COLADONATO v. THE GAP, INC. et al, No. 1:2017cv11998 - Document 15 (D.N.J. 2018)
Court Description: MEMORANDUM OPINION AND ORDER Denying Plaintiff's 6 Motion to Remand. Signed by Judge Joseph H. Rodriguez on 9/26/2018. (dmr)
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COLADONATO v. THE GAP, INC. et al Doc. 15 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY CARON COLADONATO, Individually and on behalf of All Others Sim ilarly Situated, Plaintiff, v. : Hon. J oseph H. Rodriguez : Civil Action No. 17-11998 : MEMORANDUM OPINION & ORDER : THE GAP, INC., et al., Defendants. : : This m ater is before the Court on Plaintiff’s m otion to rem and. The Court has reviewed the subm issions of the parties and decides this matter pursuant to Fed. R. Civ. P. 78(b). For the reasons expressed here, Plaintiff’s m otion will be denied. Background This purported class action was filed in the Superior Court of New J ersey, Law Division, Cam den County, seeking injunctive relief against Defendants The Gap, Inc.; GAP (Apparel) LLC; GAP International Sales, Inc.; Banana Republic, LLC; and Banana Republic (Apparel) LLC. Plaintiff alleges that she purchased goods on num erous occasions from Defendants’ Gap Factory and Banana Republic Factory stores in New J ersey and contends that Defendants violated New J ersey’s Consumer Fraud Act, N.J . 1 Dockets.Justia.com Stat. Ann. § 56:8-1 (the “NJ CFA”) by allegedly advertising arbitrary and false base prices for item s in New J ersey stores, advertising item s for sale at percentages that m isrepresented the actual discounts received, and charging full price on item s advertised at discounted rates. Plaintiff seeks declaratory relief whereby the court adjudges Defendants’ past conduct to be in violation of federal and state pricing regulations and injunctive relief “enjoining Defendants from continuing these complained of practices in their Gap Factory and Banana Republic Factory stores in New J ersey.” Com pl. at ¶ 112. Plaintiff’s Com plaint defines “the class” to include herself as well as a putative class consisting of “all New J ersey citizens who purchased any purportedly discounted item from a Gap Factory or Banana Republic Factory store in New J ersey between October 9, 20 11 and the present.” She also alleges that this putative class “is com posed of at least 1,0 0 0 persons.” Defendants tim ely rem oved the m atter to this Court pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332, 1441 and 1446. 1 District courts have subject m atter jurisdiction over a “class action,” as defined in 28 U.S.C. §§ 1332(d)(1)(B) and 1453, where, inter alia, “the m atter in controversy exceeds the sum or value of $ 5,0 0 0 ,0 0 0 , exclusive of interest and costs.” See 28 U.S.C. § 1332(d)(2). Pursuant to 28 U.S.C. § 1332(d)(6), the claim s of each putative class mem ber can be aggregated to determ ine whether the am ount in controversy requirement is satisfied. See 28 U.S.C. § 1332(d)(6). 1 2 Motion to Rem and Under 28 U.S.C. § 1446(a), a defendant seeking to rem ove a case to a federal court m ust file in the federal forum a notice of removal “containing a short and plain statem ent of the grounds for rem oval.” “When a defendant seeks federal-court adjudication, the defendant’s am ount-incontroversy allegation should be accepted when not contested by the plaintiff or questioned by the court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 553 (20 14). Evidence establishing the am ount is only required by § 1446(c)(2)(B) when the plaintiff contests, or the court questions, the defendant’s allegation. Id. If the plaintiff contests the defendant’s allegation, “both sides subm it proof and the court decides, by a preponderance of the evidence, whether the am ount-in-controversy requirement has been satisfied.” Id. at 553-54. Here, Plaintiff’s com plaint specifically states that the total am ount in controversy for its claim s, including attorney’s fees, is less than $ 5 m illion. It is a plaintiff’s right to lim it the value of its claim to prevent its case from being rem oved from its choice of forum , see Frederico v. Hom e Depot, 50 7 F.3d 188, 195 (3d Cir. 20 0 7) (explaining that it is “well-established” that “the plaintiff is the m aster of her own claim and thus m ay lim it his claim s to avoid federal subject m atter jurisdiction”), but federal court is a forum 3 available to a defendant despite a plaintiff’s choice, as long as the defendant has provided in its notice of rem oval a “short and plain statem ent” that the jurisdictional requirements of CAFA are m et, and if challenged by the plaintiff, has dem onstrated that the CAFA requirem ents are met by the preponderance of the evidence. See Owens, 135 S. Ct. at 554 (“[N]o antirem oval presum ption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.”). Discussion In the Notice of Rem oval, Defendants provided the following statements of the grounds for rem oval to dem onstrate that the jurisdictional requirements of CAFA are m et: 17. Here, the declaration sought by plaintiff would determ ine whether Defendants unlawfully obtained m illions of dollars in revenue from citizens of New J ersey who purchased items from Gap factory stores and Banana Republic factory stores during the class period. 