Pontrelli v. Mona Vie Inc et al

Filing 90

MEMORANDUM DECISION AND ORDER: 84 Order to Show Cause is satisfied. A class will not be certified in this case. Telephone Status Conference set for 7/2/2019 at 08:30 AM in Rm 7.300 before Judge David Nuffer. Signed by Judge David Nuffer on 5/24/19 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
LISA PONTRELLI, in her individual capacity
and on behalf of all others similarly situated,
Plaintiffs,

MEMORANDUM DECISION AND
ORDER ON ORDER TO SHOW CAUSE
Case No. 2:17-cv-01215-DN-DBP
District Judge David Nuffer

v.
MONAVIE, INC., and MONAVIE, LLC,
Defendants.

Plaintiff Lisa Pontrelli (“Ms. Pontrelli”) initiated a putative class action against
Defendants MonaVie, Inc. and MonaVie, LLC (collectively, “MonaVie”) in the United States
District Court for the District of New Jersey. 1 Plaintiff’s First Amended Class Action Complaint
for Damages and Equitable Relief (“Amended Complaint”) alleges that MonaVie falsely
advertised health benefits of its juice products and asserts claims for (1) violation of the New
Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. § 56:8-1, et seq.; (2) common law fraud; and
(3) unjust enrichment. 2
On June 16, 2017, the New Jersey District Court ordered fact discovery to proceed on an
expedited basis, with a close date of August 21, 2017; any motion to transfer venue to be filed by
June 23, 2017; and any motion for class certification to be filed no later than September 15,

1

Class Action Complaint for Damages and Equitable Relief, docket no. 1, filed Aug. 1, 2013. Plaintiff filed an
amended complaint on Dec. 9, 2013. First Amended Class Action Complaint for Damages and Equitable Relief
(“Amended Complaint”), docket no. 7, filed Dec. 9, 2013.
2

Amended Complaint, docket no. 7.

2017. 3 Ms. Pontrelli timely filed a motion to transfer venue to the District of Utah, which was
granted. 4 However, no further action was taken following the case’s transfer. 5
In light of Ms. Pontrelli’s failure to move for class certification, the parties were ordered
to provide briefing on whether subject matter jurisdiction exists.6 Both parties have filed a
responsive brief. 7 Ms. Pontrelli asserts that subject matter jurisdiction existed under the Class
Action Fairness Act of 2005 (“CAFA”) 8 at the time the Amended Complaint was filed. 9 She
further argues that jurisdiction remains—notwithstanding Ms. Pontrelli’s failure to move for
class certification. 10 In its response, MonaVie asserts that jurisdiction under CAFA does not exist
because class certification did not occur and there is no reasonable foreseeable possibility that a
class could ever be certified. 11 As discussed below, CAFA’s requirements were met at the time
the Amended Complaint was filed; therefore, the court retains subject matter jurisdiction over
this matter.
STANDARD
“Federal courts are courts of limited jurisdiction and must have a statutory basis for their
jurisdiction.” 12 Courts “presume no jurisdiction exists absent an adequate showing by the party

3

Docket no. 58.

4

Notice of Motion to Transfer Case to the U.S. District Court for the District of Utah Pursuant to 28 U.S.C.
§ 1404(a), docket no. 59, filed June 21, 2017; Order, docket no. 71, entered Oct. 27, 2017.
5

See Status Report Order, docket no. 81, entered Mar. 15, 2019.

6

Order to Show Cause, docket no. 84, entered Apr. 10, 2019.

7

Plaintiff’s Response to the Court’s Order to Show Cause (“Plaintiff’s Response”), docket no. 85, filed Apr. 19,
2019; MonaVie’s Response to Plaintiff’s Response to Court’s Order to Show Cause (MonaVie’s Response”), docket
no. 87, filed Apr. 23, 2019.
8

28 U.S.C. § 1332(d).

9

Plaintiff’s Response at 1.

10

Id. at 1-2.

