CAROL B. OSHANA, Plaintiff-Appellant, v. COCA-COLA COMPANY, a Delaware corporation, Defendant-Appellee.
No. 05-3640
United States Court of Appeals For the Seventh Circuit
ARGUED MARCH 29, 2006—DECIDED DECEMBER 29, 2006
Before BAUER, KANNE, and SYKES, Circuit Judges.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 3596—Suzanne B. Conlon, Judge.
I. Background
Oshana filed this lawsuit in Illinois state court alleging Coke tricked consumers into believing that fountain Diet Coke and bottled Diet Coke have the same ingredients.1 In fact, bottled Diet Coke is sweetened with aspartame, while fountain Diet Coke is sweetened with a mixture of aspartame and saccharin. The additional ingredient in fountain Diet Coke apparently addresses concerns about the staying power of aspartame as a sweetener in fountain syrup. Oshana complained, in relevant part, that Coke began advertising in 1984 that Diet Coke would be sweetened with 100% NutraSweet® brand aspartame, leading consumers to believe that all forms of Diet Coke would follow that formula, even though fountain Diet Coke continued to use saccharin.
Consistent with Illinois practice, Oshana did not claim an amount of damages in her complaint. She did, however, disclaim individual damages over $75,000. She sought compensatory damages, disgorgement of Coke‘s profits from the sale of fountain Diet Coke in Illinois, attorneys’ fees and costs, and any other relief the court saw fit to grant.
Coke removed the case to federal court invoking diversity jurisdiction and claiming a good-faith belief that the amount in controversy in fact exceeded the $75,000 threshold. See
The district court denied class certification, holding that Oshana could not satisfy the requirements of
The district court then partially granted Coke‘s summary judgment motion, limiting Oshana‘s claims because of the statute of limitations and holding that Oshana could not personally collect all of Coke‘s disgorged profits from the sale of fountain Diet Coke in Illinois if she prevailed on the merits. Instead, the court held she could recover only the $650 in damages she personally incurred. Coke made an offer of judgment for $650 plus reasonable attorneys’ fees and costs (to be determined by the district court), see
II. Discussion
A. Jurisdiction
Oshana‘s first argument is that her case never belonged in federal court. She maintains that $75,000 was never in controversy because she disclaimed damages in excess of the federal jurisdictional amount in her state-court complaint. Although the amended complaint sought millions in individual damages (by way of Coke‘s disgorged profits), Oshana argues that the amount in controversy was not satisfied because it is measured only at the time of removal and is not affected by later amendments.
We review the propriety of removal de novo. Boyd v. Phoenix Funding Corp., 366 F.3d 524, 529 (7th Cir. 2004). A defendant has the right to remove a case from state to federal court when the federal court could exercise jurisdiction in the first instance.
The amount in controversy is the amount required to satisfy the plaintiff‘s demands in full on the day the suit begins, Hart v. Schering-Plough Corp., 253 F.3d 272, 273 (7th Cir. 2001), or in the event of removal, on the day the suit was removed, BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 552 (7th Cir. 2002). Because Coke is the proponent of jurisdiction, it has the burden of showing by a preponderance of the evidence facts that suggest the amount-in-controversy requirement is met. Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 543 (7th Cir. 2006). That is easier said than done when the plaintiff, the master of the complaint, does not want to be in federal court and provides little information about the value of her claims. In such a case, a good-faith estimate of the stakes is acceptable if it is plausible and supported by a preponderance of the evidence. See, e.g., Rubel v. Pfizer, Inc., 361 F.3d 1016, 1020 (7th Cir. 2004). Once the defendant in a removal case has established the requisite amount in controversy, the plaintiff can defeat jurisdiction only if it appears to a legal certainty that the claim is really for less than the jurisdictional amount. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); Meridian Sec., 441 F.3d at 541.
In a class action, the amount in controversy must be satisfied by one of the named plaintiffs; aggregating claims is not allowed for purposes of determining the jurisdictional amount.2 Del Vecchio v. Conseco, Inc., 230 F.3d 974, 977 (7th Cir. 2000); Garbie v. DaimlerChrysler Corp., 211 F.3d 407, 409 (7th Cir. 2000); In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997). Once one plaintiff satisfies the amount-in-controversy requirement for diversity jurisdiction, the other plaintiffs come in under the court‘s supplemental jurisdiction regardless of whether their individual claims satisfy the requirements of
On the face of Oshana‘s state-court complaint, she did not. She expressly disclaimed individual damages over $75,000: Plaintiff seeks no relief, cause of action, remedy or damages that would confer federal jurisdiction upon the claims asserted herein, and expressly disclaims individual damages in excess of $75,000. Such disclaimers have been long approved as a way of staying out of fed-
The complaint sought several types of damages: actual damages; disgorgement of Coke‘s profits from the sale of fountain Diet Coke in Illinois; and attorneys’ fees. Coke asked Oshana to admit in formal Requests for Admission that in the event the class was not certified, she would not personally seek (1) disgorgement of Coke‘s profits; (2) punitive damages in excess of $75,000; (3) attorneys’ fees in excess of $75,000; (4) an award of compensatory and punitive damages and attorneys’ fees in excess of $75,000; or (5) an award of disgorgement, punitive damages, and attorneys’ fees in excess of $75,000. Oshana refused to admit any of those things. So when the district court considered whether jurisdiction was proper, it had only Coke‘s good-faith belief that the amount in controversy exceeded $75,000, facts suggesting the amount
Oshana‘s refusal to admit that she would not seek individual damages in excess of $75,000 worked against her. As we said in Workman, if the plaintiff does not stipulate to damages of $75,000 or less, the inference arises that he thinks his claim may be worth more. 234 F.3d at 1000. Although the complaint said nothing about the amount of Oshana‘s actual damages, Coke‘s profits from the sale of fountain Diet Coke in Illinois during the relevant time period stretched into the millions. That alone would put this case securely over the amount in controversy were it not doubtful that Oshana could force Coke to cough up all of its profits from the sale of fountain Diet Coke in Illinois just by showing she alone had been deceived. But attorneys’ fees up to the time of removal also count toward the jurisdictional amount, see Smith v. Am. Gen‘l Life & Accident Ins. Co., 337 F.3d 888, 896-97 (7th Cir. 2003); Hart, 253 F.3d at 273; Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955, 957 (7th Cir. 1998), and an award of fees is properly considered in addition to compensatory damages and some degree of disgorgement. Oshana‘s refusal to admit that the combination of these recoveries would not exceed $75,000 raised the reasonable inference that it would.
