                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA


 FAHIM ABEDRABBO, et al.,

           Plaintiffs,
                                                           Civil Action No. 09-01838 (CKK)
      v.

 TOPPS MEAT COMPANY, LLC,

           Defendant.


                                 MEMORANDUM OPINION
                                   (December 21, 2010)

       Plaintiffs commenced this action against Defendant Topps Meat Company, LLC

(“Defendant”) on September 24, 2009, bringing eight causes of action in connection with the

personal injuries they allegedly suffered after consuming Escherichia coli-contaminated ground

beef distributed by Defendant. Plaintiffs assert a single cause of action under the Magnuson-

Moss Warranty-Federal Trade Commission Improvement Act (the “Magnuson-Moss Act” or,

simply, the “Act”), 15 U.S.C. §§ 2301 et seq., as well as seven state-law statutory and common

law claims. Presently before the Court is Defendant’s [15] Motion for Summary Judgment for

Lack of Subject Matter Jurisdiction. For the reasons set forth below, the Court concludes that it

is without subject matter jurisdiction to hear Plaintiffs’ claims and shall therefore GRANT

Defendant’s motion and DISMISS WITHOUT PREJUDICE this action in its entirety.

                                I. PRELIMINARY MATTERS

       Before proceeding, the Court pauses to make an overarching observation about the nature

of Plaintiffs’ opposition to the present motion. Although the motion now before the Court is

contested, Plaintiffs have failed to rebut or otherwise dispute the factual showing made by
Defendant in support of its Motion for Summary Judgment. Here, the Court notes that the

District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of

Civil Procedure with Local Rule LCvR 7(h)(1), which requires that each party submitting a

motion for summary judgment attach a statement of material facts to which that party contends

there is no genuine dispute, with specific citations to those portions of the record upon which the

party relies in fashioning the statement. Where the opposing party fails to submit a statement

enumerating all material facts which the party contends are in dispute, the district court may take

all facts identified by the movant as admitted. See Local Rule LCvR 7(h)(1) (“In determining a

motion for summary judgment, the court may assume that facts are admitted, unless such fact is

controverted in the statement of genuine issues filed in opposition to the motion.”); see also

Arrington v. United States, 473 F.3d 329, 335 (D.C. Cir. 2006). In this case, the parties were

informed that this Court strictly adheres to the dictates of this rule. See Scheduling and

Procedures Order (Apr. 19, 2010), Docket No. [14], at 3-4. Nevertheless, whereas Defendant

filed a statement in conformance with the rule, Plaintiffs elected not to file a statement in

opposition. Accordingly, the Court shall treat all facts identified in Defendant’s Statement of

Undisputed Facts as admitted.

                                       II. BACKGROUND

       This action concerns allegations that Plaintiffs suffered personal injuries arising from the

consumption of ground beef products allegedly containing Escherichia coli (“E. coli”) O157:H7.

See generally Compl., Docket No. [1]. Plaintiffs—a group of twelve individuals—claim to have

purchased and consumed varying amounts of ground beef distributed by Defendant in the

summer and fall of 2007. Id. ¶¶ 11-12, 14-15, 17-18, 20-22, 24-25, 27-28, 30-31. The packaging


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accompanying Defendant’s products allegedly contained language along the lines of “Topps

100% Premium Hamburger” or “Topps 100% Pure Ground Beef Hamburgers.” Id. ¶ 37. After

consuming Defendant’s products, Plaintiffs allegedly exhibited symptoms consistent with E. coli

exposure, including abdominal cramps, bloody diarrhea, and fatigue. Id. ¶¶ 13, 16, 18, 20, 23,

26, 29, 32. Some sought medical attention in connection with their symptoms. Id. On

September 25, 2007, the Food and Safety Inspection Service for the U.S. Department of

Agriculture announced that Defendant had recalled approximately 331,582 pounds of ground

beef. Id. ¶ 33. On September 29, 2007, Defendant announced that it was expanding its recall to

include 21.7 million pounds of ground beef. Id. ¶ 35.

