Rasay v. Pepperidge Farm, Inc.

• Decision Date: 19 September 2022
• Docket Number: Civil Action 22-449 (BAH)
• Parties: MARILI RASAY, Plaintiff, v. PEPPERIDGE FARM, INC., Defendant.
• Court: U.S. District Court — District of Columbia

MARILI RASAY, Plaintiff, v. PEPPERIDGE FARM, INC., Defendant.

Civil Action No. 22-449 (BAH)

United States District Court, District of Columbia

September 19, 2022

MEMORANDUM OPINION

BERYL A. HOWELL, CHIEF JUDGE

In June 2021, plaintiff, a D.C. resident, while shopping at a supermarket in Washington, D.C., purchased defendant Pepperidge Farm Inc.'s Golden Butter crackers in a box with packaging that indicated the crackers were “made with ‘real butter.'” Compl. ¶¶ 2 11, 19, ECF No. 1-1. After learning the crackers contained a substantial amount of vegetable oil, in addition to butter plaintiff brought two deceptive advertising claims against defendant in D.C. Superior Court under the District of Columbia Consumer Protection Procedures Act (“CPPA”), D.C. Code § 28-3901 et seq. See Id. ¶¶ 13, 17. Defendant thereafter removed the case to this Court based on the complete diversity of citizenship of the opposing parties under 28 U.S.C. § 1332(a). Def.'s Not. Removal ¶¶ 6-16 (“Def.'s Not.”), ECF No. 1. Plaintiff now moves to have this case remanded back to Superior Court, Pl.'s Mot. Remand to Dist. of Columbia Superior Ct. (“Pl.'s Mot.”), ECF No. 8, and for the reasons explained below, this motion is granted.

I.BACKGROUND

On June 16, 2021, at a Giant Food supermarket in the District plaintiff purchased a box of defendant's Golden Butter crackers. Compl. ¶ 19.^[1] Pictures of the box included in the Complaint show packaging that featured a stack of crackers under the text “GOLDEN BUTTER,” with labeling on the side panel stating that the “Golden Butter crackers are made with real butter.” Id. at 6-9. The words “Golden Butter” and “real butter” are bolded and printed in a contrasting orange font. Id. at 8.

Several months after purchasing these crackers, plaintiff filed suit against defendant in Superior Court under the CPPA, “on behalf of [her]self and as a Representative acting for the interests of the general public of the District of Columbia.” Id. ¶ 17; see also D.C. Code § 28-3905(k)(1)(B).^[2] She alleges that, because “the product contains vegetable oil in significant amounts,” the statements on the “front and side paneling” of the Golden Butter crackers package that “the product is made with ‘real butter' or ‘butter'” are “at best misleading and at worse false,” Compl. ¶¶ 2-4, such that defendant has violated the CPPA prohibition on using “innuendo or ambiguity as to a material fact, which has a tendency to mislead,” id. ¶ 87 (quoting D.C. Code § 28-3904(f-1)). Plaintiff further alleges that defendant has violated the implied warranty of merchantability, as well as “[e]xpress [w]arranties” regarding the nature of the product, id. ¶¶ 80-85, as the words “butter cracker” naturally signify “a cracker which is all or predominantly made with butter,” id. ¶ 39.

Plaintiff seeks “to enjoin [defendant's] conduct and obtain damages for herself, injunctive relief, and attorney[']s fees,” id. ¶ 77, as well as “any other relief this court deems just and proper,” although she “disclaims any damages in excess of $74,000,” id. at 30, Prayer for Relief. On the cover sheet filed with the Complaint in Superior Court, she states a demand for “equitable relief in excess of $10,000,” see Def.'s Not., Ex. A, Superior Ct. of the Dist. of Columbia Civ. Div. - Civ. Actions Branch Info. Sheet, Rasay v. Pepperidge Farm. Inc., No. 2021 CA 4788 B, at 3 (“Superior Ct. Cover Sheet”), ECF No. 1-1, although this demand is not included in the Complaint itself, see generally Compl.

On February 18, 2022, defendant timely removed the suit to this Court, see Def.'s Not. at 1, and plaintiff, on April 5, 2022, timely filed the instant motion to remand to Superior Court, see Pl.'s Mot. at 1.^[3] Defendant opposed plaintiff's motion, see Def.'s Opp'n Pl.'s Mot. Remand to Dist. of Columbia Superior Ct. (“Def.'s Opp'n”), ECF No. 10, and plaintiff filed no reply. The requisite time for plaintiff to do so has now passed, see D.D.C. Local Civil Rule 7(d) (providing seven days for reply), and the motion is ripe for resolution.

