1 2 3 4 5 UNITED STATES DISTRICT COURT 6 SOUTHERN DISTRICT OF CALIFORNIA 7 TODD CARPENTER, individually on Case No.: 19-CV-1731-CAB-LL behalf of himself and others similarly 8 situated, ORDER GRANTING MOTION TO 9 STRIKE ALLEGATIONS Plaintiff, CONCERNING PROPOSED 10 v. NATIONWIDE CLASS 11 PETSMART, INC., 12 [Doc. No. 12] Defendant. 13 14 15 This matter is before the Court on Defendant’s motion to strike allegations 16 concerning a putative nationwide class. The motion has been fully briefed, and the Court 17 deems it suitable for submission without oral argument. For the following reasons, the 18 motion is granted. 19 I. Background 20 Plaintiff Todd Carpenter alleges that on December 24, 2018, he bought four All 21 Living Things® Tiny Tales™ Small Pet Habitats (“Tiny Tales Homes”) at the Encinitas, 22 California store of Defendant PetSmart, Inc. [Doc. No. 4 at ¶ 5.] Tiny Tales Homes are 23 “artificial habitats or cages for pet hamsters, gerbils, and mice.” [Id. at ¶ 1.] There are a 24 variety of types or models of Tiny Tales Homes, and Carpenter bought one “Rocket Ship,” 25 one “Castle,” and two “Clubhouse” units. [Id. at ¶¶ 5, 19.] The Tiny Tales Homes can be 26 connected to each other using cylindrical plastic tubes (“Transport Tubes”) to create a 27 larger habitat of multiple units for the rodent. [Id. at ¶¶ 21-22.] These Transport Tubes 28 attach to the Tiny Tales Homes using circular connection pieces made of soft, malleable 1 plastic (“Connectors”). [Id. at ¶ 23.] According to the operative First Amended Complaint 2 (“FAC”), the Connectors are defective because rodents meant to be housed in the Tiny 3 Tales Homes can chew through the Connectors until they no longer function, resulting in 4 the Transport Tube detaching and allowing the rodent to escape. [Id. at ¶ 32.] The FAC 5 alleges that the PetSmart knew about this defect, and that it renders Tiny Tales Homes 6 worthless. [Id. at ¶¶ 1, 46-68.] 7 Carpenter claims that this defect resulted in the loss of two hamsters he housed in 8 the Tiny Tales Homes. Specifically, the FAC alleges that Carpenter used Connectors and 9 Transport Tubes to form two separate habitats of two Tiny Tales Homes each. [Id. at ¶ 10 40.] He put one hamster in each habitat. At some point, both hamsters allegedly chewed 11 through the Connectors, causing the Transport Tubes to dislodge, and allowing the 12 hamsters to escape, never to be found again. [Id. at ¶¶ 41-43.]. 13 The FAC seeks to assert claims on behalf of a nationwide class of Tiny Tales Homes 14 purchasers along with a California subclass. [Id. ¶ 83.] It defines the nationwide class as 15 “all citizens of the United States who, within the relevant statute of limitations periods, 16 purchased Defendant’s Tiny Tales Homes.” [Id.] The California class consists of “all 17 citizens of California who, within four years prior to the filing of this Complaint, purchased 18 Defendant’s Tiny Tales Homes.” [Id.] The FAC asserts three claims under California 19 consumer protection laws on behalf of the California subclass, three common law claims 20 for fraud by omission, breach of implied warranty, and unjust enrichment on behalf of both 21 the nationwide class and California subclass, and a claim under the Magnuson-Moss 22 Warranty Act (“MMWA”), on behalf of the nationwide class and California subclass. As 23 for relief, the FAC seeks damages, an injunction prohibiting PetSmart from selling Tiny 24 Tales Homes in the manner it currently does, punitive damages, and attorney’s fees and 25 costs. 26 II. Legal Standards 27 Rule 12(f) allows the Court to “strike from a pleading an insufficient defense or any 28 redundant, immaterial, impertinent, or scandalous matter.” Fed. R.Civ. P. 12(f). “The 1 purpose of Rule 12(f) is to avoid the expenditure of time and money that must arise from 2 litigating spurious issues by dispensing with those issues prior to trial.” Roberts v. 3 Wyndham Int’l, Inc., No. 12-CV-5083-PSG, 2012 WL 6001459, at *3 (N.D. Cal. Nov. 30, 4 2012) (internal quotation marks omitted). In general, however, “striking the pleadings is 5 considered an extreme measure, and Rule 12(f) motions are therefore generally viewed 6 with disfavor and infrequently granted.” Clark v. LG Elec. U.S.A., Inc., No. 13-CV-485 7 JM (JMA), 2013 WL 5816410, at *16 (S.D. Cal. Oct. 29, 2013) (internal quotation marks 8 omitted). At the same time, “Fed.R.Civ.P. 23(d)(1)(D) provides that the court may ‘require 9 that the pleadings be amended to eliminate allegations about representation of absent 10 persons and that the action proceed accordingly.’” Roberts, 2012 WL 6001459, at *3. 11 Thus, “the court may strike class allegations if the complaint plainly reflects that a class 12 action cannot be maintained.” Id. 13 III. Discussion 14 PetSmart moves to strike allegations related to a nationwide class on four grounds: 15 (1) the Court lacks personal jurisdiction over PetSmart with respect to claims by putative 16 class members who purchased Tiny Tales Homes outside of California; (2) Carpenter 17 cannot bring nationwide class claims under California law; (3) Carpenter lacks standing to 18 assert claims under other states’ laws; and (4) a nationwide class would be unmanageable. 