Sloan v. Soul Circus, Inc. ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MELANIE SLOAN, :
:
Plaintiff, :
: Civil Action No.: 15-01389 (RC)
v. :
: Re Document Nos.: 7, 11, 13, 20
SOUL CIRCUS, INC., :
:
Defendant. :
MEMORANDUM OPINION
GRANTING PLAINTIFF’S MOTION TO REMAND,
DENYING AS MOOT DEFENDANT’S MOTION TO DISMISS,
DENYING AS MOOT PLAINTIFF’S MOTION TO CERTIFY CLASS, AND
DENYING AS MOOT DEFENDANT’S MOTION FOR PROTECTIVE ORDER
I. INTRODUCTION
Defendant Soul Circus, Inc. operates UniverSoul Circus, a touring circus troupe that
claims to be committed to the proper treatment of animals and opposed to cruelty or
mistreatment of animals. Contending that the Circus’s claims are false and misleading under the
District of Columbia Consumer Protection Procedures Act (CPPA), Plaintiff Melanie Sloan filed
suit against the Circus in the Superior Court of the District of Columbia. On behalf of herself and
a class of all District of Columbia residents who have purchased UniverSoul Circus tickets in the
past three years because of the Circus’s false and misleading claims, Ms. Sloan charged the
Circus with violations of six CPPA subsections. She sought CPPA statutory remedies: treble
damages, or $1,500 per violation, whichever is greater; attorney’s fees; punitive damages; an
injunction against the Circus’s practices; and any other relief that the Court deems proper.
Citing the parties’ complete diversity of citizenship and an amount in controversy
exceeding $75,000, the Circus removed to this Court under 28 U.S.C. § 1332 and moved to
dismiss Ms. Sloan’s claims. Ms. Sloan moved to remand the case to D.C. Superior Court and
argued that the Circus failed to meet its burden to prove a sufficient amount in controversy.
While the Circus’s motion to dismiss and Ms. Sloan’s motion to remand were still pending, Ms.
Sloan also moved for class certification under Federal Rule of Civil Procedure 23, and the Circus
moved for a protective order in anticipation of discovery.
Because the Court finds that the Circus’s estimates of the amount in controversy are too
speculative to establish subject matter jurisdiction, the Court will grant Ms. Sloan’s motion to
remand. Because the parties must therefore litigate Ms. Sloan’s claims in D.C. Superior Court,
the Court denies as moot the Circus’s motion to dismiss, Ms. Sloan’s motion for class
certification, and the Circus’s motion for a protective order.1
II. FACTUAL BACKGROUND2
According to the Complaint, Ms. Sloan has a strong commitment to the proper care of
animals: she “does not patronize, or purchase tickets to . . . businesses that . . . display wild
animals such as elephants, lions and tigers, who cannot safely, humanely, and healthfully be kept
in captivity.” Class Action Compl. ¶ 7, ECF No. 1-1. The Circus operates a touring circus troupe
1
The Court also denies as moot the Circus’s request for an oral hearing on its motion to
dismiss and denies the Circus’s motion to amend its Notice of Removal. See Reply Pl.’s Mem.
Opp’n Def.’s Mot. Dismiss Pl.’s Compl. & Req. Oral Hr’g 10, ECF No. 10 (requesting oral
hearing); Def.’s Mem. Opp’n Pl.’s Mot. Remand 10 n.5, ECF No. 12 (moving to amend the
Circus’s Notice of Removal); see also infra Part VII (discussing the Circus’s motion to amend its
Notice of Removal).
2
At the motion to dismiss stage, the Court presumes that the plaintiff’s factual allegations
are true. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
Although at this time the Court’s analysis focuses on the merits of Ms. Sloan’s motion to
remand, the Court nonetheless presumes the plaintiff’s factual claims are true for these purposes.
See, e.g., Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150, 152 (D.D.C. 2007) (accepting
the plaintiff’s version of the facts as background in the Court’s decision on a motion to remand).
2
that performs under the name “UniverSoul Circus.” Id. ¶ 9. On June 11, 2015, Ms. Sloan
received a promotional email that offered tickets to the Circus’s shows at the National Harbor in
Prince George’s County, Maryland, scheduled for selected dates from June 24, 2015 through
July 16, 2015. Id. ¶¶ 89, 92. Because Ms. Sloan would not purchase tickets to the Circus’s show
if the show would “display wild animals . . . who cannot safely, humanely, and healthfully be
kept in captivity,” id. ¶ 7, Ms. Sloan visited the Circus’s website and viewed the Circus’s
“Animal Rights [Policy] Statement” before purchasing tickets to see the Circus’s show. Id. ¶ 93.
The Animal Rights Policy Statement made numerous representations about the Circus’s
strong commitment to animal rights, including statements saying that the Circus “is committed to
the proper treatment of animals,” “oppose[s] any form of cruelty or mistreatment of animals,”
and “will not tolerate any mistreatment on [the] circus site.” Id. ¶ 38. Further, the Animal Rights
Policy Statement proclaimed that “[i]n over 19 years and more than 10,000 performances, none
of our animal vendors have ever been cited for animal abuse while performing at the UniverSoul
Circus.” Id. The Circus’s website corroborated these statements by primarily showing images of
human performers, rather than animals. Id. ¶ 36.
The Circus’s Animal Rights Policy Statement and website assured Ms. Sloan of the
Circus’s commitment to animal rights, and Ms. Sloan purchased tickets to see the Circus’s show
on July 11, 2015. Id. ¶ 93. If the Circus had not published its Animal Rights Policy Statement,
and if the Circus had included more images of animals on its website, Ms. Sloan would have
understood that the Circus would use wild animals in its performances—a practice that Ms.
Sloan would not want to support. Id. ¶¶ 7, 94. But for the Circus’s Animal Rights Policy
Statement and website, Ms. Sloan would not have purchased tickets to see the Circus’s show. Id.
¶ 94.
3
As it turns out, Ms. Sloan claims that some of the Circus’s animal vendors have received
citations from the United States Department of Agriculture (USDA) for violating the Animal
Welfare Act (AWA)3 while touring with the Circus. Although the Circus itself does not have a
license to exhibit animals in its performances, the Circus leases animals from outside vendors
who do have USDA licenses. Class Action Compl. ¶¶ 43–44. And Ms. Sloan claims that, on at
least seventeen occasions, USDA inspectors found that the Circus’s vendors had violated the
AWA. See id. ¶¶ 62–64, 67, 69–71, 74–77, 79, 81, 84–86, 88; Class Action Compl. Ex. B, ECF
No. 3-2 (compiling USDA inspection reports). Ms. Sloan further claims that the Circus’s animal
vendors have also received USDA citations on other occasions, when they were not touring with
the Circus. See id. ¶ 46; id. Ex. C. The Complaint also reports additional animal welfare issues,
arising outside of the AWA context, that afflicted animals leased by the Circus. Id. ¶¶ 48–60, 66,
78, 80, 82–83.
After Ms. Sloan learned about the Circus’s long history of contracting with vendors who
have been cited for AWA violations, Ms. Sloan chose not to attend the Circus’s show on July 11,
2015. Id. ¶ 95. She explained that she chose not to attend because she “did not want to support a
circus that contracts with vendors who mistreat animals and violate animal welfare laws,” and
because she “wants to teach her daughter about the humane treatment of animals.” Id.
III. PROCEDURAL HISTORY
Instead of attending the Circus’s show, Ms. Sloan filed suit against the Circus in the
Superior Court of the District of Columbia on August 10, 2015. See Class Action Compl. 1. On
behalf of herself and a putative class of “all residents of the District [of Columbia] who, in the
3
Pub. L. No. 89-544, 80 Stat. 350 (1966) (codified as amended at 7 U.S.C.
§§ 2131–2159).
