ORDER DENYING DEFENDANT CITIBANK’S MOTION REQUESTING LEAVE TO AMEND ITS REMOVAL PETITION AND GRANTING PLAINTIFFS MOTION TO REMAND
KENYON, District Judge.
This ease comes before the Court on Defendant Citibank’s Motion Requesting Leave to Amend its Removal Petition and Plaintiff Barbara Smiley’s Motion to Remand. After thorough review of the motions and the papers filed in support of and in opposition thereto, the Court DENIES Citibank’s Motion to Amend its Removal Petition and GRANTS Smiley’s Motion to Remand this case to the Superior Court of the State of California.
The Court explains its reasoning in the discussion below.
I.
DISCUSSION:
1.
Procedural History
Plaintiff Barbara Smiley filed this action against Citibank (South Dakota), N.A. on July 7, 1992, seeking damages and injunctive relief on behalf of herself and all other similarly situated persons who have owned or currently own Citibank issued credit cards and have been charged a late charge on their credit card account.
The plaintiff alleges, among other things, that Citibank’s practice of charging late fees of up to $15.00 per month violates California Civil Code § 1671 and that Citibank has defrauded the public by failing to disclose in its long-term advertising, promotional and marketing campaign that these late charges are illegal and unconscionable.
Complaint
at ¶ 42. Plaintiff is seeking compensatory and punitive damages; the imposition of a constructive trust upon Citibank’s allegedly “ill-gotten gains”; and injunctive relief. The summons and complaint were served on - Citibank on July 15, 1992.
Defendant Citibank, a South Dakota corporation, subsequently filed á Notice of Removal on August 5, 1992, pursuant to 28 U.S.C. § 1441(a) and (b) and 28 U.S.C. § 1446. In its petition, Citibank asserts that removal is warranted under § 1441(a) because this Court had diversity jurisdiction over the action.
In response, Smiley filed a motion to remand this action to state court on August 26, 1992, asserting that this Court lacks diversity jurisdiction because the amount in controversy requirement under 28 U.S.C. § 1332(a) has not been satisfied.
Then, on September 21, 1992, Citibank filed a motion for Leave to Amend its Removal Petition by adding an allegation that the plaintiffs state law claims were completely preempted by the National Bank Act.
In the discussion below, the Court will first address Citibank’s Motion for Leave to Amend its Notice of Removal and then discuss plaintiffs Motion to Remand.
2.
Citibank’s Request for Leave to Amend
Section 1446(b) of Title 28 requires defendants to file a notice of removal within thirty days after being served with the complaint. 28 U.S.C. § 1446(b). In this case, it is undisputed that Citibank filed its initial Notice of Removal within the applicable limitations period; Citibank was served with Smiley’s complaint on July 15 and filed its notice of removal twenty-one days later, on August 5, 1992. Now, however, Citibank moves to amend its petition by adding an allegation that the plaintiffs’ state law causes of action are completely preempted by the National Bank Act and that removal is thus warranted by 28 U.S.C. § 1441(b), which allows defendants to remove a case to federal court when the district court’s original jurisdiction is founded on a claim arising under federal law. Smiley asserts that this amendment is untimely. The Court agrees and therefore denies Citibank’s Motion.
It is well-settled that the defendant’s notice of removal may be amended freely prior to the expiration of the initial thirty-day period established by § 1446.
Richardson v. United Steelworkers of Amer
ica,
864 F.2d 1162 (5th Cir.1989),
cert. denied
495 U.S. 946, 110 S.Ct. 2204, 109 L.Ed.2d 531 (1990). After the first thirty days, however,
the eases indicate that the petition may be amended only to set out more specifically grounds for removal that already have been stated, albeit imperfectly, in the original petition; new grounds may not be added and missing allegations may not be furnished.
14A C. Wright, A. Miller, E. Cooper,
Federal Practice & Procedure
§ 3733, at 537-538 (1985). The majority of courts, for example, allow defendants to amend “defective allegations of jurisdiction” in their notice as long as the initial notice of removal was timely filed and sets forth the same legal grounds for removal.
Barrow Development Company v. Fulton Insurance Company,
418 F.2d 316, 318 (9th Cir.1969) (permitting amendment of removal petition to cure inadequate allegation of the citizenship of the defendant corporation).
When defendants attempt to assert totally new grounds for removal or “to create jurisdiction where none existed”, however, the courts uniformly deny leave to amend.
