Anderson et al v. SeaWorld Parks and Entertainment

Filing 46

Order by Hon. Samuel Conti denying 15 Motion to Remand. (sclc2, COURT STAFF) (Filed on 9/24/2015)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

For the Northern District of California

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MARC ANDERSON and ELLEXA CONWAY, ) Case No. 15-cv-02172-SC
on their own behalf and on
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behalf of a class of others
) ORDER DENYING REMAND
similarly situated,
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Plaintiffs,
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v.
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SEAWORLD PARKS AND
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ENTERTAINMENT, INC.,
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Defendant.
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)

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I.

INTRODUCTION
The Court turns now to a motion by Plaintiffs to remand this

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case to State Court.

ECF No. 15 ("Mot.").

The motion challenges

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the original notice of removal,1 is fully briefed,2 and is

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appropriate for resolution without oral argument pursuant to Civil

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Local Rule 7-1(b).

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DENIED.

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///

For the reasons set forth below, the motion is

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See ECF No. 1 ("Notice").
See ECF Nos. 23 ("Opp'n"), 29 ("Reply"); see also ECF No. 28 (renoticing the motion on the same grounds).

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II.

FACTS
This case includes both the facts alleged in the First Amended

that has followed.

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have been deceived by certain advertising statements made by

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Defendant SeaWorld Parks and Entertainment, Inc. ("SeaWorld" or

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"Defendant").

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United States District Court

Complaint, ECF No. 9-1 ("FAC"), and an unusual procedural history

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For the Northern District of California

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frequently advertises that it cares for sea creatures, including

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Orcas (otherwise known as "killer whales").

As to the former, certain individuals claim to

FAC ¶¶ 1-12.

SeaWorld is well known for and

Id. at ¶¶ 4-5, 8-9,

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55, 61, 73.

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reliance thereon they financially supported SeaWorld through the

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purchase of tickets.

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However, Plaintiffs here do not seek any monetary damages on behalf

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of the class.

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themselves, while seeking injunctive relief for the entire class.

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Id. at ¶¶ 12, 58, 67, 79, 80.

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include: (1) ordering SeaWorld to refrain from making statements

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Plaintiffs believe to be false or misleading regarding orca health;

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and (2) ordering Seaworld to inform the public on its website that:

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(a) captivity negatively impacts orca health, (b) orca lifespans

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are shorter in captivity than in the wild, (c) collapsed dorsal

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fins are common only in captive orcas, and (d) SeaWorld separates

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closely related and tightly-knit orca family members.

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Plaintiffs allege these claims are false, and that in

FAC ¶¶ 11-12, 19-20, 56-57, 65-66, 77-78.

Instead, they seek monetary damages only for

The injunctive relief sought would

Id.

Procedurally, this case was originally filed in the Superior

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Court of the State of California for the City and County of San

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Francisco ("state court").

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removed on the theory that the case involved at least $5 million,

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sat in diversity, and had a plaintiff class of at least 100 people,

Notice ¶ 1.

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Defendant successfully

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giving federal courts jurisdiction under the Class Action Fairness

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Act ("CAFA").

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argue that this calculation is improper, as Plaintiffs

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intentionally did not seek any class damages, thus falling well

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below the monetary threshold required.

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Plaintiffs now seek remand back to state court.

Id. at ¶ 4-5; see 28 U.S.C. § 1332(d).

Mot. at 1-6.

Plaintiffs

Accordingly,

United States District Court

When the original motion for remand was filed, the Court

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For the Northern District of California

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quickly learned that Plaintiffs had filed other cases pending

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elsewhere in the country.

Notice ¶ 6(d)-(e); ECF Nos. 1-3 and 1-4

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(jointly, "Hall v. SeaWorld Compl."), 6-1 ("Gaab v. SeaWorld

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Compl."); 24 Ex. A ("Kuhl v. SeaWorld Compl."); 24 at 69-74.3

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These other cases are highly similar in nature to this case, except

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that the other cases are in federal court, plead extra information

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about SeaWorld's alleged mistreatment of orcas, and affirmatively

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seek over $5 million in monetary damages.

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asserts -- and submissions by Plaintiffs in no way dispute (they

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may generally support) -- that the class in the instant case would

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include the named plaintiffs in some or all of the above cited

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suits.

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10, 10 n.6.

The Defendant also

See Notice ¶ 6, ECF No. 24 at 69-74, Opp'n at 3 n.1, 4 n.3,

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A comparison of these other three cases showed that Hall v.
SeaWorld and Gaab v. SeaWorld have overview and fact sections which
are word-for-word identical except for: (1) definition of the named
plaintiffs (Gaab has a second named Plaintiff, causing all its
following paragraphs to be numbered one higher than in Hall); (2) a
time-based reference in paragraphs 211 and 212, respectively ("Just
last month" versus "Two months ago"); and (3) Subsection "K" which
includes specific plaintiff allegations. When compared to Hall or
Gaab, Kuhl v. Seaworld is substantially similar, with almost all
the same section headings and lots of identical language (sans the
noted differences), though it occasionally skips a paragraph
present in the former two complaints. Compare Kuhl v. SeaWorld
Compl. with Hall v. SeaWorld Compl. and Gaab v. SeaWorld Compl.

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The Court also learned that the Judicial Panel for

consolidation in a multidistrict litigation case (an "MDL") was

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appropriate.

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parties to expedite ruling on this motion to allow the JPML a

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chance to consider consolidation.