19 In his opposition, Carpenter states that he “does not seek to apply California substantive 20 law to the claims of unnamed, non-resident class members.” [Doc. No. 18 at 23.] Thus, 21 the second ground is moot. As discussed below, the personal jurisdiction and standing 22 arguments are persuasive, so the Court need not address PetSmart’s assertion that a 23 nationwide class action would be unmanageable. 24 A. Specific Personal Jurisdiction Over PetSmart For Sales of Tiny 25 Tales Homes Outside of California 26 Although the motion is framed as a motion to strike under Federal Rule of Civil 27 Procedure 12(f), with respect to the contention that the Court lacks personal jurisdiction 28 over non-California class members, the motion is akin to a motion to dismiss any claims 1 asserted on behalf of the non-California class members for lack of personal jurisdiction 2 under Rule 12(b)(2).1 “Where defendants move to dismiss a complaint for lack of personal 3 jurisdiction, plaintiffs bear the burden of demonstrating that jurisdiction is appropriate.” 4 Dole Foods Co. Inc. v. Watts, 303 F.3d 1104, 1108 (9th Cir. 2002). “There are two 5 limitations on a court’s power to exercise personal jurisdiction over a nonresident 6 defendant: the applicable state personal jurisdiction rule and constitutional principles of 7 due process.” Sher v. Johnson, 911 F.2d 1357, 1360 (9th Cir. 1990); see also In re W. 8 States Wholesale Natural Gas Antitrust Litig., 715 F.3d 716, 741 (9th Cir. 2013) (“Personal 9 jurisdiction over a nonresident defendant is proper if permitted by a state’s long-arm statute 10 and if the exercise of that jurisdiction does not violate federal due process.”). “Under 11 California’s long-arm statute, California state courts may exercise personal jurisdiction ‘on 12 any basis not inconsistent with the Constitution of this state or of the United States.’” 13 Daimler AG v. Bauman, 571 U.S. 117, 125 (2014) (quoting Cal. Civ. Proc. Code Ann. § 14 410.10 (West 2004)). Thus, “the jurisdictional analyses under state law and federal due 15 process are the same.” Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800-801 16 (9th Cir. 2004)). 17 Under the Due Process Clause of the Fourteenth Amendment, to exercise personal 18 jurisdiction over an out-of-state defendant, the defendant must have “certain minimum 19 contacts with [the State] such that the maintenance of the suit does not offend traditional 20 notions of fair play and substantial justice.” Goodyear Dunlop Tires Operations, S.A. v. 21 Brown, 564 U.S.915, 923 (2011) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 22 (1945) (internal quotations omitted)). This minimum contacts jurisdiction may be either 23
24 25 1 Carpenter argues in his opposition that the Court should reject PetSmart’s personal jurisdiction argument as waived because PetSmart stated in its answer that it “does not contest personal jurisdiction.” [Doc. No. 26 11 at 3.] Considering that the instant motion was filed at the same time as the answer, the Court is not persuaded. Although PetSmart’s language possibly could have been more precise, in light of the instant 27 motion, it is clear that this statement referred to personal jurisdiction over the claims of Carpenter and purchasers of Tiny Tales Homes in California. Accordingly, the Court does not find any waiver of an 28 1 “general or all-purpose jurisdiction,” or “specific or case-linked jurisdiction.” Id. at 919 2 (citing Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408, 414 nn. 8.9 3 (1984)). “The paradigmatic locations where general jurisdiction is appropriate over a 4 corporation are its place of incorporation and its principal place of business.” Ranza v. 5 Nike, Inc., 793 F.3d 1059, 1069 (9th Cir. 2015)(citing Daimler, 571 U.S. at 137). Here, 6 there does not appear to be any dispute that PetSmart is incorporated in Delaware and has 7 its principal place of business in Arizona. Thus, the Court cannot exercise general personal 8 jurisdiction over PetSmart, and the only issue is whether the Court can exercise specific 9 personal jurisdiction over PetSmart for the claims of unnamed putative class members 10 arising out of sales of Tiny Tales Homes that occurred outside of California. 11 PetSmart argues that the Court lacks personal jurisdiction over it for claims of 12 unnamed class members arising out of purchases of the Tiny Tales Homes that occurred 13 outside of California based on the Supreme Court’s holding in Bristol-Myers Squibb Co. 14 v. Superior Court of California, San Francisco Cty., 137 S. Ct. 1773, 1780 (2017). In 15 Bristol-Myers Squibb, more than 600 plaintiffs, most of whom were not California 16 residents, filed a civil action in California state court alleging a variety of state law claims 17 caused by the drug Plavix. Id. at 1777. The California Supreme Court had used a “sliding 18 scale approach to specific jurisdiction.” Id. at 1778. “Applying this test, the [California 19 Supreme Court] majority concluded that ‘[Bristol-Myers Squibb’s] extensive contacts with 20 California’ permitted the exercise of specific jurisdiction ‘based on a less direct connection 21 between [Bristol-Myers Squibb’s] forum activities and plaintiffs’ claims than might 22 otherwise be required.’ [] This attenuated requirement was met, the majority found, 23 because the claims of the nonresidents were similar in several ways to the claims of the 24 California residents (as to which specific jurisdiction was uncontested).” Bristol-Myers 25 Squibb Co., 137 S. Ct. at 1779 (citing Bristol-Myers Squibb Co. v. Superior Court, 1 Cal. 26 5th 783, 803-806 (2016)). 