D.D.C. Holds Plaintiff Failed to Sufficiently Establish Class Size and Amount in Controversy Under CAFA

Per Wexler v. United Air Lines, Inc., --- F.Supp.2d ----, 2007 WL 2186132 (D.D.C. Jul 31, 2007) (NO. CIV.A. 06-01917GK):

CAFA provides for federal jurisdiction over class actions with the existence of only minimal diversity of citizenship between the parties. See 28 U.S.C. § 1332(d)(2)(A) (stating district courts have original jurisdiction over civil actions in which " any member of a class of plaintiffs is a citizen of a State different from any defendant") (emphasis added). The existence of diversity of citizenship is not in question in this case.

CAFA also contains a $5,000,000 amount in controversy requirement. 28 U.S.C. § 1332(d)(2) . The claims of all class members are aggregated to reach this amount. 28 U.S.C. § 1332(d)(6). To calculate the total amount, the average class member's claim is multiplied by the number of class members. Plaintiff's Complaint alleges that her $917 disgorgement claim is "typical." Compl. ¶ 11.

The class size is not at all clear, however. Plaintiff estimates the class members number in the "thousands." Compl. ¶ 10. UAL bears the burden of establishing jurisdiction, and facts necessary for a more precise estimate of the class size are uniquely within its knowledge. Despite this, UAL provides no evidence for the likely size of the class, and instead falls back on Plaintiff's estimate in the Complaint of "thousands" of class members. This reliance on Plaintiff's estimate fails to meet UAL's burden. Because the size of the class is very unclear, the issue should be resolved in favor of remand. See Miedema v. Maytag Corp., 450 F.3d 1322, 1328-29 (11th Cir.2006); Abrego v. Dow Chem. Co., 443 F.3d 676, 685 (9th Cir.2006).

Miedema is instructive as an example of the substantial burden the removing party bears in establishing the amount in controversy under CAFA. In that case, the defendant submitted an affidavit containing an estimate that the number of defective products in the class was 6,729 and that the total value of those products was $5,931,971, an amount based on the retail price of the product. Miedema, 450 F.3d at 1330-31. Despite the precision of these estimates, the court held that while the size of 6,729 was sufficiently established, the total value of over $5 million was not. Id. at 1331-32. The court found remand was appropriate because "great uncertainty remained about the amount in controversy." Id . at 1332.

In this case, UAL has failed to provide estimates with the precision shown in Miedema. Here, the $917 is sufficiently established, but the class size is not. Plaintiff's estimate that the class size numbers "thousands" is far less precise than the estimates in Miedema, and UAL provides the court with little guidance for arriving at a more precise figure, even though it could likely provide such information. See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447-48 (7th Cir.2005) ("When the defendant has vital knowledge that the plaintiff may lack, a burden that induces the removing party to come forward with the information-so that the choice between state and federal court may be made accurately-is much to be desired.").

UAL relies on a phrase in Brill, 427 F.3d at 449, to argue that the amount in controversy is satisfied because "recovery exceeding $5 million for the class as a whole is not 'legally impossible.' " This is not the legal test Brill states for determining whether the removing party has met its jurisdictional burden. See id. ("the removing litigant must show a reasonable probability that the stakes exceed the minimum [amount in controversy]").

Because the amount in controversy is uncertain, and ambiguities are to be resolved in favor of remand, UAL has not met its burden of establishing CAFA jurisdiction.