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Breakman v. AOL LLC

April 17, 2008

PAUL M. BREAKMAN, PLAINTIFF,
v.
AOL LLC, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Paul M. Breakman, acting in a representative capacity on behalf of the interests of the general public, originally filed this action in the Superior Court of the District of Columbia ("D.C. Superior Court") on January 23, 2008. Breakman alleges that AOL LLC ("AOL") engaged in unlawful trade practices in violation of the District of Columbia Consumer Protection Procedures Act, D.C. Code §§ 28-3901 et seq., by failing to disclose material facts regarding pricing plans to its current and past members. On February 13, 2008, AOL filed a notice of removal arguing that this Court had jurisdiction over the action pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d)(2). After Breakman filed a motion to remand, AOL filed an amended notice of removal on February 21, 2008, arguing that this Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a) and that if Breakman's complaint is deemed to be a class action lawsuit, the Court has jurisdiction pursuant to the Class Action Fairness Act. Now before the Court is Breakman's amended motion to remand the case to the D.C. Superior Court and for an award of costs and expenses incurred as a result of the removal of this action. For the reasons stated below, the Court will grant Breakman's motion to remand but will deny the motion for an award of costs and expenses.

BACKGROUND

The District of Columbia Consumer Protection Procedures Act ("DCCPPA") contains a private attorney general provision, which authorizes "[a] person, whether acting for the interests of itself, its members, or the general public" to bring an action "seeking relief from the use by any person of a trade practice in violation of a law of the District of Columbia." D.C. Code § 28-3905 (k)(1). Suing under this provision, Breakman's one count complaint alleges that AOL engaged in an unlawful trade practice by misleading past and current customers about the monthly price of receiving dial-up internet service provider and content services ("dial-up ISP service"). Compl. ¶ 22. Beginning in or about August 2006, AOL allegedly charged its loyal members $23.90-$25.90 a month for essentially the same dial-up ISP service that new members could receive for $9.95 a month. Id. ¶ 19. According to AOL, Breakman's complaint will reach 28,451 consumers in the District of Columbia. Def.'s Am. Not. of Removal Ex. A (Decl. of John Baumeister) ¶ 6. The complaint alleges that AOL actively misled these loyal customers about the availability of the lower priced plan. Breakman therefore seeks relief "for each individual District of Columbia consumer" in the form of actual damages, treble damages, reasonable attorneys' fees, punitive damages, and an injunction enjoining AOL from continuing its alleged unlawful trade practice. Compl. at 6.

In his amended motion to remand, Breakman contends that "the instant case is a representative action brought under the DCCPPA and is not a class action to which the Class Action Fairness Act applies." Pl.'s Mem. Supp. Am. Mot. to Remand ("Pl.'s Mem.") at 2. Breakman further argues that AOL's amended notice of removal did not carry its burden of establishing complete diversity between the parties and did not carry its burden of establishing that the required amount in controversy is satisfied. According to the complaint, "[t]he amount of damages owed by Defendant AOL to any individual District of Columbia consumer who has paid and/or continues to pay AOL $23.90 to $25.90 a month for essentially the same Dial-up ISP Service new members get for $9.95 a month, does not exceed $75,000, exclusive of costs and interest." Compl. ¶ 13. According to AOL's own calculations, the most that any consumer could receive in actual damages is an average of $128.63. Def.'s Opp. Ex 1 (Aff. of John Baumeister) ¶ 4. AOL reached this figure by calculating the amount of money a consumer could have saved if he switched from a $23.90 or $25.90 plan to the $9.95 plan as soon as it became available. Id. In statutory damages, the most that an individual consumer could receive is $1,500. D.C. Code. § 28-3905(k)(1)(A).

LEGAL STANDARD

An action originally filed in state court "may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending" when the federal court has original jurisdiction. 28 U.S.C. § 1441(a). The party seeking removal of an action bears the burden of proving that jurisdiction exists in federal court. See Mulcahey v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994); Bhagwanani v. Howard Univ., 355 F. Supp. 2d 294, 297 (D.D.C. 2005); In re Tobacco/Gov'tal Health Care Costs Litig., 100 F. Supp. 2d 31, 35 (D.D.C. 2000). Because of the significant federalism concerns involved, this Court strictly construes the scope of its removal jurisdiction. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941); Bhagwanani, 355 F. Supp. 2d at 297; Johnson-Brown v. 2200 M Street LLC, 257 F. Supp. 2d 175, 177 (D.D.C. 2003). Accordingly, "if federal jurisdiction is doubtful, a remand to state court is necessary." Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2003) (en banc); see also Bhagwanani, 355 F. Supp. 2d at 297; Johnson-Brown, 257 F. Supp. 2d at 177 (explaining that "the court must resolve any ambiguities concerning the propriety of removal in favor of remand").

DISCUSSION

I. Class Action Fairness Act

AOL claims that the complaint is ambiguous as to whether Breakman is bringing the action as a representative private attorney general suit pursuant to D.C. Code § 28-3905(k)(1) or as a class action under Rule 23 of the D.C. Superior Court Rules of Civil Procedure, because he fails to cite either provision in the complaint. AOL admits, however, that it "presumes that the Plaintiff has filed this action pursuant to D.C. Code § 28-3905(k)(1)" based on the language of the complaint asserting that it was filed in a representative capacity on behalf of the interests of the general public. Def.'s Am. Not. of Removal ¶ 18. Just in case AOL's presumption is incorrect, however, it argues that "[i]f Plaintiff's complaint is a class action lawsuit, this Court has jurisdiction over the matter under 28 U.S.C. § 1332(d)(2)." Id. ¶ 17.

In the amended motion to remand, Breakman confirms that the action is a representative action brought pursuant to the DCCPPA and "is not a class action." Pl.'s Mem. at 2 (emphasis added). The DCCPPA specifically authorizes a private attorney general suit without any reference to class action requirements. See D.C. Code § 28-3905(k). Breakman has not attempted to comply with Rule 23 of the D.C. Superior Court Rules of Civil Procedure, and he has not sought class certification. He also states that he is not bringing this action "in his individual capacity or as a class representative in a class action." Pl.'s Mem. at 4. Hence, this representative action is authorized by District of Columbia statute and is a separate and distinct procedural vehicle from a class action.

Furthermore, Breakman points out that this action falls within an exception to the removal provisions of the Class Action Fairness Act. According to the statute, a "mass action" involves the claims of 100 or more persons to be tried together, where the federal court may only assert jurisdiction over each plaintiff whose individual claims satisfy the $75,000 amount in controversy requirement. 28 U.S.C. § 1332(d)(11)(B)(i). A mass action shall be deemed a removable class action if certain requirements are met, but there are four exceptions, one of which specifically affects the instant suit. The Class Action Fairness Act expressly states that when "all of the claims in the action are asserted on behalf of the general public (and not on behalf of individual claimants or members of a purported class) pursuant to a State statute specifically authorizing such action," the suit will not be deemed a mass action and will not be removable pursuant to 28 U.S.C. § 1332(d). 28 U.S.C. § 1332(d)(11)(B)(ii)(III). Here, the DCCPPA authorizes a suit to be brought on behalf of the general public for unlawful trade practices. Hence, even AOL concedes that "this DCCPPA case falls squarely within the definitional exclusion of 'mass action.'" Def.'s Opp. at 28.*fn1

AOL's arguments under the Class Action Fairness Act are, ultimately, unpersuasive. Because Breakman does not bring this action as a class action pursuant to any statute or rule, and because it does not fall within the definition of a mass action, AOL cannot remove this private attorney ...


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