Frydman v. Whole Foods Market Group, Inc. et al

Filing 46

ORDER that Plaintiff Sarah Rodhouse' s Renewed Motion to Remand doc #27 (filed in 1:14-cv-1135) and Plaintiff Meredith Frydman's Motion to Remand doc #35 (filed in 1:15-cv-264) are DENIED; and IT IS FINALLY ORDERED that Plaintiffs in In re Whole Foods Market, Inc. Greek Yogurt Mktg. & Sales Practices Litig., 1:14-MC-2588-SS, MDL No. 2588 (W.D. Tex., transferred Dec. 10, 2014) file an amended Consolidated Complaint which incorporates the parties and claims of the above-styled causes. Signed by Judge Sam Sparks. (klw)

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'

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

I

2015

SEP 30

All tO:

13

WESft

kI 1

WHOLE FOODS MARKET, INC.,
GREEK YOGURT MARKETING
AND SALES PRACTICES LITIGATION

Case No. A-14-MC-2588-SS
[MDL No. 2588]

THIS DOCUMENT RELATES TO: No. 1:14-CV-1135-SS; 1:15-CV-264-SS

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled causes,

specifically Plaintiff Sarah Rodhouse's Renewed Motion to Remand [#271; Defendant Whole Foods
Market Group, Inc.'s Response [#28] thereto; Plaintiff's Reply [#29] in support; Plaintiff's
Supplemental Memorandum with Fifth Circuit Authority In Support of Motion to Remand [#31];

Defendant's Supplemental Brief in Support of Opposition to Plaintiffs' Remand Motions [#3 2],
docketed in Rodhouse

v.

Whole Foods Market Group Inc., 1:14-CV-i 13 5-SS; Plaintiff Meredith

Frydman's Motion to Remand [#35]; Defendants Whole Foods Market Group, Inc. and WFM
Private Label, L.P.'s Opposition [#35-8] thereto; Plaintiff's Reply [#35-1 1] in support; Plaintiff's

Notice of Supplemental Authorities [#36]; Defendants' Response [#3 7] thereto; and Defendants'
Supplemental Brief in Support of Opposition to Plaintiffs' Remand Motions [#39], docketed in

Frydman

v.

Whole Foods Market Group, Inc. et al., 1:14-CV-264-SS.

Having reviewed the

pleadings, the briefing of the parties, the relevant law, and the case file as a whole, the Court now
enters the following opinion and orders.

'Ii

Background
This Multidistrict Litigation (MDL) involves eleven nationwide and statewide putative class
action lawsuits against Whole Foods Market, Inc. and various related corporate entities (collectively,
Whole Foods Defendants) based on the alleged misrepresentation ofthe sugar content in store-brand

"Whole Foods 365 Everyday Value Plain Greek Yogurt" (Yogurt). The consumer classes typically
allege the Whole Foods Defendantsas developers, manufacturers, labelers, and exclusive sellers

and distributors of the Yogurtfalsely led them to believe the Yogurt contained only two (2) grams

of sugar per serving, when it in fact contained over eleven (11) grams of sugar per serving. The
consumer classes further allege this discrepancy was a product of negligent testing and negligent

labeling of the Yogurt. The Plaintiff classes bring claims under the applicable state consumer
protection and unfair competition statutes, and for negligent misrepresentation, fraud, unjust
enrichment, breach of express and implied warranties, and other similar claims.
On December 12, 2014, the Judicial Panel for Multidistrict Litigation (JPML) centralized

four of the eleven member cases in the Western District of Texas pursuant to 28 U.S.C.

§

1407 for

the purposes of coordinated pretrial proceedings. See Transfer Order [#1] at 1, In re Whole Foods
Market, Inc. Greek Yogurt Mktg. & Sales Practices Litig., 1:1 4-MC-25 88-SS, MDL No. 2588 (W.D.
Tex., transferred Dec. 10, 2014) (MDL). The remaining seven member cases were filed or received
by this Court on April 7, 2015. See April 6, 2015 Transfer Order [#4], MDL.

Plaintiffs in the following two cases originally filed their lawsuits in Missouri and Florida
state court, respectively Rodhouse v. Whole Foods Market Grp., Inc., 1:1 4-cv- 113 5-SS, and Frydman
v.

Whole Foods Market Grp., Inc. et al., 1:1 5-cv-264-SS. Each action was subsequently removed

to federal court on the basis of diversity jurisdiction under the Class Action Fairness Act (CAFA),

-2-

28 U.S.C. § 1332(d). Prior to transfer to this Court, Plaintiffs filed motions to remand each case to

their respective state courts on the basis of lack of subject matter jurisdiction. On March 3, 2015,
this Court entered Pretrial Order No. 1, which, among other things, directed the parties to re-file the

pending motions to remand in the individual dockets for each case. See Pretrial Order No.