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"[t]hese actions do share factual issues," that three actions

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United States District Court

Multidistrict Litigation ("JPML") was going to consider whether

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For the Northern District of California

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subject to a pending motion to consolidate in the Southern District

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of California "essentially constitute but a single action," and

ECF No. 3.

The Court therefore denied attempts by

ECF No. 27.

The JPML found that

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that "litigation thus really involves just two actions pending in

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two California districts."

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ultimately encouraged coordination and cooperative efforts to

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minimize or eliminate duplicative efforts, but denied consolidation

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as an MDL in its Order dated August 5, 2015.

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ECF No. 34 ("JPML Order").

The JPML

Id.

Thus, the Court now has before it, still pending, the instant

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motion to remand.

The motion does not call for the Court to decide

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whether class certification is or may be proper, only whether the

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Court should retain jurisdiction over this case at this juncture.

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III. LEGAL STANDARD

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A.

Remand

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"A motion to remand is the proper procedure for challenging

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removal."

Moore–Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,

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1244 (9th Cir. 2009).

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subject matter jurisdiction or for any defect in the removal

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procedure.

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strictly construed against removal."

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Loans Servicing LP, 533 F.3d 1031, 1034 (9th Cir. 2008).

Remand may be ordered either for lack of

See 28 U.S.C. § 1447(c).

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"[R]emoval statutes are
Luther v. Countrywide Home
"The

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presumption against removal means that the defendant always has the

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burden of establishing that removal is proper."

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F.3d at 1244.

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removal favor remanding the case.

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F.2d 564, 566 (9th Cir. 1992).

Moore–Thomas, 553

As such, any doubts regarding the propriety of the
See Gaus v. Miles, Inc., 980

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B.

The Class Action Fairness Act

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CAFA provides that a district court has original jurisdiction

United States District Court

For the Northern District of California

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where there is diversity between any member of a plaintiff class

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and any defendant and "in which the matter in controversy exceeds

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the sum or value of $5,000,000, exclusive of interest and costs."

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28 U.S.C. § 1332(d)(2).

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plaintiff class.

There must be at least 100 members in the

Id. at § 1332(d)(5)(B).

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C.

Amount In Controversy

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When determining the amount in controversy, the Court first

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considers whether it is "facially apparent" from the complaint that

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the jurisdictional minimum has been satisfied.

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Farm Mut. Auto., Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997);

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Alexander v. FedEx Ground Package Sys., Inc., No. C 05-0038 MHP,

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2005 WL 701601, at *2 (N.D. Cal. Mar. 25, 2005).

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considering claims for damages (general or special), attorneys'

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fees, and punitive damages.

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& Indem. Co., 994 F.Supp. 1196, 1198 (N.D. Cal. 1998); Alexander,

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2005 WL 701601, at *2.

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be allocated solely to those [named] plaintiffs for purposes of

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amount in controversy."

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Conrad, 994 F.Supp. at 942).

See Singer v. State

This includes

See Conrad Assoc. v. Hartford Accident

Attorneys' fees in a class action "cannot

Alexander, 2005 WL 701601, at *2 (quoting

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If damages are not specified by the complaint, the Court may

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review facts submitted by parties and may require parties to submit

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controversy.

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Cir. 1995); Matheson v. Progressive Specialty Ins. Co., 319 F.3d

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1089, 1090 (9th Cir. 2003); Alexander, 2005 WL 701601, at *2.

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party seeking removal "must prove with legal certainty that CAFA's

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jurisdictional amount is met."

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12-02982 SI, 2012 WL 3283400, at *5 (N.D. Cal. Aug. 10, 2012)

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United States District Court

"summary-judgment-type evidence" relevant to the amount in

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For the Northern District of California

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(citing Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 1000

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(9th Cir. 2007)).

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Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th

The

Vigil v. HMS Host USA, Inc., No. C

Where "a defendant's assertion of the amount in controversy is

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challenged . . . both sides submit proof and the court decides, by

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a preponderance of the evidence, whether the amount-in-controversy

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requirement has been satisfied."

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Owens, ––– U.S. ––––, 135 S. Ct. 547, 554 (2014) (citing 28 U.S.C.

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§ 1446(c)(2)(B)).

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Courts fail to review adequate proof of the amount in controversy.

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Ibarra, 775 F.3d at 1195 (9th Cir. Jan 8, 2015).

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Dart Basin Operating Co. v.

The Ninth Circuit has recently remanded where

[T]he Supreme Court has said that a defendant can
establish the amount in controversy by an unchallenged,
plausible assertion of the amount in controversy in its
notice of removal.
Dart, 135 S. Ct. at 554–55.
Yet,
when the defendant's assertion of the amount in
controversy is challenged by plaintiffs in a motion to
remand, the Supreme Court has said that both sides submit
proof and the court then decides where the preponderance
lies. Id. Under this system, CAFA's requirements are to
be tested by consideration of real evidence and the
reality of what is at stake in the litigation, using
reasonable assumptions underlying the defendant's theory
of damages exposure.
Ibarra, 775 F.3d at 1197-98.
Requirements to certify a suit for injunctive or declaratory

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relief brought under Fed. R. Civ. P. 23(b)(2) are "unquestionably

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satisfied when members of a putative class seek uniform injunctive

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applicable to the class as a whole."

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657, 687-88 (9th Cir. 2014) (citing Rodriguez v. Hayes, 591 F.3d

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1105, 1125 (9th Cir. 2010)).

