Omega Flex, Inc. v. Bonnie George ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-8024
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Bonnie George; Ed McKinzie; Tim Worstell; Cedar Deraps; Casey Wasser;
Tammy Volkart; James Rehm; Ron Metzgar
lllllllllllllllllllllRespondents
v.
Omega Flex, Inc.; Ward Manufacturing, LLC; Titeflex Corporation
lllllllllllllllllllllPetitioners
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: August 25, 2017
Filed: November 1, 2017
[Published]
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Before LOKEN, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Petitioners Omega Flex, Inc., Ward Manufacturing, LLC, and Titeflex
Corporation request permission to appeal the district court’s order denying Article III
standing to Bonnie George, individually and on behalf of others similarly situated,
and remanding the case to the circuit court of Pulaski County, Missouri. Having
jurisdiction under 28 U.S.C. § 1453(c)(1), this court grants the petition for permission
to appeal, reverses, and remands.
Petitioners manufacture and sell yellow-insulated corrugated stainless steel
tubing (CSST). CSST is used to distribute natural or propane gas within homes and
other structures. George claims that CSST is susceptible to failure when exposed to
electrical arcing from household appliances, and to indirect or direct lightning strikes.
George filed a class action lawsuit in federal court alleging violations of the Missouri
Merchandising Practices Act, conspiracy, and unjust enrichment. Petitioners moved
to dismiss for lack of jurisdiction. The district court dismissed the claims without
prejudice. George then sued in state court, again alleging MMPA violations,
conspiracy, and unjust enrichment, but adding loss of benefit-of-the-bargain for the
diminution in the value of the structures containing CSST. Petitioners removed the
case to federal court, arguing George had Article III standing based on the benefit-of-
the-bargain claim. Petitioners also moved to dismiss for failure to state a claim.
The district court ruled that the benefit-of-the-bargain claim failed to bolster
the claims enough for Article III standing. The court granted George’s motion to
remand. Petitioner moves for permission to appeal asserting the benefit-of-the-
bargain claim sufficiently establishes standing even if the claims are ultimately
without merit.
This court reviews de novo a district court’s dismissal for lack of subject matter
jurisdiction. Diversified Ingredients, Inc.v. Testa, 846 F.3d 994, 995 (8th Cir. 2017).
Article III extends judicial power only to cases and controversies. George has the
burden to establish that she “(1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely to be redressed by
a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
George’s assertions of paying more than CSST is worth and the consequent loss in
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value of the structures are economic injury sufficient to establish Article III standing.
See Kuhns v. Scottrade, Inc., 868 F.3d 711, 716 (8th Cir. 2017).
The petition for permission to appeal is granted. The judgment is reversed, and
the case remanded for further proceedings consistent with this opinion.
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