Howard v. Bow Wow Properties I, Inc.

Filing 17

MEMORANDUM AND ORDER OF REMAND: IT IS HEREBY ORDERED that plaintiff Andy Howard, Jr.'s Motion to Remand #8 is GRANTED. IT IS FURTHER ORDERED that this case is REMANDED to the Circuit Court of St. Louis County, Missouri, from which it was removed. All other motions that remain pending in this action are reserved for ruling by that court. Signed by District Judge Catherine D. Perry on 1/6/21. (NOTE: Certified Copy of Order and Docket Sheet sent via email to St. Louis County [e-mail], [e-mail])(ARL)

Case: 4:20-cv-01631-CDP Doc. #: 17 Filed: 01/06/21 Page: 1 of 10 PageID #: 122

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDY HOWARD, JR.,
Plaintiff,
v.
BOW WOW PROPERTIES I, INC.,
d/b/a InstaCredit AutoMart,
Defendant.

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No. 4:20 CV 1631 CDP

MEMORANDUM AND ORDER OF REMAND
Plaintiff Andy Howard, Jr., originally filed this action in the Circuit Court of
St. Louis County, Missouri, alleging violations of the Magnuson-Moss Warranty
Act (MMWA), 15 U.S.C. §§ 2301, et seq., and the Missouri Merchandising
Practices Act (MMPA), Mo. Rev. Stat. § 407.010. Defendant Bow Wow
Properties I, Inc., removed the action to this Court on November 18, 2020, averring
that Howard’s claims under the MMWA bring the action within this Court’s
federal question jurisdiction under 28 U.S.C. § 1331. Bow Wow asserts no other
basis for removal. Because this Court does not have subject-matter jurisdiction
over this action, I will grant Howard’s motion to remand the matter to state court.
Background
In April 2020, Howard purchased an automobile from Bow Wow for
$10,156. At the time of purchase, Bow Wow provided to Howard a written

