1 2 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 THERESA REISFELT on behalf of Case No. 8:20-cv-01283-JWH-ADSx herself and all others similarly 12 situated,

ORDER GRANTING PLAINTIFF’S

13 Plaintiffs, MOTION TO REMAND [Dkt. No. 14] 14 v.

15 TOPCO ASSOCIATES, LLC, a Delaware Limited Liability 16 Company, and DOES 1 through 25, inclusive, 17 Defendants. 18 19 20 21 22 23 24 25 26 27 1 I. INTRODUCTION 2 On June 8, 2020, Plaintiff Theresa Reisfelt filed this putative class action 3 in Orange County Superior Court.1 On July 17, 2020, Defendant Topco 4 Associates, LLC removed the case to federal court, citing federal question and 5 diversity jurisdiction.2 On August 28, 2020, Reisfelt filed a motion to remand 6 this case to state court.3 For the reasons stated below, the Court GRANTS the 7 Motion. 8 II. LEGAL STANDARD 9 “Except as otherwise expressly provided by Act of Congress, any civil 10 action brought in a State court of which the district courts of the United States 11 have original jurisdiction, may be removed by the defendant or the defendants, 12 to the district court of the United States for the district and division embracing 13 the place where such action is pending.” 28 U.S.C. § 1441(a). A district court 14 has original jurisdiction of all civil actions where the parties are completely 15 diverse and the “matter in controversy exceeds the sum or value of $75,000, 16 exclusive of interest and costs.” 28 U.S.C. § 1332(a). “[A] defendant’s notice 17 of removal need include only a plausible allegation that the amount in 18 controversy exceeds the jurisdictional threshold.” Dart Cherokee Basin 19 Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014). Evidence establishing the 20 amount in controversy is necessary only “when the plaintiff contests, or the 21 court questions, the defendant’s allegation.” See id. 22 District courts also have “original jurisdiction of all civil actions arising 23 under the Constitution, laws, or treaties of the United States.” 28 U.S.C. 24 § 1331. “The presence or absence of federal-question jurisdiction is governed by 25 the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists 26 1 Notice of Removal, Ex. A (the “Complaint”) [Dkt. No. 1-1]. 27 2 Notice of Removal [Dkt. No. 1]. 1 only when a federal question is presented on the face of the plaintiff’s properly 2 pleaded complaint.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987) 3 (citing Gully v. First National Bank, 299 U.S. 109, 112–113 (1936)). “The rule 4 makes the plaintiff the master of the claim; he or she may avoid federal 5 jurisdiction by exclusive reliance on state law.” Id. In certain cases, however, 6 “federal-question jurisdiction will lie over state-law claims that implicate 7 significant federal issues.” Grable & Sons Metal Products, Inc. v. Darue 8 Engineering & Mfg., 545 U.S. 308, 312 (2005). Such state-law claims implicate 9 federal question jurisdiction when they “necessarily raise a stated federal issue, 10 actually disputed and substantial, which a federal forum may entertain without 11 disturbing any congressionally approved balance of federal and state judicial 12 responsibilities.” Id. at 314. 13 “In actions seeking declaratory or injunctive relief, it is well established 14 that the amount in controversy is measured by the value of the object of the 15 litigation.” Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 347 16 (1977). The value may be established by the “losses that will follow” the 17 granting of the requested injunctive relief. See id. However, in class actions 18 brought in federal court based on diversity jurisdiction and “asserting the 19 ‘separate and distinct’ claims of class members, as opposed to claims that are 20 the ‘common and undivided’ right of the class, the defendant’s-viewpoint 21 approach” to establishing the amount in controversy is inappropriate. Kanter v. 22 Warner-Lambert Co., 265 F.3d 853, 859 (9th Cir. 2001). Rather, “each member 23 of the class must have a claim” exceeding the amount in controversy. Snow v. 24 Ford Motor Co., 561 F.2d 787, 789 (9th Cir. 1977). 25 III. ANALYSIS 26 A. Federal Question Jurisdiction 27 In Grable, the Supreme Court explained that “[a]s early as 1912, this 1 that ‘really and substantially involv[e] a dispute or controversy respecting the 2 validity, construction or effect of [federal] law.’” Grable, 545 U.S. at 313 3 (quoting Shulthis v. McDougal, 225 U.S. 561, 569 (1912)). Accordingly, “federal 4 jurisdiction demands not only a contested federal issue, but a substantial one, 5 indicating a serious federal interest in claiming the advantages thought to be 6 inherent in a federal forum.” Id. 7 The Court finds no such substantial federal question here. Reisfelt asserts 8 only state law claims. Although these state law claims “borrow” from other 9 statutes, including federal statutes, this point alone is not sufficient to confer 10 federal question jurisdiction. Critically, the Supreme Court has held that “a 11 complaint alleging a violation of a federal statute as an element of a state cause of 12 action, when Congress has determined that there should be no private, federal 13 cause of action for the violation, does not state a claim ‘arising under the 14 Constitution, laws, or treaties of the United States.’” Merrell Dow Pharm. Inc. v. 15 Thompson, 478 U.S. 804, 817 (1986). In the instant case, the parties do not 16 dispute that the predicate federal act—the Federal Food, Drug, and Cosmetic 17 Act (the “FDCA”)—does not provide a private case of action. The FDCA is 18 the same act that was at issue in Merrell. Id. Accordingly, the Court does not 19 have federal question subject matter jurisdiction. 