Argentine v. Bank of America Corporation et al

Filing 18

ORDER ATTACHED denying 14 Motion to Remand to State Court. Signed by Judge Richard A. Lazzara on 6/18/2015. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

JOSEPH J. ARGENTINE,
Plaintiff,
v.

CASE NO: 8:15-cv-957-T-26MAP

BANK OF AMERICA CORPORATION
and FIA CARD SERVICES, N.A.,
Defendants.
/

ORDER
Before the Court is Plaintiff’s Motion to Remand (Dkt. 14) and Defendants’
Response. (Dkt. 16). After careful consideration of the parties’ arguments, applicable
law, and the file, the Court concludes the motion should be denied.
BACKGROUND
Plaintiff’s six-count state-court class action complaint sought damages and
injunctive relief, surrounding the allegedly misleading Travel Program of Bank of
America Corporation (BAC) and FIA Card Services, N.A. (FIA), now Bank of America,
N.A. (BANA). Defendants timely filed a notice of removal pursuant to the Class Action
Fairness Act, 28 U.S.C. § 1332 (CAFA).1 Defendants simultaneously filed the

1

See docket 1.

declaration of a senior vice president with BANA in support of removal.2 The complaint
was dismissed with leave to amend, save Count VI for injunctive relief.3 The amended
complaint was filed on June 12, 2015.4
APPLICABLE LAW
To remove a “mass action” pursuant to the Class Action Fairness Act, 28 U.S.C. §
1332(d) (CAFA), the following requirements must be met: (1) the number of plaintiffs in
the proposed plaintiff classes must exceed one hundred; (2) any member of the plaintiff
class must be diverse from any defendant; (3) the plaintiffs’ claims must involve common
questions of law or fact; and (4) the aggregate of claims of the individual class members
must exceed $5,000,000.00, exclusive of interest and costs. Plaintiff concedes that the
first three factors have been met, leaving only the amount-in-controversy requirement in
dispute.
Unlike other statutes of removal, the CAFA was passed “to facilitate adjudication
of certain class actions in federal court.” Dudley v. Eli Lilly & Co., 778 F.3d 909, 912
(11th Cir. 2014) (quoting Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. —, 135
S.Ct. 547, 190 L.Ed.2d 495 (2014 WL 7010692 (Dec. 15, 2014)). The provisions of the
CAFA “should be read broadly, with a strong preference that interstate class actions

2

See docket 3.

3

See docket 15.

4

See docket 17.
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should be heard in a federal court if properly removed by any defendant.” Dudley, 778
F.3d at 912 quoting Senate Report No. 109-14 (2005), which was relied upon in Dart.
The allegations of the complaint and all other evidence submitted are considered as they
stand at the time of removal. See Dudley, 778 F.3d at 913.5
If the plaintiff has failed to plead a specific amount of damages, the removing
defendant bears the burden of proof by a preponderance of the evidence that the amount
in controversy “more likely than not” exceeds the jurisdictional requirement. Pretka v.
Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010) (citations omitted). Where
the plaintiff contests the defendant’s calculation of the amount in controversy, the court
may not simply accept the defendant’s amount, but “must go further.” Dudley, 778 F.3d
at 912-13.
If a specific amount of damages is not claimed in the complaint, the court looks to
whether the amount is facially apparent from the complaint. Pretka, 608 F.3d at 754
(quoting Williams v. Best Buy Co., 269 F.3d 1316, 1318 (11th Cir. 2001)). When the
amount is not facially apparent, the court may look to the allegations of the notice of
removal. If the contents of the notice of removal are in dispute, then the court may
consider “evidence put forward by the removing defendant, as well as reasonable
inferences and deductions drawn from that evidence.” Dudley, 778 F.3d at 913 (quoting

5

See also Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 751 (11th Cir. 2010)
(citing cases to support premise that amount-in-controversy requirement “focuses on how
much is in controversy at the time of removal, not later.”).
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S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir. 2014)). As the
Eleventh Circuit wrote:
“A removing defendant is not required to prove the amount in
controversy beyond all doubt or to banish all uncertainty
about it.” Pretka, 608 F.3d at 754. Moreover, at the
jurisdictional stage, “the pertinent question is what is in
controversy in the case, not how much the plaintiffs are
ultimately likely to recover.” Id. at 751 (quotation and
emphasis omitted). “The amount in controversy is not proof
of the amount the plaintiff will recover. Rather, it is an
estimate of the amount that will be put at issue in the course
of the litigation.” Id. (quotation omitted). Dart — which did
not involve a plaintiff’s contest to the defendant’s
jurisdictional allegations — did not disrupt any of this preexisting CAFA case law.
Dudley, 778 F.3d at 913.
ANALYSIS
At the time of removal, the complaint contained six counts, including a count for
injunctive relief. The first five counts for damages referenced the loss of the monetary
point value for all reward categories regardless of the type of reward sought.6 Plaintiff
defined the class as “those persons who, while residing in the State of Florida, applied for
and obtained a BankAmericard Travel Rewards credit card, accumulated points under the
Travel Rewards Program, and received less than one penny (1¢) per point upon