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InstaCare Limited Warranty that obligated Bow Wow to repair or pay for repairs to
the vehicle for ninety days or 3000 miles, whichever came first. Within days of
purchase, the vehicle’s check-engine light went on and the car went into “limp
mode.” Howard returned the vehicle to Bow Wow for repair. Howard picked up
the car from Bow Wow approximately two weeks later, after which the car again
went into limp mode. Howard again returned the vehicle to Bow Wow for repair.
About three weeks later, Howard picked up the vehicle and it immediately went
into limp mode. Howard returned the vehicle to Bow Wow a third time, and Bow
Wow again kept the vehicle several weeks for repair. Before Howard could
retrieve the car after this third repair, however, Bow Wow demanded that Howard
pay $250 based on a clause in the warranty that assessed a deductible of 10% of
the total cost of repair. Howard paid the $250 and retrieved his vehicle.
Howard filed this action in state court alleging that Bow Wow failed to make
repairs to his purchased vehicle “without charge,” in violation of the MMWA, and
specifically 15 U.S.C. § 2304(a)(1). In Count 1 of his complaint, Howard seeks
relief under the MMWA on behalf of a class of Missouri residents who purchased
a vehicle from Bow Wow within the last four years and from whom Bow Wow
collected money for a repair performed under the InstaCare Limited Warranty.
Howard estimates that Bow Wow sold approximately 6000 vehicles that meet the
parameters of this claim. In Count 2, Howard seeks individual relief under the
MMWA, seeking recovery of the purchase price of the vehicle, collateral charges,
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finance charges, and incidental and consequential damages. In Count 3, Howard
brings an individual claim under the MMPA, alleging that Bow Wow engaged in
fraudulent and deceptive practices in its sale of the vehicle to him.
Bow Wow removed the action to federal court, averring that Howard’s
claims under the MMWA bring this case within this Court’s federal question
jurisdiction. Howard moves to remand, arguing that under the jurisdictional
standards set out in the MMWA, his claims are not cognizable in federal court.
For the following reasons, Howard’s argument is well taken.
Legal Standard
In removal cases, I must review the complaint or petition pending at the time
of removal to determine the existence of federal subject-matter jurisdiction. St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 291 (1938). I may also
look to the notice of removal to determine jurisdiction. 28 U.S.C. § 1446(c)(2)(A).
The removing defendant, as the party invoking jurisdiction, bears the burden of
proving by a preponderance of the evidence that all prerequisites to jurisdiction are
satisfied. In re Prempro Prods. Liab. Litig., 591 F.3d 613, 620 (8th Cir. 2010);
Central Iowa Power Co-op. v. Midwest Indep. Transmission Sys. Operator, Inc.,
561 F.3d 904, 912 (8th Cir. 2009). “[A]ll doubts about federal jurisdiction must be
resolved in favor of remand[.]” Central Iowa Power, 561 F.3d at 912.
Federal Jurisdiction under the MMWA
The MMWA provides that “a consumer who is damaged by the failure of a
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supplier, warrantor, or service contractor to comply with any obligation under this
chapter, or under a written warranty, implied warranty, or service contract may
bring suit for damages and other legal and equitable relief.” 15 U.S.C. §
2310(d)(1). It is a “remedial statute designed to protect the purchasers of
consumer goods from deceptive warranty practices.” Chavis v. Fidelity Warranty
Servs., Inc., 415 F. Supp. 2d 620, 622 (D.S.C. 2006) (internal quotation marks and
citations omitted). Although suit may be filed in state or federal court, 15 U.S.C. §
2310(d)(1), “no claim shall be cognizable in a suit” brought in federal court
(A) if the amount in controversy of any individual claim is less than
the sum or value of $25;
(B) if the amount in controversy is less than the sum or value of
$50,000 (exclusive of interests and costs) computed on the basis of all
claims to be determined in this suit; or
(C) if the action is brought as a class action, and the number of named
plaintiffs is less than one hundred.
15 U.S.C. § 2310(d)(3). “Section 2310(d) is designed to restrict access to federal
courts.” Schwiesow v. Winston Furniture Co., 74 F. Supp. 2d 544, 546 (M.D.N.C.
1999) (internal quotation marks and citation omitted); see also Saval v. BL Ltd.,
710 F.2d 1027, 1030 (4th Cir. 1983) (per curiam). I consider only MMWA claims
in determining whether federal jurisdiction exists under § 2310(d)(3). Critney v.
National City Ford, Inc., 255 F. Supp. 2d 1146 (S.D. Cal. 2003).
Discussion
Howard moves to remand this action back to state court, arguing that the
MMWA claims are not cognizable in this Court because a) only one plaintiff is
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named in the class action, and b) the amount in controversy on his individual
MMWA claim is less than $50,000. In response, Bow Wow concedes that the
class action claim raised in Count 1 does not meet the jurisdictional threshold of
100 or more named plaintiffs as required by § 2310(d)(3)(C). And it also concedes
that Howard’s individual MMWA claim raised in Count 2, when considered alone,
does not meet the $50,000 amount-in-controversy threshold under § 2310(d)(3)(B).
Bow Wow argues, however, that the “all claims” language of § 2310(d)(3)(B)
requires that the amount in controversy on the MMWA class action claim be
considered in conjunction with that on Howard’s individual MMWA claim in
determining whether the $50,000 threshold is met. Bow Wow contends that
because such computation here exceeds $50,000, § 2310(d)(3)(B) provides original
federal question jurisdiction over Howard’s individual MMWA claim in Count 2,
thereby permitting me to exercise supplemental jurisdiction over Counts 1 and 3
under 28 U.S.C. § 1367. For the following reasons, I disagree.
In construing a statute, I must, if possible, give effect to every word
Congress used. Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). However, I
may not construe a statute in a manner which robs specific provisions of
independent effect. See In re Cervantes, 219 F.3d 955, 961 (9th Cir. 2000); Woo v.
American Honda Motor Co., 462 F. Supp. 3d 1009, 1015 (N.D. Cal. 2020). If I
were to include an otherwise non-cognizable class action claim in computing §
2310(d)(3)(B)’s $50,000 amount-in-controversy threshold as Bow Wow urges me
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to do, § 2310(d)(3)(C)’s 100-named-plaintiffs requirement for class actions is
rendered meaningless. Indeed, such a construction would allow virtually any noncognizable class action on warranty claims to be brought into federal court merely
because an individual claim – which is non-cognizable in itself – is present.
Because this construction of § 2310(d)(3)(B) would effectively negate a specific
provision of the statute and, further, runs counter to the statute’s design to restrict