4
last three years, purchased tickets to Defendant’s shows because of Defendant’s unlawful trade
practices,” Ms. Sloan charged the Circus with violations of six subsections of the District of
Columbia Consumer Protection Procedures Act (CPPA), D.C. Code §§ 28-3901–28-3913. Class
Action Compl. ¶¶ 11–12, 98. Ms. Sloan alleged that the Circus
represent[ed] that its services have a source, sponsorship, approval, certification,
characteristics, and/or benefits that they do not have, in violation of . . .
§ 28-3904(a);
. . . represent[ed] that persons engaged by, or exhibiting with, [the Circus] have a
sponsorship, approval, status, affiliation, certification, or connection that the
persons do not have, in violation of . . . § 28-3904(b);
. . . represent[ed] that [the Circus]’s services are of particular standard or quality,
but which in fact, are of a different standard or quality, in violation of . . .
§ 28-3904(d);
. . . misrepresent[ed] material facts which have a tendency to mislead, in violation
of . . . § 28-3904(e);
. . . fail[ed] to state material facts, which failure tends to mislead, in violation
of . . . § 28-3904(f); and
. . . us[ed] innuendo and ambiguity as to material facts, which have a tendency to
mislead, in violation of . . . § 28-3904(f-1).
Id. ¶ 98. Ms. Sloan sought CPPA statutory remedies: treble damages, or $1,500 per violation,
whichever is greater; attorney’s fees; punitive damages; an injunction against the Circus’s
practices; and any other relief that the Court deems proper. Id. at 22 (citing D.C. Code
§ 28-3905).
The Circus removed to this Court under 28 U.S.C. § 1332 and 28 U.S.C. § 1441. See
Def.’s Notice of Removal ¶ 9, ECF No. 1. In support of removal, the Circus’s Notice of Removal
claimed that “the United States District Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the
Circus and all potential parties-plaintiff and the amount in controversy . . . exceeds $75,000.” Id.5
The Circus explained that, because Ms. Sloan’s complaint alleged “tens of thousands” of
potential CPPA violations and a class whose membership is “so numerous that joinder of all of
them is impracticable,” the complaint alleged at least fifty-one CPPA violations in the aggregate.
Id. ¶¶ 5, 8; cf. Class Action Compl. ¶ 16. Assuming that each violation is entitled to statutory
damages at $1,500, the Circus reasoned that the total amount in controversy exceeded $75,000.
Def.’s Notice of Removal ¶¶ 5, 8; see also D.C. Code § 28-3905(k)(2) (“Any claim under [the
CPPA] . . . may recover . . . $1,500 per violation . . . , payable to the consumer . . . .”).
After removing to this Court, the Circus moved to dismiss Ms. Sloan’s claims. See Def.’s
Mot. Dismiss, ECF No. 7. While the motion to dismiss was pending, Ms. Sloan filed two
additional motions: a motion to remand the case to D.C. Superior Court, and a motion for class
certification. See Pl.’s Mot. Remand, ECF No. 11; Pl.’s Mot. Class Certification, ECF No. 13.
Ms. Sloan’s motion to remand contends first that the Circus erred by aggregating the class
members’ claims to satisfy the jurisdictional amount requirement, and second that Ms. Sloan’s
individual claims against the Circus do not meet the $75,000 amount-in-controversy
requirement. See Mem. P. & A. Supp. Pl.’s Mot. Remand 4–6, ECF No. 11-1.
In opposition, the Circus challenged Ms. Sloan’s motion to remand as untimely. Def.’s
Mem. Opp’n Pl.’s Mot. Remand 3–6, ECF No. 12. To respond to Ms. Sloan’s nonaggregation
argument, the Circus moved to amend its Notice to invoke this Court’s jurisdiction under 28
U.S.C. § 1332(d), in addition to jurisdiction under 28 U.S.C. § 1332(a). Id. at 10 n.5. Because a
litigant may establish § 1332(d) diversity jurisdiction over a class action by showing that more
than one hundred class members exist and their aggregate claims put more than $5,000,000 in
controversy, the Circus argued that “[t]he Court has diversity jurisdiction under § 1332(d)
because Sloan’s proposed class has more than 100 potential members with claims likely
6
exceeding $5,000,000.” Id. at 18–21. To justify its class size estimates, the Circus produced an
affidavit from the Circus’s director of operations, who attested to the Circus’s ticket purchases
and advertising activities in the District of Columbia. See Johnson Aff., ECF No. 12-1. Lastly,
the Circus maintained that Ms. Sloan’s individual claims against the Circus put more than
$75,000 in controversy anyway, so the Court still has diversity jurisdiction under 28 U.S.C.
§ 1332(a). Def.’s Mem. Opp’n Pl.’s Mot. Remand 10–18.
Ms. Sloan’s reply responded with two attacks on the Circus’s invocation of jurisdiction
under 28 U.S.C. § 1332(d). First, she contended that the Circus’s estimated number of potential
class members is defective because it is ambiguous, speculative, and “an incomplete calculation”
that does not address whether the ticket purchasers during the last three years viewed the
offending statements on the Circus’s website. Reply Mem. Supp. Pl.’s Mot. Remand 6–7, ECF
No. 14. Second, Ms. Sloan charged the Circus with assuming without a legal basis that the CPPA
allows consumers to recover separate damages awards for simultaneous CPPA violations
occurring in connection with a single business transaction. Id. at 7–9.
In response to the Circus’s § 1332(a) arguments, Ms. Sloan likewise asserted two
counterarguments. First, she explained that the Circus’s statements about injunctive relief,
punitive damages and attorney’s fees were factually unsupported and based on the faulty
assumption that such claims may be aggregated for amount-in-controversy purposes. Id. at 4–6.
Second, she charged the Circus with making another assumption without a legal basis: the
assumption that, by merely observing a Circus communication that violated the CPPA, Ms.
Sloan could recover CPPA statutory damages. Id. at 3–4.
Because the Court agrees with Ms. Sloan’s view of the issue, the Court will grant Ms.
Sloan’s motion to remand.
7
IV. TIMELINESS OF THE MOTION TO REMAND
As an initial matter, the Court finds that Ms. Sloan’s motion to remand is timely. “A
motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction
must be made within 30 days after the filing of the notice of removal . . . .” 28 U.S.C. § 1447(c).
But, “[i]f at any time before final judgment it appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” Id. In other words, “[s]ubject matter jurisdiction may
be challenged at any point” during the course of a lawsuit. Nat’l Consumers League v. Bimbo
Bakeries USA, 46 F. Supp. 3d 64, 69 (D.D.C. 2014).
For amount-in-controversy disputes, therefore, the thirty-day deadline for motions to
remand applies only to challenges based on a removing defendant’s procedural “failure to
provide sufficient facts in the Notice of Removal to establish the necessary amount in
controversy.” See Nat’l Consumers League v. Flowers Bakeries, LLC., 36 F. Supp. 3d 26, 30
(D.D.C. 2014). If the motion to remand instead argues that, “based on the facts contained in the
Notice of Removal, defendant has failed to establish that the amount in controversy exceeds the
statutory minimum as a matter of law,” it “presents a bona fide challenge to this Court’s subject
matter jurisdiction.” Id. The thirty-day deadline does not apply to such a challenge. See id.Ms. Sloan’s motion to remand is a bona fide challenge to this Court’s jurisdiction, not a
mere procedural challenge to the sufficiency of the Notice of Removal. Ms. Sloan’s motion was
filed thirty-six days after the Circus’s Notice of Removal, so it was late under 28 U.S.C.
