                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

    GLORIA HACKMAN,
         Plaintiff
         v.                                               Civil Action No. 18-2101 (CKK)
    ONE BRANDS, LLC, d/b/a/ Oh Yeah!,
         Defendant.

                                  MEMORANDUM OPINION
                                      (April 1, 2019)

         Plaintiff Gloria Hackman filed suit against Defendant One Brands LLC, producer of One

Bars, in the Superior Court of the District of Columbia (“Superior Court”), alleging that

Defendant violated the District of Columbia Consumer Protection Procedures Act (“DCCPPA”)

by misleading consumers about the amount of sugar in One Bars. In short, Plaintiff’s Complaint

claims that One Bars contain far more sugar than is reported on labels and in advertising.

Defendant removed the case to this Court, invoking Class Action Fairness Act (“CAFA”)

jurisdiction and traditional diversity jurisdiction. Plaintiff has moved to remand the case back to

Superior Court. Upon consideration of the pleadings,1 the relevant legal authorities, and the

record as a whole, the Court GRANTS Plaintiff’s [10] Motion to Remand.

         The Court concludes that remand is required because the Court lacks subject matter

jurisdiction. First, the Court lacks class action jurisdiction under CAFA because this case is not a



1
  The Court’s consideration has focused on the following documents:
    • Pl.’s Mot. to Remand for Lack of Subject Matter Jurisdiction (“Pl.’s Mot.”), ECF No. 10;
    • Def.’s Response in Opp’n to Pl.’s Mot. to Remand (“Def.’s Opp’n”), ECF No. 11;
    • Pl.’s Reply in Support of Pl.’s Mot. to Remand for lack of Subject Matter Jurisdiction
        (“Pl.’s Reply”), ECF No. 12; and
    • Def.’s Sur-Reply to Pl.’s Mot. to Remand (“Def.’s Sur-Reply”), ECF No. 15.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
                                                 1
class action. Second, the Court lacks traditional diversity jurisdiction because, due to the non-

aggregation principle, Defendant has not demonstrated that $75,000 or more is in controversy in

this case.

                                        I. BACKGROUND

        Plaintiff is a resident of the District of Columbia who is a nurse as well as a public health

and consumer watchdog. Compl., ECF No. 1-1, ¶ 5. Plaintiff brought this suit in Superior

Court, alleging that Defendant misled consumers in the District of Columbia when it sold them

One Bars which are improperly labeled and marketed as low in sugar. Id. at ¶¶ 9-22. Based on

these and other alleged misrepresentations, Plaintiff asserts a cause of action under the DCCPPA,

D.C. Code § 28-3905(k)(1)(B). Id. at ¶¶ 28-34. As relief, Plaintiff seeks on behalf of the general

public “[a]n injunction against Defendant, including that Defendant be barred from selling

OneBars in the District of Columbia until the front of OneBar labels give truthful information

about the sugar content of the bars.” Id. at ¶ 34a. She also seeks attorneys’ fees and costs and

punitive damages. Id. at ¶ 34. Finally, Plaintiff seeks statutory damages on her own behalf. Id. at

¶ 33. She does not make a class action claim.

        After this Complaint was filed in Superior Court, Defendant removed it to this Court,

invoking the Court’s CAFA jurisdiction and traditional diversity jurisdiction. See generally

Notice of Removal, ECF No. 1. Defendant then filed in this Court a Motion to Dismiss the

Complaint on grounds of preemption, standing, and failure to state a claim for which relief may

be granted. See generally Def.’s Mot. to Dismiss, ECF No. 5. Plaintiff responded to that Motion,

and later filed a Motion to Remand for Lack of Subject Matter Jurisdiction, which is currently

pending before the Court.




                                                  2
       Because this Court ultimately concludes that it does not have subject matter jurisdiction,

the Court GRANTS Plaintiff’s [10] Motion to Remand and ORDERS this case remanded to

Superior Court. Lacking jurisdiction over this case, the Court also ORDERS that Defendant’s [5]

Motion to Dismiss be HELD IN ABEYANCE, to be resolved on remand.

                                     II. LEGAL STANDARD

       The Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) has explained

that “[w]hen it appears that a district court lacks subject matter jurisdiction over a case that has

been removed from a state court, the district court must remand the case.” Republic of Venezuela

v. Philip Morris Inc., 287 F.3d 192, 196 (D.C. Cir. 2002) (emphasis added). Because removal

implicates significant federalism concerns, a court must “strictly construe[ ] the scope of its

removal jurisdiction.” Downey v. Ambassador Devel., LLC, 568 F. Supp. 2d 28, 30 (D.D.C.

