Opinion
Case No. 5:04-cv-0049.
August 3, 2004
ORDER
In accordance with an Opinion filed this date
IT IS HEREBY ORDERED that Plaintiff's Motion for Remand (Dkt. No. 12) is GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED that this case is remanded to the Circuit Court of Branch County.
OPINION
This matter is before the Court on Plaintiff's Motion for Remand pursuant to 28 U.S.C. § 1447(c). Plaintiff alleges Defendants did not meet their burden of proving the amount in controversy exceeded $75,000 when Defendants removed this case. For the reasons that follow, Plaintiff's Motion will be granted in part and denied in part.I. Factual History
Plaintiff Walter Otis, on behalf of himself and all others similarly situated, brought a class action against Defendants E.I. DuPont de Nemours and Company, Pioneer Hi-Bred International, and Monsanto Company in the Circuit Court of Branch County on March 9, 2004, claiming Defendants violated the Michigan Antitrust Reform Act, Michigan Consumer Protection Act, and the common law. Plaintiff alleges Defendants entered into agreements, contracts and combinations to fix, raise, maintain or stabilize the license and seed premiums for the list price of Bacillus thuringiensis corn and genetically modified soybean seeds. Plaintiff sought damages and injunctive relief. Subsequently, Defendants filed a notice of removal to this Court. Plaintiff now moves to have this case remanded to the Circuit Court of Branch County.
1. Amount in Controversy
Defendants argue that Plaintiff is in fact seeking damages greater than $75,000 because he is seeking over $25,000 in damages, and the relevant statute allows for treble damages. Under the Michigan Antitrust Reform Act "[i]f the trier of fact finds that the violation is flagrant, it may increase recovery to an amount not in excess of 3 times the actual damages sustained by reason of a violation of this act." Mich. Comp. Laws § 445.778(2) (emphasis added). The act does not require the Court to evaluate the impact of a treble damage award in an amount in controversy analysis. In Rosen v. Chrysler Corp., 205 F.3d 918 (6th Cir. 2000) however, the court was compelled to consider the impact of trebling damages, as it was mandatory to award treble damages when a violation of the New Jersey Consumer Fraud Act was found. Unlike in Rosen, the treble damage award here is discretionary. Furthermore, Plaintiff has not pled a flagrant violation of the Michigan Antitrust Reform Act. Defendants cannot rewrite Plaintiff's Complaint to assert a remedy that he does not seek. See Gavriles v. Verizon Wireless, 194 F. Supp. 2d 674, 683 (E.D. Mich. 2002) (the right of removal is decided by the pleadings, viewed as of the time when the petition for removal is filed).
2. Injunctive Relief
Defendants further argue that any hardship caused by injunctive relief to Defendants should be considered when computing Plaintiff's damages claim. The value of injunctive relief is measured from the Plaintiff's point of view. 15 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 102.109(6) (3d ed. 2004). Equitable relief should be considered when evaluating whether Plaintiff is seeking damages which meet the $75,000 jurisdictional minimum. An injunction would allow Plaintiff to plant seeds harvested from last years crop. This may provide substantial savings to members of Plaintiff's class, as they would no longer have to buy seeds from Defendants every year. The value of avoiding repurchases is unclear, but it is possible that some members of Plaintiff's class with very large farms could meet the $75,000 minimum threshold as a result of these savings combined with the alleged damages. However, the mere fact that some members meet the statutory minimum is not enough to establish jurisdiction.
Defendants also argue attorney and expert witness fees should be included in this analysis. It is unlikely that any amount of such fees would have any impact on an individual Plaintiff's awards, as attorney and expert witness fees cannot be aggregated.
3. Supplemental Jurisdiction
Zahn v. Int'l Paper Co., 414 U.S. 291, 301 (1973) holds that each member of the putative class must satisfy the $75,000 jurisdictional requirement of 28 U.S.C. § 1332 when class members' claims are separate and distinct. "[E]ven if some class members might bring claims warranting damage awards in excess of $75,000, because the claims of at least one plaintiff do not meet the jurisdictional amount, diversity jurisdiction is defeated for the class as a whole." Hudgins Moving Storage Co. v. Am. Express Co., 292 F. Supp. 2d 991, 997 (M.D. Tenn. 2003); Zahn 414 U.S. at 301. Plaintiff's class does not fulfill Zahn's requirement.
Defendants argue Zahn has been overruled by Congress. This conclusion is far from certain as there is currently a split in the circuit courts. The majority of circuits to consider this issue have held that Zahn was overruled. However, the Sixth Circuit has not yet considered this issue, and the majority of district courts within this Circuit have agreed with the minority circuits in upholding Zahn.
This Court, like the majority of the other district courts in the Sixth Circuit, believes Zahn survived Congress's adoption of 28 U.S.C. § 1367(a) in 1990. Where a statute is clear and unambiguous, courts have interpreted its language by its plain meaning. Here, however, the effect of 28 U.S.C. § 1367(a) on class actions is not clear, as illustrated by the split in the circuits. Therefore, a more searching inquiry, including a look at legislative history, is needed.
See, Hudgins, 292 F. Supp. 2d at 999-1000; Durant v. Servicemaster Co., 147 F. Supp. 2d 744, 749 (E.D. Mich. 2001); Krieger v. Gast, 197 F.R.D. 310, 314-15 (W.D. Mich. 2000); Knauer v. Ohio State Life Ins. Co., 102 F. Supp. 2d 443, 446-47 (N.D. Ohio 2000); Casteel v. Sara Lee Corp., 51 F. Supp. 2d 816, 822 (E.D. Mich. 1999); Crosby v. America Online, Inc., 967 F. Supp. 257, 263 (N.D. Ohio 1997); Taylor v. American Tobacco Co. Inc., 983 F. Supp 686, 691 (E.D. Mich. 1997); Waters v. Grosfeld, 904 F. Supp. 616, 620 (E.D. Mich. 1995).
The legislative history unambiguously contradicts Defendants' argument. "The House Report that accompanied the Judicial Improvements Act, the analysis of which was adopted by the Senate Judiciary Committee . . . expressly states that 28 U.S.C. § 1367 is not intended to affect the jurisdictional requirements of 28 U.S.C. § 1332 in diversity-only class actions . . ." Leonhardt v. Western Sugar Co., 160 F.3d 631, 640 (10th Cir. 1998) (internal quotes omitted). This report goes on to explain that Zahn's interpretation of 28 U.S.C. § 1332 jurisdictional requirements survive the 1990 amendment. Id at 640. Congressional intent in raising the jurisdictional minimum has in large part been to lessen the caseloads of federal courts. Furthermore, allowing an entire class to bring suit in federal court when merely a single named class member meets the statutory minimum would positively undermine that intent.
IV. Conclusion
The issue of citizenship is uncontested, but the amount in controversy has not been met by all class members. Therefore, this Court does not have jurisdiction over this case pursuant to 28 U.S.C. § 1332.
In addition, Plaintiff's motion for attorney fees, costs and expenses in connection with Defendants' removal is denied because the issue of diversity in class action lawsuits has not been settled in the Sixth Circuit.