Garr v. Toys "R" US, Inc. et al

Filing 22

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs motion to remand is DENIED as moot. (Doc. No. 10.) IT IS FURTHER ORDERED that pursuant to the parties stipulation (Doc. No. 21), this case is remanded to the Circuit Court of Phelps County, Mi ssouri. IT IS FURTHER ORDERED that the Clerk of the Court shall take all necessary steps to accomplish the remand and deliver the file to the Circuit Court of Phelps County, Missouri. IT IS FURTHER ORDERED that all pending motions are DENIED as moot without prejudice to refiling in state court. re: 10 MOTION to Remand Case to State Court filed by Plaintiff Teresa Garr Signed by District Judge Audrey G. Fleissig on 7/31/13. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TERESA GARR,
Plaintiff,
v.
TOYS “R” US, INC., et al.,
Defendants.

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Case No. 4:13CV00597 AGF

MEMORANDUM AND ORDER OF REMAND
This matter is before the Court on the parties’ stipulation for an order of remand.
Plaintiff Teresa Garr filed this putative class action in the Circuit Court of Phelps County,
Missouri on June 25, 2012, raising claims under Missouri’s Computer Tampering Statute,
Merchandising Practices Act, and common law for Defendant’s Toys “R” US, Inc.’s
alleged tracking and use of Plaintiff’s internet history and activities. Defendants removed
the case to this Court on March 29, 2013, asserting federal jurisdiction under the Class
Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Plaintiff filed a motion to remand
this action to state court and the parties briefed that motion. In light of a recent ruling by
the Eighth Circuit Court of Appeals, the parties have now filed a stipulation for remand.
(Doc. No. 21.) For the reasons set forth below, the parties’ stipulation of remand will be
approved.
In her complaint, Plaintiff alleges that no class member’s claim exceeds $75,000,
inclusive of costs and fees, and that the total damages suffered by the class, including
attorney’s fees, will not exceed $5 million dollars. In its Notice of Removal, Defendants

conceded that Plaintiff’s petition as originally filed in state court was not removable
because it failed to allege a sufficient amount in controversy to satisfy the jurisdictional
requirements under CAFA, and Defendants did not therefore file a timely petition for
removal. Defendants assert, however, that the case became removable on February 28,
2013, when Plaintiff’s counsel served, in a “companion case,” written discovery
responses that included information giving rise to federal jurisdiction in this case. In the
“companion case” a different plaintiff alleges similar claims to those alleged here against
a different defendant. The plaintiff in each case is represented by the same attorney.
In a case raising the same issue with respect to the jurisdictional import of
discovery responses filed in a “companion case,” United States District Judge Rodney W.
Sippel ordered remand to state court. See Christiane Dalton and William Aaron, Jr. v.
Walgreen Co., No. 4:13-CV-603-RWS, slip op. at 4 (E.D. Mo. Apr. 16, 2013) (holding
that the fact that a plaintiff’s damages in a similar case involving different parties
exceeded the required amount in controversy under CAFA is not evidence that another
plaintiff’s damages might do so). Judge Sippel concluded that facts set forth in discovery
responses in one case could not be used to establish the required jurisdictional amount
under CAFA in another case. Id. The defendants then appealed that ruling, and recently,
the Eighth Circuit Court of Appeals issued a decision affirming Judge Sippel’s order of
remand. See Christiane Dalton and William Aaron, Jr. v. Walgreen Co., No.13-2047,
slip op. at 3 (8th Cir. Jul. 12, 2013) (holding that discovery responses in another case are
not “other paper” within the meaning of 28 U.S.C. § 1446(b)(3)).

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Citing the identity of issues between this case and Dalton, the parties have now
stipulated to the entry of an order of remand in this case. The Court agrees that such an
order is appropriate in light of the Eighth Circuit’s holding in Dalton.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s motion to remand is DENIED as
moot. (Doc. No. 10.)
IT IS FURTHER ORDERED that pursuant to the parties’ stipulation (Doc. No.
21), this case is remanded to the Circuit Court of Phelps County, Missouri.
IT IS FURTHER ORDERED that the Clerk of the Court shall take all necessary
steps to accomplish the remand and deliver the file to the Circuit Court of Phelps County,
Missouri.
IT IS FURTHER ORDERED that all pending motions are DENIED as moot
without prejudice to refiling in state court.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 31st day of July, 2013.

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