Wallace et al v. ConAgra Foods, Inc.

Filing 1

NOTICE OF REMOVAL by ConAgra Foods, Inc. from Dakota County District Court, case number Unknown. ( Filing fee $ 350 receipt number 3-009652) assigned to Judge Donovan W. Frank per Master List and referred to Magistrate Judge Franklin L. Noel, filed by ConAgra Foods, Inc. (Attachments: # 1 Exhibit 1: Complaint, Summons; Exhibits A - K, # 2 Declaration of Matt Russell, # 3 Notice of Filing of Notice of Removal to Federal Court, # 4 Civil Cover Sheet, # 5 Certificate of Service). (lmb)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
MELVIN WALLACE, SHIRLEY HARDT,
LEWIS SIMPSON, and WILLIAM COBB,
ERICA DAVIS-HOLDER, ROTEM
COHEN, JULIAN WAGNER, ROSE
WAGNER, ERIN STILWELL, MARIA
EUGENIA SAENZ VALIENTE and ADAM
BURNHAM individually and on behalf of
others similarly situated,

Case No. __________________

NOTICE OF REMOVAL FROM
THE FIRST JUDICIAL DISTRICT
COURT, DAKOTA COUNTY,
MINNESOTA

Plaintiffs,
vs.
CONAGRA FOODS, INC. d/b/a/ Hebrew
National, a Delaware corporation,
Defendant.

PLEASE TAKE NOTICE that Defendant ConAgra Foods, Inc. (“ConAgra”)
hereby removes this action from the First Judicial District Court, Dakota County,
Minnesota, to the United States District Court for the District of Minnesota, pursuant to
28 U.S.C. §§ 1332, 1441, 1446, and 1453, and respectfully states:
1.

This is a putative nationwide class action against ConAgra concerning the

marketing of Hebrew National brand products. See Complaint ¶ 10, attached hereto as
Exhibit 1.
2.

On May 18, 2012, Plaintiffs Melvin Wallace, Shirley Hardt, Lewis

Simpson, William Cobb, Erica Davis-Holder, Rotem Cohen, Julian Wagner, Rose
Wagner, Erin Stilwell, Maria Eugenia Saenz Valiente and Adam Burnham individually

and on behalf of others similarly situated (“Plaintiffs”) commenced this action against
ConAgra Foods, Inc. in the First Judicial District Court, Dakota County, by serving
ConAgra with a Summons and Complaint. See Minn. R. Civ. P. 3.01 (stating that service
of summons and complaint commences an action); Duchene v. Premier Bank Metro
South, 870 F. Supp. 273, 274 (D. Minn. 1994); Notice of Service, Summons, and
Complaint, attached hereto as Exhibit 1.
3.

As set forth more fully below, this case is properly removed to this Court

pursuant to 28 U.S.C. § 1441 because ConAgra satisfies the procedural requirements for
removal, the Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1332 and
1441, and the jurisdictional principles of the Class Action Fairness Act of 2005
(“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005), properly apply.
I.

ConAgra Satisfies the Procedural Requirements for Removal.
4.

ConAgra was first served with the Complaint on May 18, 2012. See

Exhibit A. Accordingly, this Notice of Removal is timely filed within 30 days as required
by 28 U.S.C. § 1446(b). See Duchene, 870 F. Supp. at 274 (holding a defendant has 30
days from the date a complaint was served to remove an action from Minnesota state
court).
5.

ConAgra has filed the Complaint in the First Judicial District Court, Dakota

County, on June 6, 2012.
6.

The First Judicial District Court, Dakota County, is located within the

District of Minnesota. Therefore, venue is proper in this Court is the “district and division
embracing the place where such action is pending.” 28 U.S.C. § 1441(a).
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7.

Pursuant to 28 U.S.C. § 1446(a), a copy of all process, pleadings and orders

served upon ConAgra Foods, Inc., including the Complaint, is attached hereto as
Exhibit 1.
8.

Pursuant to 28 U.S.C. § 1446(d), a copy of the Notice of Removal is being

served on counsel for Plaintiff and a copy will be filed promptly with the clerk of the
First Judicial District Court, Dakota County.
II.

Removal is Proper Because the Court Has Subject Matter Jurisdiction
Pursuant to 28 U.S.C. §§ 1332, 1441, and 1453.
9.

This case is subject to removal pursuant to CAFA.

10.

As set forth below, this is a putative class action in which: (a) there are 100

or more members in Plaintiffs’ proposed class; (b) at least some members of the proposed
class have citizenship different from ConAgra; (c) the claims of the proposed class
members exceed the sum value of $5,000,000 in the aggregate. Thus, the Court has
subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1332(d), 1441(b),
and 1453.
A.