2008) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107-09 (1941)). “‘[I]f federal

jurisdiction is doubtful, a remand to state court is necessary.’” Id. (quoting Dixon v. Coburg

Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004)); see also Johnson-Brown v. 2200 M St. LLC,

257 F. Supp. 2d 175, 177 (D.D.C. 2003) (“Where the need to remand is not self-evident, the

court must resolve any ambiguities concerning the propriety of removal in favor of remand.”).

“The party seeking removal of an action bears the burden of proving that jurisdiction exists in

federal court.” Downey, 568 F. Supp. 2d at 30. If the party “cannot meet this burden, the court

must remand the case.” Johnson-Brown, 257 F. Supp. 2d at 177.

                                         III. DISCUSSION

       In its notice of removal, Defendant presents two grounds as to why this Court has subject

matter jurisdiction. First, Defendant argues that removal is proper because this Court has

diversity jurisdiction pursuant to CAFA. 28 U.S.C. § 1332(d). Second, Defendant argues that



                                                  3
removal is proper because this Court has traditional diversity jurisdiction. 28 U.S.C. § 1332(a).

For the reasons explained below, the Court concludes that neither of the grounds presented by

Defendant provide this Court with subject matter jurisdiction over the case.

       A.      CAFA Jurisdiction

       First, Defendant argues that this Court has jurisdiction over the case pursuant to CAFA.

Under CAFA, a district court has subject matter jurisdiction over “any civil action in which the

matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,

and is a class action in which … any member of a class of plaintiffs is a citizen of a State

different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). Additionally, the proposed class must

consist of 100 persons or more. 28 U.S.C. § 1332(d)(5)(B). Defendant contends that all of the

requirements under CAFA are met in this lawsuit.

       Defendant argues that the amount in controversy exceeds $5,000,000, the minimum

amount required by CAFA. Defendant has sold over 12,000 individual bars to consumers in the

District of Columbia who are similarly situated to Plaintiff. Decl. of David Ziegert, ECF No. 1-2,

¶ 5. And, the DCCPPA imposes statutory damages of $1,500 per violation. D.C. Code § 28-

3905(k)(2)(A). Accordingly, the amount in controversy is as high as $18,000,000, which exceeds

the minimum amount of controversy of $5,000,000.

       Defendant also contends that this case meets CAFA’s requirement for minimum diversity.

Defendant is incorporated in Delaware and has its principal place of business in North Carolina.

Decl. of David Ziegert, ECF No. 1-2, ¶ 1. And, Plaintiff is a citizen of the District of Columbia.

Compl., ECF No. 1-1, ¶ 5. Accordingly, the diversity requirement is met.

       Finally, Defendant claims that the potential class consists of more than 100 persons.

Defendant has submitted a Declaration from its Chief Operating Officer declaring that more than



                                                 4
100 people in the District of Columbia purchased One Bars in the three-year period prior to this

lawsuit. Decl. of David Ziegert, ECF No. 1-2, ¶ 6.

       Accordingly, all three CAFA requirements appear to be met. And, Plaintiff does not

contest that the requirements of CAFA are met in this lawsuit. Instead, Plaintiff contends that

CAFA’s requirements are irrelevant because Plaintiff’s Complaint pleads no class action which

would trigger an analysis of jurisdiction under CAFA. Instead, Plaintiff brings suit under the

DCCPPA, which is “a separate and distinct procedural vehicle from a class action.” Animal

Legal Def. Fund v. Hormel Foods Corp., 249 F. Supp. 3d 53, 64 (D.D.C. 2017) (internal

quotation marks omitted). Because Plaintiff’s lawsuit is not a class action, Plaintiff argues that

CAFA cannot confer jurisdiction on this Court. The Court agrees.

       CAFA permits removal of class actions to federal court. 28 U.S.C. § 1332(d)(2). Under

CAFA, a “class action” is “any civil action filed under rule 23 of the Federal Rules of Civil

Procedure or similar State statute or rule of judicial procedure authorizing an action to be

brought by 1 or more representative persons as a class action.” 28 U.S.C. § 1332(d)(1)(B).