§ 1447(c)’s thirty-day deadline. See Pl.’s Mot. Remand 2 (dated October 1, 2015); Def.’s Notice
of Removal 5 (dated August 26, 2015). But in her motion, Ms. Sloan asked the Court to hold that
it lacks subject matter jurisdiction based on the facts provided in the Notice of Removal; she did
not allege that the Notice of Removal failed to provide the facts necessary to establish subject
8
matter jurisdiction. See Mem. P. & A. Supp. Pl.’s Mot. Remand 3 (arguing that the Circus failed
to establish in its Notice of Removal “that the amount in controversy exceeds the $75,000
statutory minimum for diversity jurisdiction required by 28 U.S.C. § 1332(a)” and thus “remand
is mandatory”). And Ms. Sloan clarified that her motion brought a jurisdictional challenge when
she explained that she was not bringing a procedural challenge subject to the thirty-day deadline.
See id. at 3 n.2. Because Ms. Sloan’s motion to remand asserted a bona fide challenge to this
Court’s jurisdiction, it is still timely, despite 28 U.S.C. § 1447(c)’s thirty-day deadline.4
V. STANDARD OF REVIEW
“A civil action filed in state court may only be removed to a United States district court if
the case could originally have been brought in federal court.” Nat’l Consumers League v.
Flowers Bakeries, LLC., 36 F. Supp. 3d 26, 30 (D.D.C. 2014) (citing 28 U.S.C. § 1441(a)). As
the party opposing the motion to remand, the Circus “bears the burden of establishing that
subject matter jurisdiction exists in federal court.” Flowers Bakeries, 36 F. Supp. 3d at 30
4
Of course, Ms. Sloan worded her motion carefully, to avoid capping the amount of
damages she and the proposed class may be eligible to recover. See Pl.’s Mot to Remand 1
(alleging that “Defendant’s Notice of Removal fails to meet Defendant’s burden of proving that
the amount in controversy is sufficient to confer subject matter jurisdiction,” not simply, for
instance, that “the amount in controversy is insufficient to confer subject matter jurisdiction”);
Mem. P. &. A. Supp. Pl.’s Mot. Remand 1, 3, 5 (same).
But even if Ms. Sloan’s motion is time-barred because it alleges a procedural defect with
the Circus’s Notice of Removal, the Court may still raise the issue of its own subject matter
jurisdiction sua sponte. See 28 U.S.C. § 1447(c) (requiring remand whenever “it appears that the
district court lacks subject matter jurisdiction,” without specifying any procedural prerequisites);
Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005) (“It is well established that a
federal court cannot act in the absence of jurisdiction, and that jurisdictional issues may be raised
by the court sua sponte.” (citations omitted)); Bell v. U.S. Dep’t of Health & Human Servs., 67 F.
Supp. 3d 320, 321 (D.D.C. 2014) (“[T]he Court may analyze subject-matter jurisdiction sua
sponte.”). As a practical matter, therefore, the timeliness of Ms. Sloan’s motion to remand does
not affect the validity of the Court’s jurisdictional analysis below.
9
(internal quotation marks omitted) (quoting RWN Dev. Grp., LLC v. Travelers Indem. Co. of
Conn., 540 F. Supp. 2d 83, 86 (D.D.C. 2008)); accord Doe v. Georgetown Synagogue—Kesher
Israel Congregation, No. 15-0026, 2015 WL 4509553, at *2 (D.D.C. July 24, 2015) (“The party
supporting removal bears the burden of establishing the Court’s jurisdiction.” (internal quotation
marks omitted) (quoting McMullen v. Synchrony Bank, 82 F. Supp. 3d 133, 138 (D.D.C. 2015))).
VI. DIVERSITY JURISDICTION UNDER 28 U.S.C. § 1332(a)
Federal district courts have original jurisdiction if the amount in controversy exceeds
$75,000, exclusive of interest and costs, and the action is between citizens of different states. 28
U.S.C. § 1332(a)(1). The parties’ diversity is not disputed here. See Mem. P. &. A. Supp. Pl.’s
Mot. Remand 2. The Court’s analysis therefore addresses only whether the amount in
controversy exceeds $75,000, as required to establish subject matter jurisdiction under 28 U.S.C.
§ 1332(a).
A. The Dart Framework
The Supreme Court recently articulated a two-phase framework for adjudicating
amount-in-controversy challenges to removal jurisdiction. See Dart Cherokee Basin Operating
Co. v. Owens, 135 S. Ct. 547, 553–54 (2014). In the first phase, “when a defendant seeks
federal-court adjudication, the defendant’s amount-in-controversy allegation should be accepted
when not contested by the plaintiff or questioned by the court.” Id. at 553. But if the plaintiff
contests the defendant’s amount-in-controversy allegation, she triggers the second Dart phase.
Id.In the second phase, removal is proper “if the district court finds, by the preponderance of
the evidence, that the amount in controversy exceeds the jurisdictional threshold.” Id. at 553–54
(internal quotation marks omitted) (quoting 28 U.S.C. § 1446(c)(2)(B)). “Discovery may be
10
taken,” “both sides submit proof,” and in the end, “the district court must make findings of
jurisdictional fact.” Id. at 554 (quoting H.R. Rep. No. 112-10, at 16 (2011)). The defendant still
bears the burden to establish the amount in controversy, though it must prove the amount in
controversy by only a preponderance of the evidence, not to a legal certainty. See id.(“[D]efendants do not need to prove to a legal certainty that the amount in controversy
requirement has been met.” (alteration in original) (internal quotation mark omitted) (quoting
H.R. Rep. No. 112-10, at 16)); Doe v. Georgetown Synagogue—Kesher Israel Congregation,
No. 15-0026, 2015 WL 4509553, at *2 (D.D.C. July 24, 2015) (explaining, in a post-Dart
opinion, that the removing defendant still bears the burden of establishing jurisdiction). Because
Ms. Sloan has challenged the Circus’s amount-in-controversy allegations, the Court’s analysis
falls within this second Dart phase and follows its prescriptions.5
5
Dart did not prescribe procedures governing what it means for “both sides [to] submit
proof” in the second phase of an amount-in-controversy adjudication. See Dart Cherokee Basin
Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014); see also Ibarra v. Manheim Invs., Inc., 775
F.3d 1193, 1199–1200 & n.4 (9th Cir. 2015) (observing that “[t]he Supreme Court did not decide
the procedure for each side to submit proof on remand,” and instructing the district court to “set a
reasonable procedure in the first instance so that each side has a fair opportunity to submit
proof”).
Post-Dart cases have allowed both sides to “submit proof” in different ways. For
instance, courts have adjudicated the amount in controversy on the basis of the parties’ filings
and supplemental affidavits or declarations. See, e.g., Dudley v. Eli Lilly & Co., 778 F.3d 909,
914–17 (11th Cir. 2014); Garnett v. ADT LLC, 74 F. Supp. 3d 1332, 1334–36 (E.D. Cal. 2015).
In other cases, courts have allowed or ordered the parties to file additional briefing. See, e.g.,
Scenic Health Alliance, Inc. v. State Farm Mut. Auto. Ins. Co., No. 14-52900, 2015 WL
4999640, at *1 (S.D. Fla. Aug. 24, 2015) (noting that the defendant was given leave to file a
brief “Sur-reply” to the plaintiff’s motion to remand); Hughes v. Fosdick, No. 14-5350, 2015 WL
3372396, at *1 (N.D. Cal. Apr. 29, 2015) (recounting how the Court requested supplemental
briefing and ordered production of additional evidence).
