Smith v. Abbott Laboratories Inc.

MEMORANDUM & ORDER Plaintiff Giovanna Smith brought this putative class action against Abbott Laboratories, Inc., alleging that Abbott deceptively labeled a “toddler drink” it sells under the name “Go & Grow by Similac.” Smith brings state-law claims for fraud, negligent misrepresentation, breach of express and implied warranty, and false advertising and deceptive consumer-oriented conduct under Sections 349 and 350 of the New York General Business Law. She also alleges a federal claim under the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act (MMWA). Smith invokes this Court’s jurisdiction based entirely on the Class Action Fairness Act of 2005 (CAFA), which expands federal courts’ diversity jurisdiction to include certain state-law class actions.¹ Because Smith has failed to plead that the class here has at least 100 members, as CAFA requires, the complaint is dismissed without prejudice for lack of subject matter jurisdiction. I. Discussion A plaintiff asserting subject matter jurisdiction under CAFA “has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see Blockbuster, Inc. v. Galeno, 472 F.3d 53, 57 (2d Cir. 2006).² Federal courts have an “independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte.” Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006); see Fed. R. Civ. P. 12(h)(3). At the pleading stage, while “a court must accept as true all material factual allegations” in the complaint, “when the question to be considered is one involving the jurisdiction of a federal court, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998). A. The Complaint Does Not Satisfy CAFA’s Numerosity Requirement “[A] court must assess the three prerequisites for CAFA jurisdiction: no fewer than 100 members of the plaintiff class, minimal diversity, and $5 million in controversy.” Blockbuster, 472 F.3d at 57; see 28 U.S.C. §1332(d). Smith nowhere pleads the size of her putative class. In her First Amended Class Action Complaint (“FAC”), ECF No. 22, she proposes to represent a class of “all purchasers of [Go & Grow] who reside in New York during the applicable statutes of limitations who purchased [Go & Grow] for a child between twelve and thirtysix months old.” Am. Compl. 57. But she levels no allegation regarding the number of such purchasers, nor does she plead any facts from which it could be plausibly inferred that there are at least 100. She omits to say, for example, how many Go & Grow units were sold to the class, or even how many units were sold in New York (and thus plausibly sold to class members). Cf. Am. Compl. 43 (pleading only that “sales of [Go & Grow]” i.e., the entire market, plus “ any available statutory and other monetary damages, exceed $5 million during the applicable statute of limitations”). These allegations are “insufficient to demonstrate numerosity because the Court is left to speculate whether there are 100 or more putative class members as required by CAFA.” Krasner v. Cedar Realty Tr., Inc., No. 22-CV-06945, 2023 WL 3057387, at *3 (E.D.N.Y. Apr. 24, 2023). In Krasner, the district court remanded because the pleadings lacked allegations sufficient to satisfy the 100-class-member “numerosity” requirement. Id. at *3.³ Here, too, because Smith “fail[s] to satisfy the jurisdictional numerosity prerequisite of 100 or more putative class members, the Court lacks subject matter jurisdiction” over her state law claims. Id.⁴ B. Smith Does not Establish Jurisdiction under the MMWA Smith also asserts a federal warranty claim under the Magnuson-Moss Warranty Act, though she “has not invoked the MMWA as a basis for the Court’s jurisdiction.” Pl.’s Mem. 16, ECF No. 30 (internal quotation marks omitted). In any event, while the MMWA allows certain claims that do not satisfy CAFA to proceed in federal court, the FAC does not meet the MMWA’s jurisdictional prerequisites, either. The MMWA provides a cause of action for consumers aggrieved by a defendant’s failure to honor warranties. The MMWA provides for jurisdiction in state and federal courts, broadly speaking. Plaintiffs bringing MMWA actions may: bring suit for damages and other legal and equitable relief — (A) in any court of competent jurisdiction in any State or the District of Columbia; or (B) in an appropriate district court of the United States, subject to paragraph (3) of this subsection. 15 U.S.C. §2310(d)(1). However, the second prong — providing jurisdiction in federal district courts — is subject to an exception that the first prong is not: No claim shall be cognizable in a suit brought under paragraph (1)(B) of this subsection — … (C) if the action is brought as a class action, and the number of named plaintiffs is less than one hundred. Id. §2310(d)(3) (emphasis added). Despite the italicized requirement, Smith is bringing the case as a class action, and she is the only named plaintiff. FAC