Deanna Morey v. Louis Vuitton North America

FILED
NOT FOR PUBLICATION DEC 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEANNA MOREY, an individual, on No. 11-56916
behalf of herself and all others similarly
situated, D.C. No. 3:11-cv-01517-L-BLM
Plaintiff - Appellee,
MEMORANDUM *
v.
LOUIS VUITTON NORTH AMERICA,
INC., a Delaware corporation,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted December 9, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Defendant Louis Vuitton North America, Inc. appeals the district court’s
order remanding plaintiff Deanna Morey’s putative class action alleging that Louis
Vuitton violated California’s Song-Beverly Credit Card Act, Cal. Civ. Code
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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§ 1747.08, by requesting and recording shoppers’ personal identification
information when they used a credit card for purchases at Louis Vuitton retail
stores. We have jurisdiction under 28 U.S.C. § 1453(c)(1). Reviewing the district
court’s remand order de novo, see United Steel, Paper & Forestry, Rubber, Mfg.,
Energy, Allied Indus. & Serv. Workers Int’l Union, AFL-CIO v. Shell Oil Co., 602
F.3d 1087, 1090 (9th Cir. 2010), we reverse.
The district court erred in holding that Louis Vuitton’s initial notice of
removal failed to show by a preponderance of the evidence that the amount in
controversy exceeded $5 million. See 28 U.S.C. § 1332(d)(2); United Steel, 602
F.3d at 1090.
When determining the amount in controversy for jurisdictional purposes, the
amount claimed in the complaint’s prayer for relief controls if apparently made in
good faith. See Hall v. N. Am. Van Lines, Inc., 476 F.3d 683, 689 n.6 (9th Cir.
2007). Here, the complaint sought penalties of “up to . . . $1,000 per violation” of
the Song-Beverly Act. That statute gives the court discretion to impose civil
penalties “not to exceed [$250] for the first violation and [$1,000] for each
subsequent violation.” Cal. Civ. Code § 1747.08(e); see also Pineda v. Williams-
Sonoma Stores, Inc., 246 P.3d 612, 620 (Cal. 2011). The statute’s language does
not necessarily limit the recoverable penalty to $250 for the defendant’s first
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violation against each separate victim. Rather, the statutory language caps the
penalty at $250 for the defendant’s first violation, and then at $1,000 for each
subsequent violation, regardless of whether the defendant’s subsequent violation
aggrieved the same victim as the first violation. Because the amount in
controversy could be as much as $1,000 for each subsequent violation, and it is
undisputed that there were “substantially in excess” of 5,000 credit card
transactions, the preponderance of the evidence shows that the amount in
controversy exceeds $5 million.
The plaintiff also argues that Louis Vuitton failed to establish by a
preponderance of the evidence that the putative class had at least 100 members, as
required by the Class Action Fairness Act. See 28 U.S.C. § 1332(d)(5). But Louis
Vuitton processed “substantially in excess of 5,000 credit card transactions” during
the class period, a number that reasonably implies at least 100 separate credit card
users.
REVERSED.