II. LEGAL STANDARD

“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction[] may be removed by the defendant . . . to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). For a district court to exercise diversity jurisdiction, the parties must be “citizens of different States” and “the matter in controversy [must] exceed[] the sum or value of $75,000.” Id. § 1332(a). “When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case, and the court's order remanding the case to the state court whence it came ‘is not reviewable on appeal or otherwise.'” Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (citing 28 U.S.C. § 1447(c) and quoting id. § 1447(d)); see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning, 578 U.S. 374, 389-90 (2016) (noting that the “‘deeply felt and traditional reluctance . . . to expand the jurisdiction of the federal courts through a broad reading of jurisdictional statutes' . . . thus [serves] to help maintain the constitutional balance between state and federal judiciaries” (quoting Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 379 (1959))).

A defendant seeking the exercise of federal court jurisdiction over a removed case “bears the burden of pleading” the basis for jurisdiction. Novak v. Capital Mgmt. & Dev. Corp., 452 F.3d 902, 906 (D.C. Cir. 2006) (citation omitted); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (“It is to be presumed that a cause lies outside this limited jurisdiction [authorized by Constitution and statute], and the burden of establishing the contrary rests upon the party asserting jurisdiction.” (internal citations omitted)); Apton v. Volkswagen Grp. of Am., Inc., 233 F.Supp.3d 4, 11 (D.D.C. 2017). Absent such a showing, a “court must remand the case.” Johnson-Brown v. 2200 M Street LLC, 257 F.Supp.2d 175, 177 (D.D.C. 2003) (citing 28 U.S.C. § 1447(c)). “In light of the significant federalism concerns involved, this court strictly construes the scope of its removal jurisdiction,” RGI Events & Pub. Rels., LLC v. Al Qurm Mgmt. Consultancy (“RGI Events”), No. 18-cv-1828 (BAH), 2019 WL 935498, at *2 (D.D.C. Feb. 26, 2019) (quoting Moses v. SunTrust Mortg., Inc., No. 11-cv-822 (BJR), 2012 WL 113375, at *2 (D.D.C. Jan. 13, 2012)), resolving “any ambiguities concerning the propriety of removal in favor of remand,” Animal Legal Def. Fund v. Hormel Foods Corp., 249 F.Supp.3d 53, 56 (D.D.C. 2017) (quoting Johnson-Brown, 257 F.Supp.2d at 177); see also Zuckman v. Monster Beverage Corp., 958 F.Supp.2d 293, 297 (D.D.C. 2013).

III. DISCUSSION

Defendant asserts that diversity jurisdiction properly lies because the parties have diverse citizenship and the amount in controversy exceeds $75,000, under the familiar tenets of 28 U.S.C. § 1332(a). Def.'s Not. ¶ 6. Plaintiff is a citizen of the District of Columbia and defendant is a citizen of Connecticut with its principle place of business in Connecticut and, thus, the parties are indeed diverse. See Id. ¶¶ 9-10; Compl. ¶ 11. The question of whether this Court has jurisdiction turns on the amount in controversy.

As discussed above, plaintiff seeks (1) “statutory or actual damages, trebled,” disclaiming “any damages in excess of $74,000”; (2) attorney's fees; and (3) “an injunction against the Defendant's[] violations of the CPPA.” Compl. at 30. Defendant argues that the amount in controversy passes the jurisdictional bar, first-and most significantly-because plaintiff prays for damages as much as, but not “in excess of[,] $74,000.” Def.'s Opp'n at 3-5. Adding the cost of attorney's fees and equitable relief to the mix, defendant contends, brings the total amount in controversy above $75,000. Id. at 6-8.

Plaintiff disagrees with defendant's position on several fronts, first arguing that $74,000 is an inappropriate damages figure for purposes of calculating the amount in controversy. See Pl.'s Mem. Supp. Mot. Remand to Dist. of Columbia Superior Ct. (“Pl.'s Mem.”) at 3, ECF No. 8-1. Plaintiff also asserts that attorney's fees cannot be considered as part of the amount in controversy, id. at 6, and that because her request for “equitable relief” simply reflects the costs defendant would bear in complying with an injunction against its CPPA violations, this figure must be credited toward the amount in controversy on a pro rata basis, id. at 4-5. Estimating damages far below $74,000, and allocating only a small slice of the injunctive costs to herself, plaintiff argues the amount in controversy in the suit remains far below the threshold for litigating in federal court.

When a case is removed to federal court, under 28 U.S.C. § 1446(a), “the defendant's amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court,” Dart Cherokee Basin Operating Co., LLC v. Owens (“Dart Cherokee”), 574 U.S. 81, 87 (2014), and “[w]hen the plaintiff's complaint does not state the amount in controversy, the defendant's notice of removal may do so,” id. at 84 (citing 28 U.S.C. § 1446(c)(2)(A)). When a plaintiff challenges the figure cited by defendant, however, the court must “decide[], by a preponderance of the evidence whether the amount-in-controversy requirement has been satisfied.” Id. at 88. The burden of proof remains with the defendant, as the D.C. Circuit has “emphasized that . . . the party asserting jurisdiction always bears the burden of establishing the amount in...