Strickland et al v. Visible Measures Corporation
MEMORANDUM OPINION AND ORDER granting 15 Motion to Remand. Signed by Honorable Susan O. Hickey on March 25, 2014. (mll) Modified text on 3/25/2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
MARGO STRICKLAND; JAN
LISHMAN; and DEBBIE HOLMAN;
individually and on behalf of a class
of all other similarly situated individuals
Civil No. 4:13-cv-4030
VISIBLE MEASURES COPORATION
MEMORANDUM OPINION AND ORDER
Before the Court is a Motion to Remand (ECF No. 15) filed on behalf of Plaintiffs Margo
Strickland, Jan Lishman, and Debbie Holman (“Plaintiffs”).
Defendant Visible Measures
Corporation (“Visible Measures”) has responded. (ECF No. 22). Plaintiffs have replied. (ECF
No. 23). Plaintiffs have also filed a Notice of Supplemental Authority in support of their Motion
to Remand. (ECF No. 27). Visible Measures has responded to the Notice of Supplemental
Authority. (ECF No. 28). The Court finds the matter ripe for consideration.
On September 6, 2011, Plaintiffs filed this class in the Circuit Court of Miller County,
Arkansas. On December 6, 2011, Plaintiffs filed their First Amended Complaint. In their First
Amended Complaint, Plaintiffs claim that Visible Measures engaged in the improper placement
of “Flash Cookies” onto computers in violation of Arkansas statutory and common law.
Plaintiffs allege that they have incurred damages due to the economic expense associated
with the professional removal of the “Flash Cookies.” Specifically, in their First Amended
Complaint, Plaintiffs allege their damages include “[t]he damages resulting from and the cost
necessary to hire a computer consultant to identify and remove ‘Flash Cookies’ placed on
Plaintiffs’ and Class Members’ computers.” Additionally, Plaintiffs’ First Amended Complaint
contains a stipulation that the class will not seek damages in an amount in excess of $5,000,000.
The First Amended Complaint preceded the United States Supreme Court’s March 19,
2013 opinion in Standard Fire Ins. Co. v Knowles, __ U.S. __, 133 S. Ct. 1345, 185 L. Ed. 2d
439 (2013). In Knowles, the Supreme Court held that stipulations, like the one in Plaintiffs’ First
Amended Complaint, do not prevent removal under the Class Action Fairness Act, 28 U.S.C. §
1332(d) (“CAFA”). Id. Without the benefit of the Knowles decision, Visible Measures assumed
the stipulation effectively prevented federal jurisdiction and did not remove the case at that time.
Thus, litigation proceeded in state court.
Throughout the course of the state court litigation, the parties engaged in numerous
However, in early 2013, the parties agreed to a series of depositions.
Specifically, on February 20, 21, and 22, Visible Measures deposed Plaintiffs. In Plaintiffs’
depositions, Plaintiffs disclaimed free online services that could delete the “Flash Cookies” from
class members’ computers and specified that they seek damages for hiring a computer consultant
to remove the “Flash Cookies.”
Following the depositions, on March 22, 2013, Visible Measures filed a Notice of
Removal asserting federal jurisdiction pursuant to CAFA. Plaintiffs then filed the instant Motion
to Remand. Plaintiffs argue that this Court lacks jurisdiction because Visible Measures untimely
removed the action.
“CAFA provides the federal courts with original jurisdiction to hear a class action if the
class has more than 100 members, the parties are minimally diverse, and the matter in
controversy exceeds the sum or value of $5,000,000.” Knowles, 133 S.Ct. at 1348 (quotations
omitted). A defendant seeking to remove under CAFA must file a “notice of removal . . . within
30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial
pleading.” See 28 U.S.C. § 1446(b)(1). “If the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one which is or has become removable.”
See 28 U.S.C. § 1446(b)(3).
Visible Measures asserts that it timely removed the action under 28 U.S.C. § 1446(b)(3)
because it filed a Notice of Removal within thirty days following Plaintiffs’ February
depositions. Specifically, Visible Measures asserts that it “ascertained for the first time at the
depositions” that Plaintiffs seek damages for hiring a computer technician and reject free onlinebased services to remove the “Flash Cookies.” (ECF No. 22). Without the option of onlinebased services, Visible Measures contends the amount in controversy exceeds $5,000,000.