27 The United States Supreme Court reversed, finding that the “‘sliding scale approach’ 28 is difficult to square with [its] precedents.” Id. at 1781. The Court noted that “the 1 nonresidents were not prescribed Plavix in California, did not purchase Plavix in 2 California, did not ingest Plavix in California, and were not injured by Plavix in California. 3 The mere fact that other plaintiffs were prescribed, obtained, and ingested Plavix in 4 California—and allegedly sustained the same injuries as did the nonresidents—does not 5 allow the State to assert specific jurisdiction over the nonresidents’ claims.” Id. The 6 majority opinion, however, did “not confront the question whether its opinion . . . would 7 also apply to a class action in which a plaintiff injured in the forum State seeks to represent 8 a nationwide class of plaintiffs, not all of whom were injured there,” see id. at 1789, n.4 9 (Sotomayor, J., dissenting), and “[t]he Ninth Circuit and the Supreme Court [still] have yet 10 to decide this issue.” King v. Bumble Trading, Inc., No. 18-CV-06868-NC, 2020 WL 11 663741, at *4 (N.D. Cal. Feb. 11, 2020). In fact, no circuit court has decided the issue. 12 District courts have typically taken one of three approaches when asked to consider 13 the application of Bristol-Myers Squibb to nationwide class actions: 14 First, many courts hold that Bristol-Myers Squibb does not apply outside of the context of mass tort cases. Under this view, there is no constitutional 15 unfairness in subjecting a defendant to the class claims of out-of-state 16 plaintiffs in Rule 23 class actions, as long as a court has jurisdiction over the class representative’s claims. The due process issue is avoided because 17 Rule 23 class certification already protects a defendant’s due process 18 rights. 19 Another set of district courts holds the opposite: the same due process concerns that animated Bristol-Myers Squibb necessarily apply to 20 nationwide class actions in federal courts. They hold there is no principled 21 way to distinguish between the strictures of the Fourteenth Amendment Due Process Clause and the Fifth Amendment Due Process Clause. 22 A third set of district courts opts to defer this issue until class certification: 23 since unnamed plaintiffs are merely potential class members who may 24 never actually be joined to this action, it would be premature for a court to decide whether there is specific jurisdiction over the defendant(s) with 25 respect to their claims. 26 Pettenato v. Beacon Health Options, Inc., No. 19CV1646JPOBCM, 2019 WL 5587335, at 27 *6 (S.D.N.Y. Oct. 25, 2019) (citation omitted). 28 1 In the Ninth Circuit, district courts have typically followed the first approach. One 2 of the early Ninth Circuit district courts (if not the first) to consider whether Bristol-Myers 3 Squibb applies to class actions appears to be Fitzhenry-Russell v. Dr. Pepper Snapple Grp., 4 Inc., No. 17-CV-00564 NC, 2017 WL 4224723, at *5 (N.D. Cal. Sept. 22, 2017). This 5 case essentially held that simply because Bristol-Myers Squibb was a mass action and 6 because the Supreme Court did not expressly extend its holding to class actions, the holding 7 in Bristol-Myers Squibb did not extend to class actions. See Fitzhenry-Russell, 2017 WL 8 4224723, at *5. Missing from the opinion, however, is any analysis of why a class action 9 is so materially different that it warrants a different result than a mass action. 10 Notwithstanding this lack of analysis, dozens of district courts have cited Fitzhenry-Russell 11 for this holding. See, e.g., Cabrera v. Bayer Healthcare, LLC, No. 12 LACV1708525JAKJPRX, 2019 WL 1146828, at *8 (C.D. Cal. Mar. 6, 2019) (holding that 13 Bristol-Myers Squibb does not apply in the class action context and citing to Fitzhenry- 14 Russell and other district court cases that reached similar conclusions). 15 Some of these Ninth Circuit district court cases have provided some additional 16 rationale, primarily stating that the protections of Rule 23 distinguish class actions from 17 the mass action at issue in Bristol-Myers Squibb. For example, in Cabrera, 2019 WL 18 1146828, at *8, the court found that “[t]the significant distinctions between a class action 19 and a mass tort action warrant” a finding that Bristol-Myers Squibb does not apply to class 20 actions. In particular, the court noted that every plaintiff in a mass action is a real party in 21 interest and that Rule 23 “imposes additional due process safeguards on class actions, i.e., 22 numerosity, commonality, typicality, adequacy of representation, predominance and 23 superiority, that do not exist in the mass tort context.” Id. 24 In other jurisdictions, including the Northern District of Illinois and the Northern 25 District of New York, district courts have followed the second approach outlined above, 26 finding that the reasoning in Bristol-Myers Squibb also applies to class actions. See, e.g., 27 Chavez v. Church & Dwight Co., 2018 WL 2238191, at *11 (N.D. Ill. May 16, 2018) (“The 28 Court therefore concludes that Bristol-Myers extends to class actions, and that Chavez is 1 therefore foreclosed from representing either a