The opinion of the court was delivered by: Gladys Kessler United States District Judge
This is a putative class action, brought by Plaintiff Sara Wexler, on behalf of herself and all others similarly situated, against Defendants United Air Lines, Inc. and UAL Corporation (collectively "UAL").*fn1 Wexler alleges that UAL's conduct violated the District of Columbia Consumer Protection Procedures Act ("DCCPPA"), D.C. Code § 28-3905 (2006), and constituted fraud, negligence, breach of contract, and unjust enrichment.
Plaintiff originally brought this action in the Superior Court for the District of Columbia. UAL removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446, alleging three independent bases of federal subject matter jurisdiction: (1) federal question jurisdiction under 28 U.S.C. § 1331; (2) diversity jurisdiction under 28 U.S.C. § 1332(a); and (3) diversity jurisdiction under the 2005 Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d).
This matter is before the Court on Plaintiff's Motion to Remand [Dkt. No. 12], pursuant to 28 U.S.C. § 1447(c), and UAL's Motion to Dismiss for Failure to State a Claim, pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt. No. 4]. Upon consideration of the Motions, Oppositions, and Replies, and the entire record herein, and for the reasons stated below, Plaintiff's Motion to Remand is granted, and UAL's Motion to Dismiss is denied as moot.
On June 19, 2006, Wexler*fn2 purchased a non-refundable, round trip fare from UAL.*fn3 She was to depart from Washington, D.C. and arrive in Chicago on July 21, and return to Washington on July 23. Wexler found alternate transport to Chicago, so she declined to use the first leg of her itinerary, without informing UAL. UAL then cancelled the remainder of Wexler's itinerary.
On July 23, Wexler attempted to use her ticket for the return leg from Chicago to Washington, D.C. At the airport, the ticketing agent informed Wexler that her reservation had been cancelled under UAL's policy. The only seats remaining on the flight were in first class. One hour prior to scheduled departure and unaware of the availability of seats on other airlines, Wexler paid $917 for a first class ticket and returned to Washington.
Removal is appropriate only when the case might have originally been brought in federal court. 28 U.S.C. § 1441(a); see Caterpiller, Inc. v. Williams, 482 U.S. 386, 392 (1987). The removing party bears the burden of showing that federal subject matter jurisdiction exists. See Your Girl Friday, LLC v. MGF Holdings, Inc., No. 06-0385, 2006 U.S. Dist. LEXIS 20665, at *7 (D.D.C. Apr. 18, 2006). Any ambiguities regarding the existence of removal jurisdiction must be resolved in favor of remand. Id.; Nwachukwu v. Karl, 223 F. Supp. 2d 60, 66 (D.D.C. 2002).
UAL argues, relying on legislative history, that CAFA shifts the burden away from the removing party and onto the plaintiff. No circuit has accepted the burden-shifting argument. Morgan v. Gay, 471 F.3d 469, 473 (3d Cir. 2006). This Court agrees with the five courts of appeals that have held that the burden remains on the removing party to establish CAFA jurisdiction. See id.; DiTolla v. Doral Dental IPA of N.Y., LLC, 469 F.3d 271, 275 (2d Cir. 2006); Miedema v. Maytag Corp., 450 F.3d 1322, 1328 (11th Cir. 2006); Abrego v. Dow Chem. Co., 443 F.3d 676, 686 (9th Cir. 2006); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448 (7th Cir. 2005).
A. There Is No Federal Question Jurisdiction Under 28 U.S.C. § 1331
The well-pleaded complaint rule states that a federal question must appear on the face of the complaint in order to create federal question jurisdiction pursuant to 28 U.S.C. § 1331. See, e.g., Aetna Health Inc. v. Davila, 542 U.S. 200, 207 (2004). Here, Plaintiff's Complaint is based on a District of Columbia statute and unspecified state common law. Accordingly, there is no basis for federal question jurisdiction.
UAL, however, argues that the Supreme Court's recent decision in Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005), provides an exception to the well-pleaded complaint rule. Grable involved a plaintiff's quiet title action that was premised on the validity of an IRS seizure of real property and required interpretation of a related federal statute. Grable, 545 U.S. at 310-11. In finding jurisdiction, the Grable Court relied on the Government's "direct interest in the availability of a federal forum to vindicate its own administrative action" and the "microscopic effect on the federal-state division of labor" of allowing this statutory dispute into federal court. Id. at 315. ...