Brinton v. Vivint Inc.

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NATHAN BRINTON, Plaintiff, v. VIVINT INC. et al, Defendant.

No. 3:23-cv-06105-TMC

United States District Court, W.D. Washington, Tacoma

August 7, 2024

ORDER GRANTING PLAINTIFF'S MOTION TO REMAND

Tiffany M. Cartwright, United States District Judge

I. INTRODUCTION

Plaintiff Nathan Brinton served Defendant Vivint Inc. with a state-court complaint alleging Vivint sent him misleading and unsolicited spam emails, in violation of Washington's Commercial Electronic Mail Act (“CEMA”) Washington's Consumer Protection Act (“CPA”) and analogous California and Florida statutes. Vivint removed the case to this Court, and Brinton now moves to remand. Dkt. 13. Brinton asserts that this case does not meet the amount-in-controversy requirement for federal diversity jurisdiction, that his claimed CEMA violations are not concrete injuries required for Article III standing, and that Vivint performed an improper “super snap” removal. Vivint opposed remand (Dkt. 16) and Brinton replied (Dkt. 17). While Brinton's complaint alleges concrete injuries, and Vivint removed the case after it had been commenced under Washington state law, the amount in controversy is insufficient for diversity jurisdiction. Accordingly, the Court GRANTS Brinton's motion to remand. The Court DENIES Brinton's request for attorney's fees.

II. BACKGROUND

On November 6, 2023, Brinton served Vivint with a summons and complaint to be filed in Clark County Superior Court (Dkt. 1 at 1) alleging that Vivint and John Does 1-10 violated CEMA and the CPA, Cal. Bus. & Prof. Code § 17529.5, and Fla. Stat. § 668.603 by sending him spam emails that obscured the sender and led him to websites selling Vivint's products. See Dkt. 1-1 at ¶¶ 2, 9-13. On December 1, Vivint timely removed within thirty days of receiving Brinton's complaint and asserted diversity jurisdiction based on Brinton's Washington citizenship, Vivint's Utah citizenship, and Brinton's statement that he intended to prove and seek damages exceeding $75,000 (Dkt. 1-2) to show the jurisdictional amount. Dkt. 1; see 28 U.S.C. §§ 1332, 1441, 1446. On June 12, 2024, Brinton moved to remand (Dkt. 13) and Vivint opposed the motion (Dkt. 16).

III. LEGAL STANDARDS

A. Removal Jurisdiction and Amount in Controversy

The diversity jurisdiction statute gives federal district courts subject matter jurisdiction over civil actions where the parties are citizens of different states and the amount in controversy exceeds $75,000. 28 U.S.C. § 1332(a). A defendant must generally remove a case within thirty days of receiving the complaint, 28 U.S.C. § 1446(b)(1), and the Court looks to the face of the complaint to determine whether diversity of citizenship exists. Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985). The notice of removal “need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold” and need not contain evidentiary submissions. Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 788-89 (9th Cir. 2018) (citing Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014)).

But “[i]f the plaintiff contests the defendant's allegation . . . both sides submit proof and the court decides, by a preponderance of the evidence, whether the amount-in-controversy requirement has been satisfied.” Dart Cherokee Basin, 574 U.S. at 88.

The burden falls on the removing defendant to prove the amount in controversy exceeds $75,000, including damages, the cost of complying with an injunction, and any attorney's fees awardable under fee shifting statutes. Chavez v. JPMorgan Chase & Co., 888 F.3d 413, 416 (9th Cir. 2018); Abrego Abrego v. The Dow Chem. Co., 443 F.3d 676, 683 (9th Cir. 2006). And while a plaintiff's concession of the amount in controversy can be “strong evidence” that the requirement is satisfied, it is not dispositive, and the Court may consider the complaint, notice of removal, and “summary-judgment-type evidence” to assess the amount in controversy. Id. Removal statutes are strictly construed against removal jurisdiction. Hansen v. Grp. Health Coop., 902 F.3d 1051, 1056-57 (9th Cir. 2018).

B. Article III Standing

If a plaintiff in a removed case lacks Article III standing, the case must be remanded to state court. Polo v. Innoventions Int'l, LLC, 833 F.3d 1193, 1196 (9th Cir. 2016); 28 U.S.C. 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). “Article III standing requires a concrete injury even in the context of a statutory violation.” Spokeo, Inc. v. Robins, 578 U.S. 330, 341 (2016). The legislature's “creation of a statutory prohibition or obligation and a cause of action does not relieve courts of their responsibility to independently decide whether a plaintiff has suffered a concrete harm under Article III.” TransUnion LLC v. Ramirez, 594 U.S. 413, 426 (2021). But many statutory violations, even “intangible” ones, are also concrete injuries. See Wakefield v. ViSalus, Inc., 51 F.4th 1109, 1117-18 (9th Cir. 2022) (holding, even after TransUnion, that the receipt of unsolicited telemarketing calls in violation of the TCPA is a concrete injury sufficient to confer Article III standing).