Finally, although the complaint was silent about punitive damages, the ICFA permits recovery of punitive damages, and Oshana could have amended her state court complaint to seek a punitive damages award. Oshana‘s refusal to admit she would not seek more than $75,000 in compensatory damages, disgorged profits (recoverable individually), punitive damages, and attorneys’ fees makes it plausible that more than $75,000 was at stake. Removal was proper.
This result is only fair. Oshana cannot benefit by playing a cat-and-mouse game, purporting to disclaim dam-
Oshana argues that the district judge‘s ultimate holding that she could not individually recover more than $650 as a matter of law shows that it was a legal certainty all along that her claim did not exceed the jurisdictional minimum. Not so. Whether she actually recovers more than $75,000 is immaterial; what matters is the amount put in controversy on the day of removal. BEM I, L.L.C., 301 F.3d at 552. On the day of removal, the district court had not narrowed the scope of Oshana‘s claims, but did so only at the time of the summary judgment motion in concluding that damages could be no more than $650. Also, as we have noted, it was not clear on the day of removal that Oshana would not seek or recover punitive damages, because she refused to stipulate or admit she would not. Moreover, it was not clear at the time of removal that adding attorneys’ fees to compensatory and punitive damages and individually recoverable disgorged profits would total less than $75,000. There is no reason to believe on the day the case was removed that it was
B. Class Certification
Oshana also challenges the district court‘s decision not to certify a class. The district court may certify a class of plaintiffs if the putative class satisfies all four requirements of
The district court determined that the proposed class was not sufficiently definite to warrant class certification. Oshana sued Coke for violating the ICFA and for unjust enrichment. To prevail on a claim for damages under the ICFA, Oshana and her fellow class members must prove: (1) a deceptive act or practice by Coke; (2) that the act or practice occurred in the course of conduct involving trade or commerce; (3) that Coke intended Oshana and the members of the class to rely on the deception; and (4) that actual damages were proximately caused by the decep-
Membership in Oshana‘s proposed class required only the purchase of a fountain Diet Coke from March 12, 1999, forward. Such a class could include millions who were not deceived and thus have no grievance under the ICFA. Some people may have bought fountain Diet Coke because it contained saccharin, and some people may have bought fountain Diet Coke even though it had saccharin. Countless members of Oshana‘s putative class could not show any damage, let alone damage proximately caused by Coke‘s alleged deception. See Oliveira, 776 N.E.2d at 164 (holding that those who knew the truth do not have valid ICFA claims because they cannot claim to have been deceived).
For the same reasons, Oshana‘s claims were not typical of the putative class. A claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and . . . her claims are based on the same legal theory. Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992). Even though some factual variations may not defeat typicality, the requirement is meant to ensure that the named representative‘s claims ‘have the same essential characteristics as the claims of the class at large.’ Retired Chi. Police Ass‘n v. City of Chi., 7 F.3d 584, 597 (7th Cir. 1993) (quot-
Oshana‘s proposed class includes people who knew fountain Diet Coke contained saccharin and bought it anyway. Oshana, on the other hand, claims she was deceived and injured. Also, Oshana‘s ICFA claim is subject to certain specific factual defenses that undermine typicality: she admitted she did not see any Coke advertisements during the relevant period and that she knew fountain and bottled Diet Coke were different because bottled Diet Coke tasted better. She also admitted that she continues to drink fountain Diet Coke even though she now knows it contains saccharin. We cannot say the district court‘s conclusion that Oshana‘s claims are atypical was an abuse of discretion.3
Oshana contends that this conclusion addresses only her deceptive marketing ICFA claim but not her per se ICFA violation claim or her unjust enrichment claim. She argues that it is a per se violation of the ICFA to represent that a product has ingredients it does not have because that is a violation of the Uniform Deceptive Trade Practices Act, and violations of the Uniform Deceptive Trade Practices Act are also violations of the ICFA.
Her unjust enrichment claim carries similar shortcomings. Oshana cannot show Coke was unjustly enriched unless she shows that Coke benefitted to her detriment, and that Coke‘s retention of the profits would violate the fundamental principles of justice, equity, and good conscience. HPI Healthcare Servs., Inc. v. Mt. Vernon Hosp., Inc., 545 N.E.2d 672, 679 (Ill. 1989). Unjust enrichment claims do not necessarily require wrongdoing on the part of the defendant, see Stathis v. Geldermann, Inc., 692 N.E.2d 798, 812 (Ill. App. Ct. 1998), but in this case Coke cannot have been unjustly enriched without proof of deception. As such, the proposed class is not sufficiently identifiable or definite, nor is Oshana‘s claim sufficiently typical to qualify for class certification.
AFFIRMED.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—12-29-06