11

MonaVie’s Response at 9 (citing Avritt v. Reliastar Life Ins. Co., No. 07-1817-JNE-JJG, 2009 WL 1703224, at
*7-8 (D. Minn. June 18, 2009)).
12

Dutcher v. Matheson, 840 F.3d 1183, 1189 (10th Cir. 2016) (internal citation omitted).

2

invoking federal jurisdiction that jurisdiction exists; that showing must be made by a
preponderance of the evidence.” 13 A federal court has a duty to consider sua sponte whether it
has subject matter jurisdiction whenever a question arises as to the existence of federal
jurisdiction. 14 “‘A court lacking jurisdiction . . . must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is lacking.’” 15
DISCUSSION
The Amended Complaint alleges class action diversity under CAFA as the only basis for
federal subject matter jurisdiction in this case. 16 “Under CAFA, a federal district court has
subject matter jurisdiction ‘over class actions involving [1] at least 100 members and [2] over $5
million in controversy when [3] minimal diversity is met (between at least one defendant and one
plaintiff-class member).’” 17 CAFA defines a “class action” as “any civil action filed under Rule
23 of the Federal Rules of Civil Procedure.” 18 CAFA is silent on whether class certification is
required to maintain federal court jurisdiction. Although the Tenth Circuit has not directly
addressed the issue, 19 several circuits have held that jurisdiction does not depend on

13

Id.

14

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977).

15

Tuck v. United Services Auto. Ass'n, 859 F.2d 842, 844 (10th Cir.1988) (quoting Basso v. Utah Power & Light
Co., 495 F.2d 906, 909 (10th Cir.1974)), cert. denied, 489 U.S. 1080 (1989). See also FED. R. CIV. P. 12(h)(3).

16

Amended Complaint ¶ 17, docket no. 7, filed Dec. 9, 2013.

17

Dutcher, 840 F.3d at 1190 (quoting Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1243 (10th Cir.
2009)). See also 28 U.S.C. § 1332(d)(2).
18

28 U.S.C. § 1332(d)(1)(B) (emphasis added).

19

At least two district courts have predicted that the Tenth Circuit would follow the other courts of appeal to find
that subject matter jurisdiction remains notwithstanding the denial of class certification. Burdette v. Vigindustries,
Inc., No. 10–1083–JAR, 2012 WL 5505095, at *2 (D. Kan. Nov. 13, 2012); Edwards v. ZeniMax Media Inc., No.
12-cv-00411-WYD-KLM, 2013 WL 5420933, at *1 (D. Colo. Sept. 27, 2013).

3

certification. 20 Instead, the appropriate inquiry is whether jurisdiction existed at the time the case
was filed as a class action. 21 This interpretation comports with the legislative history of CAFA 22
and the general principle that “if jurisdiction exists at the time an action is commenced, such
jurisdiction may not be divested by subsequent events.” 23 But, its consequences are concerning.
In light of the failure to obtain class certification, this action remains limited to Ms.
Pontrelli’s individual claims, which are minimal and would not satisfy the jurisdictional amount
under 28 U.S.C. § 1332(a)(2). “The notion that plaintiffs can manufacture federal jurisdiction by
making classwide allegations that turn out not to be certifiable, for whatever reason, is deeply
troubling.” 24 Nonetheless, as noted by other courts, 25 this is an issue for Congress to resolve.
The Amended Complaint met CAFA’s requirements at the time of filing.
While federal jurisdiction under CAFA does not depend on certification, the party
seeking to invoke federal jurisdiction still must satisfy CAFA’s minimal diversity
requirements. 26

20

F5 Capital v. Pappas, 856 F.3d 61, 77 (2d Cir. 2017); Louisiana v. Am. Nat'l Prop. Cas. Co., 746 F.3d 633, 635
(5th Cir. 2014); Metz v. Unizan Bank, 649 F.3d 492, 500-01 (6th Cir. 2011); Cunningham Charter Corp. v. Learjet,
Inc., 592 F.3d 805, 806-07 (7th Cir. 2010); Buetow v. A.L.S. Enters., Inc., 650 F.3d 1178, 1182 n.2 (8th Cir. 2011);
United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union v. Shell Oil Co.,
602 F.3d 1087, 1091-92 (9th Cir. 2010); Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 n.12 (11th Cir. 2009);
Wright Transportation, Inc. v. Pilot Corp., 841 F.3d 1266, 1271 (11th Cir. 2016).
21

Id.

