1 2 3 JS-6 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MACK WHITE, on behalf of himself, all Case No. 5:24-cv-01827-SPG-SK 11 other similarly situated, and the general ORDER GRANTING PLAINTIFF’S 12 public, MOTION TO REMAND AND 13 Plaintiff, DENYING DEFENDANT’S MOTION

TO DISMISS [ECF NOS. 11, 20]

14 v.

15

BP PRODUCTS NORTH AMERICA,

16 INC., a Maryland Corporation; and JOHN 17 DOES 1-10, Defendants. 18 19 20 Before the Court is the motion to remand (ECF No. 11 (“Motion”)) filed by the 21 Plaintiff Mack White (“Plaintiff”). The Court has read and considered the Motion and 22 concluded that it is suitable for decision without oral argument. See Fed. R. Civ. P. 78(b); 23 C.D. Cal. L.R. 7-15. Having considered the parties’ submissions, the relevant law, and the 24 record in this case, the Court GRANTS the Motion and ORDERS the case be remanded to 25 the Riverside County Superior Court. Further, given this ruling, the Court denies 26 Defendant’s separately filed motion to dismiss, (ECF No. 20), as moot. 27 28 1 I. BACKGROUND 2 Plaintiff initiated this action in the Riverside County Superior Court on July 2, 2024, 3 alleging that BP Products North America, Inc. and ten other unnamed defendants 4 (collectively, “Defendants”) had engaged in deceptive “drip pricing” in violation of 5 California’s Unfair Competition Law (UCL) and False Advertising Law (FAL). (ECF no. 6 1-1 (“Complaint”) ¶ 4). The Complaint alleged that Defendants misled customers by 7 tacking on an unadvertised $0.35 fee to every PIN debit card purchase made at certain 8 AMPM convenience stores. (Id. ¶ 17). Plaintiff sought class certification for a class of 9 similarly situated individuals who purchased items at AMPM stores and were charged 10 these debit card fees. (Id. ¶ 29). As relief for the alleged violations of the UCL and FAL, 11 Plaintiff seeks (1) restitution for class members harmed by Defendants’ alleged violations; 12 and (2) public injunctive relief prohibiting Defendants from continuing the alleged 13 violations. (Id. at 11). 14 On August 26, 2024, Defendants filed a notice of removal with the Court, indicating 15 that the Court had original jurisdiction over this action under the Class Action Fairness Act 16 (“CAFA”), 28 U.S.C. § 1332(d). See (ECF no. 1 (“Notice of Removal”)). Plaintiff filed 17 the instant Motion on September 4, 2024, requesting that the Court remand to the Riverside 18 County Superior Court. (Mot. at 2). Defendants timely opposed on September 30, 2024, 19 (ECF no. 24 (“Opposition”)), and Plaintiff replied on October 10, 2024, (ECF no. 30 20 (“Reply”)). Defendants simultaneously filed a motion to dismiss Plaintiff’s complaint, 21 (ECF no. 20), which the Court held in abeyance, (ECF no. 32), pursuant to the parties’ joint 22 stipulation pending resolution of the instant Motion. 23 II. LEGAL STANDARD 24 A civil action brought in state court may be removed by a defendant to federal 25 district court if, at the time of removal, the case is one over which the district court has 26 original jurisdiction. 28 U.S.C. § 1441(a). CAFA confers original jurisdiction to the 27 district courts over any class action in which the amount in controversy exceeds 28 $5,000,000, any member of the class is a citizen of a state different from any defendant, 1 and the proposed class includes at least 100 members. 28 U.S.C. § 1332(d). “Congress 2 enacted [CAFA] to facilitate adjudication of certain class actions in federal court.” Dart 3 Cherokee Basin Operating Co., LLC v. Owens (“Dart Cherokee”), 574 U.S. 81, 89 (2014). 4 “Through CAFA, Congress broadened federal diversity jurisdiction over class actions by, 5 among other things, replacing the typical requirement of complete diversity with one of 6 only minimal diversity.” Mondragon v. Cap. One Auto Fin., 736 F.3d 880, 882 (9th Cir. 7 2013). 