nationwide and [sic] multistate class 2 comprising non-Illinois residents in this suit.”); McDonnell v. Nature's Way Prod., LLC, 3 No. 16 C 5011, 2017 WL 4864910, at *4 (N.D. Ill. Oct. 26, 2017) (dismissing all claims 4 arising out of out-of-state purchases “[b]ecause the only connection to [the forum state] is 5 provided by [the named plaintiff’s] purchase” of the product); see also Chizniak v. 6 CertainTeed Corp., No. 117CV1075FJSATB, 2020 WL 495129, at *5 (N.D.N.Y. Jan. 30, 7 2020) (“Like the other courts in this District, the Court interprets Bristol-Myers Squibb to 8 extend to nationwide class actions and declines to exercise specific personal jurisdiction 9 over Defendant CertainTeed with regard to the Out-of-State Plaintiffs’ claims.”); cf. 10 Wenokur v. AXA Equitable Life Ins. Co., No. CV-17-00165-PHX-DLR, 2017 WL 11 4357916, at *4 n.4 (D. Ariz. Oct. 2, 2017) (citing Bristol-Myers Squibb in a footnote and 12 noting in dicta that the court “lacks personal jurisdiction over the claims of putative class 13 members with no connection to Arizona and therefore would not be able to certify a 14 nationwide class.”). 15 This Court agrees with these latter cases finding that Bristol-Myers Squibb applies 16 in the nationwide class action context. That the Supreme Court did not consider whether 17 its holding in Bristol-Myers Squibb would apply to class actions is hardly supportive of a 18 holding that it does not apply to class actions. On the other hand, the rationale for the 19 holding in Bristol-Myers Squibb indicates that if and when the Supreme Court is presented 20 with the question, it will also hold that a state cannot assert specific personal jurisdiction 21 over a defendant for the claims of unnamed class members that would not be subject to 22 specific personal jurisdiction if asserted as individual claims. Cf. “In re Dental Supplies 23 Antitrust Litig., No. 16CIV696BMCGRB, 2017 WL 4217115, at *9 (E.D.N.Y. Sept. 20, 24 2017) (“The constitutional requirements of due process do[] not wax and wane when the 25 complaint is individual or on behalf of a class. Personal jurisdiction in class actions must 26 comport with due process just the same as any other case.”). 27 “[S]pecific jurisdiction is confined to adjudication of issues deriving from, or 28 connected with, the very controversy that establishes jurisdiction.” Bristol-Myers Squibb, 1 137 S. Ct. at 1780. “The specific personal jurisdiction inquiry is ‘defendant-focused,’ with 2 an emphasis ‘on the relationship among the defendant, the forum, and the litigation.’” 3 Matus v. Premium Nutraceuticals, LLC, 715 F. App’x 662 (9th Cir. 2018) (quoting Walden 4 v. Fiore, 571 U.S. 277, 284 (2014)). Jurisdiction “must arise out of contacts that the 5 ‘defendant himself’ creates with the forum State.” Walden, 571 U.S. at 284 (emphasis in 6 original) (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). The primary 7 concern in determining whether personal jurisdiction is present, therefore, is “the burden 8 on the defendant.” Bristol-Myers Squibb, 137 S. Ct. at 1780. This burden “encompasses 9 the more abstract matter of submitting to the coercive power of a State that may have little 10 legitimate interest in the claims in question.” Bristol-Myers Squibb, 137 S. Ct. at 1780 11 (emphasis added). The “claims in question” in this motion are those related to purchases 12 of Tiny Tales Homes that occurred outside of California. California has little interest in 13 the claims of non-California plaintiffs arising out purchases made outside California from 14 a Delaware company with a principal place of business in Arizona. Further, the burden on 15 PetSmart to defend a nationwide class action is significantly greater than the burden of 16 defending an individual claim or a statewide class action. That PetSmart sold some Tiny 17 Tales Homes in California does not create a sufficient relationship between PetSmart and 18 California such that it should be subject to specific personal jurisdiction in California for 19 the claims of a nationwide class with no connection to California. 20 Using language from Bristol-Myers Squibb, “[t]he mere fact that other plaintiffs 21 [purchased the Tiny Tales Homes] in California—and allegedly sustained the same injuries 22 as did the nonresidents—does not allow the State to assert specific jurisdiction over the 23 nonresidents’ claims.” Id. at 1781; cf. Goodyear, 564 U.S. at 931 n.6 (“[E]ven regularly 24 occurring sales of a product in a State do not justify the exercise of jurisdiction over a claim 25 unrelated to those sales.”). Yet, this is exactly what Plaintiff argues here—that because he 26 (and other Californians) purchased the Tiny Tales Homes in California, California may 27 assert specific jurisdiction over nationwide class claims related to out of state purchases. 28 1 This argument is unavailing, and the Court respectfully disagrees with courts that have held 2 otherwise. 3 Courts finding that Bristol-Myers Squibb does not apply to nationwide class actions 4 frequently refer to “significant procedural differences between class and mass actions” that 5 they claim address the due process concerns identified in Bristol-Myers Squibb. See King, 6 2020 WL 663741, at *4. These courts note, for example, that “class actions are subject to 7 the numerosity, commonality, typicality, and adequacy requirements of Federal Rule of 8 Civil Procedure 23. Those requirements act as due process safeguards to ensure fairness.” 