Accordingly, the question in analyzing CAFA jurisdiction becomes “whether an action under [the

DCCPPA] constitutes ‘a suit filed under a state statute or rule of judicial procedure similar to

Rule 23 that authorizes a class action.’” Nat’l Consumers League v. Flowers Bakeries, LLC, 36

F. Supp. 3d 26, 36 (D.D.C. 2014) (quoting Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117,

1120 (9th Cir. 2014)). “Absent the ‘hallmarks of Rule 23 class actions; namely, adequacy of

representation, numerosity, commonality, typicality, or the requirement of class certification,’

courts have held that private attorney general statutes [like the DCCPPA] ‘lack the equivalency

to Rule 23 that CAFA demands.’” Id. (quoting Baumann, 747 F.3d at 1123).




                                                  5
       Based on this analysis, the Court in National Consumers League concluded that removal

is not permitted under CAFA for a suit brought under § 28-3905(k)(1)(D) of the DCCPPA. 36 F.

Supp. 3d at 36. That provision of the DCCPPA is analogous to the provision under which

Plaintiff makes her claim, except for the former applies to public interest organizations and the

latter applies to individuals. Compare D.C. Code § 28-3905(k)(1)(D) with D.C. Code § 28-

3905(k)(1)(B). The National Consumers League court explained that the plaintiff had brought a

case under the DCCPPA and had not brought a “class action” under D.C. Superior Court Rule 23.

As such, removal of the case as a class action under CAFA was not permissible. Nat’l Consumers

League, 36 F. Supp. 3d at 36; see also, e.g., Breakman v. AOL LLC, 545 F. Supp. 2d 96, 101-02

(D.D.C. 2008) (explaining that a case brought under the DCCPPA is not a class action); see also

Zuckman v. Monster Beverage Corp., 958 F. Supp. 2d 293, 304-306 (D.D.C. 2013) (not

permitting removal under CAFA for a claim filed under the DCCPPA).

       Despite caselaw in this Circuit holding that claims brought pursuant to the DCCPPA are

not class actions removable to federal court under CAFA, Defendant contends that this Court

should still find that it has jurisdiction. Defendant relies almost exclusively on one case from the

District of Columbia Court of Appeals, Rotunda v. Marriot International, Inc., 123 A.3d 980

(D.C. 2015). In Rotunda, the court held that procedural fairness concerns required that a plaintiff

bringing suit for damages on behalf of the general public under the DCCPPA must follow the

procedural protections of Rule 23, even though the plaintiff had “expressly disclaimed any

intention to seek class certification” under Rule 23. 123 A.3d at 982. Relying on Rotunda,

Defendant contends that this Court must treat Plaintiff’s DCCPPA suit as a class action subject to

removal under CAFA.




                                                 6
       The Court concludes that Defendant assigns to Rotunda a weight that the case cannot

bear. In Rotunda, the court determined that a DCCPPA claim for money damages brought by an

individual on behalf of members of the general public is essentially a class action. 123 A.3d at

985-90. This decision was based on fears that, without Rule 23 protections, claims for money

damages on behalf of the general public under the DCCPPA could preclude the rights of

members of the public who might later want to assert their own damages claims. Id. at 985-86.

       But, the Court finds that the concerns of the Rotunda court are not present in this case. As

this Court previously explained in Animal Legal Defense Fund, “the concerns raised by the

District of Columbia Court of Appeals in Rotunda related to suits for damages, not for the type of

injunctive relief sought here, and that court repeatedly described its holding as limited to such

suits. … The decision says nothing about DCCPPA lawsuits that do not seek damages on behalf

of the general public, such as the one before the Court.” 249 F. Supp. 3d at 64-65 (emphasis in

original); see also Smith v. Abbott Labs., Inc., No. 16-501, 2017 U.S. Dist. LEXIS 135478, at *4-

5 (D.D.C. March 31, 2017) (explaining that Rotunda “was limited solely to suits for money

damages” on behalf of the general public). Here, Plaintiff seeks only injunctive relief on behalf

of members of the general public.

       Defendant seeks to distinguish this Court’s prior opinion in Animal Legal Defense Fund.

Defendant acknowledges that neither this case nor Animal Legal Defense Fund concern a claim

for damages for the general public. But, Defendant emphasizes that, in this case, unlike in

Animal Legal Defense Fund, Plaintiff is seeking damages for herself. Defendant contends that

Plaintiff’s decision to seek damages for herself could preclude other members of the public from

later seeking damages based on the same claim. But, Plaintiff’s decision to seek damages for

herself does not change the fact that she seeks only equitable relief for members of the general



                                                 7
public. And, as the D.C. Circuit has explained, while claim preclusion and collateral estoppel are

fact-intensive, “[a] suit for damages is not precluded by reason of the plaintiff’s membership in a

class for which no monetary relief is sought.” Norris v. Slothouber, 718 F.2d 1116, 1117 (D.C.