In line with Dudley and Garnett, the Court declines to request additional briefing from
the parties. Because the Circus has invoked jurisdiction under the Class Action Fairness Act
(CAFA), see infra Part VII, the Circus suffers little from this decision. “[U]nder CAFA, class
actions may be removed at any point during the pendency of the litigation in state court, so long
as removal is initiated within thirty days after the defendant is put on notice that a case which
was not removable based on the face of the complaint has become removable.” Dudley, 778 F.3d
11The Supreme Court did not otherwise alter preexisting doctrines governing jurisdiction
under 28 U.S.C. § 1332(a). Cf. Dart, 135 S. Ct. at 554 (pointing out that “no antiremoval
presumption attends cases invoking [the Class Action Fairness Act],” but declining to rule on
whether such a presumption is proper in “mine-run diversity cases”). Just as it was before Dart,
therefore, when a removing defendant seeks to establish this Court’s diversity jurisdiction under
28 U.S.C. § 1332(a), there is “a strong presumption that the plaintiff has not claimed a large
amount in order to confer jurisdiction on a federal court.” Breakman v. AOL LLC, 545 F. Supp.
2d 96, 103 (D.D.C. 2008) (alterations and internal quotation marks omitted) (quoting RWN Dev.
Grp., LLC v. Travelers Indem. Co. of Conn., 540 F. Supp. 2d 83, 89 (D.D.C. 2008)). “[T]he court
must resolve any ambiguities concerning the propriety of removal in favor of remand.” Zuckman
v. Monster Beverage Corp., 958 F. Supp. 2d 293, 297 (D.D.C. 2013) (alteration in original)
(internal quotation marks omitted) (quoting Johnson–Brown v. 2200 M Street LLC, 257 F. Supp.
2d 175, 177 (D.D.C. 2003)).
B. Nonaggregation
In class actions and cases with multiple plaintiffs, an additional consideration applies to
the amount-in-controversy analysis: class action plaintiffs’ claims are generally not aggregated to
establish the amount in controversy for diversity jurisdiction under 28 U.S.C. § 1332(a). See
Nat’l Consumers League v. Flowers Bakeries, LLC., 36 F. Supp. 3d 26, 32 (D.D.C. 2014) (“‘The
separate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the
jurisdictional amount requirement’ except ‘in cases in which two or more plaintiffs unite to
at 913 (citing 28 U.S.C. § 1453(b), and explaining that the “traditional one-year window for
removal does not apply to class actions”). Thus, if while in D.C. Superior Court more evidence
about potential damages comes to light and shows an amount in controversy sufficient to give
this Court jurisdiction, the Circus may remove once again to federal court. See id. at 917.
12
enforce a single title or right in which they have a common and undivided interest.’” (alteration
omitted) (quoting Snyder v. Harris, 394 U.S. 332, 335 (1969))).
This principle extends to CPPA private attorney general actions brought on behalf of a
class. “[C]ourts within this district have unanimously concluded that so long as individual
consumers are eligible to recover individual damages, the consumers do not have a ‘common and
undivided interest’ that may be aggregated under the non-aggregation principle announced in
Snyder.” Flowers Bakeries, 36 F. Supp. 3d at 32. Thus, “only the damages to which [the
plaintiff] would be personally entitled—rather than those on behalf of the public—will count
toward satisfying the $75,000 jurisdictional threshold.” Nat’l Consumers League v. Bimbo
Bakeries USA, 46 F. Supp. 3d 64, 72 (D.D.C. 2014) (alteration in original) (internal quotation
marks omitted) (quoting Zuckman v. Monster Beverage Corp., 958 F. Supp. 2d 293, 297–98
(D.D.C. 2013)).6
Applying this principle to Ms. Sloan’s claims here, the Court must assess, for purposes of
subject matter jurisdiction under 28 U.S.C. § 1332(a), only the amount in controversy between
the Circus and Ms. Sloan—not the total amount in controversy between the Circus and Ms.
6
One exception exists when a plaintiff brings a CPPA claim for disgorgement, rather
than damages. Because proceeds from a disgorgement claim are taken directly from a defendant
to a common fund, a collective disgorgement claim is a “common and undivided interest” that
may be aggregated. Nat’l Consumers League v. Flowers Bakeries, LLC., 36 F. Supp. 3d 26, 32
n.3 (D.D.C. 2014).
But Ms. Sloan does not seek disgorgement here. Compare Williams v. Purdue Pharma
Co., No. 02-0556, 2003 WL 24259557, at *5 (D.D.C. Feb. 27, 2003) (finding that the plaintiffs
sought disgorgement when they claimed the defendants were “liable for a refund of all moneys
acquired,” and accordingly aggregating the plaintiffs’ claims to assess the amount in
controversy), with Class Action Compl. 22 (seeking CPPA statutory remedies but not a
lump-sum refund of monies the Circus acquired through its allegedly unlawful trade practices);
see also Mem. P. & A. Supp. Pl.’s Mot. Remand 5 n.3 (“Plaintiff seeks individual statutory
damages and not the disgorgement of a common fund to be divided amongst individual
claimants . . . .”). The Court therefore will not aggregate the proposed class’s claims to assess the
amount in controversy for jurisdiction under 28 U.S.C. § 1332(a).
13
Sloan’s proposed class. With this in mind, the Court now turns to that analysis. Because the
CPPA allows prevailing plaintiffs to recover statutory damages, attorney’s fees, punitive
damages, and injunctive relief, the Court addresses each possible basis for the amount in
controversy in turn.
C. Statutory Damages
A prevailing CPPA plaintiff may recover “[t]reble damages, or $1,500 per violation,
whichever is greater.” D.C. Code § 28-3905(k)(2)(A). Ms. Sloan’s complaint claims this amount
of damages, without estimating the total statutory damages she believes she deserves. See Class
Action Compl. 22 (seeking an order from the Court “ordering Defendant to pay to Plaintiff and
to the Class, treble damages, or $1,500 per violation, whichever is greater”). Because neither
party argued for an amount in controversy based on an award of treble damages, the Court will
not consider that route to jurisdiction. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 12–15
(focusing arguments on whether Ms. Sloan might have been exposed to fifty-one alleged CPPA
violations valued at $1,500 per violation, not on her actual or treble damages); Reply Mem.
Supp. Pl.’s Mot. Remand 3–4 (same); see also Schneider v. Kissinger, 412 F.3d 190, 200 n.1
(D.C. Cir. 2005) (“[A] litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace.” (quoting United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990))).
But the amount in controversy based on “$1,500 per violation” is equally unclear, despite
the briefing on that calculation. Most significantly, the parties disagreed about how to count
“violations.” The Circus implied that an alleged “violation” occurred every time Ms. Sloan
“viewed, received, or [was] otherwise exposed to” the Circus’s communications with D.C.
residents. Def.’s Mem. Opp’n Pl.’s Mot. Remand 14–15. The Circus also implied that multiple
14
“violations” could occur in connection with a single ticket purchase. See id. at 20–21 (calculating
an aggregate amount in controversy by multiplying the estimated number of class members who
purchased tickets (2,667) by the number of violations per ticket purchaser (6) and by the amount
of damages per violation ($1,500) to obtain $24,003,000 in total damages).
Ms. Sloan found the Circus’s contentions ungrounded. She contended, first, that the
Circus jumped to conclusions by assuming that each of its communications in the past three
years was a “violation”; not all of the Circus’s communications were necessarily unlawful under
the CPPA. Reply Mem. Supp. Pl.’s Mot. Remand 2–3. Second, Ms. Sloan noted that the Circus
failed to cite legal authority supporting the proposition that a consumer’s mere observation of a
merchant’s communications can trigger CPPA statutory damages. Id. at 3–4. Finally, Ms. Sloan
asserted that it is unclear under the law “whether the CPPA allows separate recoveries for
multiple simultaneous violations of the CPPA occurring in connection with a single transaction.”
Id. at 7–9 (emphasis omitted). In support, Ms. Sloan cited two cases—including one in this
Court—that counted violations of a consumer protection statute by the number of transactions,
not the number of legal violations alleged. See id. at 8 (citing Charvat v. GVN Mich., Inc., 561
F.3d 623, 631–32 (6th Cir. 2009) (allowing one statutory damages award per allegedly unlawful
phone call), and Zuckman v. Monster Beverage Corp., 958 F. Supp. 2d 293, 300–01 (D.D.C.
