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Organic Consumers Association v. R.C. Bigelow, Inc.

United States District Court, District of Columbia

June 29, 2018

R.C. BIGELOW, INC., Defendant.



         The 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, [1] 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 oral argument.

         I. BACKGROUND

         “The 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 1.

         “On 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. ¶ 6, [2] 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.

         The OCA 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”).

         On 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.


         A 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))).

         III. ANALYSIS

         A. Diversity Jurisdiction

         A 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.

         If a 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)).

         Bigelow 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.

         1.The Cost of Complying with the Requested Injunctive Relief

         As a 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.

         Three 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, [3] 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 Circuit'”:

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 in controversy.

         The 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.

         The 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 ...

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