Rockwell International Credit Corporation v. United States Aircraft Insurance Group,
823 F.2d 302 (9th Cir.1987).
Citibank asserts that the Ninth Circuit has rejected strict restrictions on leave to amend and that it is therefore entitled to amend its petition pursuant to 28 U.S.C. § 1653, which permits “[d]efective allegations of jurisdiction”' to be amended in the trial or appellate court, well after the expiration of the time limit set by § 1446. Citibank contends that the only reported opinions that have precluded defendants from amending their removal notices are those that have involved attempts by a defendant to amend the notice of removal by adding
facts
omitted from the notice that would support jurisdiction on the basis of diversity of citizenship.
See e.g., Rockwell, supra
(court denied defendant leave to amend its notice by changing the identity of the defendant, and real party in interest, in order to create total diversity). Furthermore, Citibank alleges that it should be excused for failing to raise complete preemption as a grounds for removal in its initial Notice of Removal because
Tikkanen v. Citibank (South Dakota), N.A.,
801 F.Supp. 270 (D.Mmn.1992) and
Greenwood Trust Co. v. Massachusetts,
971 F.2d 818 (1st Cir.1992)
had yet to be decided at the time it filed its original notice.
Citibank argues, in essence, that as long as the “facts and allegations necessary for federal-question jurisdiction appear in the complaint itself, a party may amend its removal petition at any time to include grounds based on such facts and allegations. Citibank’s Re
ply at 15. To support this argument, Citibank cites two recent cases from other district courts which have upheld defendants’ rights to amend their notices of removal after the expiration of the initial thirty-day period.
National Audubon Society v. Department of Water & Power,
496 F.Supp. 499 (E.D.Cal.1980) and
Ryan v. Dow Chemical Co.,
781 F.Supp. 934 (E.D.N.Y.1992).
Citibank also cites a third district court case,
Schmidt v. Association of Apartment Owners of Marco Polo Condominium,
780 F.Supp. 699 (D.Hawaii 1991), in which the district court in Hawaii suggests that it might have allowed a fourth party defendant leave to amend if he had had standing to remove.
These cases are clearly distinguishable from the Citibank case, however. In
National Audubon,
for instance, the district court granted the United States’s motion for leave to amend its removal petition because the “factual allegations” omitted from the notice were “inherent in the' allegations of the cross-complaint” filed against the United States.
Id.,
496 F.Supp. at 504. The National Audubon Society had sued the Los Angeles Department of Water and Power (“DWP”) in state court, asserting that the defendant’s diversion of water from the Mono Lake Basin was having a deleterious effect on the Basin’s environment. DWP subsequently filed a cross-complaint against several defendants, including two federal agencies: the Forest Service and the Bureau of Land Management. The United States originally sought to remove pursuant to 28 U.S.C. § 1441, on the grounds that the district court had original jurisdiction pursuant to 28 U.S.C. § 1346(f), which grants the district courts jurisdiction to adjudicate quiet title actions against real property in which the United States claims an interest. After the expiration of the thirty day period, however, the United States sought leave to amend its petition
by asserting § 1442(a)(1), the federal officer removal statute, as the basis of removal.
Although neither the cross-complaint nor the United States’ original removal petition alleged that the federal defendants were officers of federal agencies, or acting under the direction of such officers, the court held that it could take judicial notice, pursuant to FRE 201, that the defendants were acting under the direction of the Secretaries of the Interi- or and Agriculture. ■ In so reaching, the court ruled that it should review the entire file of the proceedings, rather than just the removal petition, to determine whether “the amendment seeks merely to cure defects in form rather than alleging new substance.”
National Audubon,
496 F.Supp. at 503 (citing
inter alia, Willingham v. Morgan,
395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) and
Powers v. Chesapeake and Ohio RR,
169 U.S. 92, 18 S.Ct. 264, 42 L.Ed. 673 (1898)). The court concluded that “the change from section 1441 to section 1442(a)(2)” as the basis of removal was no “more than a shifting of legal theory and thus may be properly viewed as merely a clarification of a defective allegation,” rather than the allegation of a
new substantive ground for removal.
Id.
at 504.
Similarly, in
Ryan v. Dow Chemical Co.,
781 F.Supp. 934 (E.D.N.Y.1992), the district allowed defendants to amend their notice of removal by adding § 1442(a)(1), the federal officer removal statute, as a grounds for removal because the defendants had “maintained through a decade of Agent Orange litigation” that they “would claim in their defense that they produced herbicides for military use under compulsion by federal officials.”
Id,
781 F.Supp. at 941 (citations omitted.) Although the initial removal notice had not cited § 1442(a), it did cite
Boyle v. United Technologies Corp.,
487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) — a ease outlining the federal common law military contractor defense — to support the federal preemption basis of removal. More importantly, the court found that the defendants had clearly set forth sufficient factual allegations and legal theories to support “federal officer” removal in their initial notice of removal and other pleadings, even if they had not explicitly cited § 1442(a)(1) as the proper statutory grounds for such removal.
