Asabre v. Retail Services & Systems, Inc.

Filing 34

Letter Order. Signed by Judge Paul W. Grimm on 9/19/2022. (bmhs, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
PAUL W. GRIMM
UNITED STATES DISTRICT JUDGE

6500 CHERRYWOOD LANE
GREENBELT, MARYLAND 20770
[phone]
[phone] FAX

September 19, 2022
RE: Eva Asabre v. Retail Services & Systems, Inc. d/b/a Total Wine & More,
PWG-22-148
LETTER ORDER
Dear Parties:
This letter order addresses Plaintiff’s Motion to Remand, ECF No. 19, and Defendant’s
Motion to Dismiss, ECF No. 29. Both motions have been fully briefed, and having reviewed all
the filings, I find that a hearing is not necessary to resolve these motions. See Loc. R. 105.6 (D.
Md. 2021). For the reasons stated below, I shall grant Plaintiff’s motion and remand this case to
the Circuit Court for Montgomery County. As such, Defendant’s Motion is denied without
prejudice as moot.
Plaintiff, Eva Asabre, filed this putative class action lawsuit against Retail Services &
Systems, Inc., doing business as Total Wine & More (“Total Wine”), in the Circuit Court for
Montgomery County, alleging unfair, deceptive, and misleading consumer practices in violation
of the Maryland Commercial Electronic Mail Act (“MCEMA”), Maryland Code Ann., Comm.
Law §§ 14-3001 et seq. Compl., ECF No. 6. Ms. Asabre alleged that she received emails from
Total Wine offering discounts on wine, but the discounts included conditions that were not
disclosed in the subject heading of the email. Id. ¶ 5. Ms. Asabre seeks only statutory damages
of $500 per violation and attorneys’ fees. Id. at 12.
Total Wine timely removed the case to this Court pursuant to the Class Action Fairness
Act (“CAFA”), 28 U.S.C. §§ 1332(d), 1453(b). Not. Removal, ECF No. 1. Under CAFA, a federal
district court has jurisdiction if (1) the matter in controversy exceeds the sum or value of
$5,000,000, exclusive of interest and costs, and (2) is a class action in which any member of a
class of plaintiffs is a citizen of a State different from any defendant, provided that (3) the number
of members of all proposed plaintiff classes in the aggregate is 100 or more. 28 U.S.C. § 1332(d).
Total Wine contends that this case satisfies these conditions.
Ms. Asabre moves to remand this case back to state court on two alternative grounds. Mot.
Remand 1, ECF No. 10. Perhaps surprisingly, the plaintiff argues that she lacks Article III standing
in federal court, and therefore, this court lacks subject matter jurisdiction. Id. She also argues that
Total Wine failed to satisfy its burden of proving that the total amount in controversy exceeds the
$5,000,000 CAFA threshold. Id.