       Plaintiffs assert one cause of action under the Magnuson-Moss Act, 15 U.S.C. §§ 2301 et

seq. Compl. ¶¶ 43-48. Specifically, Plaintiffs allege that Defendant “breached expressed [sic]

and implied warranties as the E. coli was not disclosed that was in the [p]roduct purchased by

Plaintiffs.” Id. ¶ 46. As a result, Plaintiffs allegedly “suffer[ed] extreme pain and suffering, and

requir[ed] medical attention.” Id. ¶ 48. Additionally, Plaintiffs assert seven state-law statutory

and common law claims, including causes of action for negligence, strict liability, breach of

contract, and loss of consortium. Id. ¶¶ 49-78. In connection with all eight claims, Plaintiffs

seek reimbursement for the products they purchased, compensatory damages for “pain and

suffering,” and attorneys’ fees and costs. Id. at 17.

       On May 3, 2010, Defendant filed the present Motion for Summary Judgment for Lack of

Subject Matter Jurisdiction. See Def.’s Mem. of P. & A. in Supp. of its Mot. for Summ. J. for

Lack of Subject Matter Jurisdiction (“Def.’s Mem.”), Docket No. [15-2]. Plaintiffs filed an

opposition on June 18, 2010. See Pls.’ Mem. of P. & A. in Supp. of their Opp’n to Def.’s Mot.


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for Summ. J. (“Pls.’ Opp’n”), Docket No. [19]. Defendant elected not to file a reply. See Def.’s

Notice Regarding Reply to Opp’n to Def.’s Mot. for Summ. J., Docket No. [20]. Accordingly,

the matter is now fully briefed and ripe for adjudication.

                                      III. LEGAL STANDARD

          A plaintiff bears the burden of establishing that a federal court has subject matter

jurisdiction. Moms Against Mercury v. Food & Drug Admin., 483 F.3d 824, 828 (D.C. Cir.

2007). Federal courts are courts of limited jurisdiction, with the ability to hear only those cases

entrusted to them by the Constitution or an act of Congress. Kokkonen v. Guardian Life Ins. Co.

of Am., 511 U.S. 375, 377 (1994). In a suit between private litigants, a plaintiff generally

demonstrates the existence of subject matter jurisdiction by establishing federal question

jurisdiction pursuant to 28 U.S.C. § 1331 or diversity jurisdiction pursuant to 28 U.S.C. § 1332.

Where the district court’s jurisdiction is dependent solely on the diversity of citizenship between

the parties, there must be “complete diversity,” meaning that no plaintiff may have the same

citizenship as any defendant. Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 373-74

(1978).

                                          IV. DISCUSSION
          Although Plaintiffs never identify the grounds for this Court’s jurisdiction with model

clarity, see Compl. ¶¶ 1-2, the Court concludes that neither federal question nor diversity

jurisdiction obtain in the circumstances of this case. The Court addresses each ground for

jurisdiction in turn.

          A.     The Court Does Not Have Federal Question Jurisdiction Based On Plaintiffs’
                 Claim Under The Magnuson-Moss Act

          The Magnuson-Moss Act “was promulgated to increase consumer rights and protections

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by imposing minimum standards for manufacturers’ warranties and by providing various avenues

for consumer redress.” Walsh v. Ford Motor Co., 627 F. Supp. 1519, 1522 (D.D.C. 1986). The

Act confers upon consumers a private cause of action for (a) violations of the substantive

provisions of the Act, and (b) breaches of a written or implied warranty. 15 U.S.C. § 2310(d)(1).

Provided certain jurisdictional prerequisites are met, the statute permits the action to be brought

in federal court. Id. at § 2310(d)(1)(B).

               1.      Plaintiffs’ Personal Injury Claims Are Not Cognizable Under The
                       Magnuson-Moss Act

       Generally speaking, personal injury claims are not cognizable under the Magnuson-Moss

Act. See Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1038 (9th Cir. 2004) (“Congress

intended the Magnuson-Moss Warranty Act to create personal injury liability only under very

limited circumstances.”); accord Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1065-66 (5th

Cir. 1984). This limitation is derived from the statute itself, which provides:

               Nothing in this chapter (other than sections 2308 and 2304(a)(2) and
               (4) of this title) shall (A) affect the liability of, or impose liability on,
               any person for personal injury, or (B) supersede any provision of
               State law regarding consequential damages for injury to the person or
               other injury.