In
Ryan,
Judge Weinstein observed that most of the cases in which courts have granted leave to amend after the expiration of the statutory time limit fall into “two loosely defined categories of cases: ‘mislabelling’ and ‘lack of specificity cases.”
Id.
at 940. In the “mislabelling” cases, the initial removal notice and the accompanying record set forth sufficient facts and legal theories to support removal, but the notice itself fails to set forth the proper statutory section for removal. In the latter category, by contrast, the defendant sets forth the proper statutory basis and legal theory of removal, but fails to specify all the facts necessary to support such removal. The former category is perhaps best exemplified by
Walker v. Gibson,
604 F.Supp. 916 (N.D.Ill.1985), while the latter category is reflected in
Willingham v. Morgan,
395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969).
Citibank’s predicament cannot fairly be called either a “mislabelling” or a “lack of specificity” case, however. It is rather a case where the defendant discovered that the original ground on which it sought removal was baseless and tried to substitute a completely separate and distinct ground to take its place. Although Citibank’s initial removal notice cites both § 1441(a)
and § 1441(b)
as bases for removal in its opening paragraph, the body of the notice is directed solely towards arguing diversity as the basis for this Court’s jurisdiction; nowhere does Citibank even suggest that this Court has federal question jurisdiction, other than in the initial citation to § 1441(b). Neither the August 5 removal notice nor any of the other pleadings filed by the plaintiffs or Citibank prior to the expiration of the thirty day period set by § 1446(b) indicates in any way that “complete preemption” by the National Bank Act was a grounds for federal jurisdiction.
This argument for federal jurisdiction
was not raised until September 21, 1992, when Citibank lodged its “[Proposed] Amended Notice of Removal”, some 68 days after Citibank was originally served.
Given the strength of Citibank’s preemption argument and the strong public interest in developing a uniform and consistent body of federal banking law, the Court understands Citibank’s desire to adjudicate this dispute in federal court. But the Court cannot bend procedural rules for substantive ends and it seems quite dear that section 1653 was not intended to bail defendants out of the dilemma in which Citibank finds itself today. Defendants who plead diversity jurisdiction as the grounds for removal may be entitled to amend their removal notices after the first 30 days to plead additional jurisdictional facts.
See e.g., Barrow, supra.
And defendants who plead federal question jurisdiction may be justified in switching the applicable code section on which such jurisdiction is premised.
See e.g., National Audubon, supra.
But defendants are not entitled to plead diversity as the basis for removal in their initial removal notice and then switch their theory 180 degrees by pleading federal question jurisdiction as the applicable grounds for removal in their amended notice, as Citibank attempts to do here today. To allow such a broad escape from the 30 day limit set by § 1446(b) would allow the exception on which Citibank relies to completely swallow the underlying rule and would violate the Ninth Circuit’s clear holding that a notice of removal “cannot be ... amended [after the first thirty days] to add allegations of substance but solely to clarify ‘defective’ allegations of jurisdiction previously made.”
Barrow,
418 F.2d at 317 (citation omitted).
Citibank’s Motion for Leave to Amend its Removal Petition is thus DENIED. The Court next addresses the plaintiffs’ motion to remand based on Citibank’s initial notice of removal.
3.
Plaintiffs’ Motion to Remand
Because the Court has denied Citibank’s request to amend its removal notice, the only remaining ground for removal argued by Citibank is diversity jurisdiction. Smiley contends that her action does not satisfy the $50,000 amount in controversy requirement set by 28 U.S.C. § 1332(a), however, and that her 'case should therefore be remanded to state court. While Smiley concedes that the class is seeking well in excess of $50,000 in compensatory and punitive damages, she claims that the benefits to the individual class members will be far less than the jurisdictional minimum and that the damages cannot be aggregated to satisfy that minimum. Citibank asserts, however, that the class members have a “common undivided interest” in the punitive damages, constructive trust, and injunctive relief sought by the plaintiff. Citibank therefore contends that the value of the damages and constructive trust, as well as the cost to the defendant of complying with the injunctive relief sought by the plaintiff, should be aggregated for the sake of determining the amount in controversy. This Court disagrees and therefore grants plaintiffs motion to remand.
In the context of a class action
, the claims of each class member which are separate and distinct must be considered individually and cannot be aggregated for the purpose of satisfying the minimum jurisdictional amount.
