Mentzel v. Comcast Cable Communications, Inc. ( 2002 )

222 F.Supp.2d 923 (2002)

Barry MENTZEL, as representative of the class, Plaintiffs,
v.
COMCAST CABLE COMMUNICATIONS, et al., Defendants.

No. 02-71171.

United States District Court, E.D. Michigan, Southern Division.

October 18, 2002.

Justin Haas, Gittleman, Paskel, Tashman & Walker, PC, Southfield, MI, for Plaintiff.

Thomas J. Tallerico, J. Adam Behrendt, Troy, MI, Jaime A. Bianchi, White & Case, First Union Financial Center, Miami, FL, for Defendant.

ORDER OF REMAND

FEIKENS, District Judge.

Before me is plaintiff's motion to remand this case, removed to this court on a diversity jurisdiction basis. This is a class-action breach of contract claim coupled with a claim under the Michigan Consumer Protection Act. M.C.L. §§ 445.901 et seq.

Plaintiff claims that there are 180,000 persons similarly situated to him and that in no event will there be any claim that exceeds $160.

Plaintiff himself seeks reimbursement for intermittent cable-internet service at $39.95 a month for no more than four months and plaintiff's counsel stated on the record that there is no claim for consequential or punitive damages.

On a motion to remand to state court, plaintiff must show "to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." St. Paul Mercury Indemnity v. Red Cab Co., 303 U.S. 283 at 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938). In a class action the claims of the class cannot be aggregated to meet the requisite jurisdictional floor ($75,000). Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973). Common sense dictates that plaintiff cannot recover more than $160 per person or claim. Thus, it is a legal certainty that the amount in controversy does not exceed the $75,000 required under 28 U.S.C. § 1332(a) and this court lacks subject matter jurisdiction over this case.

IT IS HEREBY ORDERED that this case be REMANDED to the Oakland County Circuit Court pursuant to 28 U.S.C. § 1447(c).

IT IS SO ORDERED.