1

[#3]

¶ 10, MDL. Plaintiffs in both matters re-filed their respective motions to remand in this Court and
the motions are currently ripe for review.

The parties do not dispute the authority of the transferee judge to decide pending motions to

remand originally filed in a transferor court. See, e.g., In re Ford Motor Co. Crown Victoria Police

Interceptor Prods. Liab. Litig., 229 F. Supp. 2d 1377, 1378 (J.P.M.L. 2002). Because the motions
in both cases present nearly identical issues under the Class Action Fairness Act, 28 U.S.C.
§

I.

1332(d), the Court will consider them together in this order.

Rodhouse v. Whole Foods Market Group Inc.
On September 13, 2014, Plaintiff Sarah Rodhouse filed her complaint against Whole Foods

Market Group, Inc. in the 22nd Judicial Circuit Court of the City of St. Louis, Missouri on behalf

of herself and a proposed statewide class consisting of "all persons in Missouri who purchased
Whole Foods 365 Everyday Value Nonfat Plain Greek Yogurt from July 2009July 2014." Notice

Removal [#1-1] Ex. A ¶J 1, 19 (Rodhouse Compl.), Rodhouse

v.

Whole Foods Market Grp., Inc.,

1:14-cv-1 135-SS (W.D. Tex., filed Sept. 13, 2014) (Rodhouse Suit). According to Rodhouse, the

proposed class consists of "thousands of purchasers." Id. ¶ 21.
Rodhouse alleges Whole Foods engaged in "deceptive, unfair, and false merchandising

practices" in violation of the Missouri Merchandising Practices Act (MMPA), Mo.
§

REV. STAT.

407.0 10 et seq., when it falsely claimed an 8-ounce serving of the Yogurt contained 2 grams of
-3-

sugar when in actuality the same size serving actually contained over

11

grams of sugar. Id. ¶J

1,

31-35. Rodhouse and the Missouri Class Members also brings a state law claim for unjust
enrichment. Id. ¶J 36-40. The complaint does not request punitive damages or statutory penalties.
Id. ¶ 5. Rodhouse claims:

No individual Plaintiff's or Class Member's claim is equal to or greater than seventyfive thousand dolloars ($75,000), inclusive of costs and attorneys' fees.
[Tihe total damages of Plaintiff and Class Members, inclusive of costs and attorneys'
fees, will not exceed $4,999,999 and is less than the five million dollar ($5,000,000)
minimum threshold to create federal jurisdiction.
Id. Accordingly, Rodhouse affirmatively pleads that the value of all categories of damages

"sustained, sought, and pled by Plaintiff and Class Members is less than $75,000 individually and
less than $5,000,000 in the aggregate, inclusive of all attorneys' fees, costs, interest, and any other

recovery." Id. ¶ 8.

II.

Frydman v. Whole Foods Market Group, Inc. et aL
On December 12, 2014, Meredith Frydman filed her class action complaint against Whole

Foods Market Group, Inc. and WFM Private Label, L.P. in the Fifteenth Judicial Circuit Court of

Palm Beach County, Florida. See Notice Removal [#1-5J Ex. D (Frydman Compl.), Frydman

v.

Whole Foods Market Grp., Inc., et al., 1 :15-cv-264-SS (W.D. Tex., filed Dec. 12, 2014) (Frydman

Suit). The proposed class consists of all persons in the State of Florida within the relevant

limitations period who purchased the Yogurt. Id. ¶ 26. Frydman alleges the members of the Class

number in the "tens of thousands." Id. ¶ 28.
Frydman brings state law claims for unjust enrichment, breach of express warranty, negligent
misrepresentation and violations of Florida's Deceptive and Unfair Trade Practices Act (FDUTPA),

-4-

FLA. STAT. § § 501 .201

et seq. based on alleged misrepresentations of the sugar content on nutritional

labels of the Yogurt. Id. ¶J 1-4. Similarly to the complaint in Rodhouse, Frydman alleges Whole

Foods labeled the Yogurt as containing only two

(2)

grams of sugar per serving when in fact the

Yogurt contained more than eleven (11) grams of sugar per serving. Id. ¶ 3. Frydman alleges she

would not have paid the premium price for Whole Foods brand yogurt had she known its true sugar
content. Id. ¶ 4. Frydman and the Florida Class Members seek a declaration that Whole Foods'
alleged conduct violated FDUTPA as well as compensatory damages, interest, costs and reasonable

attorneys' fees. Id. ¶ 8. With regard to damages, Frydman claims:
No individual Plaintiff's or Class Member's claim is equal to or greater than seventyfive thousand ($75,000), inclusive of costs and attorneys' fees and in the aggregate
will not exceed $4,999,999 and is [sic] less than the sum or value of the five million
($5,000,000) minimum threshold to create federal court jurisdiction.
Id. As in Rodhouse, Frydman affirmatively pleads there is no diversity jurisdiction. Id.