2013) (allotting one CPPA statutory damages award per purchase of the defendant’s product)).
The Court agrees with Ms. Sloan’s view of the matter. It is true that a person can violate
the CPPA “whether or not any consumer is in fact misled, deceived or damaged thereby.” D.C.
Code § 28-3904. But the CPPA specifies that, for claims brought by testers and nonprofit
organizations, damages claims may seek “relief from the use of a trade practice . . . when that
trade practice involves consumer goods or services that [the consumer tester or nonprofit
15
organization] purchased or received.” D.C. Code § 28-3905(k)(1)(B) (emphasis added); see also
id. § 28-3905(k)(1)(C) (using nearly identical language). The statute implies therefore that CPPA
statutory damages awards flow from a purchase or receipt of consumer goods or services—not
the mere observation of a merchant’s unlawful communication.7 And this Court has already
applied that type of calculation in a previous case. See Zuckman v. Monster Beverage Corp., 958
F. Supp. 2d 293, 297–301 (D.D.C. 2013) (rejecting the defendant’s argument that CPPA
“‘violations’ include not simply purchases of cans, but also instances of viewing allegedly
misleading advertising,” and instead adopting the plaintiff’s binding stipulations that he was
asserting claims based only on his goods purchased).
The Court therefore rejects the Circus’s assumption that a CPPA violation occurred every
time Ms. Sloan “viewed, received, or [was] otherwise exposed to” one of the Circus’s
advertisements. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 15. Although existing law is not
7
Because, when the CPPA authorizes consumers’ claims (unlike when it authorizes
testers’ and nonprofit organizations’ claims), the CPPA does not include language about “goods
or services . . . purchased or received,” the statute does not clearly specify whether an individual
consumer’s alleged CPPA violation must flow from a purchase or receipt of goods or services.
See D.C. Code § 28-3905(k)(1)(A) (declaring merely that “[a] consumer may bring an action
seeking relief from the use of a trade practice in violation of a law of the District”). But “[a]
provision that may seem ambiguous in isolation is often clarified by the remainder of the
statutory scheme”—for instance, when “the same terminology is used elsewhere in a context that
makes its meaning clear.” United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.,
484 U.S. 365, 371 (1988).
Here, the CPPA uses the same term in its provisions authorizing claims by consumers,
testers, and nonprofit organizations: the consumer, tester, or nonprofit organization may “bring
an action seeking relief from the use of a trade practice in violation of a law of the District.” See
D.C. Code § 28-3905(k)(1)(A), (B), (C) (emphasis added). For testers’ and nonprofit
organizations’ “action[s] seeking relief,” the statute clarifies that those actions may arise from
consumer goods or services purchased or received to test those goods or services’ qualities. See id.§ 28-3905(k)(B), (C). In doing so, the statute also implies that any “action seeking relief” should
arise from the purchase or receipt of consumer goods or services. Because the CPPA uses the
identical term (“action seeking relief”) to authorize consumers’ claims, see id. § 28-3905(k)(A),
the surrounding context clarifies that consumers’ claims also should arise from the purchase or
receipt of consumer goods or services.
16
conclusive, see supra note 6, it indicates that CPPA statutory damages do not flow from each
instance Ms. Sloan viewed the Circus’s advertisements, but instead from each purchase Ms.
Sloan made because of those advertisements. Even assuming that all Circus advertisements in the
past three years violated the CPPA, the Circus did not show that Ms. Sloan’s mere observation of
those advertisements can trigger statutory damages. See Def.’s Mem. Opp’n Pl.’s Mot. Remand
12–15 (failing to support its assumption that every observed CPPA violation means an additional
$1,500 in statutory damages). Nor did the Circus support its assumption that multiple CPPA
violations, in connection with a single purchase, mean that a consumer can receive multiple
$1,500 statutory damages awards. See id. at 20–21 (failing to cite supporting law).8 Tellingly, the
Circus did not provide the Court with even an estimate of Ms. Sloan’s total statutory damages.
Instead, the Circus merely declared that “it is inconceivable” that Ms. Sloan did not view,
receive, or otherwise become exposed to “at least fifty-one of [the Circus’s] communications” in
the three-year period before she filed her complaint. See id. at 12, 15.
8
Odd results would follow if the Court were to accept the Circus’s theory that, when a
communication violates multiple CPPA provisions at once, mere observation of that
communication can trigger multiple statutory damages awards. For instance, consider a situation
in which Consumer A saw a false or misleading communication ten times, Consumer B saw the
same communication just once, and both consumers went on to buy one ticket that was identical
to the other’s. Under the Circus’s theory, Consumer A could press a claim for far greater
statutory damages than Consumer B, even though Consumer A purchased the same number of
tickets (one).
Likewise, consider the situation in which Consumer C saw the communication once and
bought ten tickets for his entire extended family, but Consumer D saw the communication fifty
times and bought only one ticket. Even if Consumer D spent less money on her one ticket than
Consumer C did on his ten (which would likely be the case), Consumer D could claim far greater
statutory damages than Consumer C under the Circus’s theory of damages.
“In statutory interpretation it is a given that statutes must be construed reasonably so as to
avoid absurdities . . . .” In re Nofziger, 925 F.2d 428, 434 (D.C. Cir. 1991) (per curiam). The
Court cannot adopt the Circus’s damages theory when such absurd consequences might follow.
17
Because the Circus’s claims about Ms. Sloan’s statutory damages are speculative and
unsupported, the Circus failed to establish Ms. Sloan’s total statutory damages by a
preponderance of the evidence. See Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150, 154
(D.D.C. 2007) (“[J]urisdiction cannot be based on probabilities, surmise or guesswork.” (internal
quotation marks omitted) (quoting Hohn v. Volkswagen of Am., Inc., 837 F. Supp. 943, 945 (C.D.
Ill. 1993))). To avoid engaging in a speculative calculation, the Court will therefore estimate the
amount in controversy between Ms. Sloan and the Circus based on the approach taken in
Zuckman v. Monster Beverage Corp. See 958 F. Supp. 2d 293, 297–301 (D.D.C. 2013). In
Zuckman, the Court assumed that purchases, not “instances of viewing allegedly misleading
advertising,” matter for the statutory damages calculation. See id. Here, Ms. Sloan’s complaint
asserts that she purchased four tickets to the Circus. Class Action Compl. ¶ 93. If each ticket
purchase merits one award of $1,500 in statutory damages, then Ms. Sloan’s total statutory
damages would be just $6,000—far below the $75,000 amount in controversy required to
establish jurisdiction under 28 U.S.C. § 1332(a). To establish $75,000 in controversy, the Circus
must make up the difference from other sources. As the analysis below shows, it cannot.
D. Attorney’s Fees
“Attorney fees are part of the amount in controversy if they are provided for by statute or
contract.” Info. Strategies, Inc. v. Dumosch, 13 F. Supp. 3d 135, 144 (D.D.C. 2014) (quoting
Zuckman v. Monster Beverage Corp., 958 F. Supp. 2d 293, 301 (D.D.C. 2013)). A prevailing
CPPA plaintiff may recover “[r]easonable attorney’s fees” by statute. D.C. Code
§ 28-3905(k)(2)(B). The Court therefore considers attorney’s fees as part of the amount in
controversy here.
18
The Circus’s attorney’s fees analysis was, however, just as speculative and unsupported
as its statutory damages analysis. Instead of providing the Court with an estimate of the amount
of attorney’s fees Ms. Sloan may recover, the Circus merely declared that “it is abundantly clear
that, if Sloan were to prevail, her attorneys’ fee demand likely would be in the high tens of
thousands of dollars.” Def.’s Mem. Opp’n Pl.’s Mot. Remand 17. The Circus reasoned,
therefore, that Ms. Sloan’s attorney’s fee demand “is quite likely enough to satisfy the amount in
controversy on its own.” Id.To justify its statements, the Circus alluded to this Court’s opinion in Dumosch, 13 F.
