104 F. Supp. 3d 1
D.D.C.2015Background
- Plaintiff Patrick Witte, a D.C. resident, purchased two opaque GNC supplement containers that contained non-functional slack-fill and sued under the D.C. Consumer Protection Procedures Act (DCCPPA) seeking injunctive relief, damages, and other relief on behalf of himself and the public.
- Defendants General Nutrition Corporation and GNC Parent, LLC (Pennsylvania entities) removed the case to federal court invoking diversity jurisdiction.
- Defendants claimed the amount in controversy exceeded $75,000 based on the projected nationwide cost to comply with the requested injunction; they submitted an affidavit asserting retrofit costs would exceed $75,000.
- Witte moved to remand to D.C. Superior Court, arguing federal court lacked subject-matter jurisdiction because defendants failed to show the jurisdictional amount was satisfied.
- The district court considered whether injunction compliance costs may be measured from defendant’s viewpoint and, if so, whether total compliance costs may be aggregated across multiple represented consumers.
- The court held defendants failed to meet their burden: it applied the D.C. Circuit’s either-viewpoint rule but concluded that for representative consumer suits the relevant calculation is the cost running to each individual plaintiff, not defendants’ total compliance costs, and defendants did not show per-plaintiff costs exceed $75,000. The case was remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the removal should be denied for lack of subject-matter jurisdiction (amount in controversy) | Witte: amount should be measured from plaintiff’s viewpoint; injunctive relief value to plaintiff is small and defendants cannot aggregate other consumers’ claims | GNC: court may look to defendants’ compliance cost; nationwide retrofit would exceed $75,000 so amount in controversy is satisfied | Remand granted: court may consider defendant’s compliance costs (either-viewpoint rule), but in representative suits the relevant measure is the cost running to each individual plaintiff; defendants did not show per-plaintiff cost > $75,000 |
| Whether plaintiff waived remand by engaging in discovery | Witte: limited discovery and pendency of remand motion do not waive jurisdictional objection | GNC: plaintiff’s litigation activity (extensions, discovery) amounted to waiver | No waiver: limited discovery is insufficient; subject-matter objections cannot be forfeited |
| Whether defendants may aggregate compliance costs across all affected consumers to meet jurisdictional threshold | Witte: aggregation is impermissible; must show amount runs to each plaintiff | GNC: total nationwide compliance cost should be considered to reach $75,000 | Aggregation disallowed: non-aggregation rule applies; must show cost per individual plaintiff exceeds $75,000 |
| Sufficiency of defendants’ affidavit on compliance costs | Witte: affidavit is conclusory and speculative | GNC: affidavit shows retrofit would cost > $75,000 | Court did not reach this in detail after holding non-aggregation and lack of per-plaintiff showing; remand affirmed |
Key Cases Cited
- Tatum v. Laird, 444 F.2d 947 (D.C. Cir. 1971) (adopts either-viewpoint test: amount in controversy may be measured by pecuniary result to either party)
- Comm. for GI Rights v. Callaway, 518 F.2d 466 (D.C. Cir. 1975) (reaffirming either-viewpoint rule)
- Smith v. Washington, 593 F.2d 1097 (D.C. Cir. 1978) (applies either-viewpoint approach to amount in controversy)
- Breakman v. AOL, LLC, 545 F. Supp. 2d 96 (D.D.C. 2008) (holds that in representative suits the cost running to each plaintiff must meet jurisdictional amount)
- In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599 (7th Cir. 1997) (each plaintiff’s claim must be considered separately for relief valuation)
- Snyder v. Harris, 394 U.S. 332 (1969) (non-aggregation principle)
- Zahn v. International Paper Co., 414 U.S. 291 (1973) (limits aggregation when plaintiffs have separate and distinct claims)
- Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (subject-matter jurisdiction objections cannot be forfeited)