8 To remove a case from a state court to a federal court, a defendant must file a notice 9 of removal “containing a short and plain statement of the grounds for removal.” 28 U.S.C. 10 § 1446(a). The removing defendant bears the burden of establishing federal jurisdiction. 11 Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988). The Supreme Court 12 has advised that “no antiremoval presumption attends cases invoking CAFA.” Dart 13 Cherokee, 574 U.S. at 89. Indeed, “CAFA’s ‘provisions should be read broadly, with a 14 strong preference that interstate class actions should be heard in a federal court if properly 15 removed by any defendant.’” Id. (quoting S. Rep. No. 109–14, p. 43 (2005)). See also 16 Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015) (“Congress intended 17 CAFA to be interpreted expansively.”). 18 Where a plaintiff seeks remand of a removed action, the plaintiff may make either a 19 “facial” or “factual” challenge to the defendant’s jurisdictional allegations in the notice of 20 removal. Harris v. KM Indus., Inc., 980 F.3d 694, 699 (9th Cir. 2020). “A facial attack 21 accepts the truth of the defendant’s allegations but asserts that they are insufficient on their 22 face to invoke federal jurisdiction.” Id. (internal quotation marks, alteration, and citation 23 omitted). “A factual attack contests the truth of the allegations themselves.” Id. (internal 24 quotation marks, alteration, and citation omitted). A defendant facing a “factual” challenge 25 to its jurisdictional allegations bears the burden of providing “competent proof” that shows, 26 by a preponderance of the evidence, that the jurisdictional requirements are satisfied. Id. 27 at 699, 701. “[T]he removing party must be able to rely on a chain of reasoning that 28 includes assumptions to satisfy its burden to prove by a preponderance of the evidence that 1 the amount in controversy exceeds $5 million, as long as the reasoning and underlying 2 assumptions are reasonable.” Jauregui v. Roadrunner Transp. Servs., Inc., 28 F.4th 989, 3 993 (9th Cir. 2022) (internal quotation marks and citation omitted). Although a plaintiff 4 may present evidence in support of a factual attack, the plaintiff “need only challenge the 5 truth of the defendant’s jurisdictional allegations by making a reasoned argument as to why 6 any assumptions on which they are based are not supported by evidence.” Harris, 980 F.3d 7 at 700. 8 III. DISCUSSION 9 In support of the Motion, Plaintiff makes two arguments. First, he asserts that under 10 Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018), the Court lacks Article 11 III jurisdiction over his claim for injunctive relief because Plaintiff does not allege that he 12 faces an actual or imminent threat of future harm. (Mot. at 3-4). Second, Plaintiff argues 13 that under Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), the Court lacks 14 equitable jurisdiction to award restitution because Plaintiff does not allege that he 15 otherwise lacks an adequate remedy at law. (Mot. at 4-5). While Plaintiff does not directly 16 contest subject matter jurisdiction under CAFA, he argues that the Court must nevertheless 17 remand this action because he does not assert any claims that the Court can adjudicate. 18 (Mot. at 5-6). 19 A. Article III Standing for Injunctive Relief 20 First, Plaintiff argues that the Court lacks jurisdiction over his claim for injunctive 21 relief because he lacks Article III standing to assert the claim. “[T]he core component of 22 standing is an essential and unchanging part of the case-or-controversy requirement of 23 Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). At an “irreducible 24 constitutional minimum,” standing requires three elements: injury-in-fact, causation, and 25 redressability. Id. at 560-61. A plaintiff “must demonstrate standing separately for each 26 form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 27 U.S. 167, 185 (2000). And a plaintiff seeking injunctive relief must demonstrate that the 28 1 threat of injury is “actual and imminent, not conjectural or hypothetical.” Summers v. Earth 2 Island Inst., 555 U.S. 488, 493 (2009). 