Nat'l Consumers League v. Gen. Mills Inc

• Decision Date: 15 January 2010
• Docket Number: Civil Action No. 09-01881(HHK).
• Citation: 680 F.Supp.2d 132
• Parties: NATIONAL CONSUMERS LEAGUE, Plaintiff, v. GENERAL MILLS, INC., Defendant.
• Court: U.S. District Court — District of Columbia

680 F.Supp.2d 132

NATIONAL CONSUMERS LEAGUE, Plaintiff,

v.GENERAL MILLS, INC., Defendant.

Civil Action No. 09-01881(HHK).

United States District Court, District of Columbia.

Decided: Jan. 15, 2010.

COPYRIGHT MATERIAL OMITTED

Donald J. Enright, Karen Jennifer Marcus, Finklestein Thompson LLP, Washington, DC, for Plaintiff.

Andrew Santo Tulumello, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Defendant.

MEMORANDUM OPINION

HENRY H. KENNEDY, JR., District Judge.

National Consumers League ("NCL") sued General Mills in the Superior Court for the District of Columbia under the District of Columbia Consumer Protection Procedures Act ("CPPA"), D.C.Code §§ 28-3901, et seq.After General Mills removed the action to this court, NCL filed this Emergency Motion to Remand [# 16]. Upon consideration of the motion the opposition thereto, and the arguments of counsel at a hearing, the Court concludes that NCL's motion should be granted.

I. BACKGROUND

NCL brings this suit under the "private attorney general" provision of the CPPA which provides that "[a] person, whether acting for the interests of itself, its members, or the general public may bring an action under this chapter in the Superior Court of the District of Columbia seeking relief from the use by any person of a trade practice in violation of the law of the District of Columbia..." D.C.Code § 283905(k)(l). NCL's complaint alleges that General Mills violated the CPPA "by, inter alia, falsely misrepresenting that [Cheerios] has drug-quality properties that would reduce total and 'bad' cholesterol levels when eaten." Compl. ¶34. NCL seeks declaratory and injunctive relief, the greater of "treble damages or statutory damages in the amount of $1,500 per violation, " and attorneys' fees, experts' fees, and costs. Compl. Prayer for Relief.

General Mills' Notice of Removal contends that NCL's suit is removable either as a class action under the Class Action Fairness Act ("CAFA"), 28 U.S.C § 1332(d)(2), or pursuant to this Court's diversity jurisdiction. NCL's Motion for Remand disputes the Court's subject matter jurisdiction and additionally argues that NCL does not have Article III standing. NCL's position has merit.

II. ANALYSIS

A. NCL Does Not Have Article III Standing.

NCL expressly disclaims Article III standing, maintaining that it has suffered no injury in fact. General Mills acknowledges that NCL did not sustain injury by purchasing Cheerios, but argues that NCL has organizational standing to bring this suit in federal court because "defendant's alleged actions have led the organization 'to devote significant resources to identify and counteract the defendant's' [sic] allegedly unlawful 'practices.'" General Mills' Opp'n to NCL's Mot. Remand at 3 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). General Mills' argument is unconvincing.

"Organizations have standing in their own right if they establish that the organization has suffered an injury-in-fact i.e., a 'concrete and demonstrable injury to the organization's activities.'" Center for Auto Safety v. Nat'l Highway Traffic Safety Admin., 793 F.2d 1322, 1329 n. 41 (D.C.Cir.1986) (quoting Havens, 455 U.S at 379, 102 S.Ct. 1114); see Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (holding that organizational standing is proper where the challenged conduct has directly harmed an organization's ability to provide services). A plaintiff does not have standing, however, if the alleged violation merely sets back the organization's abstract social interests or frustrates its objectives. See Nat'l Taxpayers Union, 68 F.3d at 1433 (holding that frustration of an organizations' objectives "is the type of abstract concern that does not impart standing.").

The D.C. Circuit has rejected the suggestion that "the time and money that plaintiffs spend in bringing suit against a defendant would itself constitute a sufficient 'injury in fact, ' " finding that to be "a circular position that would effectively abolish the requirement altogether." Fair Employment Council v. BMC Mktg. Corp. 28 F.3d 1268, 1277 (D.C.Cir.1994); see also Abigail Alliance for Better Access to Dev. Drugs v. Von Eschenbach, 469 F.3d 129, 133 (D.C.Cir.2006) ("[A]n organization is not injured by expending resources to challenge the regulation itself; we do not recognize such self-inflicted harm."); Equal Rights Center v. Post Properties, Inc., 657 F.Supp.2d 197, 201 (D.D.C.2009) ("[Organizational plaintiffs cannot establish injury that is fairly traceable to defendants' conduct merely by deciding to devote resources to identify and counteract misinformation.... Indeed, were an association able to gain standing merely by choosing to fight a policy that is contrary to its mission, the courthouse door would be open to all associations.") (internal quotations and alteration omitted).

