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National Consumers League v. Flowers Bakeries, LLC

United States District Court, D. Columbia.

April 8, 2014

NATIONAL CONSUMERS LEAGUE, on behalf of the general public, Plaintiff,

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For FLOWERS BAKERIES, LLC, Defendant: Cheryl Anne Falvey, LEAD ATTORNEY, Andrew D. Kaplan, Lauren B. Patterson, Christopher A. Cole, CROWELL & MORING LLP, Washington, DC .

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ELLEN SEGAL HUVELLE, United States District Judge.

On September 28, 2013, the National Consumers League (" NCL" ) filed suit on

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behalf of the " general public" in D.C. Superior Court against Flowers Bakeries, LLC (" Flowers" ), alleging violations of the D.C. Consumer Protection Procedures Act (" DCCPPA" ). D.C. Code § 28-3901, et seq. After defendant removed the case to federal court on the basis of diversity jurisdiction and the Class Action Fairness Act (" CAFA" ) (Notice of Removal (" Notice" ), Oct. 31, 2013 [ECF No. 1]), plaintiff filed the present motion for remand on the grounds that this Court lacks subject matter jurisdiction. (Pl.'s Mot. to Remand for Lack of Subject Matter Jurisdiction (" Mot." ), Dec. 4, 2013 [ECF No. 8].) For the reasons stated below, this motion will be granted.


Plaintiff is a non-profit organization headquartered in Washington, D.C. (Compl., Sept. 28, 2013 [ECF No. 1-1], at ¶ 34.) Defendant is a manufacturer of food products based in Georgia.[1] ( See Flowers Bakeries, LLC's Resp. to Court Order (" Flowers Resp." ), Feb. 19, 2014 [ECF No. 17], at ¶ 2.) In its complaint, plaintiff, acting as a private attorney general, alleges that the defendant engaged in a " pervasive pattern of fraudulent, deceptive, and otherwise improper marketing practices . . . regarding the sale of Nature's Own Honey Wheat Bread and Whitewheat Bread" in violation of the DCCPPA. (Compl. at ¶ 1.) Based on those allegations, plaintiff demands (a) a declaration that " Defendant's conduct is in violation of the [DCCPPA]," (b) an injunction " ordering corrective advertising or revised labeling," (c) relief for the " Plaintiff and the General Public of the District of Columbia [in the form of] restitution, treble damages or statutory damages in the amount of $1,500 per violation, whichever is greater," and (d) " costs of prosecuting this action, including attorneys' fees, experts' fees and costs together with interest." ( Id. at Prayer for Relief.)

On October 31, 2013, defendant removed the case to federal court. In its Notice of Removal defendant identified three independent grounds for removal: (1) diversity jurisdiction, (2) the class action provision of CAFA, and (3) the mass action provision of CAFA. ( See Not. at 1-2.) Along with this Notice of Removal, defendant submitted a sworn declaration from Daniel J. Scott, the President of Flowers Baking Co. of Oxford, LLC. (Decl. of Daniel J. Scott, Oct. 30, 2013 [ECF No. 1-4].) Flowers Oxford is a wholly-owned subsidiary of defendant Flowers and is the exclusive provider of the relevant bread products to retailers in the District of Columbia. ( Id. at ¶ ¶ 1, 4.) In this declaration, Mr. Scott stated that more than 300,000 loaves of the breads had been sold in the District of Columbia since January 2011 and that at least one consumer had purchased more than 50 loaves from locations in the District of Columbia since September 5, 2012. ( Id. at ¶ ¶ 5-6.)

On December 4, 2013, plaintiff filed a motion for remand. (Mot. at 1.) On December 23, 2013, defendant filed an opposition to this motion. (Def. Flowers Bakeries, LLC's Mem. of Law in Opp. to Pl.'s Mot. to Remand (" Opp." ), Dec. 23, 2013 [ECF No. 9].) With this opposition, defendant's counsel filed an affidavit stating that on November 9, 2013, she received a settlement demand for an amount exceeding $75,000, as well as several substantive concessions.[2] (Decl. of Cheryl A. Falvey, Dec.

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23, 2013 [ECF No. 9-1].) On January 9, 2014, plaintiff filed a Reply, including a request for fees and costs pursuant to 28 U.S.C. 1447(c) (Pl.'s Reply Brief in Support of its Mot. to Remand for Lack of Subject Matter Jurisdiction (" Reply" ), Jan. 9, 2014 [ECF No. 12]), which it later withdrew. ( See Notice of Withdrawal of Req. for Costs and Fees and Associated Legal Arg., Jan. 21, 2014 [ECF No. 14].)



A civil action filed in state court may only be removed to a United States district court if the case could originally have been brought in federal court. 28 U.S.C. § 1441(a). Upon a motion to remand a removed case to state court, the party opposing the motion " bears the burden of establishing that subject matter jurisdiction exists in federal court." RWN Dev. Grp., LLC v. Travelers Indem. Co., 540 F.Supp.2d 83, 86 (D.D.C. 2008) (quoting Int'l Union of Bricklayers & Allied Craftworkers v. Ins. Co. of the West, 366 F.Supp.2d 33, 36 (D.D.C. 2005)). Courts are to construe the removal statute narrowly in order to avoid federalism concerns, Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941), and any doubts about the existence of subject matter jurisdiction ...

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