Cir. 1983). The Court finds that Plaintiff’s decision to seek damages for herself does not present

the same concerns as the Rotunda plaintiff’s decision to seek damages for members of the

general public.

       The Court declines to apply Rotunda to this case, which would extend the District of

Columbia Court of Appeals’ limited holding. The Rotunda court repeatedly specified that its

holding applied to DCCPPA cases requesting damages for the general public. See, e.g., 123 A.3d

at 985 (expressing concern that the DCCPPA “is virtually silent on how broadly-contoured

actions for damages are to be regulated or managed.”) (emphasis added); Id. at 988 (finding that

Rule 23 is “the time-tested framework [for] suits for damages by class-members ‘as

representative parties’”) (emphasis added); Id. at 989 (“the necessary vehicle for suits seeking

class-wide damages remains Rule 23”) (emphasis added). Defendant now asks this Court to

extend Rotunda’s holding to cases where the plaintiff seeks only injunctive relief on behalf of the

general public. This Court declined to do so in Animal Legal Defense Fund, and it declines to do

so again here. 249 F. Supp. 3d at 65. As this Court explained in Animal Legal Defense Fund,

“[w]hether or not this Court would deem it prudent for D.C. law to require DCCPPA suits for

injunctive relief be considered class actions that must comply with Rule 23 is irrelevant. What is

relevant is that the Rotunda opinion undeniably does not require that. Accordingly, because

Plaintiff did not bring its case as a class action, and Defendant has not shown that any D.C. law

or court opinion would require Plaintiff’s case be treated as such, the Court sees no reason why it

would conclude that Plaintiff has brought a ‘class action’ for the purposes of CAFA. Class action



                                                 8
jurisdiction under CAFA accordingly does not apply in this case seeking injunctive relief.” 249 F.

Supp. 3d at 65.

        Moreover, the Court notes that whether or not “this case ‘must’ be litigated [as a class

action] is a merits question to be assessed at the motion to dismiss stage.” Zuckman, 958 F. Supp.

2d at 305. What matters for purposes of this Court’s jurisdiction is whether or not this action was

“filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute.” 28 U.S.C. §

1332(d)(1)(B). As has already been explained, Plaintiff filed suit under the DCCPPA, not under

Rule 23 of the Federal Rules of Civil Procedure nor under Rule 23 of the D.C. Superior Court

Rules. And, “the DCCPPA [does not] qualify as a statute similar to Rule 23 that itself carries the

requisite procedural safeguards.” Zuckman, 958 F. Supp. 2d at 305. If, at the motion-to-dismiss

stage, a court concludes that Plaintiff’s claim must be treated as a class action, then that court can

dismiss Plaintiff’s DCCPPA claim. See Rotunda, 123 A.3d at 981 (affirming dismissal because

the plaintiff sought money damages for the general public under the DCCPPA without complying

with the procedures of Rule 23). But, this Court cannot simply convert Plaintiff’s claim into a

class action, capable of attaining jurisdiction under CAFA, when Plaintiff has specifically

disclaimed any intention for class certification. Zuckman, 958 F. Supp. 2d at 305.

        Accordingly, the Court concludes that it does not have jurisdiction to hear this case

pursuant to CAFA. Plaintiff has filed suit under the DCCPPA and has declined to pursue her

claim as a class action. As such, CAFA does not apply.

    B. Traditional Diversity Jurisdiction

        Second, Defendant argues that this Court has jurisdiction over the case pursuant to

traditional diversity jurisdiction. Federal courts have diversity jurisdiction if the parties are

citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a).



                                                   9
Plaintiff does not dispute that the parties are diverse. As was previously stated, Defendant is

incorporated in Delaware and has its principal place of business in North Carolina, and Plaintiff

resides in the District of Columbia. However, Plaintiff does dispute whether the amount in

controversy exceeds $75,000. Defendant presents three grounds as to why the amount in

controversy exceeds $75,000: the cost of complying with an injunction, punitive damages, and

attorneys’ fees. Addressing each argument in turn, the Court concludes that Defendant has failed

to establish that Plaintiff’s amount in controversy exceeds $75,000.

