COLADONATO v. THE GAP, INC. et al

Filing 15

MEMORANDUM OPINION AND ORDER Denying Plaintiff's 6 Motion to Remand. Signed by Judge Joseph H. Rodriguez on 9/26/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CARON COLADONATO,
Individually and on behalf of
All Others Similarly Situated,
Plaintiff,
v.

:

Hon. Joseph H. Rodriguez

:

Civil Action No. 17-11998

:

MEMORANDUM OPINION
& ORDER

:

THE GAP, INC., et al.,
Defendants.

:
:

This mater is before the Court on Plaintiff’s motion to remand. The
Court has reviewed the submissions of the parties and decides this matter
pursuant to Fed. R. Civ. P. 78(b). For the reasons expressed here, Plaintiff’s
motion will be denied.
Background
This purported class action was filed in the Superior Court of New
Jersey, Law Division, Camden County, seeking injunctive relief against
Defendants The Gap, Inc.; GAP (Apparel) LLC; GAP International Sales,
Inc.; Banana Republic, LLC; and Banana Republic (Apparel) LLC. Plaintiff
alleges that she purchased goods on numerous occasions from Defendants’
Gap Factory and Banana Republic Factory stores in New Jersey and
contends that Defendants violated New Jersey’s Consumer Fraud Act, N.J.

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Stat. Ann. § 56:8-1 (the “NJCFA”) by allegedly advertising arbitrary and
false base prices for items in New Jersey stores, advertising items for sale at
percentages that misrepresented the actual discounts received, and
charging full price on items advertised at discounted rates. Plaintiff seeks
declaratory relief whereby the court adjudges Defendants’ past conduct to
be in violation of federal and state pricing regulations and injunctive relief
“enjoining Defendants from continuing these complained of practices in
their Gap Factory and Banana Republic Factory stores in New Jersey.”
Compl. at ¶ 112.
Plaintiff’s Complaint defines “the class” to include herself as well as a
putative class consisting of “all New Jersey citizens who purchased any
purportedly discounted item from a Gap Factory or Banana Republic
Factory store in New Jersey between October 9, 2011 and the present.” She
also alleges that this putative class “is composed of at least 1,000 persons.”
Defendants timely removed the matter to this Court pursuant to the Class
Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332, 1441 and 1446. 1

District courts have subject matter jurisdiction over a “class action,” as
defined in 28 U.S.C. §§ 1332(d)(1)(B) and 1453, where, inter alia, “the
matter in controversy exceeds the sum or value of $5,000,000, exclusive of
interest and costs.” See 28 U.S.C. § 1332(d)(2). Pursuant to 28 U.S.C. §
1332(d)(6), the claims of each putative class member can be aggregated to
determine whether the amount in controversy requirement is satisfied. See
28 U.S.C. § 1332(d)(6).
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Motion to Remand
Under 28 U.S.C. § 1446(a), a defendant seeking to remove a case to a
federal court must file in the federal forum a notice of removal “containing
a short and plain statement of the grounds for removal.” “When a
defendant seeks federal-court adjudication, the defendant’s amount-incontroversy allegation should be accepted when not contested by the
plaintiff or questioned by the court.” Dart Cherokee Basin Operating Co.,
LLC v. Owens, 135 S. Ct. 547, 553 (2014). Evidence establishing the amount
is only required by § 1446(c)(2)(B) when the plaintiff contests, or the court
questions, the defendant’s allegation. Id. If the plaintiff contests the
defendant’s allegation, “both sides submit proof and the court decides, by a
preponderance of the evidence, whether the amount-in-controversy
requirement has been satisfied.” Id. at 553-54.
Here, Plaintiff’s complaint specifically states that the total amount in
controversy for its claims, including attorney’s fees, is less than $5 million.
It is a plaintiff’s right to limit the value of its claim to prevent its case from
being removed from its choice of forum, see Frederico v. Home Depot, 507
F.3d 188, 195 (3d Cir. 2007) (explaining that it is “well-established” that
“the plaintiff is the master of her own claim and thus may limit his claims to
avoid federal subject matter jurisdiction”), but federal court is a forum