22

See Lewis v. Ford Motor Co., 685 F.Supp.2d 557, 567 (W.D. Pa. 2010) (“We are persuaded by [the legislative
history] that deletion of the provision which would have mandated dismissal of putative class actions which fail to
satisfy the requirements of Rule 23 reflects a Congressional intent to allow cases which were originally filed as class
actions and met the CAFA requirements to continue in federal court even after certification is denied.”). See also
Louisiana, 746 F.3d at 639.

23

Freeport-McMoRan, Inc. v. KN Energy, Inc., 498 U.S. 426, 428 (1991); St. Paul Mercury Indemnity Co.
v. Red Cab Co., 303 U.S. 283, 289-90 (1938).
24

Fleisher v. Phoenix Life Ins. Co., 997 F. Supp. 2d 230, 239-40 (S.D.N.Y. 2014).

25
Id. See also Tropical Sails Corp. v. Yext, Inc., No. 14 CIV 7582, 2017 WL 1048086, at *16 n.5 (S.D.N.Y. Mar.
17, 2017).
26

“[I]f the jurisdictional allegations are frivolous or defective from the outset, then jurisdiction never existed in the
first place, regardless of the plaintiff's invocation of a class action under CAFA.” Metz, 649 F.3d at 501 n. 4. See
also Cunningham, 592 F.3d at 806 and Wright Transportation, 841 F.3d at 1271.

4

In its Answer, MonaVie did not admit to CAFA jurisdiction over this action. 27 However,
MonaVie has not alleged that the Amended Complaint is frivolous or deficient under CAFA.
Instead, MonaVie filed a motion to dismiss the Amended Complaint on other grounds. 28 In its
order denying the motion to dismiss, the New Jersey District Court stated:
This court has original jurisdiction over this class action pursuant to 28 U.S.C. §
1332(d) (“Class Action Fairness Act”) because the matter in controversy exceeds
the sum or value of $5,000,000 exclusive of interest and cost, there are at least
one hundred members of the proposed class, and at least one member of the
proposed class is a citizen of a different state than the Defendants. 29
Although the New Jersey District Court did not discuss jurisdiction in detail, the Amended
Complaint, on its face, satisfies CAFA’s jurisdictional requirements.
First, the parties are minimally diverse. Under CAFA, diversity is met so long as at least
one plaintiff-class member is of a different citizenship from one defendant. 30 The Amended
Complaint alleged that Ms. Pontrelli is “an individual residing in the State of New Jersey”; 31
MonaVie, Inc., is a Utah corporation with its principal place of business in South Jordan, Utah; 32
and MonaVie LLC is a limited liability company organized under the laws of the state of
Delaware having its principal place of business in South Jordan, Utah. 33 These allegations are
sufficient to conclude that there is a reasonable probability that Ms. Pontrelli and MonaVie, Inc.
are diverse parties. 34

27

MonaVie, Inc.’s and MonaVie, LLC’s Answer to Plaintiff’s First Amended Complaint ¶ 17 at 4, docket no. 13,
filed Sept. 2, 2014.
28

Notice of Motion to Dismiss Plaintiff’s Class-Action Complaint, docket no. 8, filed Jan. 9, 2014.

29

Opinion at 5, docket no. 11, entered Aug. 19, 2014; Order, docket no. 12, entered Aug. 19, 2014.

30

28 U.S.C. § 1332(d)(2).

31

Amended Complaint ¶ 9, docket no. 7.

32

Amended Complaint ¶ 10.

33

Amended Complaint ¶ 11.