Supp. 3d at 144–45, in which the Court found that the plaintiff failed to show, as a “legal
certainty,” that the defendant would not receive $75,000 in attorney’s fees. See Def.’s Mem.
Opp’n Pl.’s Mot. Remand 17. But because Dumosch predates the Supreme Court’s opinion in
Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547 (2014), it has limited weight.
Compare Dart, 135 S. Ct. at 547 (decided December 15, 2014), with Dumosch, 13 F. Supp. 3d at
135 (dated February 10, 2014). Dumosch’s attorney’s fee analysis is even less on point here
because it analyzes fees using the “legal certainty” standard in the context of a Rule 12(b)(1)
motion to dismiss for lack of jurisdiction, not the preponderance of the evidence standard Dart
endorsed in the context of a motion to remand. Compare Dart, 135 S. Ct. at 554, with Dumosch,
13 F. Supp. 3d at 140–41, 144–45.
Setting Dumosch aside, the Court is left with the Circus’s bald assertions that Ms. Sloan’s
attorney’s fee demand “likely would be in the high tens of thousands of dollars” and “is quite
likely enough to satisfy the amount in controversy on its own.” Def.’s Mem. Opp’n Pl.’s Mot.
Remand 17. These statements do not establish the amount of attorney’s fees in controversy for
two reasons. First, they implicitly aggregate Ms. Sloan’s attorney’s fees with those of the
19
potential class, which “is not appropriate in a CPPA case.” Nat’l Consumers League v. Gen.
Mills, Inc., 680 F. Supp. 2d 132, 141 (D.D.C. 2010); accord Zuckman, 958 F. Supp. 2d at 301
(“[F]ees cannot be aggregated with those of the general public in order to satisfy the $75,000
threshold.”). Second, they are “based on pure conjecture” and are therefore “inadequate to
support an assertion of diversity jurisdiction.” Breakman v. AOL LLC, 545 F. Supp. 2d 96, 107
(D.D.C. 2008) (internal quotation mark omitted) (quoting Your Girl Friday, LLC v. MGF
Holdings, Inc., No. 06-0385, 2006 WL 1028959, at *2 (D.D.C. Apr. 18, 2006)). Moreover, as
this Court has noted in the past, “the Court is not entirely comfortable with the premise that an
action should be retained in federal court where satisfaction of the amount in controversy
requirement depends upon a lump sum award of attorney’s fees.” Id.In the alternative, the Circus argues that if the Court were to use a “33% rule of thumb”
and assume Ms. Sloan would receive attorney’s fees equal to thirty-three percent of her damages,
“the likelihood of the total amount in controversy exceeding $75,000 is increased substantially.”
Def.’s Mem. Opp’n Pl.’s Mot. Remand 17. But this line of reasoning also lacks substance. As
discussed above, the Circus’s claims about Ms. Sloan’s statutory damages are speculative and
unsupported. See supra Part VI.C. Just as zero and zero do not make one, adding thirty-three
percent of a speculative amount of damages to the speculative amount of damages does not make
the sum less speculative. And if Ms. Sloan’s statutory damages amount to $1,500 per ticket, or
$6,000 total, then under the “33% rule of thumb,” Ms. Sloan’s share of the attorney’s fees would
be just $2,000. See generally Zuckman, 958 F. Supp. 2d at 301–02 (calculating a class member’s
share of the attorney’s fees based on a “reasonable contingency fee”—thirty-three percent of the
amount the class member could recover in statutory damages). Together with $6,000 in statutory
20
damages, the amount in controversy is $8,000. The Circus is still far short of the $75,000 amount
in controversy required to invoke this Court’s jurisdiction under 28 U.S.C. § 1332(a).
E. Punitive Damages
Prevailing plaintiffs may obtain punitive damages under the CPPA. See D.C. Code
§ 28-3905(k)(2)(C). “Punitive damages may generally be included when calculating the amount
in controversy under 28 U.S.C. § 1332(a).” Wexler v. United Air Lines, Inc., 496 F. Supp. 2d
150, 154 (D.D.C. 2007). But, as with statutory damages and attorney’s fees, “punitive damages
should be apportioned to each consumer.” Breakman v. AOL LLC, 545 F. Supp. 2d 96, 107
(D.D.C. 2008).
The Circus made another sweeping claim about the amount of punitive damages in
controversy here: “Given the extremely broad scope of the conduct Sloan identifies as potentially
violative of the CPPA, it stands to reason that any punitive damages award would be quite
large—large enough to at least double the amount in controversy.” Def.’s Mem. Opp’n Pl.’s
Mot. Remand 16. This claim fails for the same reasons as the Circus’s claims about Ms. Sloan’s
statutory damages and attorney’s fees. It is “completely speculative” and “factually
unsupported,” so it should not be included in determining the amount in controversy. Wexler,
496 F. Supp. 2d at 154–55; see Def.’s Mem. Opp’n Pl.’s Mot. Remand 15–16 (lacking any
citations supporting the proposition that Ms. Sloan’s punitive damages award would be “at least
double the amount in controversy”); see also Wexler, 496 F. Supp. 2d at 154–55 n.4 (noting that
a claim for punitive damages would also have to overcome the substantial hurdles imposed by
State Farm Mutual Auto Insurance Co. v. Campbell, 538 U.S. 408, 419 (2003)). Like the
Circus’s claims about attorney’s fees, the Circus’s punitive damages assertions add speculation
to speculation by asking the Court to double an unspecified base amount in controversy.
21
Furthermore, the Circus failed to explain how punitive damages, which cannot be aggregated,
would be apportioned to each consumer in the class. See Def.’s Mem. Opp’n Pl.’s Mot. Remand
15–16 (neglecting to discuss aggregation or nonaggregation).
And again, if Ms. Sloan’s statutory damages amount to $6,000, doubling that amount still
does not get the Circus anywhere near the statutory threshold. On the record as it stands, the best
estimate the Court can make of the amount in controversy is $6,000 in statutory damages and
$2,000 in attorney’s fees, which, when doubled for punitive damages, results in a total of
$16,000. This total is barely one fifth the amount the Circus must prove to establish this Court’s
jurisdiction under 28 U.S.C. § 1332(a).
F. Injunctive Relief
The CPPA allows a prevailing plaintiff to obtain an injunction against the defendant.
D.C. Code § 28–3905(k)(2)(D). Some cases in this circuit imply that injunctive costs may factor
into the amount in controversy as a cost to the defendant. See, e.g., Comm. for GI Rights v.
Callaway, 518 F.2d 466, 472–73 (D.C. Cir. 1975) (alluding to injunctive costs from the
defendants’ position, but concluding that the jurisdictional amount was satisfied “either from the
standpoint of the plaintiffs or the defendants”); Wexler v. United Air Lines, Inc., 496 F. Supp. 2d
150, 153–54 (D.D.C. 2007) (discussing injunctive costs but finding that the defendant failed to
meet its burden to establish such costs). But other cases in this circuit question injunctive costs’
inclusion. See, e.g., Breakman v. AOL LLC, 545 F. Supp. 2d 96, 105–06 (D.D.C. 2008); Nat’l
Org. for Women v. Mut. of Omaha Ins. Co., 512 F. Supp. 100, 107–08 (D.D.C. 1985). In
particular, these cases take issue with injunctive costs’ inclusion in class actions for damages and
injunctive relief, because doing so would undermine the nonaggregation principle laid down in
Snyder v. Harris, 394 U.S. 332, 335 (1969). See Breakman, 545 F. Supp. 2d at 105; Nat’l Org.