3 In Davidson, the Ninth Circuit emphasized that “[w]here standing is premised 4 entirely on the threat of repeated injury, a plaintiff must show ‘a sufficient likelihood that 5 he will again be wronged in a similar way.’” 889 F.3d at 967 (quoting City of Los Angeles 6 v. Lyons, 461 US. 95, 111 (1983)). Applying this rule, the court held that the plaintiff had 7 standing to seek injunctive relief under California’s FAL where she alleged that she still 8 intended to purchase the product again in the future despite the allegedly fraudulent 9 advertising. Id. at 971. The court reasoned that such a consumer may still suffer an actual 10 and imminent harm because “[k]nowledge that the advertisement or label was false in the 11 past does not equate to knowledge that it will remain false in the future.” Id. at 969. 12 Following Davidson, courts in this Circuit have repeatedly held that absent a clearly 13 stated intention to purchase a product in the future, a plaintiff does not have standing to 14 seek injunctive relief for false advertising. See, e.g., Lanovas v. Twinings N. Am., Inc., 726 15 F. App’x 590, 591 (9th Cir. 2018) (“As [plaintiff] does not intend to purchase [defendant’s] 16 products in the future, it is unlikely that she will again be wronged in a similar way.” 17 (internal quotation marks and citation omitted)); In re Coca-Cola Prod. Mktg. & Sales 18 Pracs. Litig. (No. II), No. 20-15742, 2021 WL 3878654, at *2 (9th Cir. Aug. 31, 2021) 19 (“Without any stated desire to purchase [defendant’s product] in the future, [plaintiffs] do 20 not have standing to pursue injunctive relief.”); Turnier v. Bed Bath & Beyond Inc., No. 21 3:21-cv-1008-L-MSB, 2021 WL 3022430, at *2 (S.D. Cal. July 16, 2021) (concluding that 22 because “[t]he sole allegation is that [plaintiff] is unlikely to be deceived again . . . there is 23 not a sufficient likelihood of future harm” for standing purposes (internal quotation marks 24 and citation omitted)); Benton v. CVS Pharmacy, 604 F. Supp. 3d 889, 893 (N.D. Cal. 25 2022) (“An intention to purchase in the future, however, is necessary to establish Article 26 III standing.”). 27 Here, Plaintiff has not alleged any intention to make future debit card purchases at 28 AMPM stores. He therefore has not shown “a sufficient likelihood that he will again be 1 wronged in a similar way,” Davidson, 889 F.3d at 967 (citation omitted), and lacks standing 2 to assert his claim for injunctive relief. Accordingly, the Court lacks jurisdiction over this 3 claim. 4 B. Equitable Jurisdiction over Plaintiff’s Claim for Restitution 5 Second, Plaintiff argues that the Court lacks equitable jurisdiction over his claim for 6 restitution because he has not alleged that he lacks an adequate remedy at law. Equitable 7 jurisdiction concerns not “whether the claim falls within the limited jurisdiction conferred 8 on the federal courts, but [] whether consistently with the principles governing equitable 9 relief the court may exercise its remedial powers.” Schlesinger v. Councilman, 420 U.S. 10 738, 754 (1975). “[E]ven though it is not an aspect of subject matter jurisdiction, whether 11 a court possesses equitable jurisdiction is still antecedent to hearing a claim on the merits.” 12 Guthrie v. Transamerica Life Ins. Co., 561 F. Supp. 3d 869, 874 (N.D. Cal. 2021). See 13 also Morales v. Trans World Airlines, Inc. 504 U.S. 374, 381 (1992) (“It is a basic doctrine 14 of equity jurisprudence that courts of equity should not act when the moving party has an 15 adequate remedy at law and will not suffer irreparable injury if denied equitable relief.” 