The opinion of the court was delivered by: FLANNERY
This matter is before the court on the motion of plaintiff National Organization for Women ("NOW") and the other plaintiffs in this action to remand this case to the District of Columbia Superior Court on the ground that diversity jurisdiction does not lie in this court because the amount in controversy does not exceed $10,000.
This is a class action in which the plaintiffs are NOW on behalf of itself and its members, and two named plaintiffs, Kathy Bonk and Vickey Monrean on behalf of themselves and all other women similarly situated. The defendant is Mutual of Omaha Co., Inc. ("Mutual" or "Mutual of Omaha"). "The plaintiff class is composed of all women to whom Mutual of Omaha has in the past sold, offered or advertised for sale, or to whom Mutual of Omaha will in the future sell, offer or advertise for sale . . . health insurance policies at prices that are higher than or different from the prices at which the same policies are made available to similarly situated men." Complaint para. 1. Plaintiffs complain that these practices by Mutual of Omaha violate the D.C. Human Rights Act, D.C. Code § 1-2519(a)(1) and (a)(2) (1982). In the complaint, NOW also made a claim alleging that defendant's acts "have caused NOW to divert resources to combat sex discrimination in insurance." Complaint para. 8. For this diversion, NOW seeks compensatory damages in an amount to be determined at trial.
The central issue in this motion to remand is whether the jurisdictional amount of $10,000 is present in this diversity action. Because this is a class action, two important Supreme Court cases establish the ground rules for the court's inquiry. In Snyder v. Harris, 394 U.S. 332, 89 S. Ct. 1053, 22 L. Ed. 2d 319 (1969), the Supreme Court held that separate and distinct claims in class actions cannot be aggregated for the purpose of meeting the jurisdictional amount requirement of 28 U.S.C. § 1332 (diversity jurisdiction). 394 U.S. at 336, 89 S. Ct. at 1056-57. In Zahn v. International Paper Co., 414 U.S. 291, 94 S. Ct. 505, 38 L. Ed. 2d 511 (1973), the Supreme Court further elaborated on Snyder and held that it was not enough in a diversity action that each of the named plaintiffs assert damages in excess of $10,000 but rather each member of the class has to meet the amount, and maintenance of the action by any member of the class whose separate and distinct claim did not individually satisfy the jurisdictional amount was precluded. 414 U.S. at 293, 94 S. Ct. at 507.
Defendant's arguments are all attempts to avoid the implications of these two Supreme Court cases.
In this removal action the burden of proof is on the defendant Mutual of Omaha to establish jurisdiction. McNutt v. General Motors Acceptance Corp, 298 U.S. 178, 189, 56 S. Ct. 780, 785, 80 L. Ed. 1135 (1936); see also Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 253-54 (5th Cir. 1961); Electronic Data Systems Corp. v. Kinder, 360 F. Supp. 1044, 1047 (N.D. Tex. 1973), aff'd, 497 F.2d 222 (5th Cir. 1974); 1A J. Moore, Moore's Federal Practice para. 0.157, at 131 (2d ed. 1985). Further, contrary to defendant's assertion at oral argument, although not discussed in its memoranda, the court is to base its determination on the nature of the action as stated in the complaint and thus is to assume for purposes of this motion that this action will proceed as a class action even though it is not yet certified as one. City of Inglewood v. City of Los Angeles, 451 F.2d 948, 951 (9th Cir. 1971); 3B J. Moore, Moore's Federal Practice para. 23.50 (2d ed. 1985) ("In the interim between the commencement of the suit as a class action and the court's determination as to whether it may be so maintained it should be treated as a class suit").
Defendant points to the legal certainty test set forth in Saint Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S. Ct. 586, 82 L. Ed. 845 (1938), to support the proposition that "jurisdiction will be found to exist unless the Court finds 'to a legal certainty' that the matter in controversy cannot exceed the sum or value of $10,000." Defendant's Opposition to Plaintiffs' Motion to Remand at 2. The Saint Paul case, however, did not address the situation in which it is unclear what amount of damages the plaintiff party sought, as is true here with regard to the NOW claim for attorneys' fees, the NOW claim for compensation for the diversion of resources, and the individual class claims. The Supreme Court in Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S. Ct. 35, 66 L. Ed. 144 (1921) explained the rule in removal actions as follows:
257 U.S. at 97, 42 S. Ct. at 37 (citations omitted). See also Gaitor v. Peninsular & Occidental Steamship Co., 287 F.2d 252, 254, 255 (5th Cir. 1961) (defendants below did not make such affirmative showing at the time they sought removal to federal court as is specifically required by Congress with reference to jurisdictional amount. . . . The key [to removal] is an affirmative showing by he who seeks entry of all the requisite factors of diversity jurisdiction, including amount in controversy. . . ."). Thus, defendant's attempt to vest the "legal certainty" phrase of the St. Paul case with a talismanic quality that prevents remand of cases where there is some doubt as to the amount to be recovered must be rejected.
Defendant argues that under 28 U.S.C. § 1441(c) the entire case is removable to federal court because NOW's claim for the diversion of resources to fight insurance discrimination is a separate and independent claim which would be removable if sued upon alone. Section 1441(c) states:
(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not within its original jurisdiction.
The issue of when a claim is "separate and independent" under § 1441(c) is one that has caused no little confusion. Because it is not entirely clear when a claim is "separate and independent" for purposes of § 1441(c), courts are in apparent disagreement over whether an action in which multiple plaintiffs sue a defendant for a single wrong should be considered as consisting of "separate and independent" claims. Because the arguments for the position that these claims should not be considered "separate and independent" are amply set forth in the opinions that ascribe to this view, the court will not rehash those arguments here, but instead notes that it finds them persuasive. The Court of Appeals for the Second Circuit has recently explained:
The leading precedent interpreting § 1441(c) is American Fire and Casualty Co. v. Finn, 341 U.S. 6, 71 S. ...