Lewis v. Ford Motor Co.

• Decision Date: 05 January 2010
• Docket Number: CA No. 09-164.
• Parties: Timothy LEWIS and Timothy Trapuzzano, Plaintiffs, v. FORD MOTOR COMPANY, Washington Ford, Inc., and Morelli Hoskins Ford, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

685 F.Supp.2d 557

Timothy LEWIS and Timothy Trapuzzano, Plaintiffs,

v.FORD MOTOR COMPANY, Washington Ford, Inc., and Morelli Hoskins Ford, Inc., Defendants.

CA No. 09-164.

United States District Court, W.D. Pennsylvania.

Decided: Jan. 5, 2010.

Supplemental Opinion Jan. 26, 2010.

COPYRIGHT MATERIAL OMITTED

Aldo Bolliger, Mitchell & Bolliger PLLC, Tampa, FL, Kurt Mitchell, Mitchell & Bolliger PLLC, Kittanning, PA, for Plaintiffs.

Jaret J. Fuente, Carlton Fields, P.A. Tampa, FL, John M. Thomas, Bryan Cave LLP, Chicago, IL, Nancy R. Winschel Dickie, McCamey & Chilcote, Pittsburgh, PA, Thomas J. Palazzolo, Bryan Cave LLP, St. Louis, MO, for Defendants.

MEMORANDUM ORDER

WILLIAM L. STANDISH, District Judge.

Pending before the Court is Plaintiffs' renewed motion to remand this matter to the Court of Common Pleas for Armstrong County, pursuant to 28 U.S.C. § 1447¹(Doc. No. 74.) Plaintiffs contend the Court no longer has jurisdiction over this case inasmuch as the motion for class certification has been denied. Defendant Ford Motor Company opposes the motion Defendants Washington Ford, Inc., and Morelli Hoskins Ford, Inc., have not filed briefs opposing or acquiescing to the motion. For the reasons discussed below Plaintiffs' motion is denied.

I. RELEVANT HISTORY

Plaintiffs Timothy Lewis and Timothy Trapuzzano originally filed suit in the Court of Common Pleas of Armstrong County, Pennsylvania, on January 20, 2009. Their Complaint sought certification of a class consisting of

all persons who purchased a Class Vehicle ² in the State [sic] of Pennsylvania, or who owned a Class Vehicle and were forced to sell or trade the vehicle at a loss because of the extreme front end oscillation the vehicles exhibit when contacting typical road surfaces of expansion joints, road reflectors or potholes.

(See Doc. No. 1, Exhibit A, Complaint, ¶ 14, "Class Members.")

In their initial complaint, Plaintiffs alleged that Ford Motor Company ("Ford") had violated the express warranty provisions of the Magnuson-Moss Warranty Improvement Act, 15 U.S.C. § 2301 ("the Act"); the implied warranty provisions of the Act; and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. ("Consumer Protection Law.")

On February 2, 2009, Ford filed a timely motion for removal pursuant to 28 U.S.C. §§ 1332(d) and 1446, arguing that removal was appropriate under the Class Action Fairness Act of 2005 ("CAFA," found in various provisions of 28 U.S.C. § 1332), based on Ford's estimation that the putative class, as described in the Complaint, would consist of 100 or more members; that the damages sought for the class would exceed $5 million; and that there was complete diversity of at least one member of the class and any defendant.

Plaintiffs responded on February 14, 2009, with a motion to remand to the Court of Common Pleas. In a memorandum opinion entered on March 26, 2009, this Court determined that based on the average amount sought by a typical class member, ³ even when interest and costs were excluded (see 28 U.S.C. § 1332(d)(6)), damages per member would total $1,300. 610 F.Supp.2d 476, 484-86 (W.D.Pa.2009). An unrefuted declaration provided by a Ford design analysis engineer which stated that the company had sold approximately 22, 000 Class Vehicles in Pennsylvania, coupled with Plaintiffs' definition of the class as "all persons who purchased a class vehicle in the State of Pennsylvania...," led the Court to conclude that it was not rash speculation to find that the class would total at least 3, 847 persons, thereby satisfying one prong of the test used to determine if removal under CAFA was appropriate. By simple multiplication, then, the amount in controversy was also satisfied. (Id. at 486-88.) The Court held it was appropriate to retain jurisdiction and the motion to remand was denied.