III.

Whole Foods' Notice of Removal and Plaintiffs' Motion to Remand
In both cases, Whole Foods removed the original state actions to federal court pursuant to

28

U.S.C.

§

1441, alleging federal diversity jurisdiction.' As the basis for removal, Whole Foods

claims both putative class actions satisfy the jurisdictional elements under CAFA based on the
allegations in each respective complaint because (1) the proposed class consists of 100 or more
members;

(2)

$5,000,000,

the parties are minimally diverse; and

(3)

the amount in controversy exceeds

exclusive of interest and costs. See Rodhouse NOR at 2-5; Frydman NOR at 3-8; see

In Rodhouse, Whole Foods timely filed its Notice of Removal in the United States District Court for the
Eastern District of Missouri under 28 U.S.C. § 1441, on the basis of diversity jurisdiction under CAFA, 28 U.S.C.
§ 1332(d), and the diversity statute, 28 U.S.C. § 1332(a). See Notice Removal [#1] (Rodhouse NOR), Rodhouse Suit.
In Frydman, Whole Foods timely removed the case to the United States District Court for the Southern District of Florida
pursuant to 28 U.S.C. § § 1332, 1441, and 1446, alleging diversity jurisdiction under CAFA. See Notice Removal [#11
(Frydman NOR), Frydman Suit.
-5-.

also 28 U.S.C.

§

1332(d)(2); (5)(B). Plaintiffs in both cases moved to remand their respective

actions to the state courts from which they were removed on the grounds Whole Foods has not met
its burden to show the CAFA amount-in-controversy element is satisfied. See Renewed Mot.

Remand [#27], Rodhouse Suit; Mot. Remand [#35], Frydman Suit.

Analysis
I.

Applicable Law
The above-styled actions were transferred to this Court by the JPML for purposes of

coordinated pretrial proceedings. As an MDL transferee court, the Court is obligated to decide
questions of federal law using the law of the circuit in which the transferee court sits rather than the

law of the transferor court's circuit. See, e.g., Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993)
(citing In re Korean Air Lines Disaster, 829 F.2d 1171, 1175 (D.C. Cir. 1987) (other citations

omitted)); In re Temporomandibular Implants Prods. Liab. Litig., 97 F .3 d 1050, 1055 (8th Cir.
1996) ("When analyzing questions of federal law, the transferee court should apply the law of the

circuit in which it is located."). This rule extends directly to controversies over subject matter

jurisdiction in the context of motions to remand, and specifically to amount-in-controversy disputes.
See, e.g., In re Methyl Tertiary Butyl Ether ("MTBE ") Prods. Liab. Litig., 241 F.R.D. 435,439 (S.D.

N.Y. 2007) (footnote omitted); 32A AM.

JUR.

2d Federal Courts

§

1520 (2d ed. 2006) ("For

example, because whether the relief sought exceeds the statutory minimum necessary for diversity

jurisdiction is a question of federal law, the law of the circuit where the transferee court sits governs
the determination of that question.") (citing In re Ciprofloxacin Hydrochloride Antitrust Litig., 166
F. Supp. 2d 740, 746 (E.D.N.Y. 2001)). "The diversity jurisdiction law

of the [MDL] transferee

court should be applied because 'applying the law of the transferor circuit could yield a situation

where we would find federal jurisdiction exists over claims from some parts of the country, but not

from others. This is an untenable result." In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 644
n.128 (S.D. Tex. 2005) (citations omitted).

However, in reaching a reasoned decision in the above-styled cases, the Court will not blindly

circuithere, the Eighth and Eleventh Circuits. Indeed, in

cast aside the law of the transferor

evaluating whether the CAFA amount-in-controversy is satisfied, the transferor circuit law "merits
close consideration." Korean Air Lines Disaster, 829 F.2d at 1176. Consequently, the Court will

look first to binding Fifth Circuit precedent, if any, and, if none exists, the Court will look to "an

evaluation of other circuit law

. .

.

in order to make a reasoned decision." In re Cardizem CD

Antitrust Litig., 90 F. Supp. 2d 819, 823 (E.D. Mich. 1999).