15 U.S.C. § 2311(b)(2). Nevertheless, by its terms, the statute carves out three exceptions to the

general prohibition against personal injury claims—i.e., claims asserted under Section 2308,

claims asserted under Section 2304(a)(2), and claims asserted under Section 2304(a)(4).1 Id. In

opposing the present motion, Plaintiffs first attempt to situate their Magnuson-Moss Act claim

       1
         Courts are generally in agreement that the inclusion of Section 2304(a)(4) in this list
was the result of an error in draftsmanship, and that the provision should actually be read to refer
to sub-section (a)(3). See, e.g., Kelly, 377 F.3d at 1038. Because Plaintiffs do not invoke either
provision, the Court need not, and does not, address the validity of this interpretation here.

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within the first of these exceptions—i.e. claims asserted under Section 2308. Those efforts are

misguided.

       Section 2308(a) of the Act provides as follows:

               No supplier may disclaim or modify (except as provided in subsection
               (b) of this section) any implied warranty to a consumer with respect
               to such consumer product if (1) such supplier makes any written
               warranty to the consumer with respect to such consumer product, or
               (2) at the time of sale, or within 90 days thereafter, such supplier
               enters into a service contract with the consumer which applies to such
               consumer product.

15 U.S.C. § 2308(a). Plaintiffs baldly assert that “by asking for dismissal [Defendant] is

disclaiming the implied warranty of fitness for a particular purpose after giving a written

warranty on the product stating, ‘Topps 100% Pure Ground Beef Hamburgers.’” Pls.’ Opp’n at

2. For at least two reasons, Plaintiffs’ argument is totally lacking in merit.

       First, Plaintiffs’ argument fails at the outset for the simple reason that no such cause of

action appears in their Complaint; rather, Plaintiffs’ claim under the Magnuson-Moss Act is

clearly confined to the contention that Defendant failed to “disclose[] that [E. coli] was in the

[p]roduct purchased by Plaintiffs.” Compl. ¶ 46. Despite the passage of over seven months

since Defendant first filed its Motion for Summary Judgment, Plaintiffs have never sought to

amend their Complaint to add a cause of action for a violation of the Magnuson-Moss Act based

upon Defendant’s attempts to secure dismissal of the present lawsuit.

       Second, Plaintiffs’ failure to do so is unsurprising, as the Court doubts that such a claim

could survive the strictures of Fed. R. Civ. P. 11. Plaintiffs cite to no legal authority, and the

Court is aware of none, suggesting that a party would run afoul of the statutory prohibition

against “disclaim[ing] or modify[ing]” an implied warranty merely by raising bona fide questions


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as to the presence of subject matter jurisdiction in the federal courts. 15 U.S.C. § 2308(a).

Likewise, Plaintiffs point to no authority that would provide a plausible basis for averring that

the “implied warranty of fitness for a particular purpose” somehow incorporates guarantees

against dismissal in hypothetical future litigation. Pls.’ Opp’n at 2. As Plaintiffs are no doubt

aware, such a warranty may sometimes be implied when a buyer relies upon the seller to select

goods to meet a specific request or a particular need. See, e.g., Kelley v. Eli Lilly & Co., 517 F.

Supp. 2d 99, 110-11 (D.D.C. 2007) (applying Massachusetts law). To put it generously, it strains

credulity for Plaintiffs to suggest that the “particular purpose” for which they purchased

Defendant’s ground beef products included bringing some future suit based upon the alleged (and

as of then unknown) defects in those products.

       Perplexingly, in opposing the present motion, Plaintiffs also rely upon Section

2304(a)(1). Pls.’ Opp’n at 2. That provision requires warrantors to provide certain remedies

within a reasonable time—namely, repair, replacement, or refund—in the event a consumer

product is defective, malfunctions, or fails to conform to a written warranty. 15 U.S.C. §

2304(a)(1). Here, Plaintiffs appear to suggest that Defendant’s ground beef failed to conform to

the guarantee that they were “Topps 100% Pure Ground Beef Hamburgers,” and that Plaintiffs

were therefore entitled to the designated statutory remedies. Pls.’ Opp’n at 2. Plaintiffs go on to

argue that whether Defendant “took action within a reasonable time is a question of fact for the

fact finder and without discovery, is premature and as a matter of fact or law inappropriate.” Id.

