Seroyer v. Pfizer, Inc., CIV. A. 97-D-193-N.

• Decision Date: 14 August 1997
• Docket Number: No. CIV. A. 97-D-193-N.,CIV. A. 97-D-193-N.
• Citation: 991 F.Supp. 1308
• Parties: Samuel SEROYER and Richard Wheeler, on behalf of themselves and all others similarly situated, Plaintiffs, v. PFIZER, INC., Defendant.
• Court: U.S. District Court — Middle District of Alabama

991 F.Supp. 1308

Samuel SEROYER and Richard Wheeler, on behalf of themselves and all others similarly situated, Plaintiffs, v. PFIZER, INC., Defendant.

No. CIV. A. 97-D-193-N.

United States District Court, M.D. Alabama, Northern Division.

August 14, 1997.

COPYRIGHT MATERIAL OMITTED

John A. Tinney, Roanoke, Larry W. Morris, Alexander City, Lesley Blackner, New York, NY, for Plaintiffs.

James W. Gewin, John E. Goodman, Richard L. Sharff, Jr., Birmingham, Thomas A. Smart, Kenneth A. Freeling, Robert A. Tauber, New York, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is plaintiffs' motion to remand filed March 18, 1997. Defendant filed a brief in opposition on April 9, 1997, and plaintiffs replied on April 23, 1997. In their reply, plaintiffs included the affidavit of plaintiff Samuel Seroyer ("Seroyer"). Defendant filed a motion to strike Seroyer's affidavit on April 29, 1997, and plaintiff's filed a response in opposition on May 9, 1997. Defendant replied thereto on May 19, 1997. Additionally, both plaintiffs and defendant have filed "supplementary new evidence" and "additional authority" in support of their respective positions in this matter.¹ After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court finds that the abovestyled action is due to be remanded. In reaching this decision, the court has found it unnecessary to rely on Seroyer's affidavit and, consequently, finds defendant's motion to strike is due to be denied as moot.

BACKGROUND

This multi-state consumer class action was originally filed on January 17, 1997, in the Circuit Court of Chambers County, Alabama. In their complaint, plaintiffs allege on behalf of themselves and those similarly situated that defendant Pfizer, Inc. ("Pfizer") has made misrepresentations concerning the dental rinses Plax, Plax Advance Formula, and New Mint Sensation Advanced Formula Plax ("Plax" collectively). Specifically, plaintiffs allege that defendant has misrepresented its product as a dental rinse which removes plaque and bacteria from teeth, whitens teeth, makes teeth smoother and provides other health benefits. Plaintiffs seek recovery under various legal theories: the Magnuson-Moss Act, 15 U.S .C. § 2301 et seq. (Counts I and II); the Uniform Commercial Code of each state, §§ 2-313, 2-314 (Counts I and II); the consumer protection or deceptive trade practices statutes of 47 states (Count III); fraud under Alabama law (Counts IV and V); breach of contract (Count VI); negligence and negligent misrepresentation (Count VII); and, unjust enrichment (Count VIII).

In their prayer for relief, plaintiffs request the court "enter judgment against Pfizer and in favor of the plaintiffs, and to award ... relief not to exceed $49,999.00 per plaintiff and class member including attorney's fees and costs." Compl. at 25. Plaintiffs pray for this action to proceed as a "class action pursuant to Alabama Rule of Civil Procedure 23(a)(1)-(4) and (b)(3) for damages." Id. They request judgment for "compensatory damages,[sic] (but not punitive damages), including prejudgment interest, for breach of implied or written warranty, deceptive trade practices, violation of Alabama Code §§ 6-5-101, et seq., breach of contract, negligence, fraud and deceit and unjust enrichment." Id. at 25-26. Additionally, plaintiffs request reasonable attorneys' fees and costs. With respective to injunctive relief, plaintiffs request "[s]uch other and further legal or declaratory relief, (but no punitive damages or equitable relief) as the Court deems just and proper." Id. at 26 (emphasis in original). Finally, plaintiffs conclude their complaint and prayer for relief with the following disavowal: "Nothing in this complaint should be deemed to warrant the conferring of jurisdiction on a federal court and plaintiff does not seek any form of equitable relief." Id.

Concurrently with the filing of their complaint, plaintiffs filed a motion for conditional class certification, which was granted the same day. In their motion, plaintiffs moved for conditional certification pursuant to Alabama Rules of Civil Procedure 23(a), (b) and (c). In support of their motion, plaintiffs argued that there existed common questions of law and fact, plaintiffs also stated that "[i]njunctive aspects of this case ... involve identical issues of interpretation of the same statutory provisions, as applied to the same factual situation ...." Pls.' Mot. for Conditional Class Certification ("Mot. for Cert.") at 1-2. Plaintiffs make two further references to injunctive relief in their motion, stating that "the defendant has acted on grounds generally applicable to the Class, thereby making appropriate final injunctive relief with respect to the class as a whole. Thus, injunctive and other non-monetary relief is appropriate and is sought here for each class member." Id. at 3 (internal citations omitted).