18. Although Plaintiff does not request dam ages, under remedies purportedly available under N.J .S.A. 56:8-2.12, Plaintiff and putative class m embers, through a private action, m ay recover refunds of all m oney acquired by Defendants by m eans of any practice declared to be in violation of the statute. See N.J .S.A. 56:8-2.11 – 8-2.12; see also Com pl. at ¶ 115. Accordingly, if Plaintiff is successful and obtains an order adjudging the alleged conduct to have been unlawful, Defendants’ custom ers could seek to recover all of the m oney acquired by Defendants during the class period. Plaintiff also seeks “reasonable attorney’s fees and court costs” and an 4 injunction “prohibiting the com plained-of conduct by Defendants in the future.” Compl. at ¶ 32. 19. Based on the allegations in the Com plaint, the am ount in controversy requirem ent is satisfied. Plaintiff alleges that the class includes every citizen who purchased any purportedly “discounted item ” from at least nine Gap Factory stores and six Banana Republic Factory stores in New J ersey from October 9, 20 11 until the present. See Com pl. at ¶¶ 20 , 87. Plaintiff further alleges that purchases would not have been made absent the allegedly unlawful advertising schem e. See Com pl. at ¶¶ 72, 148. Thousands of Gap factory and Banana Republic factory “discounted items” im plicated by the allegations have been sold in New J ersey since October 9, 20 11. If, as Plaintiff alleges, she is able to prove that Defendants’ conduct violated the NJ CFA and these purchases would not have otherwise been m ade, Defendants face the risk of claim s for refunds of the total purchase price for each discounted item sold in New J ersey during the six year period. The am ount in controversy for these violations, if Plaintiff obtains the requested declaratory judgm ent, would be in excess of $ 10 million, based on the volum e of sales in Gap factory stores and Banana Republic factory stores in New J ersey since October 9, 20 11. Nonetheless, Plaintiff has m oved for rem and, arguing that Defendants have not shown, by a preponderance of the evidence, that CAFA’s am ount in controversy is m et by this case. She argues that the Com plaint does not seek m oney dam ages or any relief to rem edy past m isconduct, including refunds; rather, declaratory and injunctive relief are sought prospectively only. “Although declaratory judgment actions do not directly involve the award of m onetary dam ages, ‘it is well established that the am ount in 5 controversy [in such actions] is measured by the value of the object of the litigation.’” Auto– Owners Ins. Co. v. Stevens & Ricci Inc., 835 F.3d 388, 397– 98 (3d Cir. 20 16) (quoting Hunt v. Wash. State Apple Advert. Com m’n, 432 U.S. 333, 347 (1977)). See also 14AA Charles Alan Wright et al., Federal Practice & Procedure § 370 8 (4th ed. 20 16) (“With regard to actions seeking declaratory relief, the am ount in controversy is the value of the right or the viability of the legal claim to be declared, ….”). To dem onstrate that the am ount in controversy exceeds $ 5 m illion, Defendants have subm itted a sworn statem ent from a Senior Director indicating that as of the end of 20 17, the Banana Republic Factory Stores located in New J ersey had sales over $ 20 m illion since October 20 11, the proposed starting date for the putative class. (Gerstein Decl. at ¶ 3, 5.) Based on the volume of sales during the proposed class period and Plaintiff’s allegation that she suffered dam ages in the amount of her purchase price, Defendants arrive at an am ount in controversy exceeding $ 20 m illion. (Id.) While Plaintiff argues that this am ount is speculative, she has put forth no proof of the am ount in controversy to counter Defendants’ valuation of her claim . As such, the court finds, by a preponderance of the evidence, that the am ount-in-controversy requirement has been satisfied. 6 Conclusion Accordingly, IT IS ORDERED this 26th day of Septem ber, 20 18 that Plaintiff’s m otion to rem and this m atter is hereby DENIED. / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . 7
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