Snyder v. Harris,
394 U.S. 332, 338, 89 S.Ct. 1053, 1057-58, 22 L.Ed.2d 319 (1969).
See also, Zahn v. International Paper Company,
414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973) (holding that, in Rule 23(b)(3) class actions, separate claims must be considered individually and each class member’s claim must satisfy the jurisdictional amount). The burden rests on the defendants as the removing party to demonstrate that each member of the class has a monetary claim in excess of the minimum jurisdic
tional amount.
Czechowski v. Tandy Corp.,
731 F.Supp. 406, 409 (N.D.Cal.1990).
The governing rule for determining whether class members’ claims are subject to aggregation was established by the U.S. Supreme Court in
Pinel v. Pinel,
240 U.S. 594, 36 S.Ct. 416, 60 L.Ed. 817 (1916):
The settled rule is that when two or more plaintiffs having separate and distinct demands unite in a single suit, it is essential that the demand of each be of the requisite jurisdictional amount ... but when several plaintiffs unite to enforce a single title or right in which they have a common and undivided interest, it is enough if their interests collectively equal the jurisdictional amount.
Id.
at 596, 36 S.Ct. at 417.
Under
Pinel,
where class members’ claims against the defendants arise from a “common and undivided interest”, their claims may be aggregated. Absent such circumstance, each class member’s claim must meet the minimum jurisdictional amount of $50,000.
See e.g., Chula Vista City School Dist. v. Bennett,
824 F.2d 1573, 1579 (Fed. Cir.1987),
cert. denied,
484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 861 (1988).
This Court has already set forth in some detail why class members do not generally have a “common and undivided interest” in their claims for punitive damages and a constructive trust.
McAleer v. Prodigy Services Company et al.,
CV 91-2115 KN (GHKx) (C.D.Cal., December 11, 1991).
See also Harris v. Chase Manhattan Bank, N.A,
C-92-1483 JPV (N.D.Cal., July 1, 1992) (holding that class’ claims for punitive damages should not be aggregated.) Like the plaintiffs in
McAleer,
the putative members of Smiley’s class all have a separate and distinct interest in a share of the punitive damages and constructive trust that Smiley is attempting to recover. The Court finds no material differences in the type of relief sought by Smiley and that sought by the class members in
McAleer
and therefore rules that the punitive damages and constructive trust claims may not be aggregated to reach the amount in controversy threshold set by § 1332(a).
The more intriguing argument advanced by Citibank is that plaintiffs claim for injunctive relief should be aggregated because Citibank would be forced to expend more than $50,000 if the Court required it to carry out the court-approved public information campaign sought by plaintiff in her complaint. In essence, Citibank argues that for purposes of determining the amount in controversy, the Court should look at the potential damages or detriment from either the plaintiff’s or the defendant’s perspective.
Ridder Brothers v. Blethen,
142 F.2d 395, 399 (9th Cir.1944). This Court strongly disagrees.
While courts sometimes look to the potential cost to the defendant of complying with an injunction in actions brought by individual plaintiffs, the Ninth Circuit firmly rejected the “defendant’s viewpoint” test in
Snow v. Ford Motor Company,
561 F.2d 787 (9th Cir.1977). In that case, Ford argued that the plaintiffs requested injunction — which would have barred Ford from continuing to sell a kit to connect a trailer to a vehicle without including in that kit $11 worth of wiring to connect the trailer lights to the vehicle’s electrical system — would cost Ford well in excess of $10,000
if it was granted. The Court rejected Ford’s claim, holding that
where “the equitable relief sought is but a means though which the individual claims may be satisfied, the ban on aggregation [applies] with equal force to the equitable as well as the monetary relief.”
Snow,
561 F.2d at 790 (quoting
Barton Chemical Corporation v. Avis Rent A Car Sys., Inc.,
402 F.Supp. 1195, 1198 (N.D.Ill.1975). “To our knowledge,” intoned the court in
Snow,
“every court that has addressed this conflict in the context of a Rule 23(b)(3) class action involving separate and distinct claims .has resolved it in favor of
Snyder”
and against the aggregation of the cost of complying with the class’ requested equitable relief.
Citibank argues, however, that the plaintiffs requested injunctive relief is distinguishable from that sought by the plaintiff class in
Snow
because the injunction sought by Smiley would benefit all California con
sumers, not just those who are already Citibank cardholders or who have already been damaged by Citibank’s practices. Smiley’s complaint seeks an affirmative injunction requiring Citibank to provide a statewide advertising and public information campaign warning all California residents — including those outsidé of the putative class — of the purported “illegality and unconseionability” of Citibank’s late payment charges. Citibank argues that the Court should aggregate the value of this remedial injunctive relief because (1) it will bestow a common and undivided benefit on, all current or potential Citibank credit card holders, regardless of whether they have been harmed by Citibank’s benefits thus far; and (2) because Smiley could have brought this claim for relief as an individual plaintiff, purely on her own behalf, in which ease the court would look to the cost to the defendant in determining the proper amount in controversy. The Court rejects both of these arguments for the reasons discussed below.
