Opinion
Civil Action No. 00-2065-GTV.
May 2, 2000.
Daniel D. Owen, Shughart, Thomson Kilroy, Overland Park, KS; Gregory M. Bentz and Jonathan H. Gregor, Shughart, Thomson Kilroy, P.C., Kansas City, MO, for JAY CLIFFORD FOSTER, Individually and on behalf of all others similarly situated, plaintiff.
Mark W. Brennan, Bryan Cave LLP, Kansas City, MO; James L. Eisenbrandt, Bryan Cave LLP, Overland Park, KS, for MICROSOFT CORPORATION, defendant.
MEMORANDUM AND ORDER
The case is before the court on Plaintiffs' motion (Doc. 8) for remand to the District Court of Wyandotte County, Kansas for lack of subject matter jurisdiction. Plaintiffs originally filed this action in the District Court of Wyandotte County; Defendants removed the case to this court, claiming that this court has original jurisdiction.
A civil action is removable only if the plaintiff could have brought the action in federal court originally. See 28 U.S.C. § 1441(a). The court is required to remand an action to state court "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction." 28 U.S.C. § 1447 (c). The defendant has the burden of demonstrating that the court has original jurisdiction. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936).
Defendants contend that this court has original jurisdiction pursuant to 28 U.S.C. § 1332, which provides that district courts shall have original jurisdiction over any civil action where the matter in controversy exceeds the sum or value of $75,000 and the dispute is between citizens of different States. Plaintiffs do not dispute that the parties to this action are completely diverse; Plaintiffs dispute, however, that the matter in controversy exceeds $75,000.
In diversity cases involving class members with separate and distinct claims, each class member must individually satisfy the amount in controversy requirement of $75,000. See Zahn v. International Paper Co., 414 U.S. 291, 301 (1973). If the claims of an individual plaintiff fall short of the jurisdictional amount, claims of multiple plaintiffs cannot be aggregated to satisfy the requirement. See id.
Neither party in this case contests that each member of the putative class has a separate and distinct claim against Defendants.
In their complaint, Plaintiffs seek actual damages, treble damages, injunctive relief, and reasonable attorney fees. Plaintiffs do not specifically set forth the amount in controversy; however, they affirmatively state that no member of the class was "damaged in an amount in excess of $75,000, inclusive of interest and costs."
Plaintiffs amended their complaint after the case was removed to this court, thereby removing the claim for injunctive relief. Plaintiffs' amended complaint is irrelevant for purposes of their motion for remand, however, because the court determines a defendant's right of removal by examining the record and the status of the pleadings at the time the defendant filed its petition for removal. See American Fire Cas. Co. v. Finn, 341 U.S. 6, 14 (1951);Farm Bureau Mutual Ins. Co., Inc. v. Eighmy, 849 F. Supp. 40, 42 (D. Kan. 1994).
Plaintiffs state in their brief to this court that "majority of class members in this case [has] suffered damages of $89 or less."
Defendants contend that, irrespective of each member's monetary damages, the amount in controversy requirement is satisfied because "the cost to [Defendants] of the requested injunctive relief for any single plaintiff far exceeds the statutory threshold of $75,000." In essence, Defendants seek to aggregate the class members' separate and distinct claims for injunctive relief to satisfy the amount in controversy requirement. This court has specifically rejected that argument on numerous occasions, and continues to do so today. See, e.g., Aetna U.S. Healthcare, Inc. v. Hoechst Aktiengesellschaft, 54 F. Supp.2d 1042 (D. Kan. 1999); Girrens, Inc. v. Simon DeBartolo Group, Inc., 976 F. Supp. 1399 (D. Kan. 1997); Amundson Assocs. Art Studio, Ltd. v. National Council On Compensation Ins., Inc., 977 F. Supp. 1116 (D. Kan. 1997); Asten v. Southwestern Bell Tel. Co., 914 F. Supp. 430 (D. Kan. 1996).
While the court should consider Defendants' cost of complying with an injunction in determining the amount in controversy, see Justice v. Atchison, Topeka Santa Fe Ry. Co., 927 F.2d 503, 505 (10th Cir. 1991), the court must adhere to the rule in Zahn that separate and distinct claims in a class action may not be aggregated to meet the amount in controversy requirement, see Asten, 914 F. Supp. at 433 (citing Copeland v. MBNA America, N.A., 820 F. Supp. 537 (D. Colo. 1993)). Thus, Defendants' cost of complying with the injunctive relief must be prorated among each member of the putative class. See Amundson Assocs. Art Studio, 977 F. Supp. at 1126; Asten, 914 F. Supp. at 434.
Plaintiffs assert in their complaint that "the membership of the [putative] class is well in excess of 20,000." Defendants allege that $58.5 million "is likely a good approximation of the cost that [they] would incur in [complying with an injunction]." According to these figures, Defendants' approximate cost of compliance would be $2,925 per putative class member.
The court concludes that the amount in controversy requirement is not satisfied and, therefore, the court lacks subject matter jurisdiction over this case. Plaintiffs request attorney fees and costs associated with Defendants' improper removal. 28 U.S.C. § 1447(c) provides that a court's "order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." The court has discretion to award such fees and costs. See Asten, 914 F. Supp. at 434 (citing Ruiz v. Farmers Ins. Co., 757 F. Supp. 1196, 1197 (D. Kan. 1991)). Because there is no evidence that Defendants attempted to remove this case in bad faith, the court declines to award Plaintiffs its associated fees and costs.
IT IS, THEREFORE, BY THE COURT ORDERED that Plaintiffs' motion (Doc. 8) for remand is granted; the case is remanded to the District Court of Wyandotte County, Kansas.
Copies of this order shall be mailed to counsel of record for the parties.
IT IS SO ORDERED.
Dated at Kansas City, Kansas, this 2 day of May, 2000.