       1. The Cost of Complying with the Requested Injunction

       First, Defendant argues that the cost of complying with Plaintiff’s requested injunction

will exceed $75,000. In order to comply with the requested injunction, Defendant claims that it

would need to “(1) recall[] the One Bars currently for sale in the District of Columbia; and either

(2) redesign[] the packaging and marketing of One Bars to remove references to the bars’ low

sugar status; or (3) reformulat[e] One Bars.” Decl. of David Ziegert, ECF No. 1-2, ¶ 8.

Defendant contends that recalling the One Bars currently on the market and redesigning and

remarketing the bars would cost approximately $1,082,500. Id. at ¶¶ 9-12. And, according to

Defendant, recalling the One Bars currently on the market and reformulating future bars would

cost approximately $130,000. Accordingly, Defendant argues that either method by which it

would comply with the injunction exceeds the $75,000 threshold.

       But, Defendant ignores the non-aggregation principle. Under the non-aggregation

principle, “the separate and distinct claims of two or more plaintiffs cannot be aggregated in

order to satisfy the jurisdictional amount requirement.” Snyder v. Harris, 394 U.S. 332, 335

(1969); see also Zahn v. Int’l Paper Co., 414 U.S. 291, 294 (1973) (explaining that the “rule that

multiple plaintiffs with separate and distinct claims must each satisfy the jurisdictional-amount



                                                 10
requirement for suit in the federal courts [was] firmly rooted in prior cases dating from 1832, and

[has] continued to be the accepted construction of the controlling statutes”). When a plaintiff

seeks injunctive relief under the DCCPPA, courts in this Circuit have regularly held that the

amount in controversy for purposes of jurisdiction is the total cost of the injunction divided by

the number of beneficiaries in the general public. See, e.g., Animal Legal Def. Fund, 249 F. Supp.

3d 53 at 60 (“the cost of compliance that a court should consider when determining the amount

in controversy in the total amount divided among the beneficiaries of the injunction”); Breathe

DC v. Santa Fe Nat. Tobacco Co., 232 F. Supp. 3d 163, 171 (D.D.C. 2017) (“the cost of

compliance must be divided among the beneficiaries of the injunction”); Witte v. Gen. Nutrition

Corp., 104 F. Supp. 3d 1, 6 (D.D.C. 2015) (“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.”).

       Defendant cites two cases in which it contends that, despite the non-aggregation

principle, the D.C. Circuit accepted the total cost of complying with an injunction as the amount

in controversy—Committee for GI Rights v. Callaway, 518 F.2d 466, 472-73 (D.C. Cir. 1975)

and Tatum v. Laird, 444 F.2d 947, 950-51 (D.C. Cir. 1971). But, it does not appear that in either

of those cases, the plaintiffs asked the court to apply the non-aggregation principle. And, in a

D.C. Circuit case post-dating both of those cited by Defendant, the D.C. Circuit expressly

recognized the “possible conflict” between the non-aggregation principle and “the rule which

allows the jurisdictional amount to be based on the cost to the defendant of proposed relief,” but

explained that the Court has “not attempt[ed] to resolve” the possible conflict. Fenster v.

Schneider, 636 F.2d 765, 767 n.1 (D.C. Cir. 1980). Lacking precedent from the D.C. Circuit, this

Court is “persuaded by several district court opinions from this Circuit that have considered this



                                                 11
conflict in the context of cases brought under the DCCPPA on behalf of the general public

seeking injunctive relief and have determined that considering the total cost to the Defendant of

complying with that relief would violate the non-aggregation principle.” Animal Legal Def.

Fund, 249 F. Supp. 3d at 60 (emphasis in original).

       The Court also considers and rejects Defendant’s warning that plaintiffs may attempt to

avoid federal jurisdiction through the non-aggregation principle by making a request for

injunctive relief on behalf of many people. Def.’s Opp’n, ECF no. 11, 10 (“Plaintiff should not

be able to defeat federal jurisdiction [] simply by making the same request for relief on behalf of

more people. If [Plaintiff] sued only on her own behalf, her case could be brought in federal

court, so too should her suit on behalf of others.”). The Court finds that this risk of jurisdictional

“gamesmanship” flows both ways. If the Court refused to apply the non-aggregation principle to

the cost of complying with an injunction, then a plaintiff who was unable to meet the amount in

controversy though damages could simply request injunctive relief in order to gain unmerited

access to federal court. Absent the non-aggregation principle, the cost of injunctive relief would

be more likely to meet the amount in controversy threshold as it would be measured by the total

cost of the defendant’s compliance. See Nat’l Org. for Women v. Mutual of Omaha Ins. Co., 612

