id. (emphasis added).

Here, the record clearly indicates that the district court intended to dispose of the consolidated action. First, the dismissal did not grant leave to amend. See id.; see also Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987) ("Failure to allow leave to amend supports an inference that the district court intended to make the order final."). We are also aided by the district court's contemporaneous letter to the Panel which demonstrates a clear intention to terminate the case. The district court expressly sent the letter "[i]n compliance with R.P.J.P.M.L. 7.6(a)," which provides that "[a]ctions terminated in the transferee district court by valid judgment . . . shall not be remanded by the Panel and shall be dismissed by the transferee district court. The clerk of the transferee court shall...

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546 practice notes
  • Association of Irr. Residents v. C & R Vand. Dairy, No. F 05-4593 AWI SMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 16, 2006
    ...is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM (FFMx)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...See Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001); Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). At the pleading stage, this burden is satisfied by alleging facts that show a......
  • United States v. State Water Res. Control Bd., 2:19-cv-000547-LJO-EPG
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 2, 2019
    ...federal jurisdiction bears the burden of proving the case is properly in federal court." In re Ford Motor Co./Citibank (S.D.), N.A. , 264 F.3d 952, 957 (9th Cir. 2001). A "claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or inde......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM FFMx
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...See Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001) ; Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). At the pleading stage, this burden is satisfied by alleging facts that show......
  • Request a trial to view additional results
546 cases
  • Association of Irr. Residents v. C & R Vand. Dairy, No. F 05-4593 AWI SMS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 16, 2006
    ...is proper. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001). This burden, at the pleading stage, must be met by pleading sufficient allegations to show a proper basis for the court to assert......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM (FFMx)
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...See Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001); Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). At the pleading stage, this burden is satisfied by alleging facts that show a......
  • United States v. State Water Res. Control Bd., 2:19-cv-000547-LJO-EPG
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 2, 2019
    ...federal jurisdiction bears the burden of proving the case is properly in federal court." In re Ford Motor Co./Citibank (S.D.), N.A. , 264 F.3d 952, 957 (9th Cir. 2001). A "claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or inde......
  • Nat'l Labor Relations Bd. v. Vista Del Sol Health Servs., Inc., Case Nos. CV 14–03337 MMM FFMx
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • July 7, 2014
    ...See Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ; In re Ford Motor Co., 264 F.3d 952, 957 (9th Cir.2001) ; Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). At the pleading stage, this burden is satisfied by alleging facts that show......
  • Request a trial to view additional results

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