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Pattison v. Omnitrition International, Inc.

United States District Court, W.D. Washington, Seattle

January 5, 2018

DEANA PATTISON, Plaintiff,
v.
OMNITRITION INTERNATIONAL, INC, et al, Defendants.

          ORDER GRANTING MOTION FOR RECONSIDERATION

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court is Defendants Roger M. Daley and Barbara Daley's (collectively, "the Daleys") motion for reconsideration of the court's November 30, 2017, order remanding this matter to state court. (Mot. (Dkt. # 44).) Plaintiff Deana Pattison opposes this motion. (Resp. (Dkt. # 46).) The court has considered the motion, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court GRANTS the motion for the reasons set forth below.

         II. BACKGROUND & ANALYSIS

         A. CAFA Jurisdiction

         The Daleys request that the court address the matter of jurisdiction pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). (Mot. at 1.) Specifically, the Daleys contend that, even if complete diversity is lacking pursuant to 28 U.S.C. § 1332(a), the court nonetheless has jurisdiction over this action pursuant to CAFA. (Id. at 1-2.) The court now addresses this issue and concludes that the Daleys sufficiently established the elements of CAFA jurisdiction.

         "CAFA provides expanded original diversity jurisdiction for class actions meeting the amount in controversy and minimal diversity and numerosity requirements set forth in 28 U.S.C. § 1332(d)(2)." United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int7 Union, AFI-CIO, CLCv. Shell Oil Co., 602 F.3d 1087, 1090-91 (9th Cir. 2010); see Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1195 (9th Cir. 2015). Thus, under CAFA, district courts have original jurisdiction of a class action "if the class has more than 100 members, the parties are minimally diverse, and the amount in controversy exceeds $5 million." Dart Cherokee Basin Operating Co., LIC v. Owens, ___ U.S. ___, 135 S.Ct. 547, 552 (2014). Only the amount in controversy is at issue here. (See generally Resp.)

         The Daleys claim that more than $5, 000, 000 is at issue, arguing that the various relief sought by Ms. Pattison independently meets the amount-in-controversy requirement. (Am. Not. of Removal (Dkt. # 19) ¶ 10; MTA Reply (Dkt. # 38) at 5.) For instance, the Daleys state that the damages claim meets the amount-in-controversy requirement because Omnitrition International Inc.'s ("Omnitrition") "sales of Omni Drops in Washington during the alleged class period exceeded $5, 000, 000." (Am. Not. of Removal ¶ 10.) They additionally claim that the injunctive relief is sufficient because "Omnitrition would lose more than $5, 000, 000 of projected revenue in just the coming year" if Omni Drops were removed from the marketplace. (Id.) And lastly, the Daleys argue that the equitable monetary relief sought by Ms. Pattison puts more than $5, 000, 000 in controversy because "over $5, 000, 000 of Omnitrition's revenue is attributable to its sales of Omni Drops." (Id.)

         The Daleys bear the burden of showing by a preponderance of the evidence that the aggregate amount-in-controversy exceeds $5, 000, 000. See Ibarra, 775 F.3d at 1197. When the amount claimed by the defendant is contested by the plaintiffs, the defendant must provide evidence establisliing the amount required. See Id. (placing burden on defendant "to put forward evidence showing that the amount in controversy exceeds $5 million .. . and to persuade the court that the estimate of damages in controversy is a reasonable one"). A defendant "cannot establish removal jurisdiction by mere speculation and conjecture, with unreasonable assumptions." Id.

         In Lewis v. Verizon Communications, Inc., the Ninth Circuit considered whether the amount in controversy was satisfied in a case where the putative class sought to recover the value of unauthorized charges. 627 F.3d 395, 399 (9th Cir. 2010). The defendant put in evidence through a declaration that the total charges for the relevant time period exceeded $5, 000, 000, and the Ninth Circuit concluded that such evidence was sufficient. Id. at 399-400. Because the plaintiff sought "recovery from a pot that [the defendant] has shown could exceed $5 million and the [plaintiff] has neither acknowledged nor sought to establish that the class recovery is potentially any less, " the jurisdictional amount was satisfied. Id. at 401.

         Likewise, Ms. Pattison neither acknowledges nor seeks to establish that class recovery is potentially any less than $5, 000, 000. (See generally Resp.) Instead, Ms. Pattison claims that "[the Daleys] have provided no evidence whatsoever" establishing the amount-in-controversy. (See Id. at 2.) The court disagrees. Like the defendant in lewis, the Daleys offer the sworn declaration of an Omnitrition employee who would have personal knowledge of the company's sales: Cindy Jordan, the Vice President of Operations for Omnitrition. (2d Jordan Decl. (Dkt. # 22) ¶ 1.) As Vice President of Operations, Ms. Jordan is responsible for "tracking Omnitrition's product sales" and has "access to Omnitrition's business records concerning its product sales and product sales made by distributors." (Id. ¶ 2.) Ms. Jordan testifies that:

For the period of March 2012 through July 2017, Omnitrition's sales of Omni Drops to customers in Washington exceeded $5, 000, 000, and over $5, 000, 000 of Omnitrition's revenue is attributable to it [sic] sale of Omni Drops over the same period .... [R]emoving Omni Drops from the market place would cause Omnitrition to ... lose more than $5, 000, 000 in expected revenue in the coming year, based on its average monthly revenues from the sale of Omni Drops historically.

(Id. ¶¶ 4-5.) The court concludes that Ms. Jordan's statements, based upon her personal knowledge and Omnitrition's business records, constitute sufficient factual evidence to establish the required amount-in-controversy by a preponderance of the evidence.

         Ms. Pattison attacks Ms. Jordan's statements as "unsupported and speculative, " and focuses on the fact that Ms. Jordan's estimation "started at $1, 000, 000, and suddenly ballooned to $5, 000, 000." (Resp. at 3; see MTR Reply (Dkt. # 37) at 5; MTA Resp. (Dkt. # 31) at 12.) In short, Ms. Pattison questions Ms. Jordan's credibility. It is true that in her first declaration, Ms. Jordan stated that Omnitrition's sales in Washington exceeded $1, 000, 000. (See 1st Jordan Decl. (Dkt. # 6) ¶ 3.) But Ms. Jordan's second declaration-which states that the relevant sales exceeded $5, 000, 000-does not contradict her first; sales exceeding $5, 000, 000 also exceed $1, 000, 000.[2] Moreover, while Ms. Jordan could have attached underlying documentation to support her statements, she was not ...


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