O'Shaughnessy et al v. The McClatchy Company, et al

Filing 18

ORDER denying 8 Plaintiff's motion to remand; denying as moot 15 Defendant's motion to strike. Signed on 7/17/13 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
ELIZABETH O’SHAUGHNESSY,
MICHAEL O’SHAUGHNESSY, and
RANDALL L. HENSLEY, Individually
and on Behalf of Others Similarly Situated,
Plaintiffs,
v.
THE McCLATCHY COMPANY,
Defendant.

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No. 4:13-cv-00492-DGK

ORDER DENYING MOTION FOR REMAND AND MOTION TO STRIKE
This putative class-action lawsuit alleges that Defendant The McClatchy Company
(“McClatchy”), a publisher of twenty-nine newspapers in fifteen states, unlawfully double billed
some of its subscribers in the period between when their original subscription ended and a
renewal began.

This lawsuit was originally filed in the Circuit Court of Jackson County,

Missouri, and then removed to federal court based on the Court’s diversity jurisdiction and Class
Action Fairness Act (“CAFA”) jurisdiction, 28 U.S.C. §§ 1332, 1441, 1446, and 1453.
Now before the Court is “Plaintiffs’ Motion to Remand” (Doc. 8) and Defendant’s
“Motion to Strike Plaintiffs’ Traditional Diversity Argument in Their Reply Suggestions in
Support of Their Motion to Remand” (Doc. 15).
Plaintiffs’ motion contends the Court lacks CAFA jurisdiction over this matter because
Defendant has not met its burden of establishing by a preponderance of the evidence that there
are at least 100 class members or that the amount in controversy exceeds $5,000,000. Plaintiffs,

however, do not dispute that the Court possesses jurisdiction over this case pursuant to its
“traditional” diversity jurisdiction, 28 U.S.C. § 1441(b), an independent basis for removal.1
There is no merit to Plaintiffs’ argument. With respect to the number of class members,
the Petition (Doc. 1-1) alleges “[t]he class includes thousands of members . . . .” Additionally
McClatchy demonstrated in its notice of removal that there are over 1.8 million current
subscribers and significantly more former subscribers. Thus, the class-size requirement is met.
With respect to the amount in dispute, the question “is not whether the damages are
greater than the requisite amount, but whether a fact finder might legally conclude that they are.”
Hartis v. Chicago Title Ins. Co., 694 F.3d 935, 944 (8th Cir. 2012) (internal quotation omitted).
The Petition seeks compensatory damages for breach of contract (Count I), breach of implied
duty of good faith and fair dealing (Count II), violation of at least fifteen states consumer
protection statutes, including the Missouri Merchandising Practices Act (“MMPA”) (Count III),
and a claim for money had and received (Count IV).

If each current subscriber had

compensatory damages of only $3, which is plausible, the $5 million threshold would be
reached. But Plaintiffs are also seeking punitive damages and attorneys’ fees available under
most of the state consumer protection statutes. See, e.g., Mo. Rev. Stat. § 407.025; see also
Debra E. Wax, Annotation, Award of Attorneys’ Fees in Actions Under State Deceptive Trade
Practice and Consumer Protection Acts, 35 A.L.R.4th 12 (1985) (discussing other states
consumer protection statutes). When the punitive damages and attorneys’ fees are aggregated
with the compensatory fees, the amount in controversy easily exceeds $5 million.

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Thus,

McClatchy pointed this out in its response. In their reply suggestions, Plaintiffs assert for the first time that the
requirements for “traditional” diversity are not met here either. Plaintiffs are precluded from raising this argument
in their reply because “it is well settled that [courts] do not consider arguments raised for the first time in a reply
brief.” Beardon v. Lemon, 475 F.3d 926, 930 (8th Cir. 2007).

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Defendant has demonstrated by a preponderance of the evidence that the jurisdictional amount is
satisfied.
Accordingly, the Court holds it has jurisdiction to hear this case pursuant to its CAFA
jurisdiction. The motion to remand (Doc. 8) is DENIED.
In light of this ruling, Defendant’s “Motion to Strike Plaintiffs’ Traditional Diversity
Argument in Their Reply Suggestions in Support of Their Motion to Remand” (Doc. 15) is
DENIED AS MOOT.
IT IS SO ORDERED.
Date: July 17, 2013

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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