Duane Morris Class Action Review - 2023 - Report - Page 96
In Dodson, et al. v. Westervelt Ecological Services., LLC, 2022 U.S. Dist. LEXIS 107093
(N.D. Fla. May 31, 2022), the plaintiffs filed a putative class action in state court in
regard to the “Five Mile Swamp Wildfire” in May 2020 that burned over 2,200 acres and
numerous homes in Santa Rosa County, Florida. Id. at *1. The fire allegedly started as
a controlled burn, but it got out of control and spread beyond its intended area due to
the defendants’ alleged negligence. Id. at *2. On February 23, 2022, the plaintiffs filed a
memorandum in support of their motion for class certification. Attached to the
memorandum was a document prepared by an expert retained by the plaintiffs listing
the owners of the parcels that were burned by the fire. On March 23, 2022, the
defendants removed the case. The notice of removal asserted that the court had
jurisdiction under the CAFA because the putative class exceeded 100 members; there
was minimal diversity between the plaintiffs and the defendants; and the amount-incontroversy exceeded $5 million. Id. at *3-4. Plaintiffs filed a motion to remand the case
on the grounds that (1) the notice of removal was untimely because the owner’s list did
not provide the defendants any information regarding the size of the class that it could
not have ascertained from the amended complaint and a spreadsheet produced in
discovery in November 2020 that contained a list of 335 parcel numbers with names
and addresses of each parcel’s owners; and (2) the defendants failed to establish that
the $5 million amount-in-controversy threshold was met. Id. at *4. In response, the
defendants argued that the amended complaint and the spreadsheet did not
unambiguously show that the putative class exceeded 100 members; and the
defendants established that the amount-in-controversy threshold was met through an
affidavit prepared by a corporate officer of its sole member showing that the defendants
received claims from putative class members and their insurers totaling more than $5
million. Id. at *4-5. First, in regard to timeliness, the court noted that the owner’s list
clearly established that the putative class exceeded 100 members and that the notice of
removal was filed within 30 days after the defendants received the list. The court thus
held that removal was timely. In regard to the CAFA’s amount-in-controversy exception,
the plaintiffs argued that the court could not consider the defendant’s affidavit because it
did not come from them, but rather, was prepared by the defendant’s corporate officer.
The court agreed. It held that, “although [the defendants’] explanation in the notice of
removal as to why it believes the amount-in-controversy threshold is met is not
inherently unreasonable or implausible, it requires too many assumptions and
extrapolations to allow the court to find by a preponderance of the evidence that the
threshold is satisfied.” Id. at *11. Accordingly, the court held that the defendants did not
adequately show jurisdiction under the CAFA. Id. at *12. The court thus remanded the
case back to state court. Id. at *12.
L.
District Of Columbia Circuit
In Clean Label Project Found, et al. v. Abbott Laboratories, Inc., 2022 U.S. Dist. LEXIS
94069 (D.D.C. May 25, 2022), the plaintiff filed a representative action on behalf of a
large number of non-participating members of the general public alleging the
defendant’s labeling of products were misleading advertising materials since they
suggested that the product was beneficial. Id. at *1. The plaintiff filed a complaint in D.C.
Superior Court alleging, in a single count, that the defendant violated the D.C.
Consumer Protection Procedures Act (CPPA). Id. at *4. The defendant removed the
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Duane Morris Class Action Review – 2023