F. Supp. 100, 107-08 (D.D.C. 1985) (“To uphold defendant's position in the present case would

allow a plaintiff who has no claim for the requisite compensatory damages merely to request

injunctive relief, assign to that request a value measured in terms of defendant's compliance, and

then litigate in the federal courts.”). The Court concludes that allowing unmerited access to

federal courts in this way is the more serious risk because it is “contrary to the longstanding

directive that federal jurisdiction should be strictly interpreted.” Breakman, 545 F. Supp. 2d at

105. Accordingly, the Court follows the vast weight of authority in this Circuit and concludes



                                                  12
that the non-aggregation principle should be applied to the cost of Defendant’s compliance with

an injunction.

       Assuming that Defendant’s estimates of either $1,082,500 or $130,000 are accurate costs

of compliance, Defendant has failed to establish that it meets the amount in controversy

requirement. Defendant contends that 100 consumers in the District of Columbia have purchased

One Bars. Decl. of David Ziegert, ECF No. 1-2, ¶ 6. Accordingly, the apportioned cost of

compliance would be either $10,825 for rebranding or $1,300 for reformulation, both of which

fall below the diversity jurisdiction requirement of $75,000 dollars.

       2. Punitive Damages

       Second, Defendant contends that the value of Plaintiff’s punitive damages claim exceeds

$75,000. Punitive damages are considered in determining the amount in controversy for purposes

of diversity jurisdiction. Hartigh v. Latin, 485 F.2d 1068, 1071-72 (D.C. Cir. 1973). Defendant

relies on other cases in this Circuit assessing punitive damages and argues that punitive damages

could be as high as $900,000, or approximately the same amount as the cost of injunctive relief.

Notice of Removal ECF No. 1, ¶ 16. Plaintiff disputes this number, claiming that it is purely

speculative. For purposes of this Memorandum Opinion, the Court will assume that punitive

damages could be as high as $900,000. However, the Court concludes that the non-aggregation

principle also applies to punitive damages. As a result, Plaintiff’s claim for punitive damages

does not meet the amount in controversy.

       Courts in this Circuit have previously held that, “[b]ecause the underlying claims are

separate and distinct, punitive damages should be apportioned to each consumer.” Breakman,

545 F. Supp. 2d at 107; see also Sloan v. Soul Circus, Inc., No. 15-01389, 2015 WL 9272838, at

*9-10 (D.D.C. Dec. 18, 2015). While the D.C. Circuit has not addressed this question, appellate



                                                13
courts in other circuits have similarly concluded that the non-aggregation principle applies to

punitive damages. As the Ninth Circuit explained, “[i]t is undisputed that the plaintiffs in this

case could sue [the defendant] individually on all the causes of action alleged in the current

complaint. If they did so, nothing would preclude them from seeking and recovering punitive

damages individually. This potential for multiple liability directly refutes the argument that there

is some unitary res to which the plaintiffs jointly claim a right.” Gibson v. Chrysler Corp., 261

F.3d 927, 946 (9th Cir. 2001). Lacking a common and undivided interest in the punitive

damages, the Ninth Circuit determined that the non-aggregation principle applies. Similarly, the

Fifth Circuit and the Eleventh Circuit have both concluded that punitive damages are subject to

the non-aggregation principle. H&D Tire and Auto.-Hardware, Inc. v. Pitney Bowes, Inc., 227

F.3d 326, 329-30 (5th Cir. 2000) (holding that “the punitive damages claims of the putative class

cannot be aggregated and attributed to each plaintiff to meet the jurisdictional requirement”);

Cohen v. Office Depot, Inc., 204 F.3d 1069, 1073-77 (11th Cir. 2000) (finding that “[t]he punitive

damages claim does not satisfy the amount in controversy requirement, because when the

$10,000,000 class claim for punitive damages is divided among the alleged 39,000 class

members … each member's share of the claim is approximately $256”).

