United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge.
Breathe DC filed this lawsuit on behalf of the “general
public” in D.C. Superior Court against defendants Santa
Fe Natural Tobacco Company (“Santa Fe”), R.J.
Reynolds Tobacco Company (“RJRT”), and Reynolds
American Inc. (“RAI”), alleging violations of the
D.C. Consumer Protection Procedures Act
(“DCCPPA”), D.C. Code § 28-3901, et
seq. (Compl. [ECF No. 1-1].) Defendants removed the case
to federal court pursuant to 28 U.S.C. § 1441, claiming
diversity jurisdiction under 28 U.S.C. § 1332. (Notice
of Removal (“Notice”), December 6, 2016 [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.”), December 7, 2016 [ECF No.
5].) Plaintiff also seeks attorneys' fees and costs
incurred in preparing the motion. (Id. at 9.)
consideration of the pleadings and for the reasons stated below,
the case will be remanded to state court, but the Court will
not award attorneys' fees. Accordingly, the motion will
be granted in part and denied in part.
is a non-profit organization based in Washington, D.C. whose
mission is to “safeguard the lung health of Washington,
D.C.-area residents.” (Compl. ¶¶ 1, 28, 37.)
Defendants manufacture, market, and distribute Natural
American Spirit (“NAS”) brand cigarettes in
Washington, D.C. (Compl. ¶ 32.) Plaintiff, acting as a
private attorney general, alleges that the defendants falsely
implied that NAS cigarettes are safer than other cigarettes
by marketing them as “Natural, ”
“Additive-Free, ” and “100% Additive-Free,
” in violation of the DCCPPA. (Compl. ¶¶
2-5.) Based on those allegations, plaintiff seeks a
declaration that defendants are in violation of DCCPPA, an
injunction, and attorneys' fees and costs with
prejudgment interest. (See Id. at 26-27.)
Plaintiff's proposed injunction would (1) “enjoin
Defendants' deceptive marketing and sale of the Products,
” (2) “direct Defendants to remove [the
allegedly deceptive] language and graphics on their marketing
and labeling, ” and (3) direct defendants “to
engage in a corrective advertising campaign.”
December 6, 2016, defendants removed the case to federal
court. (See Notice at 1.) In their Notice of
Removal, defendants invoke diversity jurisdiction under 28
U.S.C. § 1332 as the sole basis of federal jurisdiction.
(See Id. at 2.) Plaintiff filed this Motion to
Remand for Lack of Subject-Matter Jurisdiction. (Mot. at 1.)
their opposition to plaintiff's motion, defendants'
submitted the sworn declaration of David P. DePalma, Senior
Director of Marketing for Santa Fe Natural Tobacco Company.
(Decl. of David P. DePalma, January 11, 2017 [ECF No. 18-1].)
In his capacity as Senior Director of Marketing, Mr. DePalma
oversees “strategic planning and execution of NAS
packaging, mass market NAS print advertising, the NAS brand
website . . ., direct marketing communications . . ., and
retail point-of-sale NAS marketing communications.”
(Id. ¶ 2.) Mr. DePalma's declaration
“describes the impact that would result from
implementation of the injunctive relief requested in the
Complaint.” (Id. ¶ 3.)
on both [his] historical experience with the development of
packing and marketing communications and the activities and
costs associated with those activities, ” Mr. DePalma
estimates that the cost of complying with plaintiff's
proposed injunction “would exceed $900, 000 . . .
before accounting for the irreparable damage to the NAS brand
that the requested relief would impose.” (Decl. of
DePalma ¶ 15.) That estimate involves two cost
components. First, Mr. DePalma estimates that removing the
allegedly deceptive terms from its packaging and advertising
would cost “at least $700, 000, ” not including
lost employee time. (Id. ¶ 15.) Second, Mr.
DePalma estimates that the “corrective advertising
campaign” that plaintiff seeks “would readily
exceed $200, 000 (including cost of developing and testing
communication messages, creative, and accompanying media
buying costs).” (Id. ¶ 16.) DePalma
estimates the value of the NAS domestic trademark is over $5
billion. (Id. ¶ 6.)
defendant may remove a civil action filed in state court to a
United States district court as long as the lawsuit could
have originally been filed in federal court. See 28
U.S.C. § 1441(a). Removal is effective when the
defendant files a notice of removal in federal court with
“a short and plain statement of the grounds for
removal, together with a copy of all process, pleadings, and
orders” from state court. Id. § 1446(a).
However, “[i]f at any time before final judgment it
appears that the district court lacks subject matter
jurisdiction, the case shall be remanded.” Id.
§ 1447(c). A party may challenge the federal court's
subject matter jurisdiction on a motion to remand to state
motion to remand 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)). In order to
avoid federalism concerns, courts are to construe the removal
statute narrowly. Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108 (1941). Thus, 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)).
federal court has diversity jurisdiction when (1) there is
complete diversity of citizenship among the parties (that is,
no plaintiff is a citizen of the same state as any
defendant), and (2) the “amount in controversy”
is greater than $75, 000. See 28 U.S.C. §
1332(a). Based on the representations of the parties, the
Court is satisfied that there is complete diversity of
citizenship. Plaintiff is a citizen of Washington, D.C.
(Compl. ¶ 28.) Defendants are citizens of North Carolina
and New Mexico. ...