6

There are four types of rewards from which the customer may choose, including
travel credit, merchandise and gift certificates, cash back, and a donation to a charity.
This Court explained in a prior order the specific Travel Program contested in this lawsuit
on the basis of misleading and fraudulent advertising as well as other theories. See
docket 15 (Order on Motion to Dismiss entered June 8, 2015).
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redemption.”7 With respect to the injunctive relief, Plaintiff requested that “Defendants
honor their obligation to recognize each point as having a redemptive value of 1¢.”8
Count VI further sought an injunction against Defendants “from redeeming points under
the program at less than 1¢.”9 Thus, Count VI is not limited to cardholders who have
already redeemed their points, but extends to cardholders with unredeemed points.
According to the notice of removal and supporting declaration of a senior vice
president of BANA, as of December 31, 2014, there were in Florida “in excess of 9,000
cardholders of the BankAmericard Travel Reward Program credit card.”10 These 9,000
cardholders, while residing in Florida, had obtained the credit card, had accumulated
points under the Travel Program, and had received less than one cent per point upon
redemption of non-travel rewards.11 As of the end of March 2015, there were 146,231
cardholders, either living in Florida or maintaining a Florida mailing address, who held
the BankAmericard Travel Program credit card.12 Plaintiff alleged in the complaint that
his personal damages, which were typical of all class members, equaled $64.00,13 the
7

See docket 2, para. 37.

8

See docket 2, para. 83.

9

See docket 2, wherefore clause following para. 85.

10

See docket 3, para. 7.

11

See docket 3, para. 7.

12

See docket 3, para. 11.

13

See docket 2, paras. 32-33.
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difference between redemption for a credit of one cent per dollar ($160.00 for 16,000
points) and six-tenths cent per dollar ($96.00 awarded for 16,000 points). Defendants
assert that Plaintiff’s allegation that his claim is typical of the claims of each member of
the class,14 together with the injunctive relief as alleged, permits them to extrapolate the
$64.00 for the almost 150,000 Florida cardholders for a total that exceeds the $5 million
requisite.15
The issue is whether this Court must engage in unwarranted speculation in
determining the amount in controversy, or, couched in different terms, whether
Defendants have provided an evidentiary foundation sufficient from which to draw
reasonable inferences and readily deduce16 “what is in controversy in the case, not how
much the plaintiffs will recover.” Pretka, 608 F.3d at 751. It is clear that the controversy
for the claims for damages involves the additional four-tenths of a cent that the Plaintiff
was denied, based on his position that one cent for every point was advertised or
promised. Equally as plain is the claim for injunctive relief contained in the original

14

See docket 2, para. 41 (“The claims advanced by the Plaintiff are typical of the
claims of each member of the Class in that Plaintiff is a customer of Defendants and has
obtained a Travel Rewards card, accumulated point and redeemed points.”
15

146,231 cardholders multiplied by $64.00 = $9,358,784.00. The Court is well
aware that 9,000 cardholders multiplied by $64.00 = $576,000.00, which falls short of the
$5 million prerequisite for jurisdiction.
16

See Dudley, 778 F.3d at 913 (quoting S. Fla. Wellness, 745 F.3d at 1315, that
the court may rely on evidence from the defendant including reasonably inferences and
deductions drawn therefrom).
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complaint seeks to enjoin Defendants from redeeming points at any amount less than one
cent per point. This amount would include the future, not just past, redemptions for all
the almost 150,000 cardholders. Having determined that the amount in controversy
encompasses relief to the greater cardholder numbers, the Court must now ascertain
whether the absence of knowing the precise number of redemption points in existence for
all those cardholders thwarts Defendants’ attempt to establish the $5 million amount in
controversy.
Based on a review of other cases17 the Court finds that the amount in controversy
advocated by the Defendants in this case, based on the complaint, notice of removal, and
other evidence provided at the time of removal, is not too speculative so that reasonable
deductions and inferences dictate an accurate estimation of over $5 million dollars. First,
the facts of this case are different from those of the cases that permitted remand. For
example, in Leonard v. Enterprise Rent-a-Car, 279 F.3d 967 (11th Cir. 2002), and Reilly
v. Amy’s Kitchen, Inc., 2 F.Supp.3d 1300 (S.D. Fla. 2014), the product offered, the sale
of car-rental insurance, was not a necessary component of renting a car. Here, the Travel
Program is part of holding the credit card and the cash value would necessarily be
increased for the almost 150,000 cardholders should Plaintiff succeed. As Defendants
contend, what would in their opinion amount to a program change in keeping with the

17

See, e.g., Dudley; Porter v. MetroPCS Commc’ns Inc., 592 F.App’x 780 (11th
Cir. 2014); S. Fla. Wellness; Pretka; Leonard v. Enterprise Rent-a-Car, 279 F.3d 967 (11th
Cir. 2002); Reilly v. Amy’s Kitchen, Inc., 2 F.Supp.3d 1300 (S.D. Fla. 2014).
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allegations of the complaint, the “increase” in point redemption value for points already
accumulated but not yet redeemed would affect the Travel Program nationwide as well as
result in liability in excess of $5 million for the almost 150,000 cardholders as of April
2015.18 Consequently, the Court finds that the potential cash value of all of the Travel
Reward points redeemed in the past and accumulated in the future but not yet redeemed,
places in excess of $5 million at issue.
It is therefore ORDERED AND ADJUDGED that Plaintiff’s Motion to Remand
(Dkt. 14) is DENIED.
DONE AND ORDERED at Tampa, Florida, on June 18, 2015.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

18

See docket 3, paras. 8-9.
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