The litigation continued through preliminary discovery on class certification issues until May 11, 2009, when Plaintiffs moved to certify a class only as to Count III of the Complaint, violation of the Pennsylvania Consumer Protection Law.⁴ (Doc. No. 31.) The Court denied the motion for class certification in a memorandum opinion dated August 25, 2009, 263 F.R.D. 252 (W.D.Pa.2009) (Doc. No. 59, "Non-Certification Opinion.") We concluded that although the putative class satisfied the requirements of numerosity (id. at 258-59) and typicality (id. at 264-65), Plaintiffs had failed to show that the class met the commonality and adequacy of representation criteria (id. at 259-64 and 265-68, respectively) of Fed. R. Civil P. 23(a), nor did the putative class satisfy the predominance criterion of Rule 23(b)(3) (id. at 267-68.) Plaintiffs were directed to file an amended complaint deleting all class allegations which they did on October 21, 2009.⁵ They then filed the now-pending motion to remand this matter to state court.

II. ANALYSIS

Plaintiffs first argue that the Court's conclusion in the Non-Certification Opinion that "damages to the class where [sic] not ascertainable on a class basis and would require an 'unconscionable use of the Court's time"' is evidence that the $5,000, 000 amount in controversy under CAFA "was not and could not be established thus, this Court never had subject matter jurisdiction," Consequently, we should remand the case to the Court of Common Pleas. (Plaintiffs' Memorandum of Law in Support of Their Renewed Motion to Remand, Doc. No. 75, "Plfs.' Memo.," at 2-3.)

Alternatively, the case should be remanded "because continued jurisdiction under the CAFA is premised upon the district court entering an order certifying the class action." (Plfs.' Memo at 3-4 citing cases in n. 6.) While acknowledging that there is a split among the district courts which have considered this question, the only Circuit Court case Plaintiffs were able to identify which "squarely addresses" the issue, County of Nassau v. Hotels.com, LP, 577 F.3d 89 (2d Cir.2009), held that class certification is required for continued jurisdiction under CAFA. Moreover, the reasoning of those courts which have held that jurisdiction survives dismissal of the class allegations is at odds with the purpose of CAFA.

Finally, Plaintiffs argue that retaining jurisdiction after denying a motion for class certification will lead to forum shopping and ensure that federal courts become bogged down with small cases which are inappropriate in federal court. Consequently, this Court should follow the line of cases based on Falcon v. Philips Elecs. N. Am. Corp., 489 F.Supp.2d 367 (S.D.N.Y.2007), and hold that failure to certify a class destroys subject matter jurisdiction. (Id. at 4-5.) Plaintiffs fail to elaborate on this third argument and the only case cited in support of this argument, Falcon, does not address either the issue of forum shopping or of federal courts becoming bogged down in small cases. We therefore decline to address this point⁶ and turn to an analysis of Plaintiffs' other arguments.

A. This Court Never Had Jurisdiction under CAFA

Plaintiffs argue that subject matter jurisdiction in this case never existed and remand is thus mandatory under 28 U.S.C § 1447(c). They contend that in assuming jurisdiction under CAFA, the only basis for Defendant's removal action, the Court erroneously determined that the damages of the class would satisfy the $5 million threshold based on a general calculation, yet later determined that the commonality criterion of Rule 23(a) could not be satisfied because each class member's damages would have to be individually determined. Similarly, the Court granted CAFA jurisdiction based on a class size of at least 3, 847 members, only to later contradict itself in the Non-Certification Opinion by finding that these class members had "disappeared like specters in the night" or that the numerosity criterion had been "established only by the slimmest of margins, " According to Plaintiffs, it follows that if the class did not satisfy the numerosity⁷or commonality⁸ criteria of Rule 23(b) at the time the class certification motion was denied, the same must have been true at the time of removal, meaning that the Court did not have jurisdiction when the case was removed. Consequently, the Court must remand to state court for lack of subject matter jurisdiction. (Plfs.' Memo at 5-7.)

This argument reflects a fundamental misunderstanding of the law. CAFA gives federal district courts original jurisdiction, either by the plaintiff's act of filing in such a court or by the defendant's removal thereto, of a putative class action before the entry of a class certification order, assuming the criteria of 28 U.S.C. § 1332(d)(2) and (d)(5)(B) are met. See 28 U.S.C. § 1332(d)(1)(B), defining "class action" as "any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute⁹ or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action." (Emphasis added by the Court.) "A complaint that contains class-type allegations historically has been assumed to assert a class action before formal class certification." College of Dental Surgs. of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 40 (1st Cir.2009). CAFA further provides that "[t]his subsection shall apply to any class action before or after the entry of a class certification order by the court with respect to that claim." 28 U.S.C. § 1332(d)(8). "[T]his provision... effectively treats as provisional class actions those suits visibly framed as such, notwithstanding flaws that may be subject to adjustment or revision before a class can be certified." College of Dental Surgeons, id.

Based on Plaintiffs' allegations in the Complaint that the criteria for class certification had been met and the outline of damages they sought on behalf of the class, plus the affidavit stating the cost of repairing the allegedly defective vehicles and the number of Class Vehicles sold Ford had reasonable grounds to...