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available to a defendant despite a plaintiff’s choice, as long as the defendant
has provided in its notice of removal a “short and plain statement” that the
jurisdictional requirements of CAFA are met, and if challenged by the
plaintiff, has demonstrated that the CAFA requirements are met by the
preponderance of the evidence. See Owens, 135 S. Ct. at 554 (“[N]o
antiremoval presumption attends cases invoking CAFA, which Congress
enacted to facilitate adjudication of certain class actions in federal court.”).
Discussion
In the Notice of Removal, Defendants provided the following
statements of the grounds for removal to demonstrate that the
jurisdictional requirements of CAFA are met:
17. Here, the declaration sought by plaintiff would determine
whether Defendants unlawfully obtained millions of dollars in
revenue from citizens of New Jersey who purchased items from
Gap factory stores and Banana Republic factory stores during
the class period.
18. Although Plaintiff does not request damages, under
remedies purportedly available under N.J.S.A. 56:8-2.12,
Plaintiff and putative class members, through a private action,
may recover refunds of all money acquired by Defendants by
means of any practice declared to be in violation of the statute.
See N.J.S.A. 56:8-2.11 – 8-2.12; see also Compl. at ¶ 115.
Accordingly, if Plaintiff is successful and obtains an order
adjudging the alleged conduct to have been unlawful,
Defendants’ customers could seek to recover all of the money
acquired by Defendants during the class period. Plaintiff also
seeks “reasonable attorney’s fees and court costs” and an

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injunction “prohibiting the complained-of conduct by
Defendants in the future.” Compl. at ¶ 32.
19. Based on the allegations in the Complaint, the amount in
controversy requirement is satisfied. Plaintiff alleges that the
class includes every citizen who purchased any purportedly
“discounted item” from at least nine Gap Factory stores and six
Banana Republic Factory stores in New Jersey from October 9,
2011 until the present. See Compl. at ¶¶ 20, 87. Plaintiff further
alleges that purchases would not have been made absent the
allegedly unlawful advertising scheme. See Compl. at ¶¶ 72, 148.
Thousands of Gap factory and Banana Republic factory
“discounted items” implicated by the allegations have been sold
in New Jersey since October 9, 2011. If, as Plaintiff alleges, she
is able to prove that Defendants’ conduct violated the NJCFA
and these purchases would not have otherwise been made,
Defendants face the risk of claims for refunds of the total
purchase price for each discounted item sold in New Jersey
during the six year period. The amount in controversy for these
violations, if Plaintiff obtains the requested declaratory
judgment, would be in excess of $ 10 million, based on the
volume of sales in Gap factory stores and Banana Republic
factory stores in New Jersey since October 9, 2011.
Nonetheless, Plaintiff has moved for remand, arguing that
Defendants have not shown, by a preponderance of the evidence, that
CAFA’s amount in controversy is met by this case. She argues that the
Complaint does not seek money damages or any relief to remedy past
misconduct, including refunds; rather, declaratory and injunctive relief are
sought prospectively only.
“Although declaratory judgment actions do not directly involve the
award of monetary damages, ‘it is well established that the amount in

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controversy [in such actions] is measured by the value of the object of the
litigation.’” Auto–Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388,
397–98 (3d Cir. 2016) (quoting Hunt v. Wash. State Apple
Advert. Comm’n, 432 U.S. 333, 347 (1977)). See also 14AA Charles Alan
Wright et al., Federal Practice & Procedure § 3708 (4th ed. 2016) (“With
regard to actions seeking declaratory relief, the amount in controversy is
the value of the right or the viability of the legal claim to be declared, ….”).
To demonstrate that the amount in controversy exceeds $5 million,
Defendants have submitted a sworn statement from a Senior Director
indicating that as of the end of 2017, the Banana Republic Factory Stores
located in New Jersey had sales over $20 million since October 2011, the
proposed starting date for the putative class. (Gerstein Decl. at ¶ 3, 5.)
Based on the volume of sales during the proposed class period and
Plaintiff’s allegation that she suffered damages in the amount of her
purchase price, Defendants arrive at an amount in controversy exceeding
$20 million. (Id.)
While Plaintiff argues that this amount is speculative, she has put
forth no proof of the amount in controversy to counter Defendants’
valuation of her claim. As such, the court finds, by a preponderance of the
evidence, that the amount-in-controversy requirement has been satisfied.

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Conclusion
Accordingly,
IT IS ORDERED this 26th day of September, 2018 that Plaintiff’s
motion to remand this matter is hereby DENIED.

/s/ Joseph H. Rodriguez
JOSEPH H. RODRIGUEZ
U.S.D.J.

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