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BERNARD v. GERBER FOOD PRODS. CO.

September 9, 1996

MADELINE BERNARD, Plaintiff, against GERBER FOOD PRODUCTS CO., Defendant.


The opinion of the court was delivered by: BAER

 Plaintiff brought this class action against defendant in state court seeking damages and injunctive relief for defendant's alleged false advertising of the ingredients in its baby food. Defendant removed the action to federal court asserting diversity jurisdiction over plaintiff's claims pursuant to 28 U.S.C. § 1332. Plaintiff now moves to remand. For the reasons set forth below, plaintiff's motion is granted.

 I. Background

 Plaintiff Madeline Bernard initiated this class action in the Supreme Court of the State of New York on behalf of all persons in the United States who purchased Gerber baby food products manufactured or distributed by defendant beginning February 15, 1990 (the "class period"). Plaintiff purchased Gerber baby food products throughout the class period. Plaintiff claims that she relied on defendant's false advertising claims that its baby food contained an equal and even superior nutritional value than other baby foods on the market at that time.

 Plaintiff's claims are all made under New York law. Plaintiff alleges that defendant engaged in: false and misleading advertising in violation of N.Y. Gen. Bus. L. § 350 (McKinney 1988); unlawful trade practices and false advertising in violation of N.Y. Gen. Bus. L. § 349 (McKinney 1988); negligent misrepresentation; breach of an express warranty; and common law fraud. Plaintiff seeks an order certifying the plaintiff class and appointing plaintiff as representative of that class *fn2" ; restitution of all amounts paid by plaintiff and class members for the purchase of baby food products, together with interest; statutory pre-judgment interest; reasonable attorney's fees and the costs of this action; any additional and consequential damages for injuries suffered by plaintiff and other class members; equitable relief enjoining defendant from disseminating the advertising complained of herein; an order compelling corrective advertising; and such other relief that the Court deems just and proper.

 II. Discussion

 Pursuant to 28 U.S.C. § 1332, this Court may exercise diversity jurisdiction only where the parties are of diverse citizenship and the amount in controversy exceeds $ 50,000, exclusive of interests and costs. 28 U.S.C. § 1332(a). There is no dispute that the parties are diverse here. *fn3" Thus, the only question for the Court to resolve is whether the amount in controversy requirement is satisfied.

 The party seeking federal court jurisdiction bears the burden of establishing that the requirements of 28 U.S.C. § 1332 are satisfied. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936). Here, the defendant seeks the Court's jurisdiction and, accordingly, bears the burden of proving that the statutory requirements are satisfied. Law Audit Services, Inc. v. Studebaker Technology, Inc., 1996 U.S. Dist. LEXIS 3621, 96 Civ. 0926, 1996 WL 137492, at *2 (S.D.N.Y. Mar. 27, 1996). The amount in controversy is determined at the time the complaint is filed. Chase Manhattan Bank, 914 F. Supp. 66, 70, 1996 WL 482698, at *4.

 In that regard, Gerber proposes three independent theories on which I might posit jurisdiction; (1) the "either viewpoint rule," pursuant to which this Court should in Gerber's view look to the cost of injunctive relief to defendant to satisfy the amount in controversy requirement; (2) plaintiff's request for punitive damages constitutes a "common and undivided interest"; and (3) if successful, all attorney's fees will be awarded to the class representative, thus this Court should exercise supplemental jurisdiction over the unnamed plaintiffs under 28 U.S.C. § 1367. Each of defendant's arguments is addressed, and rejected, below.

  a. The "either viewpoint" rule is not applicable.

 Defendant argues that for purposes of determining the amount in controversy, the Court can look to the value of relief requested to either party. Defendant argues the jurisdictional amount is satisfied here and that this Court can exercise jurisdiction when the cost of relief is measured from the defendant's perspective. Specifically, plaintiff herein seeks injunctive relief, she requests that defendant be enjoined from disseminating its allegedly false advertising and that the Court order defendant to issue corrective advertising. Defendant contends that such relief would require the company to halt existing advertising campaigns and reissue new advertising, all at a cost in excess of $ 50,000, thereby satisfying the amount in controversy requirement. See generally Aff. of J. Patrick Doyle.

 In litigations where injunctive or declaratory relief is sought, the general rule is that the amount of that relief is measured by the value of the object of the litigation. Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 347, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977); Beacon Constr. Co. v. Matco Elec. Co., 521 F.2d 392, 399 (2d Cir. 1975) (amount in controversy is measured by "the value of the consequences which may result from the litigation.") Courts differ however, on the issue of from whose perspective the object of the litigation should be viewed. See 14 A Charles A. Wright, et al., Federal Practice and Procedure § 3725 (2d ed. 1985) (noting that courts are split as to whether or not the plaintiff's viewpoint, the defendant's viewpoint or the viewpoint of the party invoking federal jurisdiction governs).

  The Second Circuit generally follows the majority of courts and looks to the relief sought from the plaintiff's viewpoint. Law Audit Services Inc. v. Studebaker Technology, Inc., 1996 U.S. Dist. LEXIS 3621, 1996 WL 137492, at *4 (S.D.N.Y. Mar. 27, 1996) (citing Kheel v. Port of New York Authority, 457 F.2d 46 (2d Cir.), cert. denied, 409 U.S. 983, 34 L. Ed. 2d 248, 93 S. Ct. 324 (1972)). At least one case, Cowan v. Windeyer, 795 F. Supp. 535, 537 (N.D.N.Y. 1992), suggests that this is clearly the law; there Judge McCurn writes that there is "ample case authority from this circuit holding that the amount in controversy for ...


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