                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


  PATRICK ANDREW WITTE,

                         Plaintiff,

                 v.                                          Civil Action No. 15-0344 (ESH)

  GENERAL NUTRITION CORPORATION
  and GNC PARENT, LLC,

                         Defendants.


                                 MEMORANDUM OPINION

       Plaintiff Patrick Andrew Witte brings this action against defendants General Nutrition

Company and GNC Parent, LLC, alleging that defendants engaged in an unlawful trade practice

in violation of the District of Columbia Consumer Protection Procedures Act (“DCCPPA”), D.C.

Code § 28-3904 et seq., by selling several of their products with nonfunctional slack-fill.

Defendants removed the case to federal court, and now before this Court is plaintiff’s motion to

remand [ECF No. 14]. For the reasons stated herein, plaintiff’s motion will be granted and the

case will be remanded.

                                        BACKGROUND

       Plaintiff, a D.C. resident, filed suit on February 6, 2015, in the Superior Court of the

District of Columbia. (Complaint [ECF No. 1-2] (“Compl.”) ¶ 4.) Defendants are Pennsylvania

companies that “manufacture[], produce[], package[], and sell[] dietary supplements,” with

stores in the District of Columbia. (Id. ¶¶ 5-6, 8.) Plaintiff purchased two items – GNC Pro

Performance 100% Whey Protein and GNC Beyond Raw Re-Size – from one of defendants’

retail stores on December 16, 2014. (Id. ¶ 20.) The products’ containers were “completely

opaque” and “unable to be opened and inspected prior to purchase.” (Id. ¶ 21-22.) When
plaintiff did open the containers, he found that they contained several inches of “non-functional

slack-fill.” (Id. ¶ 26.) Plaintiff describes “slack-fill” as “the area of empty space in a consumer

bottle or packaging.” (Id. ¶ 14; see also 21 C.F.R. § 100.100(a) (“Slack-fill is the difference

between the actual capacity of a container and the volume of product contained therein.”).)

Plaintiff alleges that “non-functional slack-fill . . . is an unlawful and deceptive trade practice

pursuant to DC Code § 28-3904.” (Id. ¶ 38.) His suit, which he brings “on behalf of himself as

an individual and on behalf of the general public,” requests “[a]n injunction against GNC,

including that GNC be barred from producing, manufacturing and packaging its propriety

products with non-functional slack-fill in the District of Columbia.” (Id. ¶¶ 37, 43.) He also

requests “[a]dditional relief to restore to the consumer money which was acquired by means of

the unlawful trade practice in the District of Columbia,” punitive damages, attorney’s fees, and

“[a]ny other statutory relief the court determines proper under D.C. Code § 28-3905(k)(1).” (Id.

¶ 43.)

         On March 10, 2015, Defendants filed a notice of removal. (Notice of Removal, [ECF

No. 1] (“Notice”).) With respect to the amount in controversy, defendants argued that

“[p]laintiff has alleged an undefined number of violations, which could, unto themselves, exceed

the sum of $75,000.” (Id. ¶ 10 (citation omitted).) Defendants also contend that “the value of

injunctive relief sought by Plaintiff would cost the Defendants more than $75,000.” (Id.) In

support of this latter proposition, defendants submitted an affidavit from a “Senior Litigation

Paralegal” who has “worked for General Nutrition Corporation for five . . . years.” (Aff. of

Kevin C. Macken [ECF No. 1-5] ¶ 1.) That affidavit only asserts that “[t]he injunctive relief

sought by Plaintiff would require Defendants to incur significant costs in order to change its

packaging procedures. The retrofit would entail revisions to the packaging procedures



                                                   2
nationwide, and in all facilities. To do so would entail expenses well in excess of $75,000.00.”

(Id. ¶ 5.)

        On April 7, 2015, plaintiff moved to remand this case back to D.C. Superior Court. (See

Mem. of P. & A. in Supp. of Pl.’s Mot. to Remand for Lack of Subject Matter Jurisdiction [ECF

No. 14] (“Pl.’s Mem.”).)

                                            ANALYSIS

I.      STANDARD OF REVIEW

        A civil action filed in state court may only be removed to a United States district court if

the case could originally have been brought in federal court. 28 U.S.C. § 1441(a). Upon a

motion to remand a removed case to state court, the party opposing the motion “bears the burden

of establishing that subject matter jurisdiction exists in federal court.” Nat’l Consumers League

v. Bimbo Bakeries USA, 46 F. Supp. 3d 64, 69 (D.D.C. 2014) (quoting Int’l Union of Bricklayers

& Allied Craftworkers v. Ins. Co. of the W., 366 F. Supp. 2d 33, 36 (D.D.C. 2005)). Courts are

to construe the removal statute narrowly in order to avoid federalism concerns, Shamrock Oil &

Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941), and any doubts about the existence of subject

matter jurisdiction are to be resolved in favor of remand. Hood v. F. Hoffman-La Roche, Ltd.,

639 F. Supp. 2d 25, 28 (D.D.C. 2009) (citing Gasch v. Hartford Accident & Indem. Co., 491

F.3d 278, 281-82 (5th Cir. 2007)).

