United States District Court, E.D. Missouri, Eastern Division
JACLYN WATERS, individually and on behalf of all others similarly-situated, Plaintiff,
FERRARA CANDY CO., Defendant.
MEMORANDUM AND ORDER
C. COLLINS UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff Jaclyn Waters'
Motion to Remand (Doc. 12). The Motion is fully briefed and
ready for disposition. The parties have consented to the
jurisdiction of the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. 636(c) (Doc. 19). For the
following reasons, Plaintiff's Motion will be
December 8, 2016, Plaintiff filed a petition in the Circuit
Court for the City of St. Louis, Missouri against Defendant
(Doc. 1-1). In the Petition, Plaintiff alleges that
Defendant, an Illinois corporation with its headquarters in
Oakbrook Terrace, is leaving too much empty space
(“slack-fill”) in the cardboard boxes of its
“Chewy Red Hots” candy product. Specifically,
Plaintiff alleges that the amount of slack-fill misrepresents
how much candy is in each box despite the weight of the
product being printed on the packaging.
Count I of the Petition, Plaintiff alleges that this
constitutes an unfair, fraudulent or deceptive practice under
the Missouri Merchandising Practices Act
(“MMPA”), Mo. Rev. Stat. §407.010 et
seq. In Count II, Plaintiff alleges that the proceeds
from Defendant's sales of the products due to deception
of consumers constitute unjust enrichment.
requests that the case be certified as a class action, the
putative class being “[a]ll Missouri citizens who
purchased the Products in the five years preceding the filing
of this Petition[.]” In her Prayer for Relief,
Plaintiff asks for compensatory damages or restitution,
pre-and post-judgment interest, and attorneys' fees.
Although it is not set forth in the Prayer for Relief, in
Paragraph 44 of the Petition, Plaintiff also requests that
the Court grant injunctive relief pursuant to Mo. Rev. Stat.
January 11, 2017, Defendant removed the case to federal court
under 28 U.S.C. §1441 (Doc. 1). In its Notice of
Removal, Defendant invokes the diversity jurisdiction of the
Court as provided under 28 U.S.C. §1332(d) (as amended
by the Class Action Fairness Act of 2005
(“CAFA”), Pub. L. No. 109-2, 119 Stat. 4),
stating that it is an Illinois company being sued by a
Missouri plaintiff and putative class, there are at least 100
members of the putative class, and that the value of the
matter in controversy exceeded $5 million exclusive of
interest and costs. For the “amount in
controversy” requirement, Defendant gives a summary of
the factors which it contends add up to exceed the
jurisdictional minimum. First, Defendant asserts that the
compensatory damages in this matter could be up to $779, 296,
the sales total for Red Hots products in Missouri for the
five years preceding the suit. Defendant then calculates that
attorneys' fees, which are recoverable under the MMPA,
could reach as high as 40 percent of the compensatory
damages. This would add $311, 718 to the amount in
controversy. Third, Defendant asserts that punitive damages,
if awarded pursuant to the MMPA, could be as high as five
times the amount of the judgment of actual damages and
attorneys' fees. It thus calculates potential punitive
damages at $5, 455, 070. Finally, Defendant states
“changes in production processes and/or capital
equipment that would be necessitated by an injunction
requiring an increase in the percentage fill in the product
packages at issue could possibly cost Ferrara in excess of
$6, 000, 000.” As such, Defendant asserts that the
value of the matter in controversy could possibly reach $11,
January 23, 2017, Plaintiff filed a Motion to Remand (Doc.
12). Plaintiff requests that this Court remand the case to
state court, challenging only Defendant's assertion that
the matter in controversy was more than $5 million exclusive
of interest and fees.
courts have original jurisdiction in proposed class actions
in which the matter in controversy exceeds the sum or value
of $5 million (exclusive of interest and costs), any member
of a class of plaintiffs is a citizen of a state different
from any defendant, and there are at least 100 class members.
28 U.S.C. §1332(d) (as amended by CAFA).
CAFA, a party who seeks to invoke the jurisdiction of the
federal court bears the burden of proving by a preponderance
of the evidence that the amount in controversy exceeds the
minimum jurisdictional amount. Rasmussen v. State Farm
Mut. Auto. Ins. Co., 410 F.3d 1029, 1031 (8th Cir.
2005). “This standard applies regardless of whether
‘the complaint alleges no specific amount of damages or
an amount under the jurisdictional minimum.'”
Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir.
2009) (quoting In re Minn. Mut. Life Ins. Co. Sales
Practices Litig., 346 F.3d 830, 834 (8th Cir. 2003)).
“Once the removing party has established by a
preponderance of the evidence that the jurisdictional minimum
is satisfied, remand is only appropriate if the plaintiff can
establish to a legal certainty that the claim is for less
than the requisite amount.” Id.
alleges that the $5 million jurisdictional minimum is not
satisfied in this case, pointing to, among other things,
statements in the Petition that the aggregated amount in
controversy will not exceed $4, 999, 999 for the entire
class. Unlike in traditional cases, however, stipulated
disclaimers of recovery are not effective when determining
the value of a putative class action prior to certification
of the class. See Standard Fire Ins. Co. v. Knowles,
568 U.S. 558 (2013) (holding that a plaintiff's
stipulation prior to certification that the class will not
seek relief exceeding $5, 000, 000 is not binding on the
putative class members, raising the legal possibility that
relief could exceed that total).
stated above, Defendant asserts that there are multiple
categories of award which, singly or stacked, add up to more
than $5 million. In support of these assertions, Defendant
submitted two affidavits with their Opposition to the Motion
to Remand. The first is from Defendant's Vice President
of Iconic Brands, Mark Riegel (Doc. 15). Mr. Riegel states
that the total retail sales of all Red Hots products
(regardless of packaging type) in the St. Louis and Kansas
City metropolitan areas was $779, 296 from 2012 through
2016. He further states that the majority of
sales of Red Hots are in the “Theatre” or
“Changemaker” cardboard boxes, and that estimated
sales of those products were approximately $464, 903 in St.
Louis and Kansas City during the 2012-2016 timeframe.
second affidavit submitted by Defendant in support of its
assertion of the amount in controversy is from Michael
Murray, Chief Operating Officer (Doc. 16). Mr. Murray asserts
that if Defendant were compelled by injunction to change its
packaging processes to eliminate slack-fill,  it would
cost approximately $3, 595, 000 to ...