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Zuckman v. Monster Beverage Corp.

United States District Court, District Circuit

August 6, 2013

MICHAEL ZUCKMAN, on behalf of himself and the General Public of the District of Columbia, Plaintiff,


JOHN D. BATES United States District Judge

Plaintiff Michael S. Zuckman, acting on behalf of himself and the general public, filed this action in District of Columbia Superior Court on November 13, 2012. Zuckman alleges that Monster Beverage Corporation (“Monster”) engaged in unlawful trade practices in violation of the District of Columbia Consumer Protection Procedures Act (“DCCPPA”) by failing to disclose and by misrepresenting the adverse health effects of Monster Energy drinks. Monster removed the action, arguing that this Court has diversity jurisdiction over the matter pursuant to 28 U.S.C. § 1332(a), or, alternatively, that the Court has jurisdiction under the Class Action Fairness Act. Zuckman now moves to remand the action to the Superior Court of the District of Columbia for lack of subject-matter jurisdiction. For the reasons set forth below, the Court will grant Zuckman’s motion and will remand the action.


Zuckman brings this one-count action pursuant to the DCCPPA’s private attorney general provision, under which “[a]n individual may, on behalf of that individual, or on behalf of both the individual and the general public, bring an action seeking relief from the use of a trade practice in violation of a law of the District.” D.C. Code § 28-3905(k)(1)(B). Zuckman alleges that Monster violated the statute by misrepresenting that Monster Energy drinks are “completely safe, ” and by failing to disclose the material adverse health effects potentially caused by the drinks’ particular ingredients. See Compl. [Docket Entry 1-1] ¶¶ 39, 40 (Nov. 13, 2012). Zuckman claims that he “has viewed advertising for[] and regularly purchased” Monster Energy drinks in the District of Columbia, and that he “has consumed up to two cans of Monster Energy drink in one day on numerous occasions.” See id. ¶ 1. On behalf of himself and the general public of the District of Columbia, Zuckman seeks relief in the form of treble or statutory damages in the amount of $1, 500 per violation; restitution for each consumer of Monster Energy drinks; an injunction requiring Monster to disclose that the drinks have not been found “completely safe” and are capable of causing negative health effects; and reasonable attorney fees and costs. See id. ¶¶ 41-42.

Monster filed an opposition to the motion for remand, and Zuckman filed a reply. Pursuant to the Court’s Order, Zuckman and his counsel also provided affidavits containing additional information regarding the amount in controversy. Both parties filed supplemental briefing addressing this information.


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 it falls within the federal court’s original jurisdiction. 28 U.S.C. § 1441(a). 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); see also Bhagwanani v. Howard Univ., 355 F.Supp.2d 294, 297 (D.D.C. 2005); Johnson-Brown v. 2200 M Street LLC, 257 F.Supp.2d 175, 177 (D.D.C. 2003). After removal of an action from state court, the party seeking to remain in federal court— Monster here—bears the burden of establishing that federal jurisdiction exists. See Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921); Bhagwanani, 355 F.Supp.2d at 297; In re Tobacco/Gov’tal Health Care Costs Litig., 100 F.Supp.2d 31, 35 (D.D.C. 2000). “When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case . . . .” Republic of Venez. v. Philip Morris Inc., 287 F.3d 192, 196 (D.C. Cir. 2002); see also Bhagwanani, 355 F.Supp.2d at 297. “[T]he court must resolve any ambiguities concerning the propriety of removal in favor of remand.” Johnson-Brown, 257 F.Supp.2d at 177.


I. Diversity Jurisdiction

A federal court has diversity jurisdiction over an action “where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a). The parties agree, and the Court finds, that Zuckman, a Maryland citizen, and Monster, a Delaware corporation principally based in California, are completely diverse. The parties dispute, however, whether the amount in controversy is met. In addressing this question, the Court will consider Zuckman’s claims for various types of relief: statutory damages, attorney fees, an injunction, and restitution. The Court will assume that the amounts sought should be added together. See, e.g., Breakman v. AOL LLC, 545 F.Supp.2d 96, 108 (D.D.C. 2008) (discussing the combined monetary value of plaintiff’s requests for relief to determine the amount in controversy). If the amount is at or below $75, 000, the action lies outside the Court’s diversity jurisdiction.

A. Statutory Damages

Zuckman seeks to recover $1, 500 on behalf of himself and the general public for each statutory violation under the DCCPPA. The Supreme Court has long held that “the separate and distinct claims of two or more plaintiffs cannot be aggregated in order to satisfy the jurisdictional amount requirement.” See Snyder v. Harris, 394 U.S. 332, 335 (1969). Hence, only the damages to which Zuckman would be personally entitled—rather than those on behalf of the public—will count toward satisfying the $75, 000 jurisdictional threshold. See Breakman, 545 F.Supp.2d at 103-04.

In his complaint, Zuckman declines to specify how many alleged statutory violations occurred, merely stating that he “regularly purchased” Monster Energy drinks in the District of Columbia. See Compl. ¶ 1. Based on these allegations, Monster contends that it is more likely than not that Zuckman purchased and consumed more than 50 cans, which, at $1, 500 per violation, would put him above the $75, 000 threshold for federal jurisdiction. See Def.’s Opp’n to Pl.’s Mot. for Remand [Docket Entry 10] at 5 (Jan. 28, 2013) (“Def.’s Opp’n”). Monster further argues that the alleged “violations” include not simply purchases of cans, but also instances of viewing allegedly misleading advertising, and that counting each such instance as a “violation” makes it even more likely that the total number of alleged “violations” exceeds 50. See id.

Zuckman responds that Monster mischaracterizes his claim, and that he is only asserting as “violations” his purchases. See Reply in Supp. of Pl.’s Mot. for Remand [Docket Entry 11] at 3-4 (Feb. 8, 2013) (“Pl.’s Reply”). As to the number of cans at issue, Zuckman submitted an affidavit in response to the Court’s Order, attesting that he purchased 15 to 20 cans in the District of Columbia. See Aff. of Michael Zuckman [Docket Entry 13] ¶ 6 (May 30, 2013). Responding to the Order’s request that Zuckman specify the total number of cans he purchased “during the relevant period, ” see Order [Docket Entry 12] at 1 (May 9, 2013), Zuckman also acknowledged that he purchased many cans in Maryland, for an estimated total of 100 to 120 cans. See Zuckman Aff. ¶ 5. Finally, responding to the Order’s request that he attest to “the maximum number of violations supporting statutory damages that plaintiff intends to assert on his own behalf, ” see Order at 1, Zuckman stated that “I intend to prosecute any individual claims I have for purchases made in Washington, DC.” Zuckman Aff. ¶ 9. In his supplemental brief, Zuckman again makes clear that his ...

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