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Witte v. General Nutrition Corp.

United States District Court, D. Columbia.

May 13, 2015


For PATRICK ANDREW WITTE, Plaintiff: Christopher Nidel, LEAD ATTORNEY, NIDEL LAW, PLLC, Washington, DC; Jonathan B. Nace, LEAD ATTORNEY, PAULSON & NACE, PLLC, Washington, DC; Nicholas A Migliaccio, LEAD ATTORNEY, WHITFIELD BRYSON & MASON LLP, Washington, DC.

For GENERAL NUTRITION CORPORATION, GNC PARENT, LLC, Defendants: Marisa A. Trasatti, LEAD ATTORNEY, Robert Edward Scott, Jr., SEMMES, BOWEN & SEMMES, Baltimore, MD; Wayne C. Heavener, PRO HAC VICE, SEMMES, BOWEN & SEMMES, Baltimore, MD.


ELLEN SEGAL HUVELLE, United States District Judge.

Plaintiff Patrick Andrew Witte brings this action against defendants General Nutrition Company and GNC Parent, LLC, alleging that defendants engaged in an unlawful trade practice in violation of the District of Columbia Consumer Protection Procedures Act (" DCCPPA" ), D.C. Code § 28-3904 et seq., by selling several of their products with nonfunctional slack-fill. Defendants removed the case to federal court, and now before this Court is plaintiff's motion to remand [ECF No. 14]. For the reasons stated herein, plaintiff's motion will be granted and the case will be remanded.


Plaintiff, a D.C. resident, filed suit on February 6, 2015, in the Superior Court of the District of Columbia. (Complaint [ECF No. 1-2] (" Compl." ) ¶ 4.) Defendants are Pennsylvania companies that " manufacture[], produce[], package[], and sell[] dietary supplements," with stores in the District of Columbia. ( Id. ¶ ¶ 5-6, 8.) Plaintiff purchased two items -- GNC Pro Performance 100% Whey Protein and GNC Beyond Raw Re-Size -- from one of defendants' retail stores on December 16, 2014. ( Id. ¶ 20.) The products' containers were " completely opaque" and " unable to be opened and inspected prior to purchase." ( Id. ¶ 21-22.) When plaintiff did open the containers, he found that they contained several inches of " non-functional slack-fill." ( Id. ¶ 26.) Plaintiff describes " slack-fill" as " the area of empty space in a consumer bottle or packaging." ( Id. ¶ 14; see also 21 C.F.R. § 100.100(a) (" Slack-fill is the difference between the actual capacity of a container and the volume of product contained therein." ).) Plaintiff alleges that " non-functional slack-fill . . . is an unlawful and deceptive trade practice pursuant to DC Code § 28-3904." ( Id. ¶ 38.) His suit, which he brings " on behalf of himself as an individual and on behalf of the general public," requests " [a]n injunction against GNC, including that GNC be barred from producing, manufacturing and packaging its propriety products with non-functional slack-fill in the District of Columbia." ( Id. ¶ ¶ 37, 43.) He also requests " [a]dditional relief to restore to the consumer money which was acquired by means of the unlawful trade practice in the District of Columbia," punitive damages, attorney's fees, and " [a]ny other statutory relief the court determines proper under D.C. Code § 28-3905(k)(1)." ( Id. ¶ 43.)

On March 10, 2015, Defendants filed a notice of removal. (Notice of Removal, [ECF No. 1] (" Notice" ).) With respect to the amount in controversy, defendants argued that " [p]laintiff has alleged an undefined number of violations, which could, unto themselves, exceed the sum of $75,000." ( Id. ¶ 10 (citation omitted).) Defendants also contend that " the value of injunctive relief sought by Plaintiff would cost the Defendants more than $75,000." ( Id. ) In support of this latter proposition, defendants submitted an affidavit from a " Senior Litigation Paralegal" who has " worked for General Nutrition Corporation for five . . . years." (Aff. of Kevin C. Macken [ECF No. 1-5] ¶ 1.) That affidavit only asserts that " [t]he injunctive relief sought by Plaintiff would require Defendants to incur significant costs in order to change its packaging procedures. The retrofit would entail revisions to the packaging procedures nationwide, and in all facilities. To do so would entail expenses well in excess of $75,000.00." ( Id. ¶ 5.)

On April 7, 2015, plaintiff moved to remand this case back to D.C. Superior Court. ( See Mem. of P. & A. in Supp. of Pl.'s Mot. to Remand for Lack of Subject Matter Jurisdiction [ECF No. 14] (" Pl.'s Mem." ).)



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." Nat'l Consumers League v. Bimbo Bakeries USA, 46 F.Supp.3d 64, 69 (D.D.C. 2014) (quoting Int'l Union of Bricklayers & Allied Craftworkers v. Ins. Co. of the W., 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 are to be resolved in favor of remand. Hood v. F. Hoffman-La Roche, Ltd., 639 F.Supp.2d 25, 28 (D.D.C. 2009) (citing Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir. 2007)).


Defendants argue that plaintiff has waived his right to move for remand by engaging in discovery. (Defs.' Mem. of P. & A. in Opp. to Pl.'s Mot. to Remand for Lack of Subject Matter Jurisdiction [ECF No. 16] (" Defs.' Opp." ) at 14.) Defendants explain that " Plaintiff has propounded and has granted Defendants an extension to April 23, 2015 to respond to broad written discovery addressing liability and damages." ( Id. )

To be sure, " [a] plaintiff might waive the right to a remand on the basis of procedural defects by supplementing a complaint, litigating a summary judgment motion, or proceeding in a trial." Busby v. Capital One, N.A., 841 F.Supp.2d 49, 53 (D.D.C. 2012). However, " merely engaging in offensive or defensive litigation (such as limited discovery) especially when the plaintiff has already filed a motion for remand, does not forfeit the right to a remand." Id. In Busby, the Court found that " plaintiff ha[d] waived . . . her objection to the procedural defects in the defendants' notice of removal" where " plaintiff ha[d] litigated her claim . . . for well over a year," including filing several motions and pursuing an appeal. Id. at 53-54 (emphasis omitted). Plaintiff in this case has, at most, exchanged some discovery with defendants, although the extent of the exchange is unclear. ( See Defs.' Opp., Ex. C [ECF No. 16-3].) This limited engagement falls far short of the activity that gave rise to waiver in Busby. Moreover, as plaintiff correctly points out, his " motion to remand is not based upon a mere procedural defect, but that as a matter of law the Court lacks subject matter jurisdiction to hear the claim." (Pl.'s Reply in Further Supp. of Pl.'s Mot. to Remand for Lack of Subject Matter Jurisdiction [ECF ...

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