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protections than suits for damages under Fed. R. Civ. P. 23(b)(3),

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as the inquiry under Fed. R. Civ. P. 23(b)(2) "does not require an

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examination of the viability or bases of the class members' claims

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United States District Court

or declaratory relief from policies or practices that are generally

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For the Northern District of California

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for relief, does not require that the issues common to the class

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satisfy a Rule 23(b)(3)-like predominance test, and does not

Parsons v. Ryan, 754 F.3d

Such suits have far fewer procedural

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require a finding that all members of the class have suffered

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identical injuries."

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is whether "the party opposing the class has acted or refused to

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act on grounds that apply generally to the class."

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23(b)(2); see also Parsons, 754 F.3d at 688.

Id. at 688.

The only inquiry the rule makes

Fed R. Civ. P.

The amount in controversy in class actions requesting an

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injunction may be determined by the cost of compliance by

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Defendant.

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WL 1635347, at *1 (9th Cir. July 13, 2005) ("in determining the

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amount in controversy, we may also include the value of the

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requested injunctive relief to either party." (citing Cohn v.

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Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002); Ridder Bros.,

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Inc. v. Blethen, 142 F.2d 395, 399 (9th Cir. 1944)); but see In re

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Ford Motor Co./Citibank, N.A., 264 F.3d 952, 961 (9th Cir. 2001)

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(if "administrative costs of complying with an injunction were

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permitted to count as the amount in controversy, then every case,

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however trivial, against a large company would cross the

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See Int'l Padi, Inc. v. Diverlink, No. 03-56478, 2005

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threshold." (citation omitted))4; Ecker v. Ford Motor Co., No.

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CV0206833SVWTJLX, 2002 WL 31654558, at *2-3 (C.D. Cal. Nov. 12,

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2002) (determining amount in controversy by value of the injunction

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to the Plaintiffs);5 see generally § 3703 Viewpoint From Which

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Amount in Controversy Is Measured, 14AA Fed. Prac. & Proc. Juris. §

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3703 (4th ed.).

United States District Court

On a motion for remand, a Court "may require payment of just

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For the Northern District of California

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costs and any actual expenses, including attorney fees, incurred as

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a result of the removal."

28 U.S.C. § 1447(c) (emphasis added).

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The Court may award fees "when a defendant's removal, while 'fairly

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supportable,' was wrong as a matter of law."

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Century-Fox Film Corp., 208 F.3d 1102, 1106 (9th Cir. 2000).

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Balcorta v. Twentieth

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Ford Motor Co. at times seems to rebuff the Ritter panel's
decision, on which Int'l Padi relies. But Ford Motor Co. states,
in relevant portion, that "[t]he question then becomes whether each
plaintiff is asserting an individual right or, rather, together the
plaintiffs 'unite to enforce a single title or right in which they
have a common and undivided interest.'" Ford Motor Co., 264 F.3d at
959 (citation omitted). If the former, the test is the cost to the
defendants of an injunction running in favor of one plaintiff,
whereas "[i]f it is the latter, we may then look to the 'either
viewpoint' rule to determine jurisdiction." Id. (citing Snyder v.
Harris, 394 U.S. 332, 335 (1969)). Here, Plaintiffs must have a
"common and undivided interest" or their class claims for
injunction necessarily fail. See Parsons, 754 F.3d at 687-88.
Therefore, the "either viewpoint" rule applies.
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There is some confusion within the courts on this area of law.
For example, Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1034 (N.D.
Cal. 2002), states that "[t]he amount in controversy may include
the cost of complying with such an injunction." In so doing, it
cites Schwarzer, Tashima & Wagstaffe, Cal. Practice Guide: Fed.
Civ. Pro. Before Trial ¶ 2:483 (The Rutter Group 2001) and Ford
Motor Co., 264 F.3d at 958. However, Ford Motor Co. at that page
cites the proposition as an argument by parties, not the panel's
ruling. See Ford Motor Co., 264 F.3d at 960-61. Moreover, these
cases address jurisdiction by diversity and minimal value due to a
single named Plaintiff rather than pursuant to 28 U.S.C. § 1332(d).

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IV.

DISCUSSION
This case may be resolved on two grounds.

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The first ground is

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that the value of the injunction-only case may be measured by the

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value of the injunction to the Defendant.

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$5 million, and therefore creates jurisdiction under CAFA.

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Court relies primarily on this ground in making its ruling.

Such valuation exceeds

The second ground relates to the interplay between preclusion

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United States District Court

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For the Northern District of California

The

and CAFA.

The briefs filed by parties focused far more on this

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second ground, related specifically to issue preclusion.

Claim

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preclusion (res judicata) would bar a claim from being pursued in

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its entirety (e.g., future claims by absent litigants), whereas

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issue preclusion (collateral estoppel) would prevent a party (e.g.,

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absent class members or SeaWorld) from re-litigating a specific

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issue within a case without actually preventing those future claims

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from being filed -- even though the results may be foregone

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conclusions.

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form a sufficient basis to deny remand, on these unusual facts it

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exposes a backdoor that if permitted would frustrate the intent of

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Congress in CAFA.

While issue preclusion on its own would not normally

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The Court addresses first the damages ground, then the

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concerns raised by parties about preclusion, and then its concern

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about the intent of Congress via CAFA.

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considers attorney's fees.

Finally, the Court

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A.

