The opinion of the court was delivered by: LINDBERG
Plaintiffs, Carmel Loizon and Patrick Loizon, filed a complaint in the Circuit Court of Cook County, Illinois, against defendants, SMH Societe Suisse de Horologerie, SMH U.S., and C.P.S. Department Stores ("Carsons"), on behalf of themselves and all other individuals similarly situated. Defendant Carsons removed this action from state court, pursuant to 28 USC § 1446, and based on diversity of citizenship under 28 USC § 1332.
In order to maintain an action under § 1332, the moving party must show that there is complete diversity among the parties and that the action satisfies the jurisdictional amount in controversy. 28 USC § 1332. None of the parties dispute the existence of complete diversity. Plaintiffs, however, have moved to remand this case to state court, under 28 USC § 1447(c), alleging that the jurisdictional amount in controversy has not been satisfied.
When removing a case from state court, the defendants bear the burden to establish, by a preponderance of the evidence, the requisite amount in controversy. Shaw v Dow Brands, Inc., 994 F.2d 364, 366 (7th Cir 1993). "Any doubts should be resolved against finding jurisdiction in this court and in favor of remand." Estrella v Boots Co., 1996 U.S. Dist. LEXIS 12441 at *3 (ND Ill Aug 26, 1996).
In class actions suits, the Supreme Court has stated that to satisfy § 1332, each class member usually must satisfy the amount in controversy. See Snyder v Harris, 394 U.S. 332, 335, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969). The Court did recognize, however, that class members may aggregate their claims where the members "unite to enforce a single title or right in which they have a common and undivided interest." Id.
A growing trend also allows the federal courts to exercise supplemental jurisdiction over other class members under 28 USC § 1367 if a class member satisfies the amount in controversy. See Stromberg Metal Works, Inc. v Press Mechanical, Inc., 77 F.3d 928, 930 (7th Cir 1996). Defendants do not argue, however, nor is there evidence to indicate, that any individual class members would satisfy the amount in controversy.
Defendants set forth two arguments in support of this court's subject matter jurisdiction. Defendants argue that they have satisfied the amount in controversy under McCarty v Amoco Pipeline Co.'s "either viewpoint" rule, 595 F.2d 389, 393-95 (7th Cir 1979), or because members of the plaintiff class would have a common and undivided interest in part of the relief sought.
Both of defendants' arguments relate to plaintiffs' request to inform all putative class members of the possible radiation exposure from the tritium-based Swatch watches. The parties first disagree on defendants' cost of complying with this injunctive relief. Defendants ask this court also to consider the injunctive relief that plaintiffs requested in a "Petition for Temporary Restraining Order and/or Preliminary Injunction," which was served on defendants but never filed in state court. While this court may consider information outside the pleadings, it does not have to address that issue because, as indicated below, defendants' cost of complying with the injunction satisfies the amount in controversy.
Defendants rely on McCarty v Amoco Pipeline Co.'s "either viewpoint" rule to argue that this court has subject matter jurisdiction because the cost to defendants would exceed $ 50,000. 595 F.2d 389, 393-95 (7th Cir 1979). In McCarty, the defendant removed a state action under diversity of citizenship. Although the benefit to the plaintiff of the injunctive relief in question did not satisfy the requisite amount in controversy, the Court of Appeals for the Seventh Circuit held that a defendant could satisfy the jurisdictional amount in controversy by showing that either the plaintiff's benefit from the injunctive relief or the defendant's cost of complying with the injunctive relief satisfied the amount.
McCarty, however, did not involve a class action, and courts have not applied the "either viewpoint" rule to class actions as defendants request. Defendants argue that "treating class actions as an exception to the "either viewpoint" rule would run afoul of the very policy considerations which compelled the Seventh Circuit to adopt the test in the first place."
With regard to injunctive relief in class actions, this court agrees with the Court of Appeals for the Ninth Circuit that the "'total detriment' is basically the same as aggregation." Snow v Ford Motor Co., 561 F.2d 787, 790 (9th Cir 1977). What defendants seek here is to use the "either viewpoint" rule to aggregate the cost of the injunctive relief in order to satisfy the amount in controversy. That result would "run afoul" of the Supreme Court's rulings that parties cannot aggregate their claims to satisfy the amount in controversy. See Zahn v International Paper Co., 414 U.S. 291, 301, 38 L. Ed. 2d 511, 94 S. Ct. 505 (1973); Snyder v Harris, 394 U.S. 332, 335, 22 L. Ed. 2d 319, 89 S. Ct. 1053 (1969).
The court next addresses the argument that plaintiffs have a common and undivided interest in the relief they request. As the Supreme Court stated in Snyder, parties can aggregate claims in "cases in which two or more plaintiffs