20 B. Diversity Jurisdiction 21 Alternatively, Topco argues that the Court has diversity jurisdiction. To 22 establish diversity jurisdiction, the removing party must show (1) that the parties 23 are completely diverse; and (2) that the amount in controversy requirement of 24 $75,000 is adequately alleged. See 28 U.S.C. § 1332(a). Reisfelt bases her 25 Motion on Topco’s failure to meet the amount in controversy requirement in its 26 Notice of Removal. In its papers in opposition to the Motion, Topco included a 27 Declaration from one of its employees, Greg Lenski. The testimony that 1 Mr. Lenski provides, however, still fails to establish that this case meets the 2 amount in controversy requirement.4 3 In her Complaint, Reisfelt alleges that Topco violates “slack-fill” rules in 4 the FDCA; Reisfelt claims that Topco underfills its boxes of popcorn. 5 According to Reisfelt, Topco fills the boxes that it sells with only three bags of 6 popcorn, but those boxes could easily fit four bags of popcorn.5 In addition to an 7 injunction, Reisfelt seeks restitution and an award of attorneys’ fees and costs.6 8 Lenski testifies that Topco sold $211,000 of the subject popcorn in California 9 from July 2019 to June 2020.7 Further, Topco states that it has made profits of 10 $7,400 annually from the sale of the popcorn, although Lenski does not 11 expressly state that this is profit solely from California sales.8 Lenski further 12 declares that changing the dimensions of the popcorn boxes would lead to 13 changeover and increased carton costs of roughly $77,000.9 Further, if Topco 14 added another bag of popcorn to the boxes, then it would incur costs just barely 15 more than $75,000.10 Lenski also states that Topco would lose revenues from 16 the injunction because the changes requested would not “make commercial 17 sense.”11 18 Regardless of whether the Court accepts the facts in Lenski’s declaration 19 as true, Topco still fails to meet the amount in controversy requirement. In a 20 diversity case such as this, the Court may not “allocate the cost to [defendant] 21 22 4 Suppl. Decl. of Greg Lenski in Supp. of Opp’n to Motion (“Lenski 23 Decl.”) [Dkt. No. 18-1]. 5 See Complaint at ¶¶ 1 & 2. 24 6 See id. at ¶¶ 1 & 2 and 12:16-28. 25 7 Lenski Decl. ¶ 5. 26 8 Id. at ¶ 6. 9 Id. at ¶ 7. 27 10 Id. at ¶¶ 8-9. 1 of providing the requested injunctive relief to” the class to a single plaintiff. 2 Kanter, 265 F.3d at 858. This conclusion is compelled by Snow v. Ford Motor 3 Co., 561 F.2d 787 (9th Cir. 1977). There, the plaintiff, on behalf of himself and 4 others similarly situated, alleged that Ford sold trailering packages that were 5 incomplete because “they did not contain a wiring kit for the connection of the 6 trailer’s electrical system to that of the towing vehicle.” Id. at 788. The named 7 plaintiff “sought, on behalf of a class, actual damages of $11.00 per class 8 member, punitive damages, and an order ‘enjoin[ing] Ford from continuing to 9 sell’” the trailering packages without a wiring kit. Kanter, 265 F.3d at 858–59 10 (discussing Snow). 11 Ford removed the case to federal court based upon diversity jurisdiction, 12 arguing that it “satisfied the amount-in-controversy requirement because the 13 cost to Ford of complying with the injunction would exceed” the jurisdictional 14 amount. Id. The Ninth Circuit held that “[t]he right asserted by plaintiffs is the 15 right of individual future consumers to be protected from Ford’s allegedly 16 deceptive advertising which is said to injure them in the amount of $11.00 17 each,” an amount far below the amount in controversy requirement. Snow, 561 18 F.2d at 790–91. 19 The same reasoning applies here. The right that Reisfelt asserts is the 20 “right of individual future consumers” to be protected from the allegedly 21 misleading packaging of Topco’s popcorn. Reisfelt alleges that she purchased 22 Organic Light Butter, Organic Butter, and Organic Salted Full Circle Market™ 23 popcorn.12 Each box of popcorn contained one less bag than she apparently 24 expected.13 Whatever the value of three bags of popcorn, there can be no doubt 25 that it is less than $75,000. The attempt to meet the amount in controversy 26 27 12 Complaint at ¶ 3. 1|| requirement by valuing the cost to Topco of complying with the requested injunction is foreclosed by Kanter and Snow. Accordingly, Topco has not □□ established that this Court has diversity jurisdiction. 4 IV. CONCLUSION 5 For the foregoing reasons, the court hereby GRANTS Reisfelt’s Motion. 6|| This case is remanded to the Orange County Superior Court. 7 IT IS SO ORDERED. 9|| Dated: November 16, 2020 ML, Ud pa 10 ON FED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28