Damages Pleaded

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Even were the Court to make all reasonable factual assumptions

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in favor of Plaintiffs, Plaintiffs' motion fails because the value

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of this case exceeds the $5 million CAFA threshold.

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No party challenges that there is diversity or that the class

parties revolves around whether Plaintiffs have pleaded an amount

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in controversy less than $5 million.

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Mot. at 3-7.

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"must prove with legal certainty that CAFA's jurisdictional amount

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is met."

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United States District Court

would be fewer than 100 people.

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For the Northern District of California

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Notice ¶ 6.

The argument between

F.3d at 1000).

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it has met the jurisdictional amount.

Plaintiffs assert they have.

If true, the Defendant, as the party seeking removal,

Vigil, 2012 WL 3283400, at *5 (citing Lowdermilk, 479
Defendant has submitted a notice and evidence that
See generally Notice.

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Plaintiffs, in their motion to remand, challenge the relevance and

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legal sufficiency of that evidence, though do not appear to

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challenge any fact related to volume or value of ticket sales.

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Here, it seems that "[SeaWorld's] assertion of the amount in

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controversy is challenged by plaintiffs in a motion to remand."

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See Ibarra, 775 F.3d at 1197-98.

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sides [must] submit proof and the [C]ourt decides, by a

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preponderance of the evidence, whether the amount-in-controversy

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requirement has been satisfied."

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argument could be made that evidence is not required here where the

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validity -- vice relevance and sufficiency -- of Defendant's

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evidence is unchallenged.

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distinction, because even if Dart and Ibarra require factual

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evidence, the Court finds that here it has received adequate

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evidence from both sides to resolve the instant motion.

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If so, this means that "both

Dart, 135 S. Ct. 547, 554.

An

But the Court need not make any such

Plaintiffs make legal arguments pointing out why the text of

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their complaint does not implicate or otherwise request monetary

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damages for Plaintiffs.

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of the requested injunctive relief to either party[,]" Int'l Padi,

As the Court "may also include the value

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facts suggest -- that Plaintiffs accrue no cognizable monetary

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benefit from this injunction.

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opportunity to Plaintiffs to submit evidence, the Court is

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confident Plaintiffs would claim the injunction has a low monetary

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value (at this stage in litigation) to ensure their claims fall

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below CAFA's threshold.

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United States District Court

2005 WL 1635347, at *1, the Court reasonably infers -- and pleaded

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For the Northern District of California

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Reply at 4, thereby assuring the Court that Plaintiffs knew they

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could submit evidence should they have desired.

If the Court were to provide an

Moreover, Plaintiffs cite Dart and Ibarra,

Thus the Court is

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satisfied Plaintiffs have had an opportunity to present evidence.

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Defendant SeaWorld has submitted evidence with its notice of

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removal, and later supplemented that evidence to include an

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erroneously missing exhibit, the First Amended Complaint to this

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action, and attachments to their opposition motion.

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1, 6, 9, 24.

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in other pending actions.

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SeaWorld Compl.; Kuhl v. SeaWorld Compl.

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affidavit by William Powers, Seaworld's Corporate Director of

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Budgeting and Forecasting.

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Powers provides uncontroverted evidence that "in each of the past

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four years, SeaWorld sold in excess of 500,000 tickets" on-site,

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just at the San Diego park, at an average cost of at least $50.

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Id.

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last four years online to California customers (determined by zip

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code) for the San Diego park, at an average cost of at least $30.

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Id.

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needs from both parties, especially in this case where the dispute

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is primarily legal rather than factual.

See ECF Nos.

SeaWorld's evidence includes three of the complaints
Hall v. SeaWorld Compl.; Gaab v.
It also includes an

ECF No. 1 at 9 (Powers Decl.)

Mr.

SeaWorld sold an additional 500,000 per year in each of the

The Court is thus satisfied it has what limited evidence it

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Even absent any showing of monetary value of an injunction to

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evidence that Defendant would place an enormous (negative) value on

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the injunctive relief if awarded.

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at *1.

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consider the value of allegedly improper ticket sales already sold

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within the class period.

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United States District Court

the Plaintiffs, the facts readily suggest by a preponderance of the

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For the Northern District of California

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but assuming arguendo that Plaintiffs are correct, the Court is

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still permitted to make "reasonable assumptions" as to SeaWorld's

See Int'l Padi, 2005 WL 1635347,

Plaintiffs' implied argument is that the Court should not

The Court does not reach this argument,

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theory of damage exposure.

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assumption here includes that past performance (per the figures

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below) is indicative (albeit not determinative) of SeaWorld's

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expected future ticket sales -- and so can be used to calculate

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future losses.

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of past ticket sales is "in excess of $160 million" based on sales

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of at least 4 million tickets during the class period.

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Mot. at 1, 4; Powers Decl.

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of $5 million in future ticket sales, using the lower rate of $30

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per ticket, only 166,667 fewer tickets need be sold.

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Decl.

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Ibarra, 775 F.3d at 1198.

A reasonable

SeaWorld makes uncontroverted claims that the value

Opp'n at 4;

Using simple math, to arrive at a loss

See Powers

This comprises at most a loss of 16.7% of ticket sales.6

The 16.7% rough figure assumes future sales will match past sales
but-for an injunction, that all losses will be realized in a single
year, and that all such losses will be suffered from online revenue
rather than on-site sales revenue (each of which yield at least
500,000 ticket sales, adding up to a least 1,000,000 tickets per
year). Expanding the period or allowing for the loss of on-site
sales (where tickets cost more) would decrease the percentage of
future ticket sales reduction that would be required for Defendant
to meet the jurisdictional threshold. For example, ticket sales
over two years only require an 8.35% overall reduction in (online)
future sales. Assumptions in reaching this 16.7% figure therefore
favor Plaintiffs in every way possible, which is proper where the
Defendant has the burden of proof and where doubts regarding the
propriety of the removal favor remand. See Gaus, 980 F.2d at 566.

