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Sloan v. Soul Circus, Inc.

United States District Court, District of Columbia

December 18, 2015

MELANIE SLOAN, Plaintiff,
v.
SOUL CIRCUS, INC., Defendant.

MEMORANDUM OPINION GRANTING PLAINTIFF'S MOTION TO REMAND, DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS, DENYING AS MOOT PLAINTIFF'S MOTION TO CERTIFY CLASS, AND DENYING AS MOOT DEFENDANT'S MOTION FOR PROTECTIVE ORDER Re Document Nos.: 7, 11, 13, 20.

RUDOLPH CONTRERAS, District Judge.

I. INTRODUCTION

Defendant Soul Circus, Inc. operates UniverSoul Circus, a touring circus troupe that claims to be committed to the proper treatment of animals and opposed to cruelty or mistreatment of animals. Contending that the Circus's claims are false and misleading under the District of Columbia Consumer Protection Procedures Act (CPPA), Plaintiff Melanie Sloan filed suit against the Circus in the Superior Court of the District of Columbia. On behalf of herself and a class of all District of Columbia residents who have purchased UniverSoul Circus tickets in the past three years because of the Circus's false and misleading claims, Ms. Sloan charged the Circus with violations of six CPPA subsections. She sought CPPA statutory remedies: treble damages, or $1, 500 per violation, whichever is greater; attorney's fees; punitive damages; an injunction against the Circus's practices; and any other relief that the Court deems proper.

Citing the parties' complete diversity of citizenship and an amount in controversy exceeding $75, 000, the Circus removed to this Court under 28 U.S.C. § 1332 and moved to dismiss Ms. Sloan's claims. Ms. Sloan moved to remand the case to D.C. Superior Court and argued that the Circus failed to meet its burden to prove a sufficient amount in controversy. While the Circus's motion to dismiss and Ms. Sloan's motion to remand were still pending, Ms. Sloan also moved for class certification under Federal Rule of Civil Procedure 23, and the Circus moved for a protective order in anticipation of discovery.

Because the Court finds that the Circus's estimates of the amount in controversy are too speculative to establish subject matter jurisdiction, the Court will grant Ms. Sloan's motion to remand. Because the parties must therefore litigate Ms. Sloan's claims in D.C. Superior Court, the Court denies as moot the Circus's motion to dismiss, Ms. Sloan's motion for class certification, and the Circus's motion for a protective order.[1]

II. FACTUAL BACKGROUND[2]

According to the Complaint, Ms. Sloan has a strong commitment to the proper care of animals: she "does not patronize, or purchase tickets to... businesses that... display wild animals such as elephants, lions and tigers, who cannot safely, humanely, and healthfully be kept in captivity." Class Action Compl. ¶ 7, ECF No. 1-1. The Circus operates a touring circus troupe that performs under the name "UniverSoul Circus." Id. ¶ 9. On June 11, 2015, Ms. Sloan received a promotional email that offered tickets to the Circus's shows at the National Harbor in Prince George's County, Maryland, scheduled for selected dates from June 24, 2015 through July 16, 2015. Id. ¶¶ 89, 92. Because Ms. Sloan would not purchase tickets to the Circus's show if the show would "display wild animals... who cannot safely, humanely, and healthfully be kept in captivity, " id. ¶ 7, Ms. Sloan visited the Circus's website and viewed the Circus's "Animal Rights [Policy] Statement" before purchasing tickets to see the Circus's show. Id. ¶ 93.

The Animal Rights Policy Statement made numerous representations about the Circus's strong commitment to animal rights, including statements saying that the Circus "is committed to the proper treatment of animals, " "oppose[s] any form of cruelty or mistreatment of animals, " and "will not tolerate any mistreatment on [the] circus site." Id. ¶ 38. Further, the Animal Rights Policy Statement proclaimed that "[i]n over 19 years and more than 10, 000 performances, none of our animal vendors have ever been cited for animal abuse while performing at the UniverSoul Circus." Id. The Circus's website corroborated these statements by primarily showing images of human performers, rather than animals. Id. ¶ 36.

