United States District Court, District of Columbia
B. WALTON UNITED STATES DISTRICT JUDGE
plaintiff, Organic Consumers Association (the
“OCA”), initiated this civil action in the
Superior Court of the District of Columbia (the
“Superior Court”) against the defendant, R.C.
Bigelow, Inc. (“Bigelow”), asserting that Bigelow
violated the District of Columbia Consumer Protection
Procedures Act (“CPPA”), D.C. Code § 28-3904
(2012). See Complaint (“Compl.”)
¶¶ 102-22. On January 12, 2018, Bigelow removed the
case to this Court. See Notice of Removal at 1
(“Notice”). Currently before the Court is the
Plaintiff's Motion to Remand for Lack of Subject-Matter
Jurisdiction (“Pl.'s Mot.”), which seeks a
remand of this case to the Superior Court, see
Pl.'s Mot. at 1, as well as an award of costs and fees
(including attorney's fees) allegedly incurred as a
result of the remand litigation, see Memorandum of
Points and Authorities in Support of Plaintiff's Motion
to Remand (“Pl.'s Mem.”) at 15. Bigelow also
requests oral argument to address the OCA's motion.
See R.C. Bigelow, Inc.'s Notice of Request for
Oral Argument. Upon careful consideration of the parties'
submissions,  the Court concludes that it must grant the
OCA's motion to remand, deny its request for an award of
costs and fees, and deny as moot Bigelow's request for
OCA is a 501(c)(3) non-profit public-interest organization,
” Compl. ¶ 20, located in Minnesota, see
id. at 1 (listing a Minnesota address in the caption),
that “challenge[s] industrial agriculture, corporate
globalization, and [seeks] to inspire consumers to ‘Buy
Local, Organic, and Fair Made, '” id.
¶ 22. Bigelow is a Connecticut corporation, see
Notice ¶ 4, that sells tea products, “including
Bigelow's Green Tea, with the representation ‘All
Natural,' ‘Natural,' or other representations
that the tea products are environmentally friendly
(collectively, the ‘Products'), ” Compl. at
October 4, 2017, [the] OCA purchased Bigelow Classic Green
Tea at a Walmart located [in] . . . Washington, D.C.[, ] in
order to evaluate its purported qualities as an ‘All
Natural' and environmentally friendly product.”
Id. ¶ 24. The OCA alleges that “[t]ests
conducted by an independent laboratory . . . revealed . . .
glyphosate in Bigelow Green Tea, ” id. ¶
and claims that Bigelow's failure to disclose the
presence of glyphosate “deceiv[es] consumers about the
nature, quality, and/or ingredients of the Products, ”
id. ¶ 9, because “[n]o reasonable
consumer who sees the [all natural or environmentally
friendly] representations would expect that the . . .
Products contain something that is unnatural, ”
id. ¶ 5. The OCA alleges that Bigelow's
labeling, marketing, and sale of the Products are misleading
and constitute an unlawful trade practice under the CPPA.
See id. ¶¶ 104-13; see also D.C.
Code § 28-3904.
brings this suit under the CPPA provisions permitting it to
file “on behalf of the general public, ”
see Compl. ¶ 14; see also id. ¶
118 (noting that D.C. Code § 28- 3905(k)(1)(C) permits
“[a] nonprofit organization [ ], on behalf of itself or
any of its members, or on any such behalf and on behalf of
the general public, [to] bring an action” under the
CPPA (first alteration in original)); id. ¶ 119
(noting that D.C. Code § 28-3905(k)(1)(D)(i) permits
“a public interest organization [ ], on behalf of the
interests of a consumer or a class of consumers, [to] bring
an action” under the CPPA). The OCA requests three
specific types of relief: (1) “a declaration that
[Bigelow's] conduct is in violation of the [ ]
CPPA”; (2) “an order enjoining [Bigelow's]
conduct found to be in violation of the [ ] CPPA, as well as
corrective advertising”; and (3) “an order
granting [the OCA] costs and disbursements, including
reasonable attorneys' fees and expert fees.”
Id. at 20; see also id. (also requesting
“such further relief, including equitable relief, as
this Court may deem just and proper”).
December 15, 2017, the OCA filed its Complaint in the
Superior Court, see Compl. at 1; see also
Notice ¶ 1, and on January 12, 2018, Bigelow removed the
case to this Court on the basis of both diversity and federal
question jurisdiction. See Notice ¶¶ 4, 9.
On February 12, 2018, the OCA filed its motion to remand on
the grounds that this Court lacks subject-matter jurisdiction
on either theory advanced by Bigelow. See Pl.'s
Mot. at 1.
STANDARD OF REVIEW
defendant may remove a civil case from a state court to the
federal district court embracing the place where such action
is pending when the district court has original jurisdiction.
