Bobzien, Ralph et al v. Wyndham Vacation Resorts, Inc.
Filing
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ORDER remanding case to the Circuit Court for Sauk County for lack of subject matter jurisdiction. Signed by District Judge Barbara B. Crabb on 12/5/2012. (arw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - RALPH BOBZIEN and REBECCA BOBZIEN,
ORDER
Plaintiff,
12-cv-357-bbc
v.
WYNDHAM VACATION RESORTS, INC.
and CIT BANK,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - This case arises out of time share purchases made by plaintiffs Ralph Bobzien and
Rebecca Bobzien from defendant Wyndham Vacation Resorts, Inc. In their amended
complaint, plaintiffs allege that Wyndham used “high pressure” tactics and made false and
misleading statements to close the sale. When plaintiffs reported trouble making payments
two years later, Wyndham promised to lower their payments, but instead obtained a second
loan for them through defendant CIT Bank without their knowledge. Plaintiffs are asserting
various claims under Wisconsin consumer and tort law. Although the parties have filed
several motions that are ripe for review, dkt. ##32, 36, 40 and 43, a threshold question is
whether this court has subject matter jurisdiction.
Defendant Wyndham removed this case from state court, relying on 28 U.S.C. §
1332, which requires complete diversity of citizenship between the plaintiffs and defendants
and an amount in controversy greater than $75,000. After removal, plaintiffs amended their
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complaint to include defendant CIT. If the addition of a new party after removal will
destroy diversity jurisdiction, the court must decide whether to remand the case or deny
joinder. 28 U.S.C. § 1447(e); Schur v. L.A. Weight Loss Centers, Inc., 577 F.3d 752, 759
(7th Cir. 2009).
In an order dated November 19, 2012, dkt. #66, I noted several potential problems
with jurisdiction. With respect to diversity, the parties failed to identify plaintiffs’ or
defendant CIT’s citizenship.
With respect to the amount in controversy, defendant
Wyndham relied solely on a settlement offer from plaintiffs for $123,500, but it was not
clear how plaintiffs generated that figure because the only dollar amounts plaintiffs identified
in their pleadings were $12,300, which is what they say they have paid to Wyndham, and
$20,000, which is what they say is the amount Wyndham alleges is still owed. Although
plaintiffs included "treble damages" and "punitive damages" in their request for relief, they
did not identify a good faith basis for believing that such damages are available in this case
or that, if they are, plaintiffs can recover enough of those damages to meet the jurisdictional
requirements.
Another problem was that the parties had not addressed the amount in controversy
with respect to each plaintiff and defendant. Snyder v. Harris, 394 U.S. 332, 335 (1969)
(“The separate and distinct claims of two or more plaintiffs cannot be aggregated in order
to satisfy the jurisdictional amount requirement. Aggregation has been permitted only . . .
in cases in which two or more plaintiffs unite to enforce a single title or right in which they
have a common and undivided interest.”); Middle Tennessee News Co. v. Charnel of
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Cincinnati, Inc., 250 F.3d 1077, 1081 (7th Cir. 2001) (“[W]hen there are two or more
defendants, plaintiff may aggregate the amount against the defendants to satisfy the amount
in controversy requirement only if the defendants are jointly liable; however, if the
defendants are severally liable, plaintiff must satisfy the amount in controversy requirement
against each individual defendant.”). In fact, plaintiffs did not make any attempt in their
complaint to quantify the damages they sustained from defendant CIT.
I gave each of the parties an opportunity to file supplemental materials to address
these issues. In their responses to the November 19 order, defendants have shown that
diversity of citizenship exists. Plaintiffs are citizens of Wisconsin; defendant Wyndham is
a citizen of Delaware and Florida; defendant CIT is a citizen of Utah. Unfortunately,
however, the parties’ responses do not show a good faith basis for concluding that the
amount in controversy is greater than $75,000.