22
for Women, 612 F. Supp. at 108. Given “the longstanding directive that federal jurisdiction
should be strictly interpreted,” the Court also questions whether injunctive costs are appropriate
for inclusion in the amount in controversy here. See Breakman, 545 F. Supp. 2d at 105.
But even assuming arguendo that injunctive costs could be included, the Circus did not
argue for specific injunctive costs’ inclusion in the amount in controversy. See Def.’s Mem.
Opp’n Pl.’s Mot. Remand 10–18 (avoiding discussion of specific injunctive costs). The Circus
instead relies on a conclusory generalization that such costs “make[] it all the more certain” that
Ms. Sloan’s claims exceed $75,000. See id. at 11–12 n.6. The Court will thus deem the argument
waived. See Johnson v. Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[U]ndeveloped
arguments . . . are deemed waived.”).
* * *
In sum, the Circus has not met its burden to show by a preponderance of the evidence that
the amount in controversy between the Circus and Ms. Sloan is greater than $75,000. Its claims
about the amount of statutory damages, attorney’s fees, and punitive damages are all speculative
and unsupported. The Circus also inappropriately aggregates class-wide attorney’s fees and
class-wide punitive damages in its assertions. On this record, the Court can find just $16,000 in
controversy between Ms. Sloan and the Circus—an amount far less than the $75,000 threshold
required to establish this Court’s jurisdiction under 28 U.S.C. § 1332(a). See supra Part VI.E.
Accordingly, § 1332(a) does not allow the Court to adjudicate this action. Hence, the Circus’s
only hope is to demonstrate this Court’s jurisdiction under another statutory grant of jurisdiction.
VII. CAFA JURISDICTION UNDER 28 U.S.C. § 1332(d)
In its opposition to Ms. Sloan’s Motion to Remand, the Circus moved under 28 U.S.C.
§ 1653 to amend its Notice of Removal to plead an aggregate amount in controversy “in excess
23
of $5,000,000.” Def.’s Mem. Opp’n Pl.’s Mot. Remand 10 n.5; see also 28 U.S.C. § 1653(“Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate
courts.”). If more than $5,000,000 is in controversy, then this case falls within the Court’s
jurisdiction under 28 U.S.C. § 1332(d), which was enacted as part of the Class Action Fairness
Act of 2005 (CAFA)9 and which allows a removing party to aggregate the amount in controversy
to establish federal-court jurisdiction. See 28 U.S.C. § 1332(d)(2), (6); see also Standard Fire
Ins. Co. v. Knowles, 133 S. Ct. 1345, 1348 (2013) (explaining that federal district courts have
original jurisdiction over class actions in which the class has more than one hundred members,
the parties are minimally diverse, and the aggregate amount in controversy exceeds $5,000,000).
As an initial matter, the Circus’s motion is improperly filed. See D.D.C. Local Civ. R.
7(i) (requiring a motion for leave to file an amended pleading to be accompanied by an original
of the proposed pleading as amended). The Court will, however, follow precedent in this district
and entertain the Circus’s amended statement. See Breakman v. AOL, LLC, 545 F. Supp. 2d 96,
102 (2008) (citing 28 U.S.C. § 1653, and explaining that, “[f]inding other issues dispositive,” the
Court would entertain the defendant’s corrected statement of citizenship for its diversity
jurisdiction analysis).
As explained below, the Court finds that the Circus has not established jurisdiction under
28 U.S.C. § 1332(d). See infra Parts VII.B–C.10 The Court will therefore deny the Circus’s
9
Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified as amended at 28 U.S.C. §§ 1711–1715,
1332, 1453).
10
Ms. Sloan did not contend that the proposed class has fewer than the one hundred
members required for CAFA jurisdiction. See Reply Mem. Supp. Pl.’s Mot. Remand 6–7
(arguing that the Circus’s “proof” of the number of potential class members was “fatally
defective,” but not that the number of potential class members was less than one hundred). See
generally 28 U.S.C. § 1332(d)(5)(B) (declaring CAFA jurisdiction inapplicable to class actions
in which “the number of members of all proposed plaintiff classes in the aggregate is less than
100”).
24
motion to amend as futile. See generally Ali v. Carnegie Inst. of Wash., 309 F.R.D. 77, 87
(D.D.C. 2015) (explaining that an amended pleading is futile if it cannot withstand a dispositive
motion).
A. The Dart Framework in the CAFA Context
The Dart framework is applicable in the CAFA context to amount-in-controversy
challenges to removal jurisdiction. See Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct.
547, 551–54 (2014) (articulating the framework within a case alleging CAFA jurisdiction). Thus,
as before, the Circus must establish the requisite amount in controversy by a preponderance of
the evidence. Id. at 553–54. In the CAFA context, however, the requisite amount is greater—it
must exceed $5,000,000—and class members’ claims are aggregated. 28 U.S.C. § 1332(d)(2), (6);
accord Dart, 135 S. Ct. at 551–52.
In the removal context, two additional procedural differences exist between cases
invoking CAFA jurisdiction and cases invoking plain diversity jurisdiction. First, Dart
eliminated in CAFA cases the antiremoval presumption typically applied in diversity cases.
Compare Dart, 135 S. Ct. at 554 (“[N]o antiremoval presumption attends cases invoking
CAFA.”), with Zuckman v. Monster Beverage Corp., 958 F. Supp. 2d 293, 297 (D.D.C. 2013)
(“[T]he Court must resolve any ambiguities concerning the propriety of removal in favor of
remand.” (internal quotation marks omitted) (quoting Johnson–Brown v. 2200 M Street LLC, 257
F. Supp. 2d 175, 177 (D.D.C. 2003))).
The Court therefore considers the point conceded. See generally Cefarrati v. JBG Props.,
Inc., 75 F. Supp. 3d 58, 69 (D.D.C. 2014) (noting that when “a party files an opposition to a
motion and addresses only certain arguments raised by the movant, this court routinely treats the
unaddressed arguments as conceded” (internal quotation mark omitted) (quoting Inst. for Pol’y
Studies v. U.S. Cent. Intelligence Agency, 246 F.R.D. 380, 386 n.5 (D.D.C. 2007))). Accordingly,
the Court’s analysis below is limited to whether this case has the aggregate amount in
controversy required for CAFA jurisdiction.
25
Second, Congress eliminated in CAFA cases the one-year deadline to remove typically
applied to diversity cases. See 28 U.S.C. § 1453(b) (“[T]he 1-year limitation under section
1446(c)(1) shall not apply . . . .”); see also id. § 1446(c)(1) (“A case may not be removed . . . on
the basis of jurisdiction conferred by section 1332 more than 1 year after commencement of the
action . . . .”); Dudley v. Eli Lilly & Co., 778 F.3d 909, 912 (11th Cir. 2015) (explaining that “a
CAFA defendant who fails to meet his burden for removal at the early stages of litigation may
still have recourse to the federal courts later, after a fuller record has been developed in
discovery in the state court”).
Despite these new considerations, the Dart framework still places the burden to establish
federal-court jurisdiction on the party seeking removal. See McMullen v. Synchrony Bank, 82 F.
Supp. 3d 133, 138 (D.D.C. 2015) (explaining, while describing CAFA jurisdiction, that “[t]he
party supporting removal bears the burden of establishing the Court’s jurisdiction”); see also
Woods v. Standard Ins. Co., 771 F.3d 1257, 1262 (10th Cir. 2014) (same). The Circus must
therefore show that the aggregate amount Ms. Sloan’s class action puts in controversy is greater
than $5,000,000. And even though the Court may not apply an antiremoval presumption, the
Circus must still prove the aggregate amount in controversy by a preponderance of the evidence.
Dart, 135 S. Ct. at 553–54.