34

A corporation is a citizen of the state where it is incorporated and also of the state where it has its principal place
of business. Depex Reina 9 P’ship v. Texas Int’l Petroleum Corp., 897 F.2d 461, 463 (10th Cir. 1990). An individual

5

Second, the class action purported to involve at least 100 members. In order for CAFA
jurisdiction to apply, the number of members of all proposed plaintiff classes must be at least
100 in the aggregate. 35 The Amended Complaint alleged that “there are at least one hundred
members of the proposed class” 36 and proposed the following class definition: “All individual
residents of the state of New Jersey who purchased MonaVie Products from July 2007 through
the present.” 37 The Amended Complaint further claimed that “[t]he Class comprises thousands of
consumers throughout the State of New Jersey.” 38 These allegations reasonably support a
proposed plaintiff class size of greater than 100 members.
Finally, the amount in controversy alleged exceeds $5,000,000 by a preponderance of the
evidence. 39 “When a plaintiff invokes federal-court jurisdiction, the plaintiff’s amount-incontroversy allegation is accepted if made in good faith.” 40 Here, the Amended Complaint stated
that “[t]his court has original jurisdiction over this class action pursuant to 28 U.S.C. Section
1332(d) (“Class Action Fairness Act”), in that the matter in controversy exceeds the sum or value
of $5,000,000, exclusive of interest and costs[.]” 41 The Amended Complaint also alleged:
MonaVie Products are sold in approximately 25 ounce bottles that have the shape
commonly associated with a wine bottle and are priced beginning at
approximately $40 for [sic] per bottle. 42

is a citizen of the state in which she is domiciled, as evidenced by her physical location and intent to remain there
indefinitely. Martinez v. Martinez, 62 Fed. App’x 309, 313 (10th Cir. 2003).
35

28 U.S.C. § 1332(d)(5)(B).

36

Amended Complaint ¶ 17.

37

Amended Complaint ¶ 57.

38

Amended Complaint ¶ 58.

39

28 U.S.C. §§ 1332(d)(2), (6); Frederick v. Hartford Underwriters Ins. Co., 683 F.3d 1242, 1247 (10th Cir. 2012).

40

Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 553 (2014).

41

Amended Complaint ¶ 17.

42

Amended Complaint ¶ 23.

6

Plaintiff purchased several units of the MonaVie Products in New Jersey during
the class period. 43
Plaintiff suffered ascertainable loss and lost money as a result of Defendants’
conduct[.] 44
Under the NJCFA, a plaintiff is entitled to a refund of all moneys acquired by the
defendant by means of the unlawful practices alleged, as well as compensatory damages,
including treble damages, attorney’s fees, and cost of suit. 45 Based upon the size of the
prospective class members alleged, a fact finder might legally conclude that the damages exceed
five million dollars. 46
Overall, the Amended Complaint’s jurisdiction allegations were not frivolous or
defective at the time of filing. Therefore, federal subject matter jurisdiction over this matter
continues to exist under CAFA, regardless of class certification.
Good cause does not exist to extend discovery or class certification deadlines.
In her response, Ms. Pontrelli requests that the deadline to file a motion for class
certification be extended and discovery reopened. 47 “A schedule may be modified only for good
cause and with the judge’s consent.” 48 Ms. Pontrelli has not shown that good cause exists to do
so here. The initial class certification deadline of March 13, 2015 was previously extended 6
times. 49 As a result, Ms. Pontrelli had until September 15, 2017—almost 4 years—to move for
certification.

43

Amended Complaint ¶ 54.

44

Amended Complaint ¶ 55.

45

Amended Complaint ¶ 75; N.J.S.A. §§ 56:8-2.11, 56:8-2.12 and 56:8-19.

46

See Hammond v. Stamps.com, Inc., 844 F.3d 909, 912 (10th Cir. 2016).

47

Plaintiff’s Response at 7-9, docket no. 85, filed April 19, 2019.

48

FED. R. CIV. P. 16(b)(4).

49

See MonaVie’s Response at 4, docket no. 87, filed Apr. 23, 2019.