16 (internal quotation marks, alteration, and citation omitted)). 17 In Sonner, the plaintiff voluntarily dismissed her sole state law damages claim under 18 the Consumers Legal Remedies Act (CLRA) on the eve of trial and instead sought only 19 state law equitable relief for restitution and injunctive relief under the UCL. 971 F.3d at 20 837. On appeal, the Ninth Circuit affirmed dismissal of the restitution claim, concluding 21 that under the Erie doctrine, “traditional principles governing equitable remedies in federal 22 courts, including the requisite inadequacy of legal remedies, apply when a party requests 23 restitution under the UCL and CLRA in a diversity action.” Id. at 844. Because the 24 plaintiff failed to “establish that she lack[ed] an adequate remedy at law,” the court could 25 not hear her claims for restitution. Id. Following Sonner, the Ninth Circuit in Guzman v. 26 Polaris Industries Inc. concluded that even where a plaintiff’s CLRA claim was 27 involuntarily dismissed under the statute of limitations, the plaintiff “had an adequate legal 28 1 remedy in his time-barred CLRA claim,” and the federal court therefore lacked equitable 2 jurisdiction to hear a UCL claim for equitable relief. 49 F.4th 1308, 1313 (9th Cir. 2022). 3 Here, Plaintiff has not alleged that he lacks an adequate remedy at law; to the 4 contrary, Plaintiff has intentionally limited the claims in his complaint to equitable 5 remedies. While this choice may limit Plaintiff’s potential recovery, “the plaintiff [is] the 6 master of the claim” and “may avoid federal jurisdiction” by selecting only claims available 7 in state court. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The Court agrees 8 that because Plaintiff has not alleged any adequate remedy at law, the Court lacks equitable 9 jurisdiction over his claim for restitution. 10 C. Request for Remand 11 The parties substantially agree with the above conclusions that Plaintiff lacks Article 12 III standing to assert his claim for injunctive relief and that the Court lacks equitable 13 jurisdiction over Plaintiff’s claim for restitution. However, they differ over the proper 14 disposition of the case. Plaintiff argues that because the case was initially brought in state 15 court, where standing and equitable jurisdiction would both exist under California law, the 16 proper course of action is for the Court to remand. (Mot. at 5-6). Defendants, on the other 17 hand, argue that subject matter jurisdiction still exists pursuant to CAFA, and that the 18 shortcomings in Plaintiff’s complaint are more appropriately addressed in the context of a 19 motion to dismiss. (Opp. at 6-7). 20 Several district courts have addressed motions to remand under similar 21 circumstances, and the clear majority has concluded that remand is the appropriate result. 22 See, e.g., Linton v. Axcess Fin. Servs., No. 23-cv-01832-CRB, 2023 WL 4297568, at *4 23 (N.D. Cal. June 30, 2023); Guthrie, 561 F. Supp. 3d at 874; Clevenger v. Welch Foods Inc., 24 No. SACV 23-00127-CJC (JDEx), 2023 WL 2390630, at *5 (C.D. Cal. Mar. 7, 2023); 25 Granato v. Apple Inc., No. 5:22-cv-02316-EJD, 2023 WL 4646038, at *5 (N.D. Cal. July 26 19, 2023); Ruiz v. The Bradford Exch., Ltd., No. 3:23-cv-01800-WQH-KSC, 2024 WL 27 2844625, at *5-6 (S.D. Cal. May 16, 2024); Rogoff v. Transamerica Life Ins. Co., No. 28 EDCV 24-1254 JGB (SPx), 2024 WL 5010642, at *4 (C.D. Cal. Dec. 6, 2024). As one 1 court noted, while remand may not necessarily be compelled due to lack of subject matter 2 jurisdiction, it is an appropriate exercise of the court’s discretion out of both “‘regard for 3 federal-state relations’ and ‘wise judicial administration.’” Granato, 2023 WL 4644038, 4 at *5 (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)). See also Ruiz, 5 2024 WL 2844625, at *4 (concluding that “when a court lacks the power to grant an 6 equitable remedy, it may decline to exercise jurisdiction and remand the case to state court” 7 (citing Cates v. Allen, 149 U.S. 451, 460-61 (1893)); Guthrie, 561 F. Supp. 3d at 878 (“[I]f 8 a removed suit is ‘beyond the equitable jurisdiction of the federal court’ but ‘may be 9 granted by the state court,’ remand should follow.” (quoting Twist v. Prairie Oil & Gas 10 Co., 274 U.S. 684, 690 (1927))). 