Cova et al v. Charter Communications, Inc.
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that plaintiffs' motion to remand [Doc. # 15 ] is denied. Signed by District Judge Carol E. Jackson on 8/16/16. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
RENO COVA, et al.,
CHARTER COMMUNICATIONS, INC.,
Case No. 4:16-CV-675-CEJ
MEMORANDUM AND ORDER
This matter is before the Court on plaintiffs’ motion to remand for lack of
subject matter jurisdiction, pursuant to 28 U.S.C. § 1447(c).
responded in opposition, and the issues are fully briefed.
On April 5, 2016, plaintiffs initiated this putative class action in the Circuit Court
of the City of St. Louis, Missouri.
citizens of Missouri.
Plaintiffs Reno Cova and Logan O’Connor are
Plaintiff Zach Splaingard is a citizen of Illinois.
Charter Communications, Inc. is incorporated in Delaware and maintains its principal
place of business in Connecticut.
According to the complaint, defendant advertises and sells internet, phone, and
television service, and leases to its subscribers related equipment.
advertised it was “selling or providing” those goods and services to each subscriber at
“monthly itemized rates.”
[Doc. #5 at 3]
However, defendant allegedly all the
while “knew” that its “products and services were not being offered for or provided at
the total dollar rates marketed, advertised and intended.”
That was so because
defendant “did not disclose” it also “would be selling or providing for other valuable
consideration” the subscribers’ “personally identifiable information” to third parties
“unknown to the subscribers,” and without the subscribers’ “knowledge or adequate
opportunity to consent.”
That information included, among other things, the
subscribers’ names, addresses, and “retail subscription packages/channels.”
Plaintiffs allege defendant’s actions mean its advertisements and agreements
with its subscribers were deceptive, fraudulent, and misleading; violated the
subscribers’ rights to privacy and of publicity; and constituted fraud or negligent
inducement to purchase its products and services. Id.
The single-count complaint
alleges defendant contravened the Missouri Merchandising Practices Act (MMPA), Mo.
Rev. Stat. §§ 407.010, et seq.
As alleged here, the MMPA prohibits, “deception,
fraud, false pretense, false promise, misrepresentation, . . . [and] suppression or
omission of any material fact in connection with the sale or advertisement of any
merchandise in trade or commerce” in Missouri.
Id. § 407.020.1.
“all money paid” by the class members to defendant, compensation for “the loss of
their rights to privacy and publicity,” and punitive damages.
[Doc. #5 at 4–5]
The putative class is not specifically delineated in the complaint.
allege claims on behalf of “themselves and all other[s] similarly situated.”
Id. at 1.
The practices at issue are alleged to have occurred “within the City of St. Louis” and
“other cities and counties throughout the State of Missouri.”
Id. at 2.
allegations are true, therefore, the class would include all of defendant’s Missouri
subscribers whose personally identifiable information defendant provided to third
parties, for value, without the subscribers’ consent.
On May 13, 2016, defendant timely removed, invoking diversity jurisdiction,
pursuant to the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d).1
Plaintiffs move to remand, disclaiming subject matter jurisdiction under CAFA.
Conceding CAFA’s minimal diversity requirement is met, plaintiffs maintain defendant
has not established the proposed class comprises at least 100 people, or that the
amount in controversy exceeds $5,000,000.
See 28 U.S.C. § 1332(d)(5)(B), (6).
Defendant submitted an affidavit that it had approximately 530,402 subscribers in
Missouri in April 2016, all of whom are potentially members of the proposed class.
[Doc. #1-2 at 1]
Plaintiffs do not challenge defendant’s assertion with respect to the
number of its subscribers. Rather, they contend that, to remove, defendant must
admit it sold 100 or more subscribers’ information without their consent.
The burden of proving that subject matter jurisdiction exists rests with the
party asserting it.
Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency, 615
F.3d 985, 988 (8th Cir. 2010).
“A defendant may remove a state law claim to federal
court only if the action originally could have been filed there.”
In re Prempro Prods.
Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006,
1010 (8th Cir. 2005)).
“The defendant bears the burden of establishing federal
jurisdiction by a preponderance of the evidence.”
Altimore v. Mount Mercy Coll., 420
F.3d 763, 768 (8th Cir. 2005).
“The court’s jurisdiction is measured at the time of removal.”
Charter Commc’ns, Inc., 750 F.3d 956, 959–60 (8th Cir. 2014) (citation omitted).
“defendant’s notice of removal need include only a plausible allegation that” the
cites the entirety of 28 U.S.C. § 1332 in its notice of removal. But the parties have not
question of jurisdiction on the basis of § 1332(a). In any event, because subject matter
exists under § 1332(d), it is unnecessary to decide whether jurisdiction exists under
See Reece v. Bank of N.Y. Mellon, 760 F.3d 771, 777 (8th Cir. 2014).
prerequisites of subject matter jurisdiction exist.
v. Owens, 135 S. Ct. 547, 554 (2014).
Dart Cherokee Basin Operating Co.
“Evidence establishing” those elements “is
required” to be produced “only when the plaintiff contests, or the court questions, the
defendant’s allegation,” and may thus be produced following such a challenge after
A case must be remanded if, at any time, it appears that the district court lacks
subject matter jurisdiction.