Whatever its merits, Plaintiffs’ argument is a complete non sequitor. Because claims falling

under Section 2304(a)(1) are subject to the Act’s general prohibition against personal injury

claims, see 15 U.S.C. § 2311(b)(2), Plaintiffs’ reliance on the provision to avoid dismissal is


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misplaced. Significantly, as set forth in the Complaint, Plaintiffs’ Magnuson-Moss Act claim is

plainly one seeking recompense for personal injuries, see Compl. ¶¶ 43-48; as such, Plaintiffs

attempts to re-characterize their claim as a pure breach of written warranty claim are, at best,

disingenuous. Therefore, the statutory bar to personal injury claims remains in full force and

effect. In any event, as set forth immediately below, even crediting Plaintiffs’ post hoc

characterization, this Court would nevertheless lack subject matter jurisdiction over Plaintiffs’

Magnuson-Moss Act claim.

               2.      Plaintiffs Have Also Failed To Meet The Jurisdictional Minimum
                       Required To Support A Claim Under The Magnuson-Moss Act

       Although the private cause of action under the Magnuson-Moss Act is a federal right, the

statute is designed to ensure that most private actions are brought in state court. In order to

invoke the jurisdiction of the federal courts, a plaintiff must meet certain threshold jurisdictional

requirements intended to weed out “trivial or insignificant actions.” Walsh, 627 F. Supp. at

1522. Most notably for our purposes here, no claim under the Act shall be cognizable in federal

court “if the amount in controversy is less than the sum or value of $50,000 (exclusive of

interests and costs) computed on the basis of all claims to be determined in [the] suit.” 15 U.S.C.

§ 2310(d)(3)(B). Despite the loose reference to “all claims to be determined in [the] suit,” id.,

properly read, the statute only permits the district court to aggregate the value of all claims

asserted under the Magnuson-Moss Act in determining whether the jurisdictional minimum has

been met. Accordingly, damages flowing from any pendent state law claim asserted by the

plaintiff are excluded. Ansari v. Bella Auto. Grp., Inc., 145 F.3d 1270, 1272 (11th Cir. 1998)

(per curiam); see also Kelly, 377 F.3d at 1038-40. Similarly excluded are any claims for personal

injury damages that are not recoverable under the Magnuson-Moss Act itself. Kelly, 377 F.3d at

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1039. To justify dismissal, it must appear to a legal certainty that the claim is for less than the

jurisdictional amount. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289-90

(1938).

          Plaintiffs’ allegations concerning their Magnuson-Moss Act claim are sufficiently vague

and ambiguous as to prevent the Court from evaluating the extent of the damages sought with

respect to that claim in particular. Compl. ¶¶ 43-48. Nevertheless, even taking into account the

totality of the damages Plaintiffs seek through this action, it is clear, to a legal certainty, that the

$50,000 jurisdictional minimum has not been met. With respect to all eight claims, the damages

sought by Plaintiff may be grouped into three categories:

                 (1)    Compensatory damages “in the amount equal to all dollars paid by Plaintiffs
                        for the purchase of the contaminated [products] distributed by Defendant;”

                 (2)    Compensatory damages for “pain and suffering” in an amount exceeding
                        $75,000 for each individual plaintiff; and

                 (3)    Attorneys’ fees and costs.

Id. at 17. The third category—attorneys’ fees and costs—are expressly excluded from the

calculation by the statutory text. 15 U.S.C. § 2310(d)(3)(B). The second category—damages for

“pain and suffering”—are not cognizable under the Magnuson-Moss Act under the circumstances

presented in this case and therefore may not be counted towards the jurisdictional minimum. See

supra Part IV.A.1. This leaves only the first category—reimbursement for the amount Plaintiffs

paid for the products. However, it is clear from the face of the Complaint that the amounts of

ground beef purchased by Plaintiffs were small, with references to “2 pounds” to “2 boxes.” See,

e.g., Compl. ¶¶ 11, 14, 17. There is no doubt that the aggregated amount of these purchases falls

considerably short of the $50,000 jurisdictional minimum. Therefore, even assuming, arguendo,



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that Plaintiffs have asserted a claim under the Magnuson-Moss Act that is not predicated upon

liability for personal injuries, absent an independent ground for jurisdiction, such a claim must

nevertheless be dismissed for want of subject matter jurisdiction.