11 Defendants point to several cases that have reached the opposite result. However, 12 in each case, the court retained jurisdiction over a non-equitable claim. See Naseri v. 13 Greenfield World Trade Ctr., Inc., No. SACV 21-01084-CJC (KESx), 2021 WL 3511040, 14 at *1 (C.D. Cal. Aug. 10, 2021) (noting plaintiff’s remaining claims under the Song- 15 Beverly Consumer Warranty Act and the CLRA); Lopez v. Cequal Commc’ns, LLC, No. 16 2:20-cv-02242-TLN-JDP, 2021 WL 4476831, at *1 (E.D. Cal. Sept. 29, 2021) (“Plaintiff 17 seeks various remedies, including damages.”); Treinish v. iFit, Inc., No. CV 22-4687-DMG 18 (SKx), 2022 WL 5027083, at *1, 5 (C.D. Cal. Oct. 3, 2022) (noting plaintiff’s claim for 19 breach of warranty and distinguishing Guthrie as involving “a situation where only the 20 equitable claims remained, and therefore remand was the only option for those claims to 21 be heard at all”); Fust v. Gilead Scis., Inc., No. 2:23-cv-2853 WBS DB, 2024 WL 732965, 22 at *1 (E.D. Cal. Feb. 21, 2024) (noting plaintiff sought “actual and punitive damages”). 23 Because “piecemeal remand in diversity cases is inappropriate,” Utne v. Home Depot 24 U.S.A., Inc., No. 16-cv-01854-RS, 2022 WL 1443339, at *3 (N.D. Cal. May 6, 2022), 25 dismissal would be the appropriate result where, as in the cases cited by Defendant, the 26 court otherwise retained jurisdiction over some part of the complaint. But under the 27 circumstances presented here, remand is both appropriate and “consistent with the 28 commonsense notion that a defendant should not be able to avail itself of federal 1 jurisdiction only to turn around and argue that jurisdiction does not exist in order to have 2 ||the case dismissed.” Clevenger, 2023 WL 2390630, at *5. Indeed, Defendants have filed 3 motion to dismiss in this case, arguing, among other things, that Plaintiff lacks standing 4 || to assert his claims. (ECF no. 20-1 at 10). 5 Moreover, Defendant’s proposal that the Court dismiss Plaintiffs claims would lead 6 || to untenable results; because such a dismissal would not be on the merits, Plaintiff could 7 simply refile in state court, potentially creating “a perpetual loop of (1) plaintiff's re-filing 8 state court, followed by (2) removal by defendants and then (3) dismissal by this Court.” 9 || Guthrie, 561 F. Supp. 3d at 880 (citation omitted). Indeed, precisely this scenario played 10 |} out in Clevenger, where, after granting the first motion to dismiss and facing substantially 11 ||identical arguments in the refiled case, the court granted the plaintiff's motion to remand, 12 || noting that the defendants knew “full-well that this Court lacked jurisdiction to adjudicate 13 || the claims that Plaintiffs asserted.” Clevenger, 2023 WL 2390630, at *5. 14 Because the Court lacks equitable jurisdiction over Plaintiff's claim for restitution 15 Plaintiff lacks standing to assert his claim for injunctive relief, there is no remaining 16 |}claim that this Court can adjudicate. Accordingly, the appropriate result is to remand this 17 || case to state court. 18 CONCLUSION 19 For the foregoing reasons, the Court GRANTS Plaintiff's Motion to remand to the 20 || Riverside County Superior Court. Defendant’s pending motion to dismiss, (ECF no. 20), 21 DENIED as moot, and this case is closed. 22 IT IS SO ORDERED. 23 24 ||DATED: December 26, 2024 25 ~ HON. SHERILYN PEACE GARNETT 6 UNITED STATES DISTRICT JUDGE 27 28