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The Court also considers the damage done by the accusations

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its ability to secure third-party vendors to market ticket sales,

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and its ability to retain sponsors have all been hit.

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Gaab v. SeaWorld Compl. ¶¶ 176-202.

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efforts by SeaWorld to issue positive press.

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If the Court were to issue the injunction Plaintiffs request,

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United States District Court

currently being lobbied against SeaWorld.

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For the Northern District of California

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SeaWorld's reputation,

forcing SeaWorld to stop positive advertising and affirmatively

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admit prior wrongdoing, the Court is persuaded that the cost would

See, e.g.,

This is in spite of continued
Id. at ¶¶ 203-220.

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be far greater than the simple cost of changing words on a webpage.

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SeaWorld's reputation would be further soiled, it would be still

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harder to secure third-party vendors for ticket sales, and at least

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two sponsors (namely American Express and British Airways, id. at ¶

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201, as cited in comparable cases) would be even more pressured to

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cut ties with SeaWorld.

All these factors impact ticket sales.

The Court thus arrives at a reasonable conclusion that the

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value of compliance to SeaWorld would more likely than not reduce

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future sales by at least 16.7% in a single year or else result in

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at least 166,667 future fewer tickets sold over a reasonable period

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of time.

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a new, viable marketing campaign or correcting allegedly harmful

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practices toward certain animals, which could be costly and may be

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necessitated by the injunction.7

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This calculation does not include the value of developing

The Court is unable to consider such matters without evidence.
The Court also notes Plaintiffs cite Porfiria Yocupicio v. Pae
Group, LLC et al., No. 15-55878 (9th Cir. July 30, 2015), ECF No.
35-1 at 11. Per Porfiria, the Court cannot aggregate individual
and class claims together to reach the minimal amount in
controversy required. See id. Here, the Court does not need (or
seek) to do so, and using such an approach (which is not permitted)
would still not yield damages in excess of $5 million.

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Therefore, on the facts as pleaded, the Court finds that the

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amount in controversy is sufficiently high based on the value of

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the injunction to SeaWorld to merit federal jurisdiction.

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Accordingly, Plaintiffs do allege a case worth at least $5 million,

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giving the Court original jurisdiction under CAFA.

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Plaintiffs' motion to remand is DENIED.

Therefore,

United States District Court

B.

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For the Northern District of California

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Parties argue at length whether preclusion would apply to

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Preclusion Law

prevent the filing of individual damages claims were this

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injunctive-only suit permitted to continue in state court.

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Mot. at 7, Opp'n at 8-10, Reply at 3-10.

12

includes that this injunctive-only case will claim-preclude future

13

individuals who are part of the class and seek damages.

14

concern would normally be misplaced, as the law in the Ninth

15

Circuit is generally contrary.

16

jurisdiction, not class certification.

17

explains its rationale as necessary background to understand the

18

Court's analysis in the section to follow this one.

19

See

Defendant's concern

This

Moreover, this motion concerns
The Court nonetheless fully

In the Ninth Circuit, "the general rule is that a class action

20

suit [brought under Fed R. Civ. P. 23(b)(2)] seeking only

21

declaratory and injunctive relief does not bar subsequent

22

individual damages claims by class members, even if based on the

23

same events."

24

WL 3523908, at *15 (N.D. Cal. May 26, 2015) (quoting Hiser v.

25

Franklin, 94 F.3d 1287, 1291 (9th Cir. 1996)); see also In re

26

Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 892 (E.D. Mich. 1983)

27

("every federal court of appeals that has considered the question

28

has held that a class action seeking only declaratory or injunctive

In re Yahoo Mail Litig., No. 13-CV-04980-LHK, 2015

14

Plaintiffs cite an MDL where defendants allegedly price-fixed costs

3

of flat-screen components, and two states challenged certification

4

of injunction-only classes.

5

Litig., No. 7–1827 SI, 2012 WL 273883, at *1-2 (N.D. Cal. Jan. 30,

6

2012).

7

that case) that claims for monetary damages typically relied on

8

United States District Court

relief does not bar subsequent individual suits for damages.").

2

For the Northern District of California

1

different facts than claims for injunctive relief.

9

Cooper v. Fed. Reserve Bank, 467 U.S. 867, 876 (1984)).

In re TFT–LCD (Flat Panel) Antitrust

There, Judge Illston reasoned (and found on the facts of

Id. (citing
Judge

10

Illston therefore read the Supreme Court in Wal–Mart Stores, Inc.

11

v. Dukes, –––U.S. ––––, 131 S. Ct. 2541 (2011) to suggest only that

12

"a Rule 23(b)(2) judgment, with its one-size-fits-all approach and

13

its limited procedural protections, will not preclude later claims

14

for individualized relief."

15

In re Yahoo Mail, 2015 WL 3523908, at *15 (quoting LCD).

16

LCD, 2012 WL 273883, at *3; see also

This general rule has some limited exceptions, but they are

17

often seen when considering a motion for class certification.