Citibank argues that this case is distinguishable from
Snow
because in that case, the court found that the equitable relief sought by Ford was simply a means of satisfying the individual $11 claims of future purchasers of Ford’s trailer connecting kit.
The right asserted by plaintiffs is the right of individual future consumers to be protected from Ford’s allegedly deceptive advertising which is said to injure them in the amount of $11.00 each, that figure is far below the jurisdictional minimum.
Snow,
561 F.2d at 790-91. “The proper focus” should not be “influenced by the type of relief requested, but rather continues to depend upon the nature and value of the right asserted.”
Id.,
561 F.2d at 790.
In this case, by contrast, Citibank argues that the plaintiff class is seeking a common benefit on behalf of all the public by forcing Citibank to publicly announce that its practice of charging late fees on its credit cards is illegal and unconscionable. The Court sees no meaningful distinction between the relief requested in
Snow
and that sought by the plaintiff here, however. Similar to
Snow,
the purpose of the injunctive relief sought here is to save consumers from having to pay the $15 late fee on Citibank’s credit cards by alerting them that these charges are illegal under California law. Although Smiley’s requested public information campaign seeks to achieve these goals through a different means than that used by the plaintiffs in
Snow,
the “nature and value of the right” Smiley is seeking to protect is much the same — the alleged right of Citicorp’s current and future cardholders not to have to pay the $15 late charge if they fail to pay then-balance in a timely manner.
The fact that plaintiff seeks a court-approved public information campaign does not through shear alchemy transform a cause of action which will provide marginal benefits (in all probability, well less than $100 per class member) into a claim that meets the $50,000 amount in controversy requirement. To hold otherwise would allow any class of plaintiffs who were completely diverse from the defendant to obtain federal jurisdiction merely by seeking an injunction requiring the defendant to engage in an expensive public information campaign announcing the error of his ways. This method of evading the Ninth Circuit’s ruling in
Snow,
that the defendant’s cost in complying with the injunction should not be aggregated, cannot be sanctioned.
Citibank argues next that the Court should aggregate the value of the plaintiffs injunction because Smiley could have sought such relief solely on behalf of herself, in which case the cost to Citibank of complying with the injunction would be aggregated. The Court finds two flaws with this argument. First, while Smiley may have been able to bring this action as an individual, she clearly did not do so; it is undisputed that she has brought the ease on behalf of all other similarly situated Citibank cardholders. Moreover, if Smiley had brought an action purely on behalf of herself it is not at all clear that she could obtain the kind of sweeping injunctive relief order that she seeks here on behalf of all present and potential future Citibank
cardholders. Citibank’s reference to
Mangini v. R.J. Reynolds Tobacco Co.,
793 F.Supp. 925, 926-27 (N.D.Cal.1992) is inapposite because in that case the individual plaintiff sought injunctive relief — in the form of a remedial advertising campaign — pursuant to the private attorney general provisions of California Business and Professions Code § 17204. In this case, by contrast, Smiley is seeking injunctive relief pursuant to section 17203. It is doubtful whether she could obtain such sweeping injunctive relief on behalf of the general public if she were bringing this lawsuit purely as an individual rather than on behalf of a class of “all persons with California billing addresses who have contracted for or been charged a late charge in connection with the use of a Citibank credit card issued by Citibank.”
Complaint
at ¶ ll.
4.
Plaintiff’s Request for Attorneys’ Fees
The plaintiff also requests this Court to award her costs, actual expenses, and reasonable attorneys’ fees incurred in filing her motion for remand, pursuant to 28 U.S.C. § 1447(c) and Rule 11 of the Federal Rules of Civil Procedure. The Court does not find that Citibank interposed this motion for an improper purpose or lacked a “colorable basis” on which to base its claim, however. Although the Court did not find Citibank’s arguments to be very strong, the Court recognizes that the law in this area is unsettled and feels that it would be injudicious and unfair to punish parties for raising novel arguments to push the law in a new direction. Plaintiff’s request for attorneys’ fees and costs is therefore DENIED.
II.
CONCLUSION:
The Court thus DENIES defendant Citibank’s Motion to Amend its Notice of Removal and GRANTS plaintiffs request to Remand this action to the Superior Court of the State of California in and for the City and County of Los Angeles.
IT IS SO ORDERED.