B. Aggregated Statutory Damages
28 U.S.C. § 1332(d)(6) declares that “the claims of the individual class members shall be
aggregated to determine whether the matter in controversy exceeds . . . $5,000,000.” Thus, as a
threshold matter, the Circus must identify the claims to be aggregated. See, e.g., Ibarra v.
Manheim Invs., Inc., 775 F.3d 1193, 1198–99 (9th Cir. 2015) (describing the defendant’s
amount-in-controversy calculation and rejecting it largely because it imprecisely defined the
26
claims to be aggregated). The Circus, however, fails to identify claims that correspond to the
proposed class described in Ms. Sloan’s complaint. Its assumptions on this issue create bedrock
uncertainties that ultimately defeat the Circus’s efforts to establish CAFA jurisdiction.
Ms. Sloan’s proposed class includes “all residents of the District who, in the last three
years, purchased tickets to [the Circus’s] shows because of [the Circus’s] unlawful trade
practices.” Class Action Compl. ¶ 12. Elsewhere in her complaint, Ms. Sloan alleged that the
Circus’s “unlawful trade practices” took the form of communications that made false and
misleading statements to the public. Id. ¶¶ 10, 90–91, 98. Under the class definition, therefore,
class members must meet at least seven conditions: (1) they must be District of Columbia
residents, (2) they must have viewed a Circus communication, (3) the Circus communication
they viewed must have been one Ms. Sloan alleged is unlawful, (4) the class members must have
bought Circus tickets, (5) they must have bought those tickets in the three years before Ms. Sloan
filed her complaint, (6) they must have bought those tickets after viewing the allegedly unlawful
communication, and (7) they must have bought those tickets because of the allegedly unlawful
communication.
The Circus, however, failed to grapple with the nuances of Ms. Sloan’s class definition.
Instead, it defined the claims it aggregated based on just the number of ticket purchasers from the
District of Columbia in the three-year period referenced in the complaint. Def.’s Mem. Opp’n
Pl.’s Mot. Remand 20. The Circus, using location data it has for forty-six percent of ticket
purchasers during that three-year period, asserted that it sold at least 11,470 tickets to District
residents. Id. Because the Circus’s records showed that the average purchaser bought 4.3 tickets,
the Circus divided 11,470 by 4.3 to obtain “a minimum potential class size of 2,667 members.”
Id. From there, the Circus multiplied 2,667 by six (the number of CPPA “violations” the Circus
27
assumed Ms. Sloan alleged for each ticket purchase) and then again by $1,500 (the statutory
damages per “violation”) to obtain an aggregate amount in controversy of $24,003,000. See id. at
20–21.
Because the Circus did not incorporate all of the elements of Ms. Sloan’s class definition,
however, this calculation is unpersuasive from the very beginning. When the Circus estimated
that 2,667 District residents would be class members, it did so solely on the basis of their
(1) residency and their (2) ticket purchase in (3) the last three years. It erroneously included
people who, for instance, bought tickets without ever viewing a Circus communication; bought
tickets after viewing a Circus communication, but not one that was allegedly unlawful; or bought
Circus tickets, but not because of viewing an allegedly unlawful Circus communication. For
these reasons, the Circus’s 2,667 figure is likely too large. Given such a shaky foundation for the
rest of the Circus’s calculation, the Circus’s $24,003,000 estimated amount in controversy is
exceptionally speculative.
As this Court has already noted, “jurisdiction cannot be based on probabilities, surmise or
guesswork.” Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150, 154 (D.D.C. 2007) (internal
quotation marks omitted) (quoting Hohn v. Volkswagen of Am., Inc., 837 F. Supp. 943, 945 (C.D.
Ill. 1993)). To be sure, in the CAFA context, the Court may not resolve ambiguities in favor of
remand. Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014). But even in
the CAFA context, unsupported speculations cannot serve as the foundation for this Court’s
jurisdiction. As the Ninth Circuit has explained, “CAFA’s requirements are to be tested by
consideration of real evidence and the reality of what is at stake in the litigation, using
reasonable assumptions underlying the defendant’s theory of damages exposure.” Ibarra v.
Manheim Invs., Inc., 775 F.3d 1193, 1198 (9th Cir. 2015). And though a damages assessment
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“may require a chain of reasoning that includes assumptions,” those assumptions “cannot be
pulled from thin air but need some reasonable ground underlying them.” Id. at 1199; see also,
e.g., Dudley v. Eli Lilly & Co., 778 F.3d 909, 915–16 (11th Cir. 2014) (affirming the district
court’s finding that the defendant failed to establish the amount in controversy, given that the
defendant “erroneously assumed that all former [Fixed Duration Employees] were eligible for all
benefits and damages, without offering any proof as to this point”).
Here, the Circus’s calculations do not reflect “the reality of what is at stake in the
litigation.” Ibarra, 775 F.3d at 1198. As explained above, the Circus aggregated an inflated set of
claims because it included claims of ticket purchasers to whom Ms. Sloan’s class definition may
not extend. Furthermore, the Circus assumed without justification that multiple CPPA violations,
in connection with a single purchase, mean that a consumer can receive multiple $1,500 statutory
damages awards. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 20–21; see also supra Part VI.C
(explaining why this assumption is improper). Because the Circus’s claims about the aggregate
statutory damages in this case are speculative and unsupported, the Circus has failed to establish
the amount of aggregated statutory damages in controversy by a preponderance of the
evidence.11
C. Aggregated Attorney’s Fees, Punitive Damages, and Injunctive Relief
In its arguments about CAFA jurisdiction, the Circus has not presented arguments or
evidence about attorney’s fees, punitive damages, or injunctive relief. See Def.’s Mem. Opp’n
11
The Circus also noted that, because it has residency data for only forty-six percent of
the tickets it sold to its shows in the District of Columbia area, the amount in controversy could
be “at least $53,100,000.00,” taking all tickets sold to its D.C. shows into account. Def.’s Mem.
Opp’n Pl.’s Mot. Remand 21 n.10. Because this calculation uses the same faulty assumptions
used for the Circus’s $24,003,000 figure, see id., the Circus has also failed to establish its
$53,100,000 figure by a preponderance of the evidence.
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Pl.’s Mot. Remand 18–21. The Court therefore deems these arguments waived. See Johnson v.
Panetta, 953 F. Supp. 2d 244, 250 (D.D.C. 2013). But for the reasons set forth previously
concerning plain diversity jurisdiction, any assertions on these issues with respect to CAFA
jurisdiction would fail as well.
* * *
Just as the Circus did not establish the requisite amount in controversy for diversity
jurisdiction under 28 U.S.C. § 1332(a), the Circus likewise did not establish the requisite amount
in controversy for CAFA jurisdiction under 28 U.S.C. § 1332(d). Its aggregated statutory
damages estimate is far too speculative, and it failed to make arguments about additional sources
of the amount in controversy. Because the Circus’s CAFA arguments are futile and would not
alter this Court’s lack of jurisdiction over Ms. Sloan’s suit, the Circus’s motion to amend its
Notice of Removal is denied.
CONCLUSION
Because this case does not fall within the Court’s jurisdiction under either 28 U.S.C.
§ 1332(a) or 28 U.S.C. § 1332(d), it must be remanded to the Superior Court of the District of
Columbia. Accordingly, Ms. Sloan’s motion to remand (ECF No. 11) is GRANTED, the
Circus’s motion to dismiss (ECF No. 7) is DENIED AS MOOT, Ms. Sloan’s motion for class
certification (ECF No. 13) is DENIED AS MOOT, and the Circus’s motion for a protective
order (ECF No. 20) is DENIED AS MOOT. An order consistent with this Memorandum
Opinion is separately and contemporaneously issued.
Dated: December 18, 2015 RUDOLPH CONTRERAS
United States District Judge
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