See 28 U.S.C. § 1441(a) (2012). However,
“[b]ecause federal courts are courts of limited
jurisdiction, the removal statute is to be strictly
construed, ” Kopff v. World Research Grp.,
LLC, 298 F.Supp.2d 50, 54 (D.D.C. 2003), and
“[t]he party opposing a motion to remand bears the
burden of establishing that subject[-]matter jurisdiction
exists in federal court, ” Int'l Union of
Bricklayers & Allied Craftworkers v. Ins. Co. of the
W., 366 F.Supp.2d 33, 36 (D.D.C. 2005) (Walton, J.). As
the District of Columbia Circuit has explained, “[w]hen
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 Venezuela v. Philip Morris
Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (emphasis
added) (citing 28 U.S.C. § 1447(c)); see also
Int'l Union of Bricklayers, 366 F.Supp.2d at 36
(“[T]he court must resolve any ambiguities concerning
the propriety of removal in favor of remand.” (quoting
Johnson-Brown v. 2200 M St., LLC, 257 F.Supp.2d 175,
177 (D.D.C. 2003))).
federal district court has original jurisdiction over
“all civil actions where the matter in controversy
exceeds the sum or value of $75, 000, exclusive of interest
and costs, ” and involves a dispute between
“citizens of different [s]tates.” 28 U.S.C.
§ 1332(a)(1). Here, the parties do not dispute their
diversity of citizenship, but they contest the amount in
controversy. See Pl.'s Mem. at 6; Def.'s
Opp'n at 8.
defendant seeks to remove a civil action to federal court,
the “defendant's notice of removal need include
only a plausible allegation that the amount in controversy
exceeds the jurisdictional threshold.” Dart
Cherokee Basin Operating Co. v. Owens, U.S.,, 135 S.Ct.
547, 554 (2014) (citing 28 U.S.C. § 1446(a)). However,
if the plaintiff contests the defendant's allegation, as
the OCA does here, “both sides submit proof and the
court decides, by a preponderance of the evidence, whether
the amount-in-controversy requirement has been
satisfied.” Id. “Although
‘Dart did not prescribe procedures governing
what it means for both sides [to] submit proof[, ]' . . .
‘[p]ost-Dart cases have allowed both sides to
submit proof in different ways[, ]' including by filing
supplemental affidavits or declarations.” Apton v.
Volkswagen Grp. of Am., Inc., 233 F.Supp.3d 4, 12-13
(D.D.C. 2017) (alterations and omission in original) (quoting
Sloan v. Soul Circus, Inc., Civ. Action No. 15-1389,
2015 WL 9272838, at *5 n.5 (D.D.C. Dec. 18, 2015)).
argues that the amount in controversy requirement is
satisfied based on the costs it would potentially incur if
OCA prevails in this case, namely: (1) complying with the
requested injunctive relief and (2) paying the OCA
attorney's fees, both of which the OCA requests in its
Complaint. See Def.'s Opp'n at 3, 6-8,
10-11. For the reasons set forth below, the Court finds that
these costs do not satisfy the amount in controversy.
Cost of Complying with the Requested Injunctive
threshold matter, the parties dispute whether the Court may
consider the cost Bigelow would incur by being required to
comply with the requested injunctive relief in its
calculation of the amount in controversy. The OCA argues that
“th[e] cost-to-defendant test is no longer used in this
Circuit, ” Pl.'s Mem. at 7, while Bigelow contends
in response “that the cost-to-defendant test is a
permissible measure of the amount in controversy, ”
Def.'s Opp'n at 9. The Court agrees with Bigelow.
recent cases authored by other members of this Court
resolving similar motions to remand CPPA actions in which the
only relief sought was injunctive and declaratory relief and
attorneys' fees, see Animal Legal Def. Fund v. Hormel
Foods Corp., 249 F.Supp.3d 53, 55 (D.D.C. 2017);
Breathe DC v. Santa Fe Nat. Tobacco Co., 232
F.Supp.3d 163, 166 (D.D.C. 2017); Organic Consumers
Ass'n v. Handsome Brook Farm Grp. 2, LLC, 222
F.Supp.3d 74, 76 (D.D.C. 2016), as the OCA does here,
see Compl. at 20, have rejected the OCA's
position that the cost-to-defendant test is obsolete,
see Animal Legal Def. Fund, 249 F.Supp.3d at 59
(“The Court follows th[e] precedent and concludes that
the cost-to-defendant test remains an appropriate measure of
the amount in controversy in this Circuit.”);
Breathe DC, 232 F.Supp.3d at 169 (“This Court
must follow Circuit precedent, and thus it will consider the
cost of the injunction to [the] defendants.”);
Handsome Brook Farm, 222 F.Supp.3d at 77 (rejecting
the OCA's argument “that the Court should [ ]
assess the amount in controversy solely from the
plaintiff's viewpoint, ” because “[t]his
argument conflicts with D.C. Circuit precedent”). In
Animal Legal Defense Fund, the most recent of these
three cases, Judge Kollar-Kotelly explained, as follows, why
she “reject[ed] [the p]laintiff's argument that
[the d]efendant's ‘alleged cost of compliance . . .
is no longer considered a proper measure of [the]
jurisdictional minimum in district courts in this
Under binding precedent, the cost-to-defendant test is in
fact one appropriate method of measuring the value of
injunctive relief in this Circuit. In Tatum v.