18

Cholakyan (cited by Plaintiffs), plaintiffs alleged violations of

19

consumer protection statutes due to purchases of defendant's

20

vehicles, and consequently sought to certify a class under Rule

21

23(b)(2).

22

534, 558-60 (C.D. Cal. 2012).

23

the proposed class included former owners and lessees of vehicles

24

who could not benefit from the injunctive relief sought, the court

25

denied certification.

26

plaintiff seek an indivisible injunction benefiting all its members

27

at once.").

28

for injunctive relief "placed class members' ability to pursue

See

In

Cholakyan v. Mercedes-Benz, USA, LLC, 281 F.R.D.
But when the court there realized

Id. at 559 ("Rule 23(b)(2) demands that

Cholakyan read Dukes as unsettled law where a request

15

1

individualized claims for monetary relief in question."

Id. at

2

565.8

3

its order, though stopped short of finding that the named plaintiff

4

(and retained counsel) were inadequate as other grounds existed to

5

support denial of class certification -- not denial of remand.

That court therefore felt obligated to raise its concern in

In another case relied upon by Cholakyan, Ms. Fosmire (the

6

lead plaintiff) sought damages on one ground but not also on a

8

United States District Court

7

For the Northern District of California

Id.

second, available ground.

9

F.R.D. 625, 634 (W.D. Wash. 2011).

Fosmire v. Progressive Max Ins. Co., 277
The court found that claims

10

splitting by Ms. Fosmire, excluding a certain type of damages

11

(stigma damages), "create[d] a conflict between her interests and

12

the interests of the putative class, rendering her an inadequate

13

class representative."

14

denied.

Id. at 635.

Id.

Therefore, class certification was

Again, this was not denial of remand.

Here, Plaintiff concedes that "[t]o the extent the present

15
16

case raises issues of fact or law that also are raised by future

17

suits for damages, collateral estoppel may apply to those specific

18

issues."

19

The Court goes further -- here, collateral estoppel will almost

20

certainly apply to those issues, barring the issue from being

21

re-litigated.9

22

8

23
24
25
26
27
28

Reply at 8 n.3 (citing Cholakyan, 281 F.R.D. at 565).

Moreover, as explained by the Ninth Circuit, "[i]t

Despite this language, Yahoo Mail asserted that Cholakyan
"concluded that none of the remedies proposed by the plaintiff
would result in classwide relief . . . [but] did not discuss
whether certification of an injunctive relief class would preclude
individual damages claims." Yahoo Mail, 2015 WL 3523908, at *15
n.7. The Court decides this motion without resolving said tension.
9
Both parties cite Frank v. United Airlines, Inc., 216 F.3d 845,
853 (9th Cir. 2000). See Mot. at n.2, Opp'n at 9-10. Upon review,
Frank instructs in line with the Court's findings, to include that
there are additional procedural requirements for Fed. R. Civ. P.
23(b)(3) not applicable to Rule 23(b)(2). Frank, 216 F.3d at 851.
It does not, however, ultimately answer the immediate concern here

16

1

is now settled that a federal court must give to a state-court

2

judgment the same preclusive effect as would be given that judgment

3

under the law of the state in which the judgment was rendered."

4

Ross v. Alaska, 189 F.3d 1107, 1110-11 (9th Cir. 1999).

5

issue preclusion will ensue from this case whether heard in federal

6

or state court should certain substantive portions be decided prior

7

to any pending case(s) that include damages.

United States District Court

For the Northern District of California

8
9

Therefore,

Normally, the Court's conclusion that there would almost
certainly be issue preclusion would not necessitate claim

10

preclusion, as was the concern in Cholakyan.

11

Plaintiffs are normally permitted to seek a solely injunctive

12

class.

13

generally supports the ability of absent class members to still

14

seek to bring damages.

15

-- and where Plaintiffs' argument fails -- is that the claims for

16

monetary damages which typically rely on different facts than

17

claims for injunctive relief here rely on almost exactly the same

18

facts.

19

specific case, inapposite.

20

WL 273883, at *2 (citing Cooper).

21

all or almost all the same facts as their cases for damages (except

22

because preclusion did not apply on the facts of that case. Id. at
853. Even so, Frank makes clear that "once an issue is actually
and necessarily determined by a court of competent jurisdiction,
that determination is conclusive in subsequent suits based on a
different cause of action involving a party to the prior
litigation." Id. (citing Montana v. United States, 440 U.S. 147,
153 (1979). Whether preclusion ultimately will apply here or in
any case depends on "the requirements of identity of parties,
identity of the factual claim or issue, adequate notice, and
adequate representation[,] [which] apply to both claim and issue
preclusion." Id. (citing Richards v. Jefferson County, Ala., 517
U.S. 793, 800–01 (1996)).

23
24
25
26
27
28

Mot. at 7-8.

The Court agrees that

And as Plaintiffs point out, the law

Reply at 7-9.

But the key difference here

Thus the edict of Cooper as reflected in LCD are, in this
See Cooper, 467 U.S. at 876; LCD, 2012

17

Plaintiffs pleaded a summary of

1

details related to the specific named plaintiffs in this suit.

See

2

FAC ¶¶ 19-20).

3

Court can reasonably infer or else learn those facts through review

4

of the former complaints.10

5

they sought damages for the named plaintiffs in their individual

6

capacities and because all four suits aim at injunctive relief.