The Circus's Animal Rights Policy Statement and website assured Ms. Sloan of the Circus's commitment to animal rights, and Ms. Sloan purchased tickets to see the Circus's show on July 11, 2015. Id. ¶ 93. If the Circus had not published its Animal Rights Policy Statement, and if the Circus had included more images of animals on its website, Ms. Sloan would have understood that the Circus would use wild animals in its performances-a practice that Ms. Sloan would not want to support. Id. ¶¶ 7, 94. But for the Circus's Animal Rights Policy Statement and website, Ms. Sloan would not have purchased tickets to see the Circus's show. Id. ¶ 94.

As it turns out, Ms. Sloan claims that some of the Circus's animal vendors have received citations from the United States Department of Agriculture (USDA) for violating the Animal Welfare Act (AWA)[3] while touring with the Circus. Although the Circus itself does not have a license to exhibit animals in its performances, the Circus leases animals from outside vendors who do have USDA licenses. Class Action Compl. ¶¶ 43-44. And Ms. Sloan claims that, on at least seventeen occasions, USDA inspectors found that the Circus's vendors had violated the AWA. See id. ¶¶ 62-64, 67, 69-71, 74-77, 79, 81, 84-86, 88; Class Action Compl. Ex. B, ECF No. 3-2 (compiling USDA inspection reports). Ms. Sloan further claims that the Circus's animal vendors have also received USDA citations on other occasions, when they were not touring with the Circus. See id. ¶ 46; id. Ex. C. The Complaint also reports additional animal welfare issues, arising outside of the AWA context, that afflicted animals leased by the Circus. Id. ¶¶ 48-60, 66, 78, 80, 82-83.

After Ms. Sloan learned about the Circus's long history of contracting with vendors who have been cited for AWA violations, Ms. Sloan chose not to attend the Circus's show on July 11, 2015. Id. ¶ 95. She explained that she chose not to attend because she "did not want to support a circus that contracts with vendors who mistreat animals and violate animal welfare laws, " and because she "wants to teach her daughter about the humane treatment of animals." Id.

III. PROCEDURAL HISTORY

Instead of attending the Circus's show, Ms. Sloan filed suit against the Circus in the Superior Court of the District of Columbia on August 10, 2015. See Class Action Compl. 1. On behalf of herself and a putative class of "all residents of the District [of Columbia] who, in the last three years, purchased tickets to Defendant's shows because of Defendant's unlawful trade practices, " Ms. Sloan charged the Circus with violations of six subsections of the District of Columbia Consumer Protection Procedures Act (CPPA), D.C. Code §§ 28-3901-28-3913. Class Action Compl. ¶¶ 11-12, 98. Ms. Sloan alleged that the Circus

represent[ed] that its services have a source, sponsorship, approval, certification, characteristics, and/or benefits that they do not have, in violation of... § 28-3904(a);
... represent[ed] that persons engaged by, or exhibiting with, [the Circus] have a sponsorship, approval, status, affiliation, certification, or connection that the persons do not have, in violation of... § 28-3904(b);
... represent[ed] that [the Circus]'s services are of particular standard or quality, but which in fact, are of a different standard or quality, in violation of... § 28-3904(d);
... misrepresent[ed] material facts which have a tendency to mislead, in violation of... § 28-3904(e);
... fail[ed] to state material facts, which failure tends to mislead, in violation of... § 28-3904(f); and
... us[ed] innuendo and ambiguity as to material facts, which have a tendency to mislead, in violation of... § 28-3904(f-1).

Id. ¶ 98. Ms. Sloan sought CPPA statutory remedies: treble damages, or $1, 500 per violation, whichever is greater; attorney's fees; punitive damages; an injunction against the Circus's practices; and any other relief that the Court deems proper. Id. at 22 (citing D.C. Code § 28-3905).