The Proposed Class Consists of 100 or More Members.

11.

In their Complaint, Plaintiffs purport to represent a nation-wide class of

“[t]ens of thousands of consumers” who purchased Hebrew National Meat during the
Class period.” (Compl. ¶¶ 97-98.)
12.

Based on these and other allegations, the aggregate number of members of

Plaintiffs’ proposed class is far greater than 100 for purposes of 28 U.S.C.
§ 1332(d)(5)(B).

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B.

Diversity of Citizenship Exists.

13.

Diversity of citizenship exists if “any member of a class of plaintiffs is a

citizen of a State different from any defendant.” 28 U.S.C. § 1332(c)(2)(A).
14.

Named Plaintiffs are citizens of Minnesota, Arizona, Illinois, New York,

Florida, California, and Massachusetts. (Compl. ¶¶ 23-32.)
16.

For the purposes of establishing minimum diversity necessary for

jurisdiction under CAFA, a corporation such as ConAgra is “deemed to be a citizen of
any State by which it has been incorporated and of the State where it has its principal
place of business.” 28 U.S.C. § 1332(c)(1). ConAgra is a corporation organized under
the laws of Delaware with its principal place of business in Nebraska. (Declaration of
Matt Russell, attached hereto as Exhibit 2; Compl. ¶ 36.) Therefore, ConAgra is a citizen
of Delaware and Nebraska.
17.

Because at least one (and, in fact, all) of the named plaintiffs are citizens of

states different from ConAgra, minimum diversity is satisfied.
C.

The Amount-In-Controversy Requirement Is Satisfied.

18.

Plaintiffs allege that the kosher meat sold by ConAgra under its Hebrew

National brand was not kosher, and as a result, Plaintiffs “deprived of the value of the
goods they purchased.” (Compl. ¶ 13.)
19.

Plaintiffs allege that they are entitled to a full refund of the purchase price

of the Hebrew National meat purchased during the class period. (Compl. ¶ 195 (alleging
that Plaintiffs and the Class were harmed in the amount of the purchase price of Hebrew
National products”).)
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20.

Plaintiffs also define the class period as “dat[ing] back to the length of the

longest applicable statute of limitations for any claim asserted, from the date this action
was originally filed and continues through the present and the date of judgment. The
limitations period under Counts II and III is four years from the date this action was
originally filed and continues through the present and the date of judgment.” (Compl.
¶ 97.)
21.

In fiscal 2012 alone, annual revenues from sales of Hebrew National

branded products in the United States exceeded $5,000,000. See Exhibit 2, Declaration
of Matt Russell ¶ 3.
22.

Given that the class period is longer than one year, and Plaintiffs purport to

represent all persons who purchased Hebrew National meat in the United States, the
amount in controversy exceeds $5,000,000.
D.

The Court Should Resolve Any Questions Regarding Removal in Favor
of Federal Jurisdiction.

23.

The Court should resolve any questions or ambiguities regarding

ConAgra’s right to remove in favor of federal jurisdiction. CAFA’s legislative history
makes clear that doubts regarding the maintenance of interstate class actions in state or
federal courts are to be resolved in favor of federal jurisdiction. See, e.g., S. Rep. No.
109-14, at 43 (2005) (“Overall, new section 1332(d) is intended to expand substantially
federal court jurisdiction over class actions. Its provisions should be read broadly, with a
strong preference that interstate class actions should be heard in federal court if properly
removed by any defendant.”) Id. at 35 (the intent of CAFA “is to strongly favor the

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exercise of federal diversity jurisdiction over class actions with interstate ramifications”);
id. at 27 (“The Committee believes that the federal courts are the appropriate forum to
decide most interstate class actions because these cases usually involve large amounts of
money and many plaintiffs, and have significant implications for interstate commerce and
national policy.”).
WHEREFORE, ConAgra respectfully removes this action from the First Judicial
District in County of Dakota to this Court pursuant to 28 U.S.C. §§ 1332, 1441, 1446,
and 1453.

Dated: June 6, 2012

Respectfully submitted,
s/ Jerry W. Blackwell
Jerry W. Blackwell, Minn. Bar #186867
Corey L. Gordon, Minn. Bar #125726
BLACKWELL BURKE P.A.
431 South Seventh Street, Suite 2500
Minneapolis, MN 55415
Telephone: [phone]
Fax: [phone]
ATTORNEYS FOR
CONAGRA FOODS, INC.

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