       B.      The Court Does Not Have Jurisdiction Based On The Diversity Of Citizenship
               Between The Parties

       Plaintiffs do not dispute that there is an absence of “complete diversity” between the

parties. See generally Pls.’ Opp’n at 2-3. Nor could they. Defendant is a New York limited

liability company comprised of eight members. Def.’s Stmt. ¶¶ 16-17. See Hoch v. Eli Lilly &

Co., __ F. Supp. 2d __, 2010 WL 3564279, at *1 (D.D.C. Sept. 10, 2010) (“a limited-liability

company’s citizenship is determined by the citizenship of its members.”). Two of those

members—Anthony D’Urso and David Cohen—are citizens of New Jersey. Def.’s Stmt. ¶ 18.

Two members—Topps Holdings, Inc. and TM Cyclorama, LLC— are citizens of New York. Id.

¶¶ 19, 22. Meanwhile, five of the twelve Plaintiffs in this action—Fahim Abedrabbo, Regina

Jackson, Theodore Little, Shamsiddin Little, and Saleem Little—are citizens of New Jersey.

Compl. ¶¶ 3, 8-9; Def.’s Stmt. ¶¶ 4, 12-15. Two more—Maureen Boyle and Frank Ingram—are

citizens of New York. Compl. ¶¶ 6-7; Def.’s Stmt. ¶¶ 10-11. In light of the shared citizenship of

the parties, this Court’s jurisdiction cannot rest upon 28 U.S.C. § 1332 and, there being no other

grounds for exercising jurisdiction, the Complaint must be dismissed for want of subject matter

jurisdiction. Kroger, 437 U.S. at 373-74.

       Plaintiffs suggest, in passing and without any meaningful explanation, that they could

cure these jurisdictional defects by dismissing the non-diverse Plaintiffs from this action. Pls.’

Opp’n at 3. There are at least two problems with this suggestion. First, Plaintiffs’ claimed

ability to remedy the jurisdictional problems with their Complaint is entirely conclusory and non-

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specific, rendering it impossible for the Court to determine whether any subset of the twelve

Plaintiffs would otherwise meet the requirements of diversity jurisdiction. For example,

Plaintiffs have never identified which, if any, of the eight claims, or what subset of the claimed

damages, are associated exclusively with the non-diverse Plaintiffs. Second, Plaintiffs have

offered no rejoinder to Defendant’s argument that, even if the non-diverse Plaintiffs are

dismissed from this action, the remaining Plaintiffs would have no connection to the District of

Columbia, making this District an improper venue for their claims. Def.’s Mem. at 12; see also

Pls.’ Opp’n at 3. Given the absence of a response, the Court shall treat the argument as

conceded. See Phrasavang v. Deutsche Bank, 656 F. Supp. 2d 196, 201 (D.D.C. 2009) (where

party fails to respond to arguments in opposition papers, the court may treat them as conceded)

(citing Fed. Deposit Ins. Co. v. Bender, 127 F.3d 58, 68 (D.C. Cir. 1997)). In light of these two

considerations, there is no indication that jurisdiction would obtain, or venue in this District

would be proper, even if the non-diverse Plaintiffs were dismissed from this action.

       More to the point, Defendant raised these precise jurisdictional issues as early as April

16, 2010. See Def.’s Stmt. of the Case, Docket No. [12]. In the intervening eight months,

despite the patent jurisdictional defects outlined above, Plaintiffs never made an effort to cure

those defects—either by filing a notice of voluntary dismissal of the claims asserted by the non-

diverse Plaintiffs or by filing a conditional motion for leave to amend the Complaint. Plaintiffs’

neglect is fatal, and the Court declines Plaintiffs’ invitation to salvage their claims where

Plaintiffs themselves have failed to take affirmative steps to do so.

                                        V. CONCLUSION

       For the foregoing reasons, the Court shall GRANT Defendant’s [15] Motion for


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Summary Judgment for Lack of Subject Matter Jurisdiction; this action shall be DISMISSED

WITHOUT PREJUDICE in its entirety for want of subject matter jurisdiction. An appropriate

Order accompanies this Memorandum Opinion.



Date: December 21, 2010


                                                         /s/
                                                 COLLEEN KOLLAR-KOTELLY
                                                 United States District Judge




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