Insofar as facts from former suits are missing, the

Plaintiffs included such facts because

The Court need not detail whether such pleadings are adequate

7

United States District Court

For the Northern District of California

8

for a class under Fed. R. Civ. P. 23(b)(2) or (b)(3).

However,

9

where a case requesting only injunctive relief relies on the same

10

facts as another, already-pending case that requests damages, and

11

the injunctive case is comprised of a subset of members who are

12

party to the earlier damages case(s), a court's concern may be

13

reasonably heightened that the effects of issue preclusion from

14

hearing the injunctive case first may effectuate claim preclusion.

15

The Court is therefore concerned that, in the unusual procedural

16

posture of this case and on these specific facts, named Plaintiffs

17

(and their counsel) may not be adequate representatives.
That said, Plaintiffs are correct that this is a motion about

18
19

jurisdiction, not class certification.

Reply at 2.

Cases cited

20

that allow for exceptions to the general rule rely on analysis of

21
10

22
23
24
25
26
27
28

The Court has no trouble spotting that, while shorter, the FAC
in the instant case is a summary of the same factual allegations
presented in Hall, Gaab, and Kuhl. Compare FAC ¶¶ 1-12, 24-37 with
Hall v. SeaWorld Compl. and Gaab v. SeaWorld Compl. and Kuhl v.
SeaWorld Compl. The arguments in the FAC here (in summary form) or
in the other three case complaints (in full form) tend to prove
SeaWorld's allegedly deceptive practices or its harm of orcas. The
facts provide no greater basis for monetary damages vice just
injunctive relief, except as applied to ticket sales (which in the
instant case is limited to named plaintiffs rather than the class).
Thus the Court concludes that the facts of the other complaints are
presently part of this injunction-only case or will necessarily be
offered as evidence in this case.

18

1

class certification factors, which is a subsequent determination

2

separate and apart from a court's jurisdiction.

3

v. Shell Oil Co., 602 F.3d 1087, 1089 (9th Cir. 2010).

4

the Court cannot deny remand solely on grounds of preclusion.

See United Steel
Therefore,

5

C.

Congressional Intent

6

The Court does, however, find that the above analysis yields a

United States District Court

conflict with CAFA's intent, making remand improper.

8
For the Northern District of California

7

"Canons of

statutory construction dictate that if the language of a statute is

9

clear, we look no further than that language in determining the

10

statute’s meaning. . . . A court looks to legislative history only

11

if the statute is unclear."

12

16106, 2015 WL 5315388, at *4 (9th Cir. Sept. 14, 2015) (omission

13

in original)(citation omitted)).

14

has made its intent clear, we must give effect to that intent."

15

Miller v. French, 530 U.S. 327, 336 (2000) (citation omitted).

Lenz v. Universal Music Corp., No. 13-

In addition, "[w]here Congress

Here, the Court's first ground (that based on value of the

16
17

injunction to the Defendant the amount in controversy exceeds $5

18

million) would obviate any need to consider intent.

19

the Court did not rely on that ground, the Court would still be

20

faced with Plaintiffs' failure to meaningfully address the impact

21

of issue preclusion (vice claim preclusion) on the sister suits

22

that Plaintiffs have brought.

23

6(d)-(e); Hall v. SeaWorld Compl.; Gaab v. SeaWorld Compl.; Kuhl v.

24

SeaWorld Compl.; 24 at 69-74.

25

cases,11 granting remand here effectively strips the federal

26

11

27
28

However, if

See Reply at 7-10; but c.f. Notice ¶

When considering the other pending

"For jurisdictional purposes, [the Court's] inquiry is limited
to examining the case as of the time it was filed in state court."
Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1349 (2013).
However, when this case was filed, two other damages cases were

19

preclusive impact of this injunction-only case (if decided first).

3

Thus, on these unusual, specific facts, granting remand in line

4

with the statutory text meaningfully prevents litigation of the

5

other cases in federal court -- cases where the same statutory text

6

provides original jurisdiction to federal courts.12

7

is appropriate here for the Court to consider Congress's intent.

8

United States District Court

jurisdiction required in already pending cases due to the likely

2

For the Northern District of California

1

The intent of Congress in CAFA provides adequate grounds to

9

deny remand.

10

Therefore, it

The relevant text of CAFA reads:

The district courts shall have original jurisdiction of
any civil action in which the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of
interest and costs, and is a class action in which--

11
12

(A) any member of a class of plaintiffs is a citizen of a
State different from any defendant[.]

13
14

28 U.S.C. § 1332(d)(2).

15

Congress's intent to offer a federal forum to class actions between

16

parties siting in diversity where the value in question is above a

17

certain threshold.

18

specifically to permit a defendant to remove certain class or mass

19

actions into federal court.

20

Manheim Investments, Inc., 775 F.3d 1193, 1197 (9th Cir. Jan 8,

21

2015).

22

next breath stated that "Congress intended CAFA to be interpreted

23

expansively.

24

///

25
26
27
28

On its face, this statutory text evidences

Moreover, "Congress designed the terms of CAFA

28 U.S.C. § 1332(d)."

Ibarra v.

And lest that be unclear, the Ninth Circuit in the very

S.Rep. No. 109–14, at 42 (Feb. 28, 2005)."

Ibarra,

already pending, and there is now a third. See Hall v. SeaWorld
Compl.; Gaab v. SeaWorld Compl.; Kuhl v. SeaWorld Compl.; ECF No.
24 at 69-74.
12
The Court is cognizant that issue preclusion does not normally
remove jurisdiction to hear a case. Here, however, the preclusive
effects are so pervasive that they are likely to do so de facto.

