Turnier et al v. Bed Bath & Beyond Inc. et al
Filing
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ORDER Remanding Case to San Diego Superior Court. Signed by Judge M. James Lorenz on 7/16/2021. (cc: Superior Court)(jpp) (dlg).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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ROBERT TURNIER, et al.,
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Plaintiffs,
v.
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Case No.: 3:21-cv-1008-L-MSB
ORDER REMANDING CASE (DOC.
NO. 4)
BED BATH & BEYOND INC.,
Defendant.
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Defendant removed this case from San Diego Superior Court. (Doc. No. 1).
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Defendant in a related case argued Plaintiff Robert Turnier lacked Article III standing to
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seek injunctive relief. (See Case No. 20-cv-288-L-MSB, Doc. No. 7-1 at 21-23). The
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Court – in that case – granted Defendant’s motion to dismiss with leave. (Id. at Doc. No.
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17). Plaintiffs amended the complaint, removing their request for injunctive relief. (Id.
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at Doc. No. 18). Subsequently, they filed this removed case against Defendant, seeking
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injunctive relief.1 (Doc. No. 1).
The Court issued an order to show cause as to subject matter jurisdiction. (Doc.
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No. 4). The parties briefed the issue. Defendant argues it met its burden to establish
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jurisdiction. (Doc. Nos. 8 and 11). Plaintiffs argue the Court should remand the case.
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Article III is inapplicable in state court. ASARCO, Inc. v. Kadish, 490 U.S. 605, 617 (1989).
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3:21-cv-1008-L-MSB
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(Doc. No. 10). The Court decides the matter on the papers submitted without oral
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argument. See Civ. L. R. 7.1.
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The Court has limited jurisdiction. See Kokkonen v. Guardian Life Ins. Co., 511
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U.S. 375, 377 (1994). There is a presumption the Court lacks jurisdiction over cases. Id.
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The burden is on Defendant to establish otherwise. Id.; Abrego Abrego v. The Dow
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Chem. Co., 443 F.3d 676, 682-85 (9th Cir. 2006); Luther v. Countrywide Home Loans
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Servicing, LP, 533 F.3d 1031, 1034 (9th Cir. 2008); Scott v. Pasadena Unified Sch. Dist.,
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306 F.3d 646, 655 (9th Cir. 2002).
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“A removed case in which the plaintiff lacks Article III standing must be remanded
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to state court under § 1447(c).” Polo v. Innoventions Int'l, LLC, 833 F.3d 1193, 1196 (9th
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Cir. 2016); Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 970 n.8 (9th Cir. 2018) (“as
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a general rule, if the district court is confronted with an Article III standing problem in a
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removed case—whether the claims at issue are state or federal—the proper course is to
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remand for adjudication in state court.”) Doubts are resolved in favor of remand.
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Moore- Thomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009); Corral v.
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Select Portfolio Servicing, Inc., 878 F.3d 770, 773 (9th Cir. 2017).
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To have standing to seek “injunctive relief, . . . the threat of injury must be actual
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and imminent, not conjectural or hypothetical.” Davidson, 889 F.3d at 967 (internal
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quotation marks and citation omitted). “In other words, the threatened injury must be
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certainly impending to constitute injury in fact and allegations of possible future injury
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are not sufficient.” Id. (internal quotation marks and citation omitted; emphasis
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original). Past wrongs – alone – are insufficient. Id. “Where standing is premised
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entirely on the threat of repeated injury, a plaintiff must show a sufficient likelihood that
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[they] will again be wronged in a similar way.” Id.
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“A previously deceived consumer may have standing to seek an injunction against
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false advertising or labeling, even though the consumer now knows or suspects that the
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advertising was false at the time of the original purchase, because the consumer may
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suffer an actual and imminent, not conjectural or hypothetical threat of future harm.” Id.
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3:21-cv-1008-L-MSB
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at 969. “The threat of future harm may be the consumer’s plausible allegations that
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[they] might purchase the product in the future, despite the fact it was once marred by
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false advertising or labeling, as [they] may reasonably, but incorrectly, assume the
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product was improved.” Id. at 970.
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Here, as Defendant acknowledges, there is nothing in the complaint about Plaintiff
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Moran’s intention to reenroll in the subscription at issue. (Doc. Nos. 1 and 8). There is
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no alleged threat – let alone one that is actual and imminent. Davidson, 889 F.3d at 967.
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Plaintiff Turnier also does not allege he intends to reenroll. (Doc. No. 1). The sole
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allegation is that he is “unlikely” to be deceived again. Id. That allegation tends to show
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there is no threat, which is insufficient. See Davidson, 889 F.3d at 967 (“allegations of
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possible future injury are not sufficient.”) (emphasis original); Moore- Thomas, 553 F.3d
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at 1244. Overall, there is not a “sufficient likelihood” of future harm. Davidson, 889
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F.3d at 967.
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Defendant – in the reply – requests an opportunity to conduct discovery. (Doc. No.
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11). The Court is not required to “consider arguments raised for the first time in a reply
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brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007); Graves v. Arpaio, 623 F.3d
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1043, 1048 (9th Cir. 2010). Regardless, there is nothing to suggest Plaintiffs’ responses
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would show the Court has jurisdiction over their claim for injunctive relief. Again, the
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allegation Defendant relies on shows Plaintiffs lack Article III standing. Ibid. The Court
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therefore denies Defendant’s request.
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Overall, the Court lacks jurisdiction. For that reason, the Court REMANDS the
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case to San Diego Superior Court. 28 U.S.C. § 1447(c). Based on that, Defendant’s
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motion to dismiss is DENIED WITHOUT PREJUDICE.
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IT IS SO ORDERED.
Dated: July 16, 2021
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3:21-cv-1008-L-MSB
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