9 Id.; see also Allen v. ConAgra Foods, Inc., No. 3:13-CV-01279-WHO, 2018 WL 6460451, 10 at *7 (N.D. Cal. Dec. 10, 2018) (stating that “functional differences set class actions apart; 11 the plaintiffs here must meet the Rule 23 requirements of numerosity, commonality of law 12 or fact, typicality of claims or defenses, and adequacy of representation in order to achieve 13 certification.”). 14 The Court, however, is not persuaded that the procedural requirements for a class 15 action constitute a basis for finding that the rationale behind the holding in Bristol-Myers 16 Squibb does not apply to nationwide class actions involving individual claims for which 17 there would not be specific personal jurisdiction if those claims were filed individually. 18 “[T]he class action was an invention of equity to enable [a court] to proceed to a decree in 19 suits where the number of those interested in the litigation was too great to permit joinder. 20 The absent parties would be bound by the decree so long as the named parties adequately 21 represented the absent class and the prosecution of the litigation was within the common 22 interest.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808 (1985). In other words, the 23 procedural safeguards of Rule 23 are meant primarily to protect the absent class members 24 and create criteria for binding the absent class members to whatever settlement or judgment 25 results from a class action. Cf. id. at 810 (referring to “[t]he concern of the typical class- 26 action rules for the absent plaintiffs . . .” and that an absent class-action plaintiff “may sit 27 back and allow the litigation to run its course, content in knowing that there are safeguards 28 provided for his protection”) (emphasis added); Abelson v. Strong, No. CIV.A. 85-0592-S, 1 1987 WL 15872, at *9 n.3 (D. Mass. July 30, 1987) (“[T]he absent plaintiffs, and not 2 defendant, are the prime concern of Rules 23(a)(3) and (4).”). That the creation of the class 3 actions and the requirements of Rule 23 are not meant to favor or protect defendants is 4 reflected in the fact that defendants almost always vigorously oppose class certification. 5 Some courts, including this one, have found that Bristol-Myers Squibb applies to the 6 claims of non-resident named plaintiffs in a case involving state-specific classes 7 concerning the same product. See Andrade-Heymsfield v. Danone US, Inc., No. 19-CV- 8 589-CAB-WVG, 2019 WL 3817948, at *3 (S.D. Cal. Aug. 14, 2019); Reitman v. 9 Champion Petfoods USA, Inc., No. CV181736DOCJPRX, 2018 WL 4945645, at *6 (C.D. 10 Cal. Oct. 10, 2018). Whether the individuals who made those out of state purchases are 11 named plaintiffs as part of a mass action, named as representatives for out of state class 12 members, or unnamed members of a putative nationwide class of plaintiffs is a distinction 13 without a difference. It makes little logical sense to allow for broader personal jurisdiction 14 over a defendant when there are fewer named plaintiffs in the case. Moreover, it can hardly 15 be argued that a defendant’s due process rights are better served by one in-state plaintiff 16 seeking to represent a nationwide class than by multiple named plaintiffs each seeking to 17 represent a class of other individuals from their particular jurisdiction whose purchases 18 were subject to the same state common law and consumer protection laws. None of these 19 differences warrant a holding other than that the court lacks personal jurisdiction over the 20 defendant with respect to out of state claims regardless of the composition of the named 21 plaintiffs. 22 This holding that this California court lacks personal jurisdiction over claims based 23 on Tiny Tales Homes purchases made outside of California does not, as Plaintiff argues, 24 “fundamentally alter the existing landscape of class action jurisprudence.” [Doc. No. 18 25 at 15]; see also Sotomayor v. Bank of Am., N.A., 377 F. Supp. 3d 1034, 1038 (C.D. Cal. 26 2019) (“Extending Bristol-Myers to class actions, as Defendant suggests, would radically 27 alter the existing universe of class action law.”). Indeed, it would more accurate to say that 28 other courts’ holdings that a court has personal jurisdiction over claims where there would 1 not be personal jurisdiction if the claims were brought individually, for no other reason 2 than that those same claims were brought as part of a class action, would fundamentally 3 alter the existing landscape of personal jurisdiction jurisprudence, including Bristol-Myers 4 Squibb itself. 