Gabe Watkins v. Vital Pharmaceuticals, Inc.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GABE WATKINS, on Behalf of No. 13-55755 Himself and All Other Persons Similarly Situated, D.C. No. Plaintiff-Appellee, 2:12-cv-09374-

SJO-JC

v.

VITAL PHARMACEUTICALS, INC., OPINION

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding

Submitted June 3, 2013* Pasadena, California

Filed July 2, 2013

Before: Sidney R. Thomas, Barry G. Silverman, and Raymond C. Fisher, Circuit Judges.

Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge Fisher

* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). WATKINS V . VITAL PHARMACEUTICALS

SUMMARY**

Class Action Fairness Act

Determining that it had jurisdiction to consider the district court’s sua sponte order remanding this case to state court, the panel reversed the district court’s order and remanded to the district court with instructions to exercise jurisdiction over this case because…

concurring in part and dissenting in part:

I join in the per curiam opinion with the exception of the last paragraph, which reverses and remands to the district court to exercise jurisdiction over this case. Because it is not clear that the district court considered the Cimino declaration, and because I do not believe that the declaration is sufficient as a matter of law to establish that Vital met its burden of proving the amount in controversy by a preponderance of the evidence, I would vacate the district court’s order and remand to the district court to determine in the first instance, in light of the Cimino declaration, whether Vital met its burden of proving that the amount in controversy exceeds $5 million.

Vital asserted in its Notice of Removal that CAFA’s $5 million amount-in-controversy threshold is met. Aside from attempting to derive support from the allegations in plaintiffs complaint, the Notice alleged that “VITAL had total sales of ZERO IMPACT® Protein Bars in the last four years in excess of $5 Million,” citing a declaration by Vital’s controller, Richard Cimino. The district court’s remand order, which was quite thorough, expressly referred to Vital’s…

Defendant-Appellant Vital Pharmaceuticals, Inc. appeals the district court’s sua sponte order remanding this putative class action to state court for failure to establish the Class Action Fairness Act’s (CAFA) requirement that at least $5 million is in controversy. We hold that we have appellate jurisdiction under 28 U.S.C. § 1453 (c)(1) to consider the district court’s sua sponte remand order, reverse the order remanding this case to state court, and remand to the district court with instructions to exercise jurisdiction over the case.

I.

Plaintiff Gabe Watkins filed this class action in the California Superior Court, County of Los Angeles, alleging that defendant Vital Pharmaceuticals, Inc. distributed ZERO IMPACT protein bars that were erroneously marketed and labeled as having little to no impact on blood sugar. Watkins asserts claims under California law on behalf of a nationwide class of “thousands of consumers throughout the United States.” The complaint states that “the aggregate damages sustained by the Class are likely in the millions of dollars” and seeks damages, restitution, disgorgement and attorney’s fees and costs.

Vital timely removed this action to…