II.     WAIVER

        Defendants argue that plaintiff has waived his right to move for remand by engaging in

discovery. (Defs.’ Mem. of P. & A. in Opp. to Pl.’s Mot. to Remand for Lack of Subject Matter

Jurisdiction [ECF No. 16] (“Defs.’ Opp.”) at 14.) Defendants explain that “Plaintiff has




                                                  3
propounded and has granted Defendants an extension to April 23, 2015 to respond to broad

written discovery addressing liability and damages.” (Id.)

       To be sure, “[a] plaintiff might waive the right to a remand on the basis of procedural

defects by supplementing a complaint, litigating a summary judgment motion, or proceeding in a

trial.” Busby v. Capital One, N.A., 841 F. Supp. 2d 49, 53 (D.D.C. 2012). However, “merely

engaging in offensive or defensive litigation (such as limited discovery) especially when the

plaintiff has already filed a motion for remand, does not forfeit the right to a remand.” Id. In

Busby, the Court found that “plaintiff ha[d] waived . . . her objection to the procedural defects in

the defendants’ notice of removal” where “plaintiff ha[d] litigated her claim . . . for well over a

year,” including filing several motions and pursuing an appeal. Id. at 53-54 (emphasis omitted).

Plaintiff in this case has, at most, exchanged some discovery with defendants, although the

extent of the exchange is unclear. (See Defs.’ Opp., Ex. C [ECF No. 16-3].) This limited

engagement falls far short of the activity that gave rise to waiver in Busby. Moreover, as

plaintiff correctly points out, his “motion to remand is not based upon a mere procedural defect,

but that as a matter of law the Court lacks subject matter jurisdiction to hear the claim.” (Pl.’s

Reply in Further Supp. of Pl.’s Mot. to Remand for Lack of Subject Matter Jurisdiction [ECF

No. 18] (“Pl.’s Reply”) at 11.) Objections based on subject matter jurisdiction cannot be

forfeited. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). For these reasons, the Court finds

that plaintiff’s motion to remand has not been waived.

III.   DIVERSITY JURISDICTION

       A federal court has diversity jurisdiction when (1) there is complete diversity of

citizenship among the parties (that is, no plaintiff is a citizen of the same state as any defendant)

and (2) the “amount in controversy” is greater than $75,000. See 28 U.S.C. § 1332(a). There is



                                                  4
no dispute that there is complete diversity of citizenship among the parties. (See Compl. ¶¶ 4-6.)

In their notice of removal, defendants identify two reasons why the amount in controversy

exceeds $75,000. First, they contend that plaintiff “alleged an undefined number of violations,

which could, unto themselves exceed the sum of $75,000.” (Notice ¶ 10.) Second, they argue

that “the value of the injunctive relief sought by Plaintiff would cost the Defendants more than

$75,000.” (Id.) Defendants, however, make no mention of their first rationale in their opposition

brief. The Court thus considers that argument waived 1 and will instead focus on defendants’

contention that “[t]his Court should deny Plaintiff’s Motion to Remand . . . because the cost to

Defendants of complying with the injunctive relief sought in this action exceeds $75,000.00.”

(Defs.’ Opp. at 1.)

       Plaintiff’s first argument is that “the potential cost of the injunctive relief should not be

viewed from the defendant’s point of view, but rather from the perspective of the plaintiff.”

(Pl.’s Mem. at 8.) Although mentioned by neither party, there is a deep circuit split on this issue.

“The majority of federal courts have chosen to use the plaintiff viewpoint rule.” 15 Moore’s

Federal Practice § 102.109 (Matthew Bender 3d ed.) (citing cases from the Second, Third,

Eighth, and Eleventh Circuits). Under this approach, “[t]he test of the jurisdictional amount is

the value of the plaintiff’s right that is to be protected, and not the extent of the monetary loss or

damage that has been suffered or is threatened by the invasion.” Id. Several other circuits

“ha[ve] adopted the ‘either viewpoint’ approach.” Id. (citing cases from the Seventh, Tenth,


1
  The Court would reject defendants’ argument in any case. Plaintiff only alleges that he
“purchased two items containing non-functional slack-fill.” (Pl.’s Mem. at 7; see also Compl. ¶
20.) The DCCPPA only entitles him to three times his actual damages or $1,500 per violation,
whichever is greater. D.C. Code § 28-3905(k)(2)(A). The fact that other consumers may have
purchased the same products is irrelevant since “defendant[s] cannot aggregate the claims of the
individual customers in order to establish . . . the requisite amount in controversy.” Nat’l
Consumers League v. Flowers Bakeries, LLC, 36 F. Supp. 3d 26, 32 (D.D.C. 2014).