       The only case which Defendant cites in support for the argument that punitive damages

should be aggregated is Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1333 (5th Cir. 1995)

(concluding that the “full amount of alleged damages be counted against each plaintiff in

determining the jurisdictional amount”). However, the Fifth Circuit, in denying a petition for

rehearing, expressly stated that Allen “is not to be construed as a comment on any similar case

that might arise.” Allen v. R&H Oil & Gas Co., 70 F.3d 26, 26 (5th Cir. 1995) (per curiam). And

the Fifth Circuit has since repeatedly declined to follow Allen, concluding that punitive damages



                                                 14
are subject to the non-aggregation principle. H&D Tire and Auto.-Hardware, Inc., 227 F.3d at

329-30; Ard v. Transcon. Gas Pipe Line Corp., 138 F.3d 596, 602 (5th Cir. 1998) (finding that

“the punitive damage claims of the multiple plaintiffs should not be aggregated, and once

aggregated, attributed to each individual plaintiff for determinations of jurisdictional amount”).

       The Court is persuaded by the district court decisions in this Circuit and by the decisions

from appellate courts outside this Circuit concluding that punitive damages cannot be

aggregated. The Court also notes that the conclusion that punitive damages cannot be aggregated

comports with practice of strictly interpreting federal jurisdiction. See Downey, 568 F. Supp. 2d

at 30. Accordingly, the estimated $900,000 in punitive damages must be divided by the

approximately 100 similarly situated consumers. This division results in a total punitive damage

amount of $9,000, well below the amount in controversy requirement of $75,000.

       3. Attorneys’ Fees

       Third, Defendant claims that the value of the attorneys’ fees attributable to Plaintiff

exceeds $75,000. Defendant estimates that Plaintiff’s attorneys’ fees will total at least $500,000

if the case is litigated through trial. Notice of Removal, ECF No. 1, ¶ 14. Defendant’s estimate is

based on the declaration of an attorney with two decades’ experience practicing in the District of

Columbia and uses the Laffey index to determine average attorney billing rates. Decl. of Frank R.

Volpe, ECF No. 1-3, ¶¶ 1-3. Plaintiff argues that Defendant’s attorneys’ fee estimate is

speculative. But, the Court will accept Defendant’s estimate for purposes of this Memorandum

Opinion. Even accepting Defendant’s estimate, the Court concludes that the attorneys’ fees

attributable to Plaintiff do not meet the amount in controversy requirement as attorneys’ fees are

not subject to aggregation.




                                                15
        “Attorney fees are part of the amount in controversy if they are provided for by statute or

contract.” Zuckman, 958 F. Supp. 2d at 301. And, the DCCPPA undisputedly does provide for

attorneys' fees. D.C. Code § 28-3905(k)(2)(B). Nonetheless, the Court determines that potential

attorneys' fees in this case are not sufficient to establish jurisdiction.

        Plaintiff argues that it would be inappropriate for the Court to consider the total amount

of potential attorneys' fees for the same reason that the Court has concluded that it would be

inappropriate to consider the total cost of Defendant’s compliance with the requested injunction

or the total amount of punitive damages. Plaintiff argues that considering the total amount of

attorneys' fees in a DCCPPA case brought on behalf of the general public would not comport

with the non-aggregation principle. Pl.'s Mot., ECF No. 10, 8-10. Plaintiff’s position finds

considerable support in a number of district court opinions from this Circuit. See, e.g., Animal

Legal Def. Fund, 249 F. Supp. 3d at 62-63 (finding the amount in controversy requirement

unsatisfied because “Defendant has not attempted to show that the pro rata amount of attorneys’

fees that would be attributable to Plaintiff as a member of the general public would exceed

$75,000”); Nat'l Consumers League v. Bimbo Bakeries USA, 46 F. Supp. 3d 64, 73 (D.D.C.

2014) (noting that district courts in this Circuit have “reject[ed] the usual aggregation of statutory

attorneys' fees and include them only on a pro rata basis.”); Nat'l Consumers League v. Gen.

Mills, Inc., 680 F. Supp. 2d 132, 141 (D.D.C. 2010) (“aggregation of attorneys' fees is not

appropriate in a [DC]CPPA case”); Breakman, 545 F.Supp.2d at 107 (“the non-aggregation

principle logically should extend to claims of attorneys' fees”). The Court finds that the decision

not to aggregate attorneys’ fees is prudent given that this court, like others in this Circuit, “is not

entirely comfortable with the premise that an action should be retained in federal court where

satisfaction of the amount in controversy requirement depends upon a lump sum award of



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attorneys' fees,” given its duty to “strictly construe[ ] the scope of its removal jurisdiction.”

Breakman, 545 F. Supp. 2d at 107.