“In TransUnion, the Supreme Court reaffirmed the preexisting rule that an intangible injury qualifies as ‘concrete' when that injury bears a ‘close relationship to harms traditionally recognized as providing a basis for lawsuits in American courts.'” Wakefield, 51 F.4th at 1118 (quoting TransUnion, 594 U.S. at 414). “[A]n intangible injury is sufficiently ‘concrete' when (1) [the legislature] created a statutory cause of action for the injury, and (2) the injury has a close historical or common-law analog.” Id. at 1118. In the context of unsolicited telemarketing calls, the Ninth Circuit has recognized “a common-law analog to privacy violations.” Id. (citing Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1042-43 (9th Cir. 2017)). Other district courts, including this district, have recognized that receiving “spam” emails is encompassed by this analog as well. See, e.g., Harbers v. Eddie Bauer, LLC, 415 F.Supp.3d 999, 1007-11 (W.D. Wash. 2019); Lynch v. AML Network Ltd., No. CV 21-3574-GW-RAOX, 2021 WL 4453470, at *5 (C.D. Cal. Sept. 27, 2021).

C. Super Snap Removals

“State law determines when a state court dispute becomes a cognizable action eligible for removal.” Casola v. Dexcom, Inc., 98 F.4th 947, 955 (9th Cir. 2024). The term “super snap removal” can refer to cases removed before filing-in some states, this may be before the action has “commenced” and is therefore improper. See id. at 964; 28 U.S.C. § 1446(c)(1). In Washington, however, a civil action “can also be commenced by service of a summons and complaint, not purely by filing the complaint.” Id. at 955 n.8 (first citing RCW 4.28.020, and then citing Seattle Seahawks, Inc. v. King Cnty., 128 Wash.2d 915, 917, 913 P.2d 375 (1996)).

IV. DISCUSSION

This Court agrees with the other district courts that have found receipt of spam emails to be a concrete injury that establishes Article III standing. See, e.g., Harbers, 415 F.Supp.3d at 1007-11; Lynch, No. CV 21-3574-GW-RAOX, 2021 WL 4453480, at *4. The detailed analysis of concrete injury under CEMA by this district in Harbers remains persuasive after TransUnion. The Washington, California, and Florida statutes at issue all recognize that the recipient of unsolicited emails suffers an injury, whether in the form of “lost productivity and resources, annoyance, consumption of valuable digital storage space and financial costs,” in addition to the foundational injuries to privacy and freedom from nuisance. Lynch, No. CV 21-3574-GW-RAOX, 2021 WL 4453480, at *4; see also Harbers, 415 F.Supp.3d at 1007-08 (CEMA was “enacted to protect the public's interest in being free from certain forms of deceptive spam,” which harm “businesses and internet users because it takes up time, causes frustration,” and makes it difficult to identify legitimate messages); Fla. Stat. § 668.601 (recognizing legislative intent “to protect the public and legitimate businesses from deceptive and unsolicited commercial electronic mail”). This injury is found on the face of Brinton's complaint and is consistent with the Supreme Court's holding that a statutory violation must result in concrete injury to satisfy federal standing requirements. TransUnion, 594 U.S. at 439-40.

Brinton's assertion that Vivint made an improper super snap removal is also incorrect. Washington civil actions can be commenced by service of a summons and complaint. See Casola, 98 F.4th at 955 n.8. Vivint has presented sufficient evidence that Brinton served a summons and his complaint on Vivint which then removed to this Court. Vivint's removal was effective. See id.

Because the parties do not contest diversity of citizenship, the only remaining issue is whether the amount in controversy for diversity jurisdiction has been met. Dkt. 13, 16, 17. The Court concludes that Vivint has not proven the amount in controversy exceeds $75,000, despite Brinton's statement that he intended “to prove and seek damages exceeding” that amount (Dkt. 1-2). Although a plaintiff's statement may be strong evidence that the amount in controversy has been met, it “will not establish the amount in controversy if it appears to be only a bold, optimistic prediction.” Hodgell v. Andersen Corp., No. 2:23-cv-00649-LK, 2023 WL 5091515, at *2 (W.D. Wash. Aug. 9, 2023) (quotation marks and citation omitted) (remanding case alleging CEMA violations).

Brinton claims that Vivint caused “over twenty” emails to be sent to him in violation of Washington law under CEMA and the CPA. Dkt. 1-1 ¶ 2. He alleges that the emails...