                                                   5
Fourth, and D.C. Circuits). Courts that follow this view “may look either to the value of the right

that the plaintiff seeks to enforce or to protect, or to the cost to the defendants to remedy the

alleged denial of that right.” Id.

       The D.C. Circuit appears to have adopted the “either-viewpoint” rule. In Tatum v. Laird,

444 F.2d 947 (D.C. Cir. 1971), rev’d on other grounds, 408 U.S. 1 (1972), the Circuit noted the

split of authorities and stated that “the test for determining the amount in controversy is the

pecuniary result to either party which the judgment would directly produce.” Id. at 951 n.6

(quoting Ronzio v. Denver & R. G. W. R. Co., 116 F.2d 604, 606 (10th Cir. 1940)). The Tatum

Court remanded because “the cost to the [defendant] of complying with [an injunction] might

well exceed $10,000.” Id. at 951. The Circuit has twice followed Tatum. See Smith v.

Washington, 593 F.2d 1097, 1099 (D.C. Cir 1978) (“In assessing whether a complaint satisfies

that standard, a court may look either to the value of the right that plaintiff seeks to enforce or to

protect or to the cost to the defendants to remedy the alleged denial.” (internal quotation marks

and footnote omitted)); Comm. for GI Rights v. Callaway, 518 F.2d 466, 472 (D.C. Cir 1975)

(“[T]he amount in controversy may be measured either by the ‘value of the right sought to be

gained by the plaintiff or the cost of enforcing that right to the defendant.’” (quoting Tatum, 444

F.2d at 951)). Plaintiff cites no Circuit precedent reversing Tatum and its progeny. 2 Instead, he

cites several D.C. district court cases that have refused to consider the cost of an injunction from

the defendant’s viewpoint. (Pl.’s Mem. at 8-9). These cases, however, identify no D.C. Circuit



2
  The D.C. Circuit did question the Tatum rule in Fenster v. Schneider, 636 F.2d 765, 767 n.1
(D.C. Cir. 1980), noting that the Ninth Circuit had recently held that the “cost-to-defendant rule”
“was an impermissible way of circumventing” the Supreme Court’s non-aggregation cases –
Snyder v. Harris, 394 U.S. 332 (1969), and Zahn v. International Paper Co., 414 U.S. 291
(1973). However, the Fenster Court held that it did not need to “resolve any possible conflict . . .
at this time,” since the plaintiff had jurisdiction under a different statute. 636 F.2d at 767 n.1.

                                                  6
or Supreme Court precedent overturning Tatum; 3 indeed, the majority of recent district court

cases in this jurisdiction adhere to the either-viewpoint rule. 4 This Court must follow Circuit

precedent and consider the cost of the injunction to defendant.

       Plaintiff next argues that, even if this Court considers defendants’ compliance costs, the

relevant amount in controversy is not defendants’ total costs but rather the “portions of the

injunctive relief that run to the individual Plaintiff.” (Pl.’s Mem. at 9 (internal quotation marks

omitted).) As a practical matter, plaintiff argues that defendants should have “identif[ied] a sum

certain cost of injunctive relief . . . and divide[d] that sum certain by the amount of consumers in

the District of Columbia that [would] benefit from the relief.” (Id.) Failing to do so “render[ed]

the basis for removal speculative.” (Id.)

       The D.C. Circuit has not ruled on the proper method for calculating a defendant’s

injunction costs in representative suits such as this one. (See Compl. ¶ 43 (“[Plaintiff] seeks the

following damages for himself and on behalf of the general public: An injunction against

[defendants] . . . .” (emphasis added)).) One district court, however, did consider the issue in the

context of a DCCPPA suit, brought on behalf of “each individual District of Columbia