II.

Legal StandardMotion to Remand
Any civil action brought in state court over which a federal court would have original

jurisdiction may be removed from state to federal court. 28 U.S.C.

§

144 1(a). "CAFA authorizes

federal jurisdiction over class actions that allege (1) the class of plaintiffs would exceed 100 persons,
(2) at least one member of the class is diverse in citizenship from at least one of the defendants, and
(3) the aggregate quantum of damages suffered by members of the plaintiff class exceeds $5 million

(exclusive of interest or costs)." Berniard

v.

Down Chem. Co., 481 F. App'x 859, 860 (5th Cir.

2010) (per curiam) (citing 28 U.S.C.

§

1332(d)(2) and (5)(B)). Class actions may be removed to

federal court under CAFA. 28 U.S.C.

§

1453. Indeed, contrary to the general rule strictly construing

the removal statute against jurisdiction, the Supreme Court has recently explained no "antiremoval

presumption attends cases invoking CAFA" because "Congress enacted [CAFA] to facilitate
adjudication of certain class actions in federal court." Dart Cherokee Basin Operating Co., LLC v.
-7-

Owens,

U.S.

-, 135 S. Ct. 547, 554 (2014).

Here, the parties agree the first two requirements

are met, and thus the only issue before the Court is whether the amount in controversy exceeds $5

million.
In the Fifth Circuit, the party seeking removal has the burden of establishing the existence

of federal jurisdiction. Manguno

v.

Prudential Prop. & Gas. Ins. Co., 276 F.3d 720, 723 (5th Cir.

2002) (citation omitted). When the plaintiff class does not allege a specific quantum of damages,

the defendant "must prove by a preponderance of the evidence that the amount in controversy equals
or exceeds the jurisdictional amount." Berniard, 481 F. App'x. at 862 (citing De Aguilar v. Boeing
Go., 11 F.3d 55, 58 (5th Cir. 1993)). "In proceeding from that point, a defendant seeking to sustain

removal may follow either of two tracks: (1) Adduce summary judgment evidence of the amount in
controversy, or (2) demonstrate that, from the class plaintiffs' pleadings alone, it is 'facially

apparent' that CAFA's amount in controversy is met." Id. (citing De Aguilar,
Simon

v.

11

F.3d at 57-58;

Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999)). Once the defendant has met its

burden, a plaintiff may succeed on its motion to remand only if it can prove "to a legal certainty that

the claim is really for less than thejurisdictional amount." DeAguilar, 47 F.3d at 1411-12 (quoting
St.

Paul Mercury Indem. Co.

v.

Red Cab Co., 303 U.S. 283, 289 (1938)).

This approach appears consistent with long lines of precedent in both the Eighth and

Eleventh Circuits permitting removing defendants to rely on the state court complaints alone to

establish the jurisdictional minimums, without resort to extrinsic evidence. Compare Berniard, 418
F. App'x. at 862-63, with Hartis Chic. Title Ins. Co., 694 F.3d 935,

946(8th Cir. 2012) ("[L]ooking

at the face of the complaint alone, we hold that [defendant] has satisfied its burden of proving the

jurisdictional amount by a preponderance ofthe evidence."), and Pretka v. Kolter City Plaza II, Inc.,

608 F.3d 744,751-69 ("When the complaint does not claim a specific amount of damages, removal

from state court is [jurisdictionally] proper if it is facially apparent from the complaint that the
amount in controversy exceeds the jurisdictional requirement." (quoting Williams

v.

Best Buy Co.,

Inc., 269 F.3d 1316, 1319 (11th Cir. 2010)).

III.

Application
Plaintiffs' state court complaints do not allege a specific amount in damages and thus the

burden is on Whole Foods to prove by a preponderance of the evidence that the amount in
controversy exceeds $5 million. Whole Foods has submitted no extrinsic evidence in support of its
removal

allegationsit relies exclusively on the allegations in Plaintiffs' complaints. According to

Whole Foods, Plaintiffs' damage allegations seeking "less than" $75,000 per individual are

tantamount to placing into controversy $74,999 per individual less de minimis

costs.2

Multiplying

the alleged sum certain of approximately $74,999 per class member by the "thousands" or "tens of

thousands" of alleged class members in each respective class, Whole Foods argues the complaint
facially establishes that the amount in controversy for purposes of CAFA is no less than

$74,999,000, an amount far in excess of the $5,000,000 minimum. Whole Foods argues Plaintiffs
cannot defeat federal jurisdiction by expressly alleging an amount in controversy below the

jurisdictional amount. See Standard Fire Ins. Co.

v.

Knowles,

U.S.