access to federal courts, I will not construe this jurisdictional provision of the
statute in this manner.
In Critney v. National City Ford, Inc., the district court similarly determined
not to read § 2310(d)(3)(B) in a vacuum but instead read it in context with
Subparts (A) and (C) of § 2310(d)(3):
Subpart (A) sets a minimum dollar value of $25.00 for individual
MMWA claims, and Subpart (C) sets a floor of one hundred named
plaintiffs. When Subpart (B) is read in context, it is apparent that the
term “all claims” most likely refers to the sum of all of the individual
MMWA claims contemplated in Subpart (A). Thus, Subpart (A)
establishes a minimum dollar value for individual MMWA claims,
Subpart (B) establishes a minimum dollar value for the sum of all of
the individual MMWA claims, and Subpart (C) establishes the
minimum number of plaintiffs required if the suit is a class action. An
MMWA suit that does not comport with the three requirements must
be litigated in state court.
255 F. Supp. 2d at 1148. Howard’s claim raised in Count 2 of the complaint is the
only individual MMWA claim in this lawsuit. Howard avers and Bow Wow
concedes that the amount in controversy on this individual claim is $10,406.
Because the sum of all individual MMWA claims in this lawsuit is less than
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$50,000, § 2310(d)(3)(B) does not provide this Court with original federal subjectmatter jurisdiction over the individual claim raised in Count 2.
And to consider the non-cognizable class action claim in determining
jurisdiction under § 2310(d)(3)(B) would be an impermissible form of
jurisdictional “bootstrapping,” that is, relying on claims over which the Court
could exercise only supplemental jurisdiction to provide the source of its original
jurisdiction. See Critney, 255 F. Supp. 2d at 1148-49. That is exactly what Bow
Wow asks me to do here. Because Howard’s class action claim does not meet the
federal jurisdictional requirement of 100 named plaintiffs under § 2310(d)(3)(C), I
can exercise only supplemental jurisdiction over the claim. But I can exercise
supplemental jurisdiction only if there first exists a related claim over which the
Court has original jurisdiction. 28 U.S.C. § 1367(a). “In other words, original
jurisdiction is a prerequisite to the district court’s exercise of supplemental
jurisdiction.” Critney, 255 F. Supp. 2d at 1148 (emphasis in Critney).
Accordingly, because my determination of whether original jurisdiction exists does
not include consideration of claims over which I can exercise only supplemental
jurisdiction, the amount in controversy on Howard’s non-cognizable class action
claim is not relevant to the determination of original jurisdiction in this action.
Several other courts have reached the same conclusion, that is, that §
2310(d)(3)(B)’s $50,000 jurisdictional threshold is measured by only individual
MMWA claims and does not include non-cognizable class action claims. For
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instance, in Woo v. American Honda Motor Co., three named plaintiffs brought a
nine-count action in federal court that included a MMWA claim on behalf of
themselves and on behalf of a putative class. The district court determined that it
did not have federal subject-matter jurisdiction over the MMWA claim under §
2310(d)(3)(C) because there were less than 100 named plaintiffs. 462 F. Supp. 3d
at 1015. And it determined that it did not have federal subject-matter jurisdiction
under § 2310(d)(3)(B) because the facts alleged in the complaint did not support a
finding that the three named plaintiffs sought to recover $50,000 or more. Id.
Significantly, the court likewise did not exercise original jurisdiction over the
MMWA claim under the Class Action Fairness Act (CAFA), but not because it did
not meet the $5 million jurisdictional threshold. Rather, it determined that to
permit federal jurisdiction on the claim in this manner would run counter to the
rule that “‘a statute should not be construed in a manner which robs specific
provisions of independent effect.’” Id. (quoting In re Cervantes, 219 F.3d at 961).
Because CAFA jurisdiction existed over the remaining eight claims, however, the
court determined to exercise supplemental jurisdiction over the otherwise noncognizable MMWA claim under 28 U.S.C. § 1367(a). Id. at 1016.
In Lieb v. American Motors Corp., a single plaintiff brought a four-count
class action that included a claim under the MMWA. The district court found that
federal subject-matter jurisdiction over the MMWA class action claim was “clearly
lacking” under § 2310(d)(3)(C) given that only one plaintiff was named in the
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complaint. 538 F. Supp. 127, 132 (S.D. N.Y. 1982). In determining whether the
$50,000 jurisdictional threshold under § 2310(d)(3)(B) was met, the court looked
to the claim of the one named plaintiff – not the potential recovery of the putative
class. Because less than $50,000 was in controversy on plaintiff’s individual
claim, the court dismissed the claim for not meeting the jurisdictional requirement.
Id. at 132-35.
In Holland v. Cole Nat’l Corp., the district court dismissed the sole
plaintiff’s MMWA claim for lack of jurisdiction, adopting the magistrate judge’s
recommendation to dismiss because the claim failed to meet the 100-namedplaintiff requirement for a class action under § 2310(d)(3)(C) and, further, because
plaintiff’s individual claim did not meet the $50,000 threshold under §
2310(d)(3)(B). No. 7:04-CV-246, 2005 WL 1799540 (W.D. Va. July 28, 2005),
adopting report & recommendation, 2005 WL 1242349 (W.D. Va. May 24, 2005).
Cf. Miller v. Hypoguard USA, Inc., No. 05-CV-0186-DRH, 2005 WL 2089212, at
*3-4 (S.D. Ill. 2005) (federal court has subject-matter jurisdiction under the
MMWA when, in a class action brought by two named plaintiffs, it’s plausible that
at least one member of proposed class would cross $50,000 threshold). But see
Barr v. General Motors Corp., 80 F.R.D. 136, 138 (S.D. Ohio 1978) (“[G]iven the
size of the class sought to be represented, the aggregate amount in controversy in a
class action would be in excess of $50,000.”).
Accordingly, for the reasons set out above, the MMWA does not provide
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federal question jurisdiction over this action. And Bow Wow provides no other
argument or evidence establishing any other basis for federal subject-matter
jurisdiction. In view of this determination, and in consideration of the caveat that
all doubts about federal jurisdiction must be resolved in favor of remand, I will
remand this case to state court. 28 U.S.C. § 1447(c).
Therefore,
IT IS HEREBY ORDERED that plaintiff Andy Howard, Jr.’s Motion to
Remand [8] is GRANTED.
IT IS FURTHER ORDERED that this case is REMANDED to the Circuit
Court of St. Louis County, Missouri, from which it was removed. All other
motions that remain pending in this action are reserved for ruling by that court.

___________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 6th day of January, 2021.

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