If a federal court determines that it does not have jurisdiction over a case that has been
removed from state court, the federal court must remand the case back to state court. See 28 U.S.C.
§ 1447(c). In considering a motion to remand, courts typically “strictly construe the removal statute
and resolve all doubts in favor of remanding the case to state court.” Richardson v. Phillip Morris
Inc., 950 F. Supp. 700, 702 (D. Md. 1997) (quoting Creekmore v. Food Lion, Inc., 797 F. Supp.
505, 507 (E.D. Va. 1992)). However, there is no presumption in favor of remand when cases are
removed under CAFA. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89
(2014). The burden of establishing jurisdiction rests with the party seeking removal, here Total
Wine. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004).
Article III standing is a prerequisite to subject matter jurisdiction. Edgar v. Coats, 454 F.
Supp. 3d 502, 520 (D. Md. 2020) (citing Beyond Systems, Inc. v. Kraft Foods, Inc., 777 F.3d 712,
715 (4th Cir. 2015)). Ms. Asabre asserts that Total Wine has failed to satisfy its burden of
establishing that she alleged a concrete injury in fact for purposes of federal Article III standing.
Mot. Remand 4. To satisfy constitutional standing requirements, a plaintiff must have suffered an
“injury in fact,” that has a causal connection to the conduct complained of and which can be
“redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)). In order for
plaintiffs to satisfy the injury-in-fact requirement, they must establish that they “suffered ‘an
invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural and hypothetical.’” Maryland v. United States, 360 F. Supp. 3d 288, 307
(D. Md. 2019) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016)). Importantly, “under
Article III, an injury in law is not an injury in fact.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,
2205 (2021); see also Garey v. James S. Farrin, P.C., 35 F.4th 917, 921 (4th Cir. 2022)
(“[P]laintiffs cannot establish a cognizable injury simply by pleading a statutory violation.”).
“Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may
sue that private defendant over that violation in federal court.” TransUnion, 141 S. Ct. at 2205.
Ms. Asabre alleged that Total Wine violated MCEMA, a Maryland state statute, by sending
commercial emails with misleading subject headings. She alleged no harm to herself as a result
of this violation, and she seeks only statutory damages under MCEMA § 14-3003. Total Wine
argues that the bar for showing a concrete injury is low, and that Ms. Asabre’s complaint alleges
intangible injury. Def.’s Mot. Mem. 27, ECF No. 29-1. And Total Wine asserts that “the Fourth
Circuit has already held that MCEMA violations constitute concrete injuries sufficient to satisfy
Article III standing requirements. Id. at 28-29 (citing Beyond Systems, 777 F.3d at 715-16).
However, Beyond Systems was decided prior to both Spokeo and TransUnion, which “rejected the
proposition that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a
statute grants a person a statutory right and purports to authorize that person to sue to vindicate
that right.’” TransUnion, 141 S. Ct. 2205 (quoting Spokeo, 578 U.S. at 341). The Fourth Circuit
court determined that Beyond Systems had claimed a harm—receiving spam e-mail, and Maryland
law had created an interest in being free from such harm. Beyond Systems, 777 F.3d at 716. It did
not discuss the plaintiff’s alleged harms from receiving spam email, although it referred to the

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plaintiff having “invited its own purported injury.” Id. at 715.1 The Supreme Court has since
emphasized that courts must “independently decide whether a plaintiff has suffered a concrete
harm under Article III” and “cannot treat an injury as ‘concrete’ for Article III purposes based only
on Congress’s say-so.” TransUnion, 141 S. Ct. at 2205 (quoting Trichell v. Midland Credit Mgmt.,
Inc., 964 F.3d 990, 999, n. 2 (11th Cir. 2020)). The Fourth Circuit has also subsequently
emphasized this point. Garey, 35 F.4th at 921 (“[P]laintiffs cannot establish a cognizable injury
simply by pleading a statutory violation.”).
Here, I need not engage in further detailed analysis regarding whether the plaintiff has
established a cognizable injury by identifying a historical analogue for her asserted injury. 2 Ms.
Asabre does not assert an injury, not does she allege any facts to support a finding that she incurred
an injury from her receipt of the challenged emails. Indeed, she specifically and expressly states
that she alleges only a statutory violation. Mot. Remand 6. Consequently, Total Wine cannot
show that Ms. Asabre has standing under Article III. See FW/PBS, Inc. v. City of Dallas, 493 U.S.
215, 231(1990) (holding standing must “affirmatively appear in the record”).
Accordingly, absent federal subject matter jurisdiction, this case must be remanded back
to the Circuit Court for Montgomery County. Further, since Article III standing must be found to
exist before a court may address the merits, Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94 (1998), I shall not consider the merits of Defendant’s Motion to Dismiss but deny it without
prejudice as moot.
Although informal, this is an Order of the Court and shall be docketed as such. A separate
Order shall follow.
Sincerely,
/S/
Paul W. Grimm
United States District Judge

I note that the district court also considered standing and held that “entitlement to statutory
damages, in and of itself, does not establish the requisite injury-in-fact” for standing. Beyond Sys., Inc. v.
Kraft Foods, Inc., 972 F. Supp. 2d 748, 766 (D. Md. 2013).
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The TransUnion Court “explained that plaintiffs proceeding under a statutory cause of action can
establish a cognizable injury by ‘identif[ying] a close historical or common-law analogue for their asserted
injury’ for which courts have ‘traditionally’ provided a remedy.’” Garey, 35 F.4th at 921 (quoting
TransUnion, 141 S. Ct. 2204).
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