BURR

v.

FAMILY DOLLAR STORES, INC.

and FAMILY DOLLAR STORES OF FLORIDA, LLC,

Defendants. ___________________________________/

ORDER

This matter comes before the Court on Plaintiff’s Motion to Remand (Doc. 12), filed on October 22, 2021. In the motion, Plaintiff seeks an order remanding this case to state court due to lack of subject matter jurisdiction because the amount in controversy is not met for purposes of diversity jurisdiction. Defendant filed a response in opposition (Doc. 15) and Plaintiff replied (Doc. 16). The Court, having considered the motion and being fully advised in the premises, will grant Plaintiff’s Motion to Remand and remand this action to the Fifth Judicial Circuit in and for Hernando County.

DISCUSSION

On May 14, 2021, Plaintiff Nancy Burr (“Burr” or “Plaintiff”) commenced this action, on behalf of herself and others similarly situated, against Family Dollar Stores, Inc. and Family Dollar Stores of Florida, Inc. (collectively “Family Dollar” or “Defendants”) in the Circuit Court of the Fifth Judicial Circuit, in and for Hernando County, Florida. Doc. 1-9. The case arises out of a claim of false labelling, false advertising, and deceptive practices related to Family Dollar’s Chestnut Hill brand ground coffee products. The Complaint alleges Family Dollar engaged in a bait-andswitch false advertising scheme whereby it mislabeled its coffee products as containing more servings of coffee than the products actually contain. Id. ¶ 3. Plaintiff, a Florida citizen, alleges Family Dollar Stores, Inc. is a Delaware corporation and Family Dollar Stores of Florida, LLC is a Virginia limited liability company that operates numerous stores in the State of Florida. Id. ¶¶ 7, 8. Plaintiff sues Defendants in a two-count complaint alleging state law causes of action for breach of express warranty and breach of implied warranty. Doc. 1-9. Plaintiff asserts her claims on behalf of a putative class consisting of all persons in Florida who, in the two years preceding the filing of this action, purchased one or more of Family Dollar’s Chestnut Hill coffee product canisters for personal use. Id. ¶ 38. Plaintiff alleges Family Dollar’s Chestnut Hill coffee product canisters represent that the canister “[m]akes up to 270 6 fl. oz. cups.” Id. ¶ 14. However, when a customer follows the recommended brewing instructions to use one rounded tablespoon of coffee for each 6 fluid ounces of water, Plaintiff alleges that it is impossible to make 270 cups of coffee. Id. ¶ 17. At most, Plaintiff contends the canister makes only 192 six-ounce cups of coffee. Id. ¶ 19. Plaintiff alleges Defendants’ labelling and marketing of Chestnut Hill coffee products is false and misleading and has caused Plaintiff and the putative class damages. According to Plaintiff, she and class members were overcharged and overpaid for the coffee products by approximately 29%. Id. ¶ 37. Defendants filed a Notice of Removal on September 23, 2021. Doc. 1. The

Notice alleges that jurisdiction is proper under 28 U.S.C. § 1332. Id. ¶ 5. Defendants assert that they are not Florida citizens. Id. ¶ 9. The sole member of Family Dollar Stores of Florida, LLC is Family Dollar Stores, Inc. Id. Family Dollar Stores, Inc. is a Delaware corporation with its principal place of business in Virginia. Id.

Regarding the amount in controversy, Defendants state that Plaintiff seeks to recover 29% of the full purchase price paid for the coffee product by class members for a two-year period from May 2019 to May 2021. Id. ¶ 13. According to Defendants, their retail sales for Chestnut Hill coffee products during that time frame exceeded $258,620.69.1 Thus, Defendants submit the amount in controversy is satisfied.

“The jurisdiction of a court over the subject matter of a claim involves the court’s competency to consider a given type of case, and cannot be waived or otherwise conferred upon the court by the parties.” Jackson v. Seaboard Coast Line R.R. Co., 678 F. 2d 992, 1000 (11th Cir. 1982). “Federal courts are courts of limited jurisdiction.” Univ. of S. Ala. V. Am. Tobacco Co., 168 F. 3d 405, 409 (11th Cir. 1999). And “once a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Id. at 410.

“The sufficiency of the amount in controversy is determined at the time of removal.” Pretka v. Kolter City Plaza II, Inc., 608 F. 3d 744, 751 (11th Cir. 2010). “[A] removing defendant must prove by a preponderance of the evidence that the amount in controversy more likely than not exceeds the jurisdictional requirement.” Roe v. Michelin N. Am., Inc., 613 F. 3d 1058, 1061 (11th Cir. 2010). Lack of subject matter jurisdiction requires remand to the state court under 28 U.S.C. § 1447(c); see also Fed. R. Civ. P. 12 (h)(3). “Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly,” and “all doubts about jurisdiction should be resolved in favor of remand to state court.” Univ. of S. Ala., 168 F. 3d at 411. Defendants fail to carry their burden to establish that the amount in controversy is satisfied to invoke this Court’s subject matter jurisdiction. It is a removing defendant’s responsibility to present documents that “contain an unambiguous statement that clearly establishes federal jurisdiction.” Lowery v. Ala. Power Co., 483 F. 3d 1184, 1215 n.63 (11th Cir. 2007), cert. denied, 553 U.S. 1080 (2008). Defendants have failed to do so here. Defendants offer no documentary evidence to demonstrate the amount of their sales of coffee products in Florida for that two-year period. But, more significantly, Defendants do not demonstrate that class members’ claims can be aggregated for purposes of determining the amount in controversy. For the Court to exercise jurisdiction over the case under section 1332(a), the claims of at least one of the named plaintiffs must exceed $75,000. See Allapattah Services, Inc. v. Exxon Corp., 333 F. 3d 1248, 1256 (11th Cir. 2003), aff’d by Exxon Mobile Corp. v. Allapattah Svcs., Inc.,

125 S. Ct. 2611 (2005). With an average cost of the coffee canister at issue being approximately $6.00, a named plaintiff would have to purchase over 43,000 cans of coffee in the two-year period to individually incur damages in excess of $75,000.2 Moreover, Defendants do not contend that the original jurisdiction of the Court is invoked based on the Class Action Fairness Act (“CAFA”), which requires an amount in controversy in excess of five million dollars. See 28 U.S.C. §§ 1332(d)(2), 1453. And Defendants, in their response, acknowledge that this action does not

C hakor oe c AwJanda Mn TL ol yell Charlene Edwards Honeywell United States District Judge

Copies to: Counsel of Record and Unrepresented Parties, if any See Friedman v. New York Life Ins. Co, 410 F. 3d 1350, 1354 (11th Cir. 2005) (holding claims of the plaintiff and putative class members remained separate and distinct claims of separate individuals for reimbursement of the amount each overpaid and therefore did not constitute common and undivided claims to a common fund).