20

1

775 F.3d at 1197.

There can thus be no question that Congress

2

intends for high-value class suits to be heard in federal court.
Here, Defendants have sought a federal forum four times --

3

Should the case here be returned to state court and the state court

6

case hears this case first, all four presently-pending cases would

7

(or at least could) effectively be decided by the state court

8

United States District Court

thrice in the Southern District of California, and once here.

5

For the Northern District of California

4

instead of the federal court, per the Court's earlier analysis of

9

the almost-certainty of preclusive effects.

Ross, 189 F.3d at

10

1110-11; see also Migra v. Warren City Sch. Dist. Bd. of Educ., 465

11

U.S. 75, 81 (1984).

12

federal forum, which thereby runs contrary to Congress's intent.

This would essentially deprive Defendants of a

As courts have made clear (again, per the discussion above),

13
14

there is no problem with pursuing injunctive relief rather than

15

damages in a class action.

16

violation of Congress's intent in CAFA was not the issue faced by

17

the cases upon which parties relied.13

18

courts would permit break-away, injunctive-only cases where such

19

cases are filed primarily as a tactic to litigate already-pending

20

federal court cases in a state court -- not where Congress intended

21

such cases be litigated in federal court.

But deprivation of a federal forum in

Nothing suggests those same

If this strategy were

22
13

23
24
25
26
27
28

Plaintiffs, for example, rely on LCD. Reply at 8-9. Whereas
Judge Illson worried that granting credence to arguments of
preclusion of future claims would "eviscerate the (b)(2) class,
preventing its use whenever there was a chance that unknown class
members might have damages claims", LCD, 2012 WL 273883, at *3,
here there are known class members who affirmatively have damages
claims that will almost certainly be precluded. Moreover, there
cases were within the control of an MDL and Judge Illston had no
apparent concern that a state court might make a decision that
would preclude the master case over which she presided, let alone
prematurely turn control of the MDL over to a state court.

21

filing a damages case and a separate injunctive-only case in

3

different federal districts, one in a local federal court and one

4

in a local state court.

5

be effectively litigated in the first instance in a state court.

6

In turn, a federal court would be forced to accept the findings

7

from a

8

United States District Court

allowed, parties could easily circumvent CAFA by simultaneously

2

For the Northern District of California

1

81, leaving the federal court to focus only on such matters as

9

relate entirely to predominance and damages -- matters that would

Such a strategy would allow both cases to

state court, Ross, 189 F.3d at 1110-11; Migra, 465 U.S. at

10

almost certainly settle in light of the heightened impact of issue

11

preclusion.14

12

members who are actively choosing (or will soon choose) whether to

13

opt-out being precluded by a case they are not present to litigate

14

but which may have already been decided.15

15

from federal courts abdicating their role in class actions are

16

contrary to the intent of Congress per CAFA, and illustrate why, on

17

the unusual facts of this case, remand is hereby DENIED.

Moreover, this strategy would lead to present class

These absurd results

This analysis is not to be read as a general prohibition on

18
19

injunctive-only cases, on damages cases, or even seeking both forms

20

of relief in a single case.

21

cases seeking injunctive-only relief within the same federal forum.

22

Rather, it is a cautionary message -- based on the specific factual

23

14

24
25
26
27
28

Nor is it meant to forbid break-away

The Court's concern here may be consistent with the loss of
federal forum being cognizable as harm in other areas of law. See,
e.g., Westlands Water Dist. v. United States, 100 F.3d 94, 97-98
(9th Cir. 1996) (loss of a federal forum may constitute prejudice
when dismissing a case pursuant to Fed. R. Civ. P. 41).
15
Taking this reductio argument a step still further, preclusion
here could also render notice and opportunity to opt-out in pending
cases meaningless; class members would uniformly act based on the
earlier, preclusive case or else later argue notice was inadequate
for failure to advise members of the then-pending, preclusive case.

22

1

circumstances of this case -- that when presently already seeking

2

damages in one or more pending class suits in federal court, one

3

cannot use a technically separate yet substantially similar, break-

4

away, injunctive-only case as a backdoor to avoid the federal

5

forum.

6

here merits (and provides a secondary ground for) denial of remand.

Doing so violates the intent of Congress in CAFA, and so

United States District Court

D.

8
For the Northern District of California

7

The Court finds that SeaWorld's removal was proper and that

9

Attorneys' Fees

Plaintiffs' motion for remand was "fairly supportable" but wrong as

10

a matter of law.

See Balcorta, 208 F.3d at 1106.

Even so, the

11

Court declines to award fees.

12

courts discretion).

13

sought to plead in a way they thought would ensure their case would

14

continue in state court and did not expressly allege $5 million in

15

damages.

16

provided above, the Court finds that the remand motion itself was

17

nonetheless filed in a good faith belief remand would be granted.

18

Accordingly, each side will bear its own fees on this motion.

See 28 U.S.C. § 1447(c) (allowing

The Court recognizes that Plaintiffs clearly

While their strategy here fails for the two grounds

19
20
21
22

V.

CONCLUSION
For the reasons set forth above, Plaintiffs' motion to remand

is DENIED in its entirety.

23
24

IT IS SO ORDERED.

25
26

Dated: September 22, 2015

______________________________
UNITED STATES DISTRICT JUDGE

27
28

23