3
  See Nat’l Consumers League v. General Mills, Inc., 680 F. Supp. 2d 132, 140 (D.D.C. 2010);
Breakman v. AOL, LLC, 545 F. Supp. 2d 96, 105 (D.D.C. 2008); Nat’l Org. for Women v. Mut.
of Omaha Ins. Co., 612 F. Supp. 100, 107-08 (D.D.C. 1985). These three cases all make a
similar argument: that “viewing the jurisdictional amount issue from the defendant’s point of
view is simply another way of aggregating claims which is what the Supreme Court disallowed
in Snyder.” Nat’l Organization for Women, 612 F. Supp. at 108. This argument is problematic,
however, since Snyder was decided in 1969 (and the related case, Zahn, in 1973), but the D.C.
Circuit affirmed the either-viewpoint rule in 1975 and 1978 in Callaway and Smith, respectively.
Regardless, as is discussed infra, the aggregation concern expressed in these district court cases
is allayed by limiting defendants’ costs to those that run to each individual plaintiff.
4
 Nat’l Consumers League v. Bimbo Bakeries USA, 46 F. Supp. 3d 64, 74 (D.D.C. 2014); Geo
Specialty Chems., Inc. v. Husisian, 951 F. Supp. 2d 32, 39-40 (D.D.C. 2013); Lurie v. Mid-Atl.
Permanente Med. Grp., P.C., 729 F. Supp. 2d 304, 332 (D.D.C. 2010); Wexler v. United Air
Lines, 496 F. Supp. 2d 150, 153 (D.D.C. 2007).

                                                  7
consumer,” seeking both damages and injunctive relief related to AOL’s pricing policy.

Breakman, 545 F. Supp. 2d at 100. AOL calculated that “its time and resources [for complying

with the injunction] would total $ 255,800” and estimated that plaintiff’s “complaint [would]

reach 28,451 consumers in the District of Columbia.” Id. at 100, 106. The Court held that

“when a court looks to the compliance costs of a defendant to determine the amount in

controversy in an action where separate and [distinct] claims are presented on behalf of multiple

parties, ‘the cost running to each plaintiff must meet the amount in controversy requirement.’”

Id. at 106 (quoting Lovell v. State Farm Mut. Auto. Ins. Co., 466 F.3d 893, 898 (10th Cir. 2006)).

Since “the cost running to each District of Columbia consumer [was] $ 8.99,” the Court

remanded the suit. Id.

       This Court is persuaded by Breakman. As Judge Posner explained in In re Brand Name

Prescription Drugs Antitrust Litig., 123 F.3d 599, 610 (7th Cir. 1997), “[w]hatever the form of

relief sought, each plaintiff’s claim must be held separate from each other plaintiff’s claim from

both the plaintiff’s and the defendant’s standpoint.” As such, the relevant calculation is “the cost

to each defendant of an injunction running in favor of one plaintiff.” Id.; see also McCauley v.

Ford Motor Co., 264 F.3d 952, 960-61 (9th Cir. 2001) (holding that “the amount in controversy

requirement cannot be satisfied by showing that the fixed administrative costs of compliance

exceed $ 75,000” because to hold otherwise would be “fundamentally violative of the principle

underlying the jurisdictional amount requirement – to keep small diversity suits out of federal

court”). Defendants’ argument – that this Court should consider their total compliance costs in

calculating the amount in controversy – would circumvent the non-aggregation principle

articulated in Snyder and Zahn. See Zahn, 414 U.S. at 294 (“When two or more plaintiffs,

having separate and distinct demands, unite for convenience and economy in a single suit, it is



                                                 8
essential that the demand of each be of the requisite jurisdictional amount; but when several

plaintiffs unite to enforce a single title or right, in which they have a common and undivided

interest, it is enough if their interests collectively equal the jurisdictional amount.” (quoting Troy

Bank v. G.A. Whitehead & Co., 222 U.S. 39, 40-41 (1911))). Defendants do not dispute that

plaintiff and the members of the public he represents have separate and distinct claims for relief

against defendants. See Flowers Bakeries, 36 F. Supp. 3d at 32 (“[C]ourts within this district

have unanimously concluded that so long as individual consumers are eligible to recover

individual damages, the consumers do not have a ‘common and undivided interest’ that may be

aggregated under the non-aggregation principal announced in Snyder.”). Thus, for defendants to

carry their burden to establish the amount in controversy, they must show that the costs of the

injunction that run to each plaintiff individually exceed the jurisdictional amount. They have not

attempted to do so. The Court, therefore, cannot exercise jurisdiction over this case. 5

                                          CONCLUSION

       For the foregoing reasons, the Court will grant plaintiff’s motion to remand [ECF No.

14]. A separate Order accompanies this Memorandum Opinion.


                                                       /s/ Ellen Segal Huvelle
                                                       ELLEN SEGAL HUVELLE
                                                       United States District Judge


Date: May 13, 2015




5
 Plaintiff argues in the alternative that the Macken Affidavit is insufficiently detailed for this
Court to find that defendants’ total costs would exceed $75,000. (Pl.’s Mem. at 10-11.) In light
of today’s holding, the Court need not reach this argument.
                                                  9