Plaintiffs assert that their First Amended Complaint filed on December 6, 2011, notified Visible
Measures that they seek damages for hiring a computer consultant; thus, Plaintiffs argue, Visible
Measures should have removed the case upon receipt of that complaint.
The Court agrees with Plaintiffs. The Eighth Circuit has held that the time limit under §
1446(b) begins running upon receipt of a complaint “when the complaint explicitly discloses the
plaintiff is seeking damages in excess of the federal jurisdiction amount.” In re Willis, 228 F.3d
896, 897 (8th Cir. 2000). In their First Amendment Complaint filed on December 6, 2011,
Plaintiffs allege that their damages include “[t]he damages resulting from and the cost necessary
to hire a computer consultant to identify and remove ‘Flash Cookies’ placed on Plaintiffs’ and
Class Members’ computers.” (ECF No. 4). Thus, the December 6, 2011 complaint “explicitly
disclose[d]” to Visible Measures that Plaintiffs are seeking computer technician damages. See
Willis, 228 F.3d at 897. Even though the complaint does not explicitly disclaim the online-based
services, Visible Measures knew by December 6, 2011, that damages for the computer consultant
were in controversy. Accordingly, because Plaintiffs’ First Amended Complaint filed December
6, 2011, explicitly seeks damages for hiring a computer technician and Visible Measures chose
not to remove at that time, removal on that ground over a year later is untimely.
Visible Measures argues that the damages stipulation in Plaintiffs’ First Amended
Complaint made removal futile prior to the Supreme Court’s decision in Knowles. In other
words, Visible Measures argues that because Plaintiffs filed their amended complaint prior to
Knowles and some courts within the Eighth Circuit upheld the effectiveness of damages
stipulations at that time, the stipulation prohibited removal. The Court finds this argument
unpersuasive. Despite the Eighth Circuit authority pre-Knowles, defendants continued to remove
cases to this Court challenging damages stipulations. See Goodner v. Clayton Homes, Inc., No.
4:12-cv-4001, 2012 WL 3961306, at *1 (W.D. Ark. Sept. 10, 2012); Basham v. Am. Nat. Cnty.
Mut. Ins. Co., No. 4:12-cv-4005, 2012 WL 3886189, at *1 (W.D. Ark. Sept. 6, 2012). For
example, in Basham, the defendants removed a class action complaint containing a damages
stipulation to this Court on January 17, 2012. Basham, 2012 WL 3886189, at *1. Even though
this Court initially remanded the Basham case due to the damages stipulation, the Eighth Circuit
vacated the remand in light of the Knowles decision. See id.; Basham v. Am. Nat. Cnty. Mut. Ins.
Co., No. 12-8018, 2013 WL 7144182, at *1 (8th Cir. April 12, 2013). Subsequently, this Court
reconsidered the plaintiffs’ motion to remand and denied it. Basham v. Am. Nat. Cnty. Mut. Ins.
Co., No. 12-8018, 2013 WL 5755684, at *8 (W.D. Ark. Oct. 23, 2013). The case is now pending
before this Court. See id. Clearly, as evidenced by Basham, removal prior to the Knowles
decision was neither prohibited nor futile. 1
Judge Holmes recently came to a similar conclusion in Roller et. al. v. TV Guide Online
Holdings, LLC, No. 5:13-CV-05214 (W.D. Ark. Jan. 22, 2014). Like Visible Measures, the
defendant in Roller argued that a stipulation in an amended complaint prohibited removal prior
to the Supreme Court’s decision in Knowles. Id. at 4. Judge Holmes disagreed and stated that
the defendant “could have and should have removed [the] case” upon service of the amended
complaint because “the law at that time was not so well-settled as to prevent even an attempt at
removal.” Id. at 6. Visible Measures argues that Roller is distinguishable from the instant case
because the Roller defendants’ removal period expired before the Eighth Circuit denied the
appeal in Knowles challenging the damage stipulation. In other words, Visible Measures argues
that because the Eighth Circuit denied the Knowles appeal during its removal period, it was
prohibited from removing the case. 2 However, the Basham case refutes Visible Measures’s
argument. The Basham defendants removed their class action after the Eighth Circuit denied the
In its brief, Visible Measures cites Ackerberg v. Johnson for the proposition that a litigant is not required “to engage
in futile gestures merely to avoid a claim of waiver.” 892 F.2d 1328, 1333 (8th Cir. 1989). In Ackerberg, the
defendants did not file a motion to compel arbitration despite an arbitration agreement. Id. at 1332. At the time the
complaint was filed, the issue was controlled by the Supreme Court’s decision in Wilko v. Swan, 346 U.S. 427
(1953), which prohibited arbitration in the defendants’ case. However, after the complaint was filed, the Supreme
Court reversed Wilko in Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). After
Rodriguez, the defendants moved to compel arbitration. Id. at 1331. The plaintiff argued that the defendants waived
their right to arbitration by not filing a motion to compel arbitration and by participating in the litigation process. Id.