-, 133 S. Ct. 1345, 1348

(2013).

2

Whole Foods reduces the alleged amount in controversy per plaintiff by the value of taxable costs, see 28
U.S.C. § 1 332(d)(2), which they characterize as being de mm/mis. Because the parties do not dispute to what extent this
characterization is proper, and because the amount oftaxable costs does not alter the outcome ofthese motions, the Court
offers no opinion concerning whether costs can be considered de minimis.

Plaintiffs advance two arguments in support of remand. First, Plaintiffs contend Dart
Cherokee Basin Operating Co., LLC v. Owens,

U.S.

-, 135 S. Ct. 547 (2014), altered Fifth

Circuit precedent such that Whole Foods may no longer rely on the face of Plaintiffs' complaints to
meet its removal burden but must instead present extrinsic evidence of the amount in controversy.
Second, even if Whole Foods is still entitled to rely on the state court complaints alone for purposes

of removal, Plaintiffs refute that seeking "less than" $75,000 per class member is the same as seeking
a "sum certain" of $74,999 less de minimis costs and argue Whole Foods must point to specific

factual allegations demonstrating the CAFA jurisdictional threshold is met. Because the complaints
do not allege the size

of the class or the number of mislabeled Yogurt containers sold during the

relevant time period, and because the Plaintiffs seek only compensatory damages on behalf of
statewide classes, Plaintiffs claim it is not facially apparent $5 million is more likely than not at
stake. The Court will address each argument in turn.
A.

Whole Foods May Rely on Plaintiffs' Complaints Alone to Meet its Burden
First, Plaintiffs argue the holding in Dart Cherokee forecloses Whole Foods' ability to rely

solely on the allegations in their respective state court complaints to establish the requisite amount

in controversy in opposition to a motion to remand. In Dart Cherokee, the Supreme Court reversed
a district court order remanding a class action case to state court on the grounds the removing

defendant failed to include proof of the amount in controversy in the notice of removal itself. 135
S. Ct. at 551 54. The Supreme Court held that a removing

"defendant's notice of removal need

include only a plausible allegation that the amount in controversy exceeds the jurisdictional

threshold" and does not require extrinsic evidence. Id. at 554. In reaching its conclusion, the Court
stated that "evidence establishing the amount is required.. . only when the plaintiff contests, or the
-10-

court questions, the defendant's allegation." Id.

Drawing from Dart

Cherokee's

framework,

Plaintiffs argue once they contested thejurisdictional allegations in Whole Foods' notice of removal,
Whole Foods was required to submit extrinsic evidence proving the amount in controversy by a

preponderance of the evidence and because Whole Foods failed to submit a single shred of evidence,
Whole Foods failed to carry its burden.
The Court declines Plaintiffs' invitation to disrupt well-settled circuit precedent based on
dicta in Dart

Cherokee.

The single question on appeal in Dart Cherokee was: "[tjo assert the

amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount
plausibly, or must the defendant incorporate into the notice of removal evidence supporting the

allegation?" Id. at 551. To this the Court answered: "A statement 'short and plain' need not contain
evidentiary submissions." Id. The issue concerning whether a removing defendant must submit
evidence of the amount in controversy once a plaintiff contests federal jurisdiction by filing a motion
to remand or whether the defendant may look solely to the face of the state court complaint to meet
its burden was not before the Court.

See, e.g.,

Ibarra v. Manheim Invest., Inc., 775 F.3d 1193, 1195

(9th Cir. 2015) ("We must decide what proof a defendant seeking removal must produce to prove

the amount-in-controversy requirement under [CAFA]
facially apparent

.

. .

when the complaint does

not include a

amount in controversy. . ." (emphasis added)); Dudley v. Eli Lilly & Co., 778 F.3d

909, 913 (11th Cir. 2014)

("Dartwhich did not involve a plaintiff's contest to the defendant's

jurisdictional allegationsdid not disrupt any of this pre-existing CAFA case law.").3 Accordingly,
In the only Fifth Circuit decision citing Dart Cherokee, the appeals court confirmed it has "long been our
approach" that defendants do not need to attach evidence supporting the alleged amount of controversy to the notice of
removal but did not address whether removing defendants may still rely on allegations in the state court complaint to
meet its burden. Statin v. Deutsche Bank Nat. Trust Co., 559 F. App'x 545, 546 n. 1 (5th Cir. 2014). However, at least
one district court in Louisiana has noted that it is "unclear" whether the Fifth Circuit's framework for evaluating the
amount in controversy "will remain viable" in light of the Dart Cherokee decision. See, e.g., Sumrall v. Ricoh USA, Inc.,

-11-

the court will continue to follow Fifth, Eighth, and Eleventh Circuit precedent, which permits Whole
Foods to rely on the face of the Plaintiffs' complaints to show by a preponderance of the evidence

CAFA's jurisdictional prerequisites are met.
B.

