Federal Jurisdiction in a Lemon Law World

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1 Federal Jurisdiction in a Lemon Law World Theodore C. Flowers, Esquire Segal McCambridge Singer & Mahoney, Ltd. United Plaza 30 S. 17 th Street, Suite 1700 Philadelphia, PA (215) tflowers@smsm.com

2 About The Author The author, Theodore C. Flowers, is an associate in the Princeton, New Jersey and Philadelphia, Pennsylvania offices of Segal McCambridge Singer & Mahoney, Ltd. where his primary concentration is on Warranty and Transportation Litigation. He is admitted to the bars of both states as well as the New Jersey District Court and the Eastern District of Pennsylvania. About The Firm Segal McCambridge Singer & Mahoney, Ltd. was founded in Chicago in Today, we have grown to also include offices in New York, Philadelphia, Princeton, Baltimore, Detroit, and Austin. Our practice focuses on complex litigation involving business, commercial, and consumer disputes, and the defense of toxic tort and products liability matters in all levels of the state and federal trial and appellate courts. Our national presence allows us to effectively serve as national counsel for many clients, while continuing to handle individual matters on a local or regional basis. We have earned a well-deserved reputation as a leading defense trial firm by consistently providing effective and cost-smart representation and achieving favorable results.

3 Introduction As attorneys, we are often confronted with new claims which we initially review for their substantive bases. Routinely, our analysis involves the technical merits of the claims, the underlying facts in support thereof and our client s potential exposure. While these are obvious areas for analysis, we must be vigilant to consider all elements of a claim, including the less glamorous areas of procedural doctrine of which we may avail ourselves. Specifically, our focus should include a review of the proper forum in which to defend the claim, including whether federal jurisdiction is available. These considerations are not the exclusive province of bodily injury law, but also have great bearing on commercial matters, including those brought pursuant to the Magnuson-Moss Warranty Act. Indeed, courts in all eleven circuits in the federal system entertain consumer protection and Magnuson-Moss claims under the provisions of the Act itself as well as traditional means of what is known as diversity jurisdiction. Given the volume of claims presented by various lemon law mills, it is often beneficial for a defendant to remove the claim to federal court where the substantive underlying claim receives higher judicial/technical scrutiny as well as provides procedural benefits found in a federal forum. The following note is intended to provide an overview of federal court access when Magnuson-Moss and generic lemon law claims are presented. Federal Court Access For Claims Under The Magnuson-Moss Warranty Act Under the Magnuson-Moss Warranty Act, federal courts have original jurisdiction where the amount in controversy exceeds $50,000, exclusive of interest and costs. 15 1

4 U.S.C. 2310(d)(1); 15 U.S.C. 2310(d)(3)(B). Removal is proper over any action that could have originally been filed in federal court. Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.1997) (citing 28 U.S.C. 1441). Federal subjectmatter jurisdiction exists when a claim arises under federal law. 28 U.S.C The Magnuson-Moss Act allows a plaintiff to sue in federal court for breach of warranty, provided that certain jurisdictional thresholds are met. Among them is the requirement that claims under the Magnuson-Moss Act may only be brought in federal court if the amount in controversy reaches the sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be determined in this suit[.] 15 U.S.C. 2310(d)(3)(B). When a defendant removes a case from state to federal court, the defendant must demonstrate to a reasonable probability that subject-matter jurisdiction exists. Chase, 110 F.3d at 427; Shaw v. Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir.1993) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). Thus, to justify removal under the Magnuson-Moss Act, a party must show that, at the time the case was removed, it was reasonably probable that the amount in controversy exceeded $50,000. See Uhl v. Thoroughbred Tech. & Telecomms., Inc., 309 F.3d 978, 983 (7th Cir.2002) (the amount in controversy is determined by an evaluation of the controversy described in the plaintiff's complaint and the record as a whole ); BEM I, L.L.C. v. Anthropologie, Inc., 301 F.3d 548, 552 (7th Cir.2002) (amount in controversy determined as of the date of removal). While the $50,000 threshold may seem too large an obstacle to overcome at first blush, the courts do provide parties a means to satisfy this threshold by including the 2