In its response, defendant Wyndham relies entirely on a footnote in a brief plaintiffs
filed in opposition to a motion for a protective order:
The Bobziens’ claims for damages related to their 2008 timeshare purchase
include:1) $25,696, the total sales price of the timeshare; 2) a downpayment
of $1,315; 3) 31 monthly payments of $203.18; and 4) $456.96 for annual
maintenance payments from September 2008 to March 2011. The Bobziens’
claims for damages related to their 2010 timeshare purchase include: 1)
$27,999.49, the total sales price of the timeshare; 2) a downpayment of
$4,973.89; 3) 3 monthly payments of $191.88; and 4) $567 for annual
maintenance payments from January to March 2011. The Bobziens also claim
double and triple damages pursuant to various statutes, and punitive damages.
Therefore, the Bobziens’ potential damages in this case exceed $300,000,
which does not include costs and attorney’s fees, which the Bobziens will be
entitled to if the successfully prove any of their claims or successfully defend
themselves from Wyndham’s claims.
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Dft. Wyndham’s Br., dkt. #67, at 2 (citing Plts.’ Br., dkt, #20, at 1 n.1).
The items in this passage are simply a list of numbers, not damages. In both their
amended complaint and their response to the November 19 order, plaintiffs say that their
“actual damages” are a combination of the amount they have paid to defendant Wyndham
and ($12,300) and the amount Wyndham claims they still owe ($20,000). (It is inaccurate
to use the word “damages” to describe the amount allegedly owed; plaintiffs cannot recover
what they have not paid.
However, the $20,000 may be included in the amount in
controversy because plaintiffs are seeking to enjoin Wyndham from collecting that amount.
Macken ex rel. Macken v. Jensen, 333 F.3d 797, 799-800 (7th Cir. 2003).) If Wyndham
is not trying to collect the sale price from plaintiffs, it makes no difference what that price
might have been. Presumably, the down payment, monthly payments and maintenance
payments are included in the $12,300 estimate.
Like plaintiffs’ amended complaint, the passage does not explain the basis for
awarding punitive, double or treble damages. Although defendant Wyndham cites statutes
that allow double or treble damages under certain circumstances, no party identifies any
basis for believing that such damages could satisfy the jurisdictional minimum when
combined with other damages. Even if plaintiff’s actual damages of $12,300 were trebled,
the amount would still be well below $75,000.
With respect to plaintiffs’ attorney fees, I cannot include any fees incurred after
removal. Hart v. Schering-Plough Corp., 253 F.3d 272, 273-74 (7th Cir. 2001). In any
event, plaintiffs make no attempt to quantify these in their amended complaint or their
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response to the November 19 order.
Finally, all parties have ignored the question I raised regarding whether it is
appropriate to aggregate each plaintiff’s damages. They simply assume that they can do so
without any justification or explanation.
Plaintiffs’ showing as to defendant CIT is even weaker. All of plaintiffs’ claims
against CIT arise under the Wisconsin Consumer Act. In particular, plaintiffs allege that
CIT failed to provide them an “exact copy” of certain documents, as required by Wis. Stat.
§ 422.302; failed to provide notice, as required by Wis. Stat. § 423.203; solicited the loan
in a manner that violated Wis. Stat. § 423.301 (plaintiffs do not specify what CIT did);
inserted illegal terms in the loan documents, in violation of Wis. Stat. §§ 421.201, 421.401,
422.411, 422.413 and 425.103; failed to act in good faith, as required by Wis. Stat. §
421.108; and failed to provide certain disclosures, as required by Wis. Stat. § 422.308. Am.
Cpt. ¶¶ 64-73, dkt. #24.
Although plaintiffs have asserted many claims, the statutory damages that may be
awarded for most of them are small, ranging from $25 to $1000 dollars. Wis. Stat. §§
425.302 and 425.304. Plaintiffs are entitled to “actual damages” as well, but they identify
that amount incorrectly as $32,300. The claims against defendant CIT relate solely to the
second loan, which plaintiffs’ own documentation shows to be approximately $5,000. Dkt.
#68-1. Plaintiffs do not even try to explain why their damages against defendant Wyndham
should be attributed to CIT.
I conclude that the parties have failed to show that the amount in controversy
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between at least one plaintiff and each defendant is greater than $75,000. Accordingly, I am
remanding the case to state court for lack of jurisdiction.
ORDER
IT IS ORDERED that this case is REMANDED to the Circuit Court for Sauk
County, Wisconsin for lack of subject matter jurisdiction.
Entered this 5th day of December, 2012.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge
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