Whole Foods Has Met its Burden of Establishing Federal Jurisdiction
Where a removing defendant attempts to establish the amount in controversy is "facially

apparent" from the pleadings alone, the Court must look to the state court complaint and "add[] up
the value of the claim of each person who falls within the definition of the proposed class and

determine whether the resulting sum exceeds $5 million." Standard Fire, 133 S. Ct. at 1348.
However, damage allegations limiting the amount in controversy to an amount below $5 million

must be ignored because such an allegation is not binding on the putative class. Id. To determine
facial apparency:
A removing defendant need not confess liability in order to show that the controversy
exceeds the threshold. The removing party's burden is to show not only what the
stakes of the litigation could be, but also what they are given the plaintiffs actual
demands.... The demonstration concerns what the plaintiff is claiming (and thus
the amount in controversy between the parties), not whether the plaintiff is likely to
win or be awarded everything he seeks.

Berniard, 2010 WL 8750602, at *3 (citing Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir. 2008)
(internal citations omitted); see also Hartis, 694 F.3d at 944 (citing Spivey, 538 F.3d at 986).

Removal cannot be based on conclusory allegations. Berniard, 2010 WL 8750602, at *3; see also

Pretka, 608 F.3d at 752 ("The absence of factual allegations pertinent to the existence ofjurisdiction
is dispostive and, in such absence, the existence ofjurisdiction should not be divined by looking to

the stars.").

No. 15-61-JWD-SCR, 2015

WL 2338585, at *2 (M.D. La. Apr.
-12-

24, 2015).

There is no binding Fifth Circuit authority directly addressing Whole Foods' contentions, and

thus the Court will first look to transferor circuit decisions to resolve the instant dispute. See Korean
Air Lines Disaster, 829 F.2d at 1176 (noting that the law of the transferor circuit "merits close

consideration" even though it "does not have stare decisis effect"). A close consideration of Eighth
and Eleventh Circuit authority compels a finding of federal jurisdiction based solely on the damage

claims on the face of Plaintiffs' complaints. Consequently, the Court abides by the directives of its
sister circuits and finds Plaintiffs' motions are due to be denied.

According to Whole Foods, because Plaintiffs affirmatively seek up to $74,999 per class
member, and because the putative classes number in the "thousands" or "tens of thousands," it is

facially apparent that the amount in controversy exceeds $5 million. In support of this argument,

Whole Foods cites to Stafford v. Whole Foods Market California, Inc., a virtually indistinguishable
case arising from the alleged misrepresentations by another member of the Whole Foods corporate
family. No. 4:14-CV-00420, 2014 WL 4755988 (E.D. Ark. Sept. 24, 2014). Stafford involved a

putative class action lawsuit against Whole Foods Market California, Inc. for allegedly mislabeling
various Whole Foods 365 Everyday Value products as "Organic" or "All Natural" when they were
in fact not. Id. at *1. Based on these allegations, and on behalf of a statewide class of individuals

who had purchased the relevant products, the named plaintiff filed a complaint against Whole Foods
Market California in Arkansas state court asserting claims for violations of the Arkansas Deceptive
Trade Practices Act and for other state law claims. Id. The complaint alleged that no individual
class member had a claim exceeding $74,999 and that the total amount in controversy did not exceed

$4,999,999. Id. The named plaintiff sought to represent a class numbering "in the thousands." Id.
Whole Foods removed the case to federal court on the basis of diversity jurisdiction under CAFA,
-13-

and the plaintiff moved to remand the case to state court. Id.

The parties made arguments

substantially similar to those made by the parties in the above-styled cases. Id. at *2.
Denying the plaintiff's motion to remand, the Stafford Court looked to the face of the
complaint to determine whether Whole Foods Market California met its burden of establishing the
amount in controversy by a preponderance of the evidence. Id. at *3 The court explained:

Although the complaint alleges the damages do not exceed the $5,000,0000 amount
in controversy, by alleging damages up to $74,999.00 per class member, [the
plaintiff] has placed that amount in controversy for each class member.... Taking
the complaint at face value, if each class member has a claim that might be as much
as $74,999.00, and if the class is in the thousands, a jury might conclude the class
suffered damages of more than $5,000,000.00.
Id. (internal citations omitted).