Laird[, ] the Court of Appeals for the District of
Columbia Circuit held that “the test for determining
the amount in controversy is the pecuniary result to either
party which the judgment would directly produce, ” and
determined that the amount in controversy requirement was
satisfied in that case because “the cost to the
[defendant] of complying with such a [injunction] might well
exceed [the amount-in-controversy threshold].” After
Tatum, the Court of Appeals and district courts of
this Circuit have repeatedly followed this rule. . . .
Animal Legal Def. Fund, 249 F.Supp.3d at 59
(internal citations omitted) (collecting cases). The Court
agrees with Judge Kollar-Kotelly's reasoning that
Tatum is still good law and that it must therefore
adhere to the Circuit's rule that, where no monetary
damages are sought, as is the case here, see Compl.
at 20; see also Pl.'s Mem. at 4 (“[The]
OCA does not seek any money damages.”), “the
amount in controversy may be measured by either ‘the
value of the right sought to be gained by the plaintiff . . .
[or] the cost [of enforcing that right] to the defendant,
'” Tatum v. Laird, 444 F.2d 947, 951 (D.C.
Cir. 1971) (alterations and omission in original) (quoting
Hedberg v. State Farm Mut. Auto. Ins. Co., 350 F.2d
924, 928 (8th Cir. 1965)), rev'd on other
grounds, 408 U.S. 1 (1972). Accordingly, the Court will
consider the cost Bigelow would incur by complying with the
requested injunctive relief in its calculation of the amount
parties also dispute whether that cost should be divided
among the consumers who would benefit from the injunction.
The OCA argues “that the cost of an injunction issued
to a nonprofit proceeding on behalf of the general public . .
. must be divided by the number of consumers who benefit from
the injunction, and must satisfy the amount-in-controversy
requirement for each consumer, ” Pl.'s
Mem. at 10 (first citing Witte v. Gen. Nutrition
Corp., 104 F.Supp.3d 1, 6 (D.D.C. 2015); then citing
Breakman v. AOL LLC, 545 F.Supp.2d 96, 106 (D.D.C.
2008)), while Bigelow contends that its total collective cost
of compliance should be counted toward the amount in
controversy, see Def.'s Opp'n at 10-11. The
Court agrees with the OCA.
Supreme Court has made clear that “the separate and
distinct claims of two or more plaintiffs cannot be
aggregated in order to satisfy the jurisdictional amount
requirement, ” except “in cases in which a single
plaintiff seeks to aggregate two or more of his own claims
against a single defendant and [ ] in cases in which two or
more plaintiffs unite to enforce a single title or right in
which they have a common and undivided interest.”
Snyder v. Harris, 394 U.S. 332, 335 (1969),
superseded by statute on other grounds as recognized in
Fireman's Fund Ins. Co. v. St. Paul Fire & Marine
Ins. Co., 182 F.Supp.3d 793, 815 (M.D. Tenn. 2016);
see also Zahn v. Int'l Paper Co., 414 U.S. 291,
294 (1973) (“When two or more plaintiffs, having
separate and distinct demands, unite for convenience and
economy in a single suit, it is essential that the demand of
each be of the requisite jurisdictional amount; but when
several plaintiffs unite to enforce a single title or right,
in which they have a common and undivided interest, it is
enough if their interests collectively equal the
jurisdictional amount.” (quoting Troy Bank v. G.A.
Whitehead & Co.,222 U.S. 39, 40-41 (1911)));
superseded by statute on other grounds as recognized in
Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.
546, 566 (2005). And “the overwhelming weight of
authority within th[is] District indicates that defendants
seeking to remove [CPPA] actions cannot rely on the total
cost of compliance with the plaintiff's requested
injunction to establish the amount-in-controversy, as that
would violate the non-aggregation principle set forth by the
Supreme Court.” Smith v. Abbott Labs., Civ.
Action No. 16-501 (RJL), 2017 WL 3670194, at *2 (D.D.C. Mar.
31, 2017) (citing Snyder, 394 U.S. at 336); see
also Animal Legal Def. Fund, 249 F.Supp.3d at 60 (noting
that the non-aggregation principle possibly conflicts with
the cost-to-defendant test and determining that, “[i]n
the absence of binding precedent on this issue, the Court is
persuaded by several district court opinions from this
Circuit that have considered this conflict in the context of
cases brought under the CPPA on behalf of the general
public seeking injunctive relief and have determined that