5 calculation of exemplary damages into the amount in controversy. Thus, and as is often the case, we find plaintiffs seeking damages not only for the purchase price of the vehicle, but also asserting claims for assorted punitive damages under the varying consumer statutes which generously provide for recovery of same. Whether or not these claims for punitive damages withstand challenge is initially irrelevant for the purposes of removing a matter to federal court at the outset of suit as it is of the time of filing that the courts focus on the amount in controversy as a means for sustaining federal jurisdiction. 1 Further, while there is a split among the courts as to whether attorney s fees subject to inclusion for the purposes of calculating the amount in controversy as they are deemed mere costs, the prospect of a trebling of damages under the name of punitive damages is sufficient to satisfy the amount in controversy to avail ourselves of a federal forum. As applied, routinely, the jurisdictional amount alleged by plaintiff is controlling when determining whether the amount in controversy supports federal jurisdiction. Williamson v. Chrysler Corporation, 173 F.R.D. 131 (E.D. Pa. 1997)(citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, L.Ed. 845 (1938). However, a court may look beyond the allegations contained in the four corners of the compliant where the veracity of plaintiff s stated jurisdictional amounts are unsubstantiated. Specifically, the court may look through plaintiff s conclusory allegations to see if they are supported by competent proof by a preponderance of evidence. Williamson, supra at 132, quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed (1936). However, [I]n order 1 While a federal court may choose to remand a case to state court for a variety of reasons, including later produced evidence that the value of the claim is insufficient to satisfy the amount in controversy requirement, the strict rules governing removal require action within thirty (30) days of service of the initial pleading thus a liberal assessment of the damages alleged may be warranted. 3

6 to justify dismissal for lack of subject matter jurisdiction, it must appear to a legal certainty that the claim is for less than the requisite amount. Belaga v. Volvo North America Corporation, 1990 WL (E.D. Pa.), citing St. Paul Mercury Indemnity Co. v. Red Cab Co., supra at 1. Moreover, it is presumed that the sum claimed by plaintiff was done so in good faith. Id. Thus, and as a matter of practice, it is imperative to cite both the specific factual and substantive legal support upon which removal is sought. Finally, when calculating the amount in controversy, litigants must take into consideration the credits applied to a plaintiff when suit is brought, including salvage value and that for use of the vehicle. See Shimsky v. Ford Motor Co., 170 F.R.D. 125 (E.D.Pa.1997). Federal Court Access For Magnuson-Moss Claims and related Lemon Law Claims Under The Rules Of Diversity Jurisdiction While the Magnuson-Moss Warranty Act provides independent access to the federal court system through its provisions, more traditional means are also available to litigants further providing access to federal court. Specifically, where plaintiffs present claims sounding in state law alone, a defendant may still pursue federal jurisdiction under 28 U.S.C which governs diversity of citizenship requiring separate residences for plaintiff and all defendants, as well as satisfaction of the threshold amount in controversy of $75, exclusive of interests and costs. 2 Thus, in situations where plaintiffs pursue claims under consumer protection acts only, we should be aware of this alternative avenue to federal court. Similar to those claims brought under Magnuson-Moss, litigants may, for the 2 28 U.S.C requires plaintiff to be a resident of the state in which the federal forum is sought, as well as the requirement that no defendant may be a resident of that same state. 4

7 purposes of diversity jurisdiction, include punitive damages if recoverable under state law. Tongkook America, inc. v. Shipton Sportswear Company, 14 F.3d 781 (2d Cir.1994); Gardynski-Leschuck v. Ford Motor Company, 142 F.3d 955 (3rd Cir.1998); Sharp Electronics Corporation v. Copy Plus, Incorporated, 939 F.2d (7th Cir.1991); Davenport v. Mutual Ben. Health & Acc. Ass'n, 325 F.2d 785, 787 (9th Cir.1963); Conrad Associates v. Hartford Accident and Indemnity Co., 994 F.Supp. 1196, (N.D.Cal.1998). Thus, while the amount of compensatory damages sought may be insufficient to alone support diversity jurisdiction, counsel must be able to creatively review and interpret the complaint in order to find a basis for federal court jurisdiction. Indeed, simply relying on ad damnum clauses alone may not provide the necessary basis upon which to remove the matter to federal court. While for the purposes of this short note I have refrained from a full dissertation on the complete requirements of diversity jurisdiction, it is important to note that if a complaint gives rise to both Magnuson-Moss and diversity jurisdiction, the party pursuing removal is required to plead both as a basis for removal in its petition. Specifically, it is permissible to seek federal jurisdiction by pleading in the alternative, that is alleging separate grounds for Magnuson-Moss and diversity jurisdiction as a basis for a federal forum. Failure to do so will bar a litigant from submitting a supplemental petition for removal if such a basis was available when the initial pleading was made. Finally, and as a practical matter, when seeking removal pursuant to diversity jurisdiction alone, as with Magnuson-Moss claims, it is imperative to cite both the specific factual and substantive legal support upon which removal is sought, paying particular attention to the amount in controversy threshold which must be satisfied. 5

8 Further and similar to Magnuson-Moss claims, litigants must take into consideration any mitigating value of the vehicle when calculating the amount in controversy. Conclusion With the threat of increased litigation in the context of Magnuson-Moss and related consumer protection statutes, it is incumbent upon those defending such claims to avail themselves of every substantive and procedural tool provided under the respective governing laws. While federal court alone will not provide a panacea for defendants, it can provide a means upon which to control plaintiffs and their counsel and thus consideration of same should be given as a part of an initial claim review. Undeniably, the closer scrutiny given to claims by a federal judiciary made weary by an overzealous plaintiff s bar can serve to control counsel where the often more plaintiff oriented state bars fail. 6