5 The extension of Bristol-Myers Squibb to class actions does not prevent Carpenter 6 from bringing a nationwide class action (at least with respect to the ability to obtain 7 personal jurisdiction over PetSmart); it merely requires that he file it in a jurisdiction where 8 PetSmart is subject to general personal jurisdiction. Cf. Bristol-Myers Squibb, 137 S. Ct. 9 at 1783 (noting that the decision did not prevent the filing of mass actions in states that 10 have general jurisdiction over the defendant). That filing a nationwide class action in a 11 different state from where Carpenter lives may be less convenient2 is not a ground for 12 subjecting a defendant to personal jurisdiction here. See Walden, 571 U.S. at 284 (“Due 13 process limits on the State’s adjudicative authority principally protect the liberty of the 14 nonresident defendant—not the convenience of plaintiffs or third parties.”). Alternatively, 15 Carpenter could keep his case in California courts by limiting the class to individuals who 16 purchased the Tiny Tales Homes in California. Either way, these requirements would be 17 unlikely to result in a reduction in the number of nationwide class actions. Ultimately, this 18 holding impacts only the forum where a nationwide class action may be filed. 19 B. Carpenter Lacks Standing to Assert Claims Based on Other States’ 20 Laws 21 Even if the Court had personal jurisdiction over PetSmart for claims based on 22 purchases made outside of California, the nationwide class claims also must be dismissed 23 for lack of standing. “The three well-known irreducible constitutional minima of standing 24 are injury-in-fact, causation, and redressability. A plaintiff bears the burden of 25 26 27 2 In reality, considering that a class representative rarely appears in court in these sorts of class actions, the only ones who would be inconvenienced would be Carpenter’s attorneys, who are located in this 28 1 demonstrating that her injury-in-fact is concrete, particularized, and actual or imminent; 2 fairly traceable to the challenged action; and redressable by a favorable ruling.” Davidson 3 v. Kimberly-Clark Corp., 889 F.3d 956, 967 (9th Cir. 2018) (internal quotation marks, 4 citations, and brackets omitted). “That a suit may be a class action ... adds nothing to the 5 question of standing, for even named plaintiffs who represent a class ‘must allege and show 6 that they personally have been injured, not that injury has been suffered by other, 7 unidentified members of the class to which they belong and which they purport to 8 represent.’” Lewis v. Casey, 518 U.S. 343, 357 (1996) (quoting Simon v. E. Ky. Welfare 9 Rights Org., 426 U.S. 26, 40, n.20 (1976)). 10 “[S]tanding is not dispensed in gross.” Id. at 358 n.6. It “is claim-specific and ‘a 11 plaintiff must demonstrate standing for each claim he seeks to press.’” Harris v. CVS 12 Pharmacy, Inc., No. EDCV1302329ABAGRX, 2015 WL 4694047, at *4 (C.D. Cal. Aug. 13 6, 2015) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)); see also Los 14 Gatos Mercantile, Inc v. E.I. DuPont De Nemours & Co., No. 13-CV-01180-BLF, 2014 15 WL 4774611, at *4 (N.D. Cal. Sept. 22, 2014) (“If a complaint includes multiple claims, 16 at least one named class representative must have Article III standing to raise each claim.”) 17 (quoting 5 J. Moore et al., Moore’s Federal Practice § 26.63[1][b] at 23–304 (3rd Ed. 18 2014)). “As the party advocating for the application of [other states’ laws], Plaintiff must 19 make at least [a] prima facie showing that the [other states’ laws] appl[y] to him such that 20 he would have standing to bring that claim.” Harris, 2015 WL 4694047, at *4. “‘Courts 21 routinely dismiss claims’ for lack of subject-matter jurisdiction ‘where no plaintiff is 22 alleged to reside in a state whose laws the class seeks to enforce’ because the named 23 plaintiff lacks standing to invoke the foreign statute.” Id. (citing In re Aftermarket Auto. 24 Lighting Products Antitrust Litig., No. 09 MDL 2007–GW PJWX, 2009 WL 9502003, at 25 *6 (C.D. Cal. July 6, 2009)). 26 The Court “should address standing prior to class certification.” Broomfield v. Craft 27 Brew All., Inc., No. 17-CV-01027-BLF, 2017 WL 3838453, at *14 (N.D. Cal. Sept. 1, 28 2017) (citing Easter v. Am. W. Fin., 381 F.3d 948, 962 (9th Cir. 2004)). “Moreover, when 1 a plaintiff’s lack of standing is ‘plain enough from the pleadings,’ it can form appropriate 2 grounds for dismissal even if it overlaps with issues regarding whether the named plaintiffs 3 are adequate representatives under Rule 23.” Id. (citing Gen. Tel. Co. of Sw. v. Falcon, 4 457 U.S. 147, 160 (1982)). Following Easter, California district courts frequently address 5 the issue of Article III standing at the pleading stage and dismiss claims asserted under the 6 laws of states in which no plaintiff resides or has purchased products. See, e.g., Morales 7 v. Unilever U.S., Inc., Civ. No. 2:13-2213 WBS EFB, 2014 WL 1389613, at *4 (E.D. Cal. 8 Apr. 9, 2014) (holding that because the named plaintiffs were only residents of two states 9 and did not purchase defendant’s products in any state but their own they did “not have 10 standing to assert a claim under the consumer protection laws of the other states named in 11 the Complaint.”) (quoting Pardini v. Unilever U.S., Inc., 961 F. Supp. 2d 1048, 1061 (N.D. 12 Cal. 2013); In re Ditropan XL Antitrust Litig., 529 F. Supp. 2d 1098, 1107 (N.D. Cal. May 13 11, 2007) (holding that “[a]t least one named plaintiff must have standing with respect to 14 each claim the class representative seek to bring” and dismissing the claims made under 15 the laws of twenty-four states where none of the named plaintiffs resided or were alleged 16 to have personally purchased the product). 17 Here, although the FAC frames the putative classes as a nationwide class and a 18 California subclass, based on Plaintiff’s acknowledgement that he “seeks to represent 19 unnamed class members pursuing claims under the laws of their respective states” [Doc. 20 No. 18 at 19], there is no nationwide class because there is no claim that governs a 21 nationwide class.3 Instead, despite the FAC listing only one generic “fraud by omission” 22