On February 18, 1997, Pfizer timely removed this action to the Middle District of Alabama. As grounds for its removal, Pfizer contends that there is complete diversity of citizenship between the representative plaintiffs and itself and that the amount in controversy exceeds $75,000, exclusive of interest and costs. Pfizer argues that more than $75,000 has been put in controversy in this putative nationwide class action for three reasons: (1) plaintiffs' demand for declaratory relief amounts to a mandatory injunction requiring Pfizer to recall and relabel its Plax products and the cost of such relief places more than $75,000 in controversy; (2) the named plaintiffs may recover attorneys' fees under certain deceptive practices statutes and (3) plaintiffs' claim for unjust enrichment seeks a disgorgement that would create a "common fund" also exceeding the jurisdictional requirement. To support its contention that plaintiffs are requesting injunctive relief in excess of $75,000, Pfizer cites plaintiff's Motion for Conditional Class Certification, deposition testimony, and a settlement letter sent to Pfizer prior to the filing of this lawsuit. On February 26, 1997, upon removal of this action to the Middle District of Alabama, this court found that plaintiffs had failed to demonstrate that the requirements of Federal Rule of Civil Procedure 23 had been met and, consequently, vacated the state court's conditional class certification. Denying that the amount in controversy exceeds $75,000, plaintiffs now timely move the court to remand this action back to state court.

MOTION TO REMAND STANDARD

Federal courts are courts of limited jurisdiction. Burns v. Windsor Ins. Co., 31 F.3d 1092, 1096 (11th Cir.1994); see also St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938). A federal district court may assert its jurisdiction, however, when citizens of different states are involved and the amount in controversy exceeds $75,000,² exclusive of interest and costs. 28 U.S.C. § U.S.C. § 1332(a). Therefore, where the parties are diverse and the amount in controversy is sufficient, a defendant has a right, granted by statute, to remove an action from state court and avail itself of the federal court system. 28 U.S.C. 1441³; Burns, 31 F.3d at 1095.

Because removal jurisdiction raises significant federalism concerns, the removal statutes must be strictly construed. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941). All doubts about federal court jurisdiction must be resolved in favor of a remand to state court. Burns, 31 F.3d at 1095 (holding that "where plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand."). Accordingly, the Eleventh Circuit has held that where plaintiffs limit their claims to an amount which is below the requisite amount for a federal court to assert diversity jurisdiction, the defendant must show to a "legal certainty" that plaintiffs' claims exceed the jurisdictional amount. Id. This heavy burden reflects the notion that plaintiff has the right to choose his or her own forum, for "plaintiff is the master of his or her own claim; if plaintiff chooses to ask for less than the jurisdictional amount, only the sum actually demanded is in controversy." Charles A. Wright & Arthur R. Miller, 14A Federal Practice & Procedure § 3702. "If ... [plaintiff] does not desire to try his case in federal court he may resort to the expedient of suing for less than the jurisdictional amount and although he would be entitled to more, the defendant cannot remove." St. Paul Mercury, 303 U.S. at 294.

The Eleventh Circuit has cautioned that though defendant's burden is a heavy one, it is not impossible. Burns, 31 F.3d at 1096. The defendant may remain in federal court as long it demonstrates that plaintiffs' counsel has falsely represented, or simply does not appreciate, the value of his clients' case.⁴ Id. at 1095. In other words, defendant must demonstrate "that, if plaintiff prevails on liability, an award below the jurisdictional amount would be outside the range of permissible awards because the case is clearly worth more than [$75,000]." Id. (citing Kliebert v. Upjohn Co., 915 F.2d 142, 147 (5th Cir.1990)). "The standard is an objective one; plaintiff[s'] or plaintiff[s'] counsel's subjective intent in drafting the prayer is not the true issue." Id. at 1096.

Pfizer contends, however, that the "legal certainty" burden articulated in Burns should not apply to the instant action. Instead, Pfizer argues that it should only be required to satisfy a "preponderance" burden. Where there is an unspecified claim for damages, "a lower burden of proof is warranted because there is simply no estimate of damages to which a court may defer." Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356-57 (11th Cir.1996). Thus, "where a plaintiff has made an unspecified demand for damages in state court, a removing defendant must prove by a...