        Defendant fails to cite any case, inside or outside of this Circuit, concluding that the non-

aggregation principle does not apply to attorneys’ fees. However, Defendant does cite one case,

Zuckman, in which a district court in this Circuit took a slightly novel approach. 958 F. Supp. 2d

at 301-02. In Zuckman, the court concluded that dividing the estimated attorneys’ fees equally

among all individuals who would benefit from the judgment “may underestimate the portion of

fees properly attributed to [the plaintiff] in his role as the initial plaintiff.” 958 F. Supp. 2d at 301.

Instead of dividing the projected attorneys’ fees equally among the plaintiff and the other

beneficiaries, the court determined the plaintiff’s portion of attorneys’ fees “by calculating a

reasonable contingency fee—say 33%—that would accompany a full judgment in [the

plaintiff’s] favor.” Id. (internal citation omitted).

        However, the Court concludes that Zuckman’s approach is not applicable to this case. In

Zuckman, the plaintiff filed suit under the DCCPPA for both statutory damages for the general

public and an injunction. In determining the plaintiff’s share of attorneys’ fees, the Zuckman

court calculated the plaintiff’s statutory damages and divided that amount by 33% “because [the

plaintiff’s] lawyers [we]re working on a contingency fee basis, and hence any recoverable

attorney fees [we]re inherently connected to the monetary value of the claims.” Id. The Zuckman

court did not attempt to conduct the same analysis for the cost of injunctive relief. See also

Sloan, 2015 WL 9272838, at *9-10 (dividing the plaintiff’s statutory damages by 33% but not

doing the same for the cost of injunctive relief). In this case, Plaintiff seeks, on behalf of the

general public, only an injunction, not statutory damages. And, there is no evidence that Plaintiff

is represented on a contingency fee basis. Accordingly, the approach used to determine attorneys’



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fees in Zuckman does not fit the facts of this case. See Organic Consumers Ass’n v. R.C. Bigelow,

Inc., 314 F. Supp. 3d 344, 354 n.4 (D.D.C. 2018) (refusing to use the Zuckman approach because

the plaintiff did not seek statutory damages).

       Here, Defendant estimates that attorneys’ fees may total $500,000. Notice of Removal,

ECF No. 1, ¶ 13. Applying the non-aggregation principle, the Court will divide the total

estimated attorneys’ fees by the estimated number of Defendant’s customers in the District of

Columbia, 100. Accordingly, Plaintiffs’ attorneys’ fees total $5,000, far below the amount in

controversy requirement.

       4. Combined Fees and Costs

       Based on the above analysis, the Court concludes that Defendant has failed to prove that

the amount in controversy requirement has been met for traditional diversity jurisdiction.

Defendant has established that $10,825, at most, is attributable to Plaintiff under the non-

aggregation principle for complying with the requested injunction. Defendant has also

established that only $9,000 in punitive damages and $5,000 in attorneys’ fees are attributable to

Plaintiff under the non-aggregation principle. Finally, Defendant has requested statutory damages

for the two One Bars that she purchased. Compl., ECF No. 1, ¶¶ 24, 33. The DCCPPA sets

damages at $1,500 per violation; accordingly, Plaintiff requests $3,000 in statutory damages.

D.C. Code § 28-3905(k)(2)(A). Even if the Court combines these amounts, Defendant has

established that Plaintiff’s amount in controversy is only $27,825, well below the required

$75,000. Accordingly, because Defendant has failed to establish that the amount in controversy

requirement is satisfied, this Court does not have traditional diversity jurisdiction.




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                                        IV. CONCLUSION

       For the foregoing reasons, the Court GRANTS Plaintiff’s [10] Motion to Remand for

lack of subject matter jurisdiction. Defendant has not demonstrated that the Court has CAFA

jurisdiction or traditional diversity jurisdiction. The Court ORDERS that this case be

REMANDED to the Superior Court of the District of Columbia. The Court further ORDERS that

Defendant’s [5] Motion to Dismiss be HELD IN ABEYANCE to be decided on remand.2

        An appropriate Order accompanies this Memorandum Opinion.


                                                         /s/
                                                      COLLEEN KOLLAR-KOTELLY
                                                      United States District Judge




2
  In her Reply, Plaintiff briefly states that “[t]his case should be remanded, and Plaintiff should
be awarded attorneys’ fees for Defendant’s frivolous removal of this action.” Pl.’s Reply, ECF
No. 12, 2. But, Plaintiff has not actually moved for attorneys’ fees. Lacking subject-matter
jurisdiction and a motion for attorneys’ fees, the Court will not address this argument.

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