23 3 Although the MMWA claim can be maintained here so long as the requirements for CAFA jurisdiction 24 are satisfied, Wolph v. Acer Am. Corp., No. C 09-01314 JSW, 2009 WL 2969467, at *3 (N.D. Cal. Sept. 25 14, 2009) (“[B]ecause Plaintiffs allege an alternative basis for jurisdiction under CAFA, the Court has jurisdiction to adjudicate Plaintiffs’ Magnuson–Moss Act claim.), without CAFA jurisdiction it cannot be 26 asserted on behalf of a class because there are not over 100 named plaintiffs. See 15 U.S.C. § 2310(d)(3)(c); Pilgrim v. Gen. Motors Co., No. CV 15-8047-JFW (EX), 2019 WL 5779892, at *6 (C.D. 27 Cal. Oct. 4, 2019) (“In this case, there are only fifty-seven named Plaintiffs, which is far less than the number required to allege a cognizable MMWA class action claim. Because Plaintiffs have failed to 28 1 claim, one generic breach of implied warranty claim, and one generic unjust enrichment 2 claim, what Plaintiff is attempting to do here is assert fifty fraud by omission claims, fifty 3 breach on implied warranty claims, and fifty unjust enrichment claims–one of each claim 4 for each state—on behalf of fifty separate state-specific classes. Carpenter, however, does 5 not have standing to assert a claim against PetSmart under any state’s law but California’s 6 because Carpenter did not suffer any injuries in fact traceable to any alleged violations of 7 any other states’ laws. Labeling the putative class as a “nationwide class” does not 8 overcome this fatal deficiency. 9 Thus, Carpenter is correct that this is not a choice-of-law issue and that a choice of 10 law analysis is unwarranted in this case. To the contrary, there does not appear to be any 11 dispute as to what law applies. Both sides agree that Carpenter’s individual claims are 12 governed by California law, and that each unnamed putative class member’s claims would 13 be governed by the law of the state in which they made their purchase of a Tiny Tales 14 Home. Many of the cases on which Plaintiff relies (or on which PetSmart relied in its 15 motion before Plaintiff conceded that he is not attempting to apply California law to the 16 entire nationwide class) are distinguishable. Most of those cases concerned a plaintiff 17 seeking to assert claims under California law as to an entire nationwide class. See, e.g., 18 Mazza v. Am. Honda Motor Co., 666 F.3d 581, 585 (9th Cir. 2012) (“The complaint states 19 four claims under California Law.”); In re Clorox Consumer Litig., 894 F. Supp. 2d 1224, 20 1230–31 (N.D. Cal. 2012) (“Plaintiffs seek certification of a nationwide class action under 21 California consumer protection statutes on behalf of ‘[a]ll persons or entities that purchased 22 ‘Fresh Step cat litter in the United States.’”).4 23
24 25 4 To the extent other district courts have declined to dismiss claims asserted under the laws of states that do not govern any of the named plaintiffs for lack of standing, the Court respectfully disagrees with these 26 holdings. For example, in Kutza v. Williams-Sonoma, Inc., No. 18-CV-03534-RS, 2018 WL 5886611, at *3, n.3 (N.D. Cal. Nov. 9, 2018), the Court rejected the defendant’s argument that named plaintiff lacked 27 standing to represent a nationwide class under the MMWA and common law, noting that it would “make little difference as to whether Californian [sic] common law is applied to all the claims, or the common 28 1 Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015), on which Carpenter also relies, 2 is also distinguishable. As a recent Northern District of California opinion recently 3 explained when faced with a similar standing issue: 4 In [Melendres], the Ninth Circuit considered an appeal from a district court judgment (following a bench trial) against Sheriff Joseph Arpaio and the 5 Maricopa County Sheriff's Office, enjoining them from making traffic stops 6 based on a car occupant’s race. The injunction applied to stops made during “saturation patrol” (when the defendant officers “saturated” a particular area 7 for the purpose of enforcing immigration laws) and “nonsaturation patrol.” Id. 8 at 1258-59. In support of their request to partially decertify the class, the defendants argued that the remaining named plaintiffs, who were stopped 9 during saturation patrols, lacked Article III standing to bring constitutional 10 claims on behalf of class members stopped during nonsaturation patrols. Id. 11 Unlike the instant case, Melendres did not confront a situation where named plaintiffs brought claims under the laws of multiple states where they did not 12 reside and where they were not injured: in Melendres, all plaintiffs alleged 13 that they suffered the same constitutional injury, only in different factual circumstances. Here, because Plaintiffs bring claims under the laws of 14 multiple states (some antitrust and some not), Plaintiffs technically invoke 15 different legally protected interests. See Restatement (Second) of Torts § 7 cmt. a (1965) (noting that injury involves an actionable invasion of a legally 16 protected interest, while harm denotes personal loss or detriment). 