The Circus removed to this Court under 28 U.S.C. § 1332 and 28 U.S.C. § 1441. See Def.'s Notice of Removal ¶ 9, ECF No. 1. In support of removal, the Circus's Notice of Removal claimed that "the United States District Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the Circus and all potential parties-plaintiff and the amount in controversy... exceeds $75, 000." Id. The Circus explained that, because Ms. Sloan's complaint alleged "tens of thousands" of potential CPPA violations and a class whose membership is "so numerous that joinder of all of them is impracticable, " the complaint alleged at least fifty-one CPPA violations in the aggregate. Id. ¶¶ 5, 8; cf. Class Action Compl. ¶ 16. Assuming that each violation is entitled to statutory damages at $1, 500, the Circus reasoned that the total amount in controversy exceeded $75, 000. Def.'s Notice of Removal ¶¶ 5, 8; see also D.C. Code § 28-3905(k)(2) ("Any claim under [the CPPA]... may recover... $1, 500 per violation..., payable to the consumer....").

After removing to this Court, the Circus moved to dismiss Ms. Sloan's claims. See Def.'s Mot. Dismiss, ECF No. 7. While the motion to dismiss was pending, Ms. Sloan filed two additional motions: a motion to remand the case to D.C. Superior Court, and a motion for class certification. See Pl.'s Mot. Remand, ECF No. 11; Pl.'s Mot. Class Certification, ECF No. 13. Ms. Sloan's motion to remand contends first that the Circus erred by aggregating the class members' claims to satisfy the jurisdictional amount requirement, and second that Ms. Sloan's individual claims against the Circus do not meet the $75, 000 amount-in-controversy requirement. See Mem. P. & A. Supp. Pl.'s Mot. Remand 4-6, ECF No. 11-1.

In opposition, the Circus challenged Ms. Sloan's motion to remand as untimely. Def.'s Mem. Opp'n Pl.'s Mot. Remand 3-6, ECF No. 12. To respond to Ms. Sloan's nonaggregation argument, the Circus moved to amend its Notice to invoke this Court's jurisdiction under 28 U.S.C. § 1332(d), in addition to jurisdiction under 28 U.S.C. § 1332(a). Id. at 10 n.5. Because a litigant may establish § 1332(d) diversity jurisdiction over a class action by showing that more than one hundred class members exist and their aggregate claims put more than $5, 000, 000 in controversy, the Circus argued that "[t]he Court has diversity jurisdiction under § 1332(d) because Sloan's proposed class has more than 100 potential members with claims likely exceeding $5, 000, 000." Id. at 18-21. To justify its class size estimates, the Circus produced an affidavit from the Circus's director of operations, who attested to the Circus's ticket purchases and advertising activities in the District of Columbia. See Johnson Aff., ECF No. 12-1. Lastly, the Circus maintained that Ms. Sloan's individual claims against the Circus put more than $75, 000 in controversy anyway, so the Court still has diversity jurisdiction under 28 U.S.C. § 1332(a). Def.'s Mem. Opp'n Pl.'s Mot. Remand 10-18.

Ms. Sloan's reply responded with two attacks on the Circus's invocation of jurisdiction under 28 U.S.C. § 1332(d). First, she contended that the Circus's estimated number of potential class members is defective because it is ambiguous, speculative, and "an incomplete calculation" that does not address whether the ticket purchasers during the last three years viewed the offending statements on the Circus's website. Reply Mem. Supp. Pl.'s Mot. Remand 6-7, ECF No. 14. Second, Ms. Sloan charged the Circus with assuming without a legal basis that the CPPA allows consumers to recover separate damages awards for simultaneous CPPA violations occurring in connection with a single business transaction. Id. at 7-9.

In response to the Circus's § 1332(a) arguments, Ms. Sloan likewise asserted two counterarguments. First, she explained that the Circus's statements about injunctive relief, punitive damages and attorney's fees were factually unsupported and based on the faulty assumption that such claims may be aggregated for amount-in-controversy purposes. Id. at 4-6. Second, she charged the Circus with making another assumption without a legal basis: the assumption that, by ...


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