General Mills contends that the D.C. Circuit has found organizational standing on facts similar to those presented here. General Mills points to Action Alliance of Senior Citizens v. Heckler, 789 F.2d 931 (D.C.Cir.1986), and specifically, the Circuit's holding that plaintiffs had organizational standing where the organization "devote[d] themselves to the service of senior citizens and rest[ed] their claims on programmatic concerns, not on wholly speculative or purely ideological interests." 789 F.2d at 937. In that case, plaintiffs alleged that "the challenged regulations deny the AASC organizations access to information and avenues of redress they wish to use in their routine informationdispensing, counseling, and referral activities" such that the organizations "alleged inhibition of their daily operations, an injury both concrete and specific to the work in which they are engaged." Id. at 937-38. The Circuit found the organizations had standing because they "adequately alleged a direct, adverse impact on [their] activities by reason of the agency decisions reflected in the HHS-specific regulations." Id. at 937.

General Mills also relies on Abigail Alliance v. Von Eschenbach, 469 F.3d at 133, to argue that the " 'direct conflict'... between General Mills's [sic] alleged conduct and NCL's organizational mission and activities" is sufficient to confer organizational standing. General Mills' Opp'n at 6 (quoting Abigail Alliance, 469 F.3d at 133). In Abigail Alliance, the Circuit upheld standing where the plaintiff alleged that "unduly burdensome requirements that the FDA impose[d] on experimental treatments" "frustrated [its] efforts to as- sist its members and the public in accessing potentially life-saving drugs and its other activities, including counseling, referral, advocacy, and educational services." 469 F.3d at 132-33.

In contrast to the claims in Action Alliance and Abigail Alliance, NCL's claim rests on alleged harm to the general public, not to itself. NCL does not allege that General Mills' conduct has had any impact—much less a direct, adverse impact— on its activities as an organization. Nor does NCL claim that due to General Mills' labeling it has diverted resources and time from fighting other bad actors or to educating the public to counteract the misinformation. Rather, NCL has merely chosen to devote its resources to challenge General Mills' conduct by filing this suit, much like the "self-inflicted harm" of challenging a regulation. Abigail Alliance, 469 F.3d at 133. Challenging conduct like General Mills' alleged mislabeling is the very purpose of consumer advocacy organizations. As such, General Mills' alleged conduct does not hamper NCL's advocacy effort; if anything it gives NCL an opportunity to carry out its mission.

Because NCL does not claim that General Mills' conduct harmed NCL or inhibited its activities, NCL does not have Article III standing to bring suit in this Court. See Center For Science in the Public Interest v. Burger King Corp., 534 F.Supp.2d 141, 143-144 (D.D.C.2008) (holding that where plaintiff organization "does not allege any personal or economic injury suffered by itself or its members... [s]uch generalized grievances are insufficient to establish constitutional standing for claims brought under DCCPPA").

B. Even If NCL Had Article III Standing, The Court Does Not Have Subject Matter Jurisdiction.

Even if the Court were to find that NCL has Article III standing, remand is proper because the Court does not have subject matter jurisdiction. General Mills argues that the case is removable to this Court under CAFA, or alternatively, pursuant to the Court's diversity jurisdiction. The Court is not persuaded.

1. NCL's CPPA Suit Is Not A Class Action Under CAFA.

"Subject to certain limitations, the CAFA confers federal diversity jurisdiction over class actions where the aggregate amount in controversy exceeds $5 million." Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 571, 125 S.Ct 2611, 162 L.Ed.2d 502 (2005). General Mills contends that this Court has original jurisdiction over NCL's suit under CAFA because the suit is a "civil action filed under Rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action." 28 U.S.C. § 1332(d)(1)(B). According to General Mills, NCL's claim meets CAFA's three requirements for removal: (a) a combined alleged claim of more than $5,000, 000, § 1332(d)(6); (b) more than 100 alleged class members in the proposed class, § 1332(d)(5)(B); and (c) diversity of citizenship, § 1332(d)(2)(A).

The Court finds instead that CAFA carves out an exception for private attorney general suits like NCL's. See Breakman v. AOL LLC, 545 F.Supp.2d 96, 101 (D.D.C.2008). CAFA provides that a "mass action" that meets certain requirements shall be deemed to be a removable class action, but "the term 'mass action' shall not include any civil action in which... all of the claims in the action are asserted on...