7

Fact discovery was also extended multiple times. Originally ordered to be completed by
June 30, 2015, 50 fact discovery was ultimately extended to August 21, 2017 and ordered to be
completed on an expedited basis. 51 Prior to its transfer of the case, the New Jersey District Court
clearly stated that there would be no further extensions of discovery and ordered “[a]ny and all
discover disputes [to] be raised with the Court immediately and in any event well in advance of
the close of discovery or they shall be deemed waived[.]”52
In her response, Ms. Pontrelli argues that this case “essentially was stayed” pending a
ruling in a related case, Starr Indemnity & Liability Co. v. MonaVie, Inc. (“Starr”), on whether
insurance policies provided coverage to this lawsuit and another class action lawsuit against
MonaVie. 53 This case was not stayed. And this case was not transferred to the District of Utah
until after the deadlines had passed, so this argument does not address Ms. Pontrelli’s failure to
move the New Jersey District Court for another extension prior to the certification and discovery
deadlines. And after the case was transferred, Ms. Pontrelli still did not take any action,
including seeking to stay the case or extend any deadlines.
Ms. Pontrelli has not provided a legitimate excuse for her failure to timely conduct the
necessary discovery and to timely move for class certification. MonaVie argues that extending

50

Id. at 7. See also Order, docket no. 25, entered October 29, 2014.

51

MonaVie’s Response at 8. See also Order, docket no. 58.

52

Order at 2, docket no. 58.

53

Plaintiff’s Response at 8-9. Starr was a declaratory judgment action brought by insurer Starr Indemnity &
Liability Company (“Starr”) against MonaVie to exclude coverage for Parker et al v. MonaVie, Inc., et al., No.
2:17-cv-764 and Pontrelli v. MonaVie, Inc., et al., No. 2:17-cv-1215 (this action). Ms. Pontrelli and Mr. Harbut, the
plaintiff in Parker, intervened in Starr to protect their interests in the potential insurance proceeds. See No. 2:14-cv395-DN, Motion by Andrew Harbut and Lisa Pontrelli to Intervene as of Right or, In the Alternative, for Permissive
Intervention, ECF No. 45, filed Dec. 30, 2016; Memorandum Decision and Order, ECF No., entered Nov. 17, 2017.
However, Starr was ultimately found to not be liable for coverage of these class action lawsuits. Memorandum
Decision and Order Granting Motion for Summary Judgment, ECF No. 102, entered Mar. 15, 2019.

8

the deadline at this point in the litigation would be prejudicial. 54 “Fundamental fairness, as well
as the orderly administration of justice requires that defendants haled into court not remain
indefinitely uncertain as to the bedrock litigation fact of the number of individuals or parties to
whom they may ultimately be held liable for money damages.” 55 This matter has been pending
for over 5 years. Further delays are simply not warranted.

54

MonaVie’s Response at 7.

55

McCarthy v. Kleindienst, 741 F.2d 1406, 1412 (D.C. Cir. 1984).

9

ORDER
THEREFORE, IT IS HEREBY ORDERED that the Order to Show Cause 56 is
SATISFIED. Subject matter jurisdiction exists for Ms. Pontrelli’s individual claims for
(1) violation of the NJCFA; (2) common law fraud; and (3) unjust enrichment.
IT IS FURTHER ORDERED that Ms. Pontrelli’s request to extend the discovery and
class certification deadlines is DENIED. A class will not be certified in this case.
IT IS FURTHER ORDERED that
(1)

A telephonic status conference is set for Tuesday, July 2, 2019 at 8:30 am, at
which time trial and trial-related dates will be set; and

(2)

The parties shall meet and confer before the status conference to discuss
a.

participation in a Magistrate Judge Settlement Conference; and

b.

whether a joint trial should be held on overlapping issues in this matter
and Parker et al v. MonaVie, Inc., et al., 2:17-cv-00764-DN-DBP.

Dated May 24, 2019.
BY THE COURT:
____________________________
David Nuffer
United States District Judge

56

Docket no. 84, entered Apr. 10, 2019.

10