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Cova v. Charter Communications, Inc.

United States District Court, E.D. Missouri, Eastern Division

August 16, 2016

RENO COVA, et al., Plaintiffs,



         This matter is before the Court on plaintiffs’ motion to remand for lack of subject matter jurisdiction, pursuant to 28 U.S.C. § 1447(c). Defendant has responded in opposition, and the issues are fully briefed.

         I. Background

         On April 5, 2016, plaintiffs initiated this putative class action in the Circuit Court of the City of St. Louis, Missouri. Plaintiffs Reno Cova and Logan O’Connor are citizens of Missouri. Plaintiff Zach Splaingard is a citizen of Illinois. Defendant Charter Communications, Inc. is incorporated in Delaware and maintains its principal place of business in Connecticut.

         According to the complaint, defendant advertises and sells internet, phone, and television service, and leases to its subscribers related equipment. Defendant advertised it was “selling or providing” those goods and services to each subscriber at “monthly itemized rates.” [Doc. #5 at 3] However, defendant allegedly all the while “knew” that its “products and services were not being offered for or provided at the total dollar rates marketed, advertised and intended.” Id. That was so because defendant “did not disclose” it also “would be selling or providing for other valuable consideration” the subscribers’ “personally identifiable information” to third parties “unknown to the subscribers, ” and without the subscribers’ “knowledge or adequate opportunity to consent.” Id. That information included, among other things, the subscribers’ names, addresses, and “retail subscription packages/channels.” Id.

         Plaintiffs allege defendant’s actions mean its advertisements and agreements with its subscribers were deceptive, fraudulent, and misleading; violated the subscribers’ rights to privacy and of publicity; and constituted fraud or negligent inducement to purchase its products and services. Id. The single-count complaint alleges defendant contravened the Missouri Merchandising Practices Act (MMPA), Mo. Rev. Stat. §§ 407.010, et seq. As alleged here, the MMPA prohibits, “deception, fraud, false pretense, false promise, misrepresentation, . . . [and] suppression[] or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce” in Missouri. Id. § 407.020.1. Plaintiffs demand “all money paid” by the class members to defendant, compensation for “the loss of their rights to privacy and publicity, ” and punitive damages. [Doc. #5 at 4-5]

         The putative class is not specifically delineated in the complaint. Plaintiffs allege claims on behalf of “themselves and all other[s] similarly situated.” Id. at 1. The practices at issue are alleged to have occurred “within the City of St. Louis” and “other cities and counties throughout the State of Missouri.” Id. at 2. If the allegations are true, therefore, the class would include all of defendant’s Missouri subscribers whose personally identifiable information defendant provided to third parties, for value, without the subscribers’ consent.

         On May 13, 2016, defendant timely removed, invoking diversity jurisdiction, pursuant to the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d).[1]Plaintiffs move to remand, disclaiming subject matter jurisdiction under CAFA. Conceding CAFA’s minimal diversity requirement is met, plaintiffs maintain defendant has not established the proposed class comprises at least 100 people, or that the amount in controversy exceeds $5, 000, 000. See 28 U.S.C. § 1332(d)(5)(B), (6). Defendant submitted an affidavit that it had approximately 530, 402 subscribers in Missouri in April 2016, all of whom are potentially members of the proposed class. [Doc. #1-2 at 1] Plaintiffs do not challenge defendant’s assertion with respect to the number of its subscribers. Rather, they contend that, to remove, defendant must admit it sold 100 or more subscribers’ information without their consent.

         II. Legal Standard

         The burden of proving that subject matter jurisdiction exists rests with the party asserting it. Great Rivers Habitat All. v. Fed. Emergency Mgmt. Agency, 615 F.3d 985, 988 (8th Cir. 2010). “A defendant may remove a state law claim to federal court only if the action originally could have been filed there.” In re Prempro Prods. Liab. Litig., 591 F.3d 613, 619 (8th Cir. 2010) (citing Phipps v. FDIC, 417 F.3d 1006, 1010 (8th Cir. 2005)). “The defendant bears the burden of establishing federal jurisdiction by a preponderance of the evidence.” Altimore v. Mount Mercy Coll., 420 F.3d 763, 768 (8th Cir. 2005).

         “The court’s jurisdiction is measured at the time of removal.” Grawitch v. Charter Commc’ns, Inc., 750 F.3d 956, 959-60 (8th Cir. 2014) (citation omitted). A “defendant’s notice of removal need include only a plausible allegation that” the prerequisites of subject matter jurisdiction exist. Dart Cherokee Basin Operating Co. v. Owens, 135 S.Ct. 547, 554 (2014). “Evidence establishing” those elements “is required” to be produced “only when the plaintiff contests, or the court questions, the defendant’s allegation, ” and may thus be produced following such a challenge after removal. Id.

         A case must be remanded if, at any time, it appears that the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c); Fed.R.Civ.P. 12(h)(3). However, while that axiom applies to removal under CAFA, it is equally true that “CAFA grants broad federal jurisdiction over class actions and establishes narrow exceptions to such jurisdiction.” Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010) (citations omitted). Consequently, unlike cases removed on the basis of § 1332(a), see Usery v. Anadarko Petroleum Corp., 606 F.3d 1017, 1020 (8th Cir. 2010), “no antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate adjudication of certain class actions in federal court.” Dart, 135 S.Ct. at 554.

         III. Discussion

         Under CAFA, absent exceptions inapplicable here, federal courts have subject matter jurisdiction over “any civil action in which the matter in controversy exceeds the sum or value of $5, 000, 000, exclusive of interest and costs, and is a class action in which . . . any member of a class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). Such jurisdiction exists where the “number of members of all proposed plaintiff classes in the aggregate is” 100 or more, id. ยง 1332(d)(5)(B), and the ...

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