The Eighth Circuit disagreed reasoning that any motion to compel arbitration prior to Rodriguez would have been
futile based on the Supreme Court’s decision in Wilko. Id. at 1332. The Court finds Ackerberg distinguishable from
the instant case. In Ackerberg, Supreme Court precedent prohibited arbitration at the time the complaint was filed.
In this case, at the time Plaintiffs filed their complaint, the Supreme Court had not ruled on the effectiveness of
damages stipulations to prevent federal jurisdiction.
The Eighth Circuit denied the petition for permission to file an interlocutory appeal in Knowles on January 4, 2012.
Knowles v. Standard Fire Ins. Co., No. 11-8030, 2012 WL 3828891, at *1 (8th Cir. Jan. 4, 2012). In this case,
Plaintiffs’ removal period based on the First Amended Complaint expired on January 5, 2012. See 28 U.S.C. §
In the alternative, Visible Measures argues that removal is timely under 28 U.S.C. §
1446(b)(3) based on the Knowles decision.
Specifically, Visible Measures argues that the
Supreme Court’s decision in Knowles was an “order” that triggered removal under § 1446(b)(3).
However, the Eighth Circuit has explicitly declined to treat a decision in a separate case with
different parties as an “order” triggering removal in Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d
965, 969 (8th Cir. 2007)
In Dahl, the Eighth Circuit stated that “it would be an unsupported stretch to interpret
‘order’ to include a decision in a separate case with different parties.” Id. The Dahl defendant
asked that Eighth Circuit to adopt the approach of the Third and Fifth Circuits’, which treat
judicial opinions from other cases as basis for recommencing the removal period. See id; Green
v. R.J. Reynolds Tabaco Co., 274 F.3d 263, 268 (5th Cir. 2001); Doe v. Am. Red Cross, 14 F.3d
196, 202-03 (3d Cir. 1993). However, the Eight Circuit declined to do so. Dahl, 478 F.3d at
969. The Eighth Circuit pointed out that the Doe and Green courts expressly limited their
holdings to the unusual circumstances presented in those cases. Id. at 970. In both Doe and
Green, the defendants were parties in the cases before the courts as well as the separate cases that
generated the decision. Id. The defendant in Dahl was not a party to the separate case. Id.
Thus, the Eighth Circuit reasoned, Doe and Green were not applicable. Id.
The Court finds this case comparable to Dahl and unlike the circumstances in Doe and
Green. Here, like in Dahl, Visible Measures is not a party to the Knowles case. Visible
Measures argues that even though it is not a party to Knowles, the cases are related because
Plaintiffs’ counsel in this case represented the Knowles plaintiffs and both cases concern the
damages stipulations. The Court finds Visible Measures’s argument unpersuasive. Even though
the cases contain the same counsel and similar issues, none of the parties in the Knowles case are
parties to this case. Accordingly, because Knowles is a separate case with different parties, the
Court finds that Supreme Court’s decision in Knowles did not trigger removal under § 1446(b)(3)
in this case.
For the reasons stated above, the Court finds that Plaintiffs’ Motion to Remand (ECF No.
15) should be and hereby is GRANTED. The case is remanded to the Circuit Court of Miller
County, Arkansas, for further proceedings.
IT IS SO ORDERED, this 25th day of March, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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