17 The Court is here called upon to examine whether the named Plaintiffs have 18 standing to bring certain claims, not standing “to obtain relief for unnamed class members” for the same injury. See id. at 1261-62; see also 19 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 20 L.Ed.2d 589 (2006) (Article III must be measured claim-by-claim). Plaintiffs must show they have standing for each claim they raise, and Plaintiffs do not 21 have standing to bring claims under the laws of states where they have alleged 22 no injury, residence, or other pertinent connection. See Pardini, 961 F. Supp. 2d at 1061; see also In re Packaged Seafood Prod. Antitrust Litig., 242 F. 23 Supp. 3d 1033, 1096–97 (S.D. Cal. 2017) (“Seafood II”) (discussing 24 Melendres, 784 F.3d at 1261-62). Accordingly, Melendres does not, in the 25
26 warranty, or unjust enrichment may be similar to claims under Arizona (or any other state) law for those 27 common law torts is largely irrelevant to the issue of Article III standing. Carpenter has standing to assert claims under California law. Another state’s law might be similar to California law, but that similarity 28 1 Court’s view, stand for the proposition that this Court must delay its consideration of standing in sister state cases until class certification. 2 Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897, 909 (N.D. Cal. 2019). 3 In sum, there is no dispute that Carpenter has Article III standing to represent a class 4 of purchasers of Tiny Tales Homes who have claims under California law. The question 5 here is whether Carpenter has standing to assert claims on behalf of unnamed class 6 members under other states’ laws that do not govern his own claims. He does not. 7 Therefore, the claims in the FAC on behalf of the “nationwide class,” which Carpenter 8 agrees are governed by the laws of the state where each particular class member resides or 9 made her purchase, must be dismissed because Carpenter, the only named plaintiff, lacks 10 Article III standing to assert claims under those other states’ laws. 11 C. CAFA Subject Matter Jurisdiction 12 The FAC asserts that this Court has subject matter jurisdiction under the Class 13 Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Pursuant to CAFA, federal district 14 courts have subject matter jurisdiction over class actions in which a member of the plaintiff 15 class is a citizen of a state different from any defendant and the aggregate matter in 16 controversy exceeds $5,000,000. 28 U.S.C. § 1332(d)(2). On February 11, 2020, the Court 17 ordered the parties to show cause as to whether the amount in controversy in this action 18 exceeds $5,000,000. [Doc. No. 23.] 19 Both parties responded to the order. Carpenter, who has the burden of demonstrating 20 subject matter jurisdiction and alleged in the FAC that the amount in controversy exceeds 21 $5,000,000, conceded that he has no support for his allegation as to the amount in 22 controversy. [Doc. No. 25.] PetSmart, meanwhile, submitted a declaration from its Senior 23 Category Buyer stating that PetSmart has sold over $5,000,000 in Tiny Tales Homes, 24 including Transport Tubes and Connectors, in the United States since launching the 25 products in 2018. [Doc. No. 26-1.] The Court is satisfied that this evidence was sufficient 26 to demonstrate subject matter jurisdiction under CAFA over a nationwide class action, 27 assuming that the Court has jurisdiction over such an action. 28 1 However, because the Court is dismissing the nationwide class claims for lack of 2 || personal jurisdiction and lack of standing, Plaintiff cannot rely on the damages attributable 3 those non-California class claims to satisfy CAFA’s $5,000,000 amount in controversy 4 ||requirement. Cf Harris v. CVS Pharmacy, Inc., No. ED CV 13-2329-AB (AGRx), 2015 5 || WL 4694047 (C.D. Cal. Aug. 6, 2015) (holding that the plaintiff could not rely on claims 6 || for which he lacked standing to satisfy CAFA’s amount in controversy requirement). If 7 ||the matter in controversy with respect to the California class alone exceeds $5,000,000, 8 ||this is not an issue. However, if the matter in controversy for the California class alone 9 ||does not exceed $5,000,000, the Court lacks CAFA jurisdiction and must dismiss this 10 complaint in its entirety. Accordingly, as stated below, the Court seeks further briefing on 11 || this issue. 12 IV. Disposition 13 For all of the foregoing reasons, the Court finds that Carpenter lacks standing to 14 || assert claims under non-California laws, and that the Court lacks personal jurisdiction over 15 PetSmart for any claims of unnamed class members under other states’ laws and based on 16 || purchases that occurred outside of California. Accordingly, the motion to strike claims 17 ||related to a nationwide class action is GRANTED, and the allegations of a nationwide 18 ||class are STRICKEN. The parties are ORDERED to SHOW CAUSE, on or before 19 ||March 16, 2020, why this Court has subject matter jurisdiction notwithstanding the 20 |/elimination of the nationwide class claims. Failure to respond will result in dismissal of 21 complaint without prejudice to Carpenter re-filing a California class action in state 22 court. 23 It is SO ORDERED. 24 Dated: March 2, 2020 € Z 25 Hon. Cathy Ann Bencivengo 26 United States District Judge 27 28