The court rejected plaintiff's post-removal attempt to limit the

damage claims by submitting an affidavit stating that the named plaintiff purchased less than $150

of the products. Id. The named plaintiff, as master of her complaint, could have alleged a smaller
damage amount in her complaint. Id. However, having alleged each of the "thousands" of class

members' claims may be as much as $74,999, "she cannot escape the conclusion that her complaint
places in controversy an aggregate amount that exceeds $5,000,000." Id.
The Stafford court's reasoning was largely driven by two Eighth Circuit decisions, both of

which addressed arguments similar to those made by Plaintiffs in the instant cases. First, the

Stafford decision relied on Hartis v. Chicago Title Ins. Co., 694 F .3 d 935 (8th Cir. 2012). Looking
to the face of the plaintiff's complaint to find the defendant met its removal burden, the Hartis court

rejected the argument a removing defendant must submit proof of the class size or amount of
damages per class member where such information is readily obtainable by the corporate defendant.
Id. at 944-45. Second, and perhaps more germane to Plaintiffs' arguments here, the Stafford court

-14-

relied on Grawitch

v.

Charter Communications, Inc., 750 F.3d 956 (8th Cir. 2014). In Grawitch,

two class action plaintiffs sought damages based an alleged misrepresentation of the speeds at which

certain internet modems were capable of performing and alleged that members ofthe class had "been

damaged, collectively, in an amount in excess of $50,000.00. However, no individual Plaintiff has
been damaged in an amount in excess of $50,000.00." Id. at 959; see also Def. Resp. [#28-1] Ex. A

(Grawitch Compl.) ¶ 23, Rodhouse Suit. On appeal of the district court's refusal to remand the case
to state court, the Eighth Circuit held that because the putative class consisted of at least 50,000 class
members, and because the plaintiffs sought "up to $50,000 in damages per class member.

. .

a jury

might conclude that the class suffered damages of more than $5 million dollars, even if the
individual class members' monthly overpayment was minimal." Id. at 960.
Unable to distinguish Stafford, Plaintiffs instead implore the Court to deviate from its
"wrongly decided" holding.4 Plaintiffs make a number of arguments to support such a conclusion,

none of which are convincing. First, Plaintiffs argue it is not possible, let alone plausible each

plaintiff has suffered up to $74,999 in damages based on Yogurt selling for between $1.29 and $5.99,
depending on the container size, and, second, claim that Whole Foods' refusal to obtain all sales data
for the allegedly mislabeled yogurt to substantiate its claim is a tacit admission the amount in

Plaintiffs do attempt to distinguish Hartis and Grawitch. First, Plaintiffs argue Hartis is distinguishable
because the court did not rely solely on the plaintiffs damage allegations but instead calculated the amount in
controversy based on averages derived from the complaint's factual claims. While this observation is accurate, Stafford
only relied on Hartis to rebut the plaintiffs assertion a defendant must produce evidence to support removal when it is
"readily available." Because this Court only relies on Hartis for the same proposition, Plaintiffs' distinctions make no
difference. Next, Plaintiffs contend Grawitch is distinguishable because whereas Charter submitted an affidavit with
its notice of removal attesting to a concrete number ofclass members, here, Whole Foods has provided no such evidence.
However, Charter submitted an affidavit attesting to the number of potential class members because the plaintiffs
complaint itself only alleged "[t]hat there exist more than 100 potential class members." Whole Foods has no such need
in the instant cases because Plaintiffs' respective complaints allege class sizes in the "thousands" or "tens ofthousands."

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controversy is below the jurisdictional minimum.

However, both arguments were explicitly

foreclosed in Hartis and Grawitch. Plaintiffs are not required to produce sales data to substantiate
Plaintiffs' damage allegations where the face of the complaint expressly puts into controversy up to
$74,999 per plaintiff even if the individual class member's damages might be "minimal."5
Second, Plaintiffs argue alleging less than $75,000 per class member is not the same as
alleging up to $74,999.00. However, Plaintiffs have provided no relevant authority to support their

position. For example, Plaintiffs repeatedly cite to McClendon v. Chubb Corp., in which the district
court remanded a class action lawsuit where plaintiff's state court complaint alleged the "total
recovery" of each class member was less than $75,000 and the "total aggregate reward" for all class
members was less than $5 million. No. 2:1 1-CV-02034, 2011 WL 3555649, at *3 (W.D. Ark. Aug.