28 U.S.C. § 1447(c); Fed. R. Civ. P. 12(h)(3).
However, while that axiom applies to removal under CAFA, it is equally true that
“CAFA grants broad federal jurisdiction over class actions and establishes narrow
exceptions to such jurisdiction.”
Westerfeld v. Indep. Processing, LLC, 621 F.3d 819,
822 (8th Cir. 2010) (citations omitted). Consequently, unlike cases removed on the
basis of § 1332(a), see Usery v. Anadarko Petroleum Corp., 606 F.3d 1017, 1020 (8th
Cir. 2010), “no antiremoval presumption attends cases invoking CAFA, which
Congress enacted to facilitate adjudication of certain class actions in federal court.”
Dart, 135 S. Ct. at 554.
Under CAFA, absent exceptions inapplicable here, federal courts have subject
matter jurisdiction over “any civil action in which the matter in controversy exceeds
the sum or value of $5,000,000, exclusive of interest and costs, and is a class action
in which . . . any member of a class of plaintiffs is a citizen of a State different from
28 U.S.C. § 1332(d)(2)(A).
Such jurisdiction exists where the
“number of members of all proposed plaintiff classes in the aggregate is” 100 or more,
id. § 1332(d)(5)(B), and the aggregated “claims of the individual class members”
meet the “matter in controversy” requirement.
Id. § 1332(d)(6); see Dart, 135 S.
Ct. at 552.
Plaintiffs dispute that defendant has established both the numerosity and
A party seeking to remove must prove by a preponderance of the evidence, see
Dart, 135 S. Ct. at 554, that the “number of members of all proposed plaintiff classes
in the aggregate is” 100 or more.
28 U.S.C. § 1332(d)(2)(A) (emphasis added).
“‘class’ means all of the class members in a class action.”
Id. § 1332(d)(1)(A). In
turn, the “‘class members’ include ‘persons (named or unnamed) who fall within the
definition of the proposed or certified class.’”
Standard Fire Ins. Co. v. Knowles, 133
S. Ct. 1345, 1348 (2013) (quoting 28 U.S.C. § 1332(d)(1)(D)).
To determine whom the proposed class comprises, courts “look through to
‘the entire, actual controversy between the parties, as they have framed it.’”
Homes, Inc. v. Goodner, 729 F.3d 832, 837–38 (8th Cir. 2013) (quoting Vaden v.
Discover Bank, 556 U.S. 49, 66 (2009)).
The “operative complaint at the time of
removal . . . controls this determination.”
Hargis v. Access Capital Funding, LLC,
674 F.3d 783, 790 (8th Cir. 2012).
Thus, subject matter jurisdiction exists if the
defendant evidences it is more likely than not that 100 or more people meet the
proposed class definition pled in the complaint, assuming the allegations as framed by
the complaint are true.
“When challenged on allegations of jurisdictional facts, the parties must
support their allegations by competent proof.”
96–97 (2010) (citations omitted).
Hertz Corp. v. Friend, 559 U.S. 77,
To meet this burden, a defendant may submit
evidence in the form of affidavits and declarations.
See Dart, 135 S. Ct. at 552.
Such evidence may include information about the number of a defendant’s customers
potentially within the proposed class, as defined in the complaint.
621 F.3d at 823–24 (considering declarations as to the number of loans the
defendants serviced to determine if the “local-controversy exception” to CAFA
required remand of an MMPA putative class action).
Courts employ “commonsense
assumption[s]” when examining such jurisdictional evidence.
Scottsdale Ins. Co. v.
Universal Crop Prot. All., LLC, 620 F.3d 926, 932 (8th Cir. 2010).
Further, the “removing party need not confess liability in order to show that the
controversy exceeds” CAFA’s “threshold[s].”
Hartis v. Chi. Title Ins. Co., 694 F.3d
935, 945 (8th Cir. 2012) (quotation marks and citation omitted); see id. at 945–46
(approving consideration of statistical estimation evidence as to the number of
potential class members to determine whether the requisite amount in controversy
In an MMPA putative class action removed pursuant to CAFA, the
Eighth Circuit has “reject[ed]” arguments that “would require a defendant to confess
liability” to establish federal subject matter jurisdiction.
Raskas v. Johnson &
Johnson, 719 F.3d 884, 886–88 (8th Cir. 2013) (approving use of a defendant’s “own
sales figures in Missouri during the relevant statutory time period” to determine the
scope of the proposed class and amount in controversy, and rebuffing the plaintiffs’
argument that such data was “overinclusive” where not all customers might have
been subjected to the particular sales practices alleged).
A defendant is therefore not required to admit the allegations, and thus deprive
itself of potential defenses, to avail itself of a federal forum under CAFA.
Schubert v. Auto Owners Ins. Co., 649 F.3d 817, 825 (8th Cir. 2011) (“[A]
well-accepted jurisdictional maxim dictates that a meritorious defense does not
It is instead sufficient to show it is more likely than not
that, if the defendant engaged in the conduct alleged, the proposed class would have
100 or more members.
See Bell v. Hershey Co., 557 F.3d 953, 955–56 (8th Cir.
2009); Kopp v. Kopp, 280 F.3d 883, 885 (8th Cir. 2002).
It is undisputed that defendant had at least 530,402 subscribers in Missouri
during the relevant period.
See Dart, 135 S. Ct. at 552; Westerfeld, 621 F.3d at
Contrary to plaintiffs’ position, Raskas, 719 F.3d at 886–88, and Hartis, 694
F.3d at 945, establish that defendant need not concede it ever sold any of its
subscribers’ information to prove it is more likely than not that the proposed class
would comprise 100 or more subscribers.
See 28 U.S.C. § 1332(d)(1)(D); Knowles,
133 S. Ct. at 1348; see also Schubert, 649 F.3d at 825.
Rather, it is sufficient that,
if the allegations in the complaint are true and the class is as proposed, defendant
purportedly sold all subscribers’ personally identifiable information to third parties, for
value, and without the subscribers’ consent, in violation of the MMPA.
F.3d at 955–56; Kopp, 280 F.3d at 885.
See Bell, 557
Because over half a million such subscribers
exist, the Court finds defendant has met its burden to show it is more likely than not
that the proposed class numbers 100 or more.
28 U.S.C. § 1332(d)(2)(A).
Amount in Controversy
A removing party must prove by a preponderance of the evidence that the
amount in controversy is in excess of $5,000,000 where, as here, “the complaint
alleges no specific amount of damages or an amount under the jurisdictional
In re Minn. Mut. Life Ins. Co. Sales Practices Litig., 346 F.3d 830, 834
(8th Cir. 2003).
Where a plaintiff does “not allege a specific amount in controversy in
his complaint, the amount in controversy depends upon the value of the relief [he]
seeks.” Clark v. Matthews Int’l Corp., 639 F.3d 391, 396 (8th Cir. 2011) (citation
In turn, that figure is measured by “the value to the plaintiff of the right
sought to be enforced.”
Schubert, 649 F.3d at 821 (quotation marks and citation
The amount in controversy at the time of removal controls this
CMH Homes, 729 F.3d at 838; Hargis, 674 F.3d at 789–90.
“Under the preponderance standard, ‘the jurisdictional fact . . . is not whether
the damages are greater than the requisite amount, but whether a fact finder might
legally conclude that they are . . . .’”
Bell, 557 F.3d at 959 (quoting Kopp, 280 F.3d
“Once the removing party has established by a preponderance of the
evidence that the jurisdictional minimum is satisfied, remand is only appropriate if the
plaintiff can establish to a legal certainty that the claim is less than the requisite
Id. at 956 (citation omitted).
The plaintiff must “establish that it is legally
impossible to recover in excess of the jurisdictional minimum.”
Id. at 959.
Damages, attorney’s fees, and statutory penalties are considered in
determining the amount in controversy.
Rasmussen v. State Farm Mut. Auto Ins.
Co., 410 F.3d 1029, 1031 (8th Cir. 2005).
The potential for statutory punitive
damages is also considered. See Clark, 639 F.3d at 399 n.4.
The MMPA authorizes
“punitive damages, and statutory attorney fees” if a plaintiff prevails.
621 F.3d at 824 n.2; see Kopp, 280 F.3d at 886 (noting “no statutory or judicially
created limits on punitive damages . . . in Missouri”).
As discussed above, the proposed class potentially encompasses at least
530,402 of defendant’s subscribers.
If each such subscriber was subjected to the
conduct alleged in the complaint, if that conduct violated the MMPA, and if each
subscriber recovered just her or his actual damages, as a matter of commonsense the
recovery could be in excess of $5,000,000.
See Scottsdale, 620 F.3d at 932.
exceed the $5,000,000 threshold, a factfinder would only have to be legally permitted
to conclude that each subscriber was entitled to $9.43 in actual damages.
557 F.3d at 959.
Further, as defendant points out, even if the proposed class
included just 10% of those subscribers, 5,304 people, the jurisdictional threshold
would be satisfied if a factfinder could legally conclude that each subscriber was
entitled to $942.69 in actual damages.
Consistent with the Eighth Circuit’s decisions on such amount-in-controversy
calculations, the Court determines that a factfinder might legally reach those
See Raskas, 719 F.3d at 886–88; Hartis, 694 F.3d at 945; Bell, 557
F.3d at 959.
That finding is buttressed by plaintiffs’ demand for attorney’s fees and
punitive damages, both of which only serve to magnify the amount in controversy.
See Westerfeld, 621 F.3d at 824 n.2; Rasmussen, 410 F.3d at 1031; Kopp, 280 F.3d
The Court finds that defendant has proven by a preponderance of the
evidence that the aggregate amount in controversy exceeds $5,000,000.
U.S.C. § 1332(d)(2)(A), (6).
The defendant has established by preponderance of the evidence all of the
elements of subject matter jurisdiction under CAFA. 28 U.S.C. § 1332(d).
IT IS HEREBY ORDERED that plaintiffs’ motion to remand [Doc. #15] is
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 16th day of August, 2016.
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