11,2011). However, the McClendon Court expressly noted the removing defendants had not argued
removal would be appropriate under CAFA and thus the "only issue currently before the Court is
whether the amount in controversy for any plaintiff exceeds $75,000." Id. at *2. In analyzing this
question, the McClendon court stated that "looking at the face of the complaint alone, the Plaintiffs'

claim for damages of less than $75,000 for each Plaintiff and class member is sufficient as a 'sum

certain" of $74,999. Id. at *3 While Whole Foods' approach may be overly formalistic, this Court
cannot ignore the directives of Graw itch and Stafford, especially where courts in each transferor

circuit have continually recognized the implication of pleading "less than" the jurisdictional amount.
See, e.g., Ray v. Am. Airlines, Inc., No. 08-5025, 2008 WL 3992644, at *6 (W.D. Ark. Aug. 22,

Frydman also submits Whole Foods' Annual Report (Form 10-K) from which she argues the average sales
over the class period for relevant 365 Everyday Value brand products at issue here are well under the $5 million
requirement. Remand Mot. [#35-1-35-7], Frydman Suit. As Whole Foods points out, these "averages" do not account
for product popularity, regional popularity, and price and are therefore wholly speculative. See Defs.' Resp. [#35-8],
Frydman Suit. Accordingly, Frydman cannot use this data to limit the controversy where her complaint expressly alleges
up to $74,999 per class member.

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2008) (finding the requisite amount in controversy under CAFA where Plaintiff alleged a damage

amount "insufficient to satisfy the jurisdictional requirements in federal diversity cases" because
such an allegation was proof that Plaintiff intended to place up to $74,999 in controversy for each
plaintiff); Raye

v.

Employer's Ins,

of Wausau, 345 F. Supp.

2d 1313, 1316-17 (S.D. Ala. 2004)

(noting that where the plaintiff alleges damages "not to exceed" $75,000, "[t]he complaint expressly

articulates the plaintiff's desire to recover $75,000.00 in compensatory and punitive damages")
Finally, Plaintiffs argue alleging an amount not to exceed $75,000 per class member and not
to exceed $5 million in the aggregate evidences their intent to avoid federal court, and, therefore, it

cannot be "facially apparent" the complaint puts more than $5 million in controversy. While such
an argument may prevail in the context of § 1332 diversity cases, it does not have the same force in

the context of cases removed pursuant to CAFA. In run-of-the-mill diversity cases, "[i]f [the
plaintiff] does not desire to try his case in the federal court he may resort to the expedient of suing
for less than the jurisdictional amount, and though he would be justly entitled to more, the defendant

cannot remove." St. Paul Mercury, 303 U.S. at 288. However, in CAFA cases, the Supreme Court
has directed district courts to ignore a named plaintiff's attempt to duck federal jurisdiction by
alleging an amount in controversy below $5,000,000. See Standard Fire, 133 5. Ct. at 1348. Rather,

the Court must aggregate the claims of each class member to determine whether the jurisdictional

threshold is satisfied. Plaintiffs, as masters of their complaints, have expressly alleged up to $75,000
for each of the "thousands" of class members and, therefore, "cannot escape that [their] complaint

places in controversy an aggregate amount that exceeds $5,000,000." Stafford, 2014 WL 4755988,
at *3

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Looking only to the face of Plaintiffs' respective state court complaints, and reading CAFA
"broadly, with a strong preference that interstate class actions should be heard in federal court," S.
Rep. No. 109-14 at 43 (2005), Whole Foods has met its burden of establishing by a preponderance

of the evidence that the putative class includes more than 100 members, that there is minimal
diversity of citizenship, and that the amount in controversy exceeds $5,000,000. Consequently,
because neither of the Plaintiffs offer evidence tending to prove to a legal certainty their claims are
actually for less than the jurisdictional amount, see De Aguilar, 47 F.3d at 1411-12, Plaintiffs'
motions to remand are DENIED.6
Accordingly,
IT IS ORDERED that Plaintiff Sarah Rodhouse' s Renewed Motion to Remand [#27]

and Plaintiff Meredith Frydman's Motion to Remand [#35] are DENIED; and
IT IS FINALLY ORDERED that Plaintiffs in In re Whole Foods Market, Inc. Greek
Yogurt Mktg. & Sales Practices Litig., 1:14-MC-2588-SS, MDL No. 2588 (W.D. Tex.,

transferred Dec. 10, 2014) file an amended Consolidated Complaint which incorporates the
parties and claims of the above-styled causes.
SIGNED this the

3

day of September 2015.

SAM SPARKS
UNITED STATES DISTRICT JUDGE

Because the case is properly removed, Frydman' s request for reasonable attorneys' fees, costs, and expenses
associated with defending against removal is denied. Moreover, having found federal jurisdiction under CAFA, the
Court need not address whether it independently has § 1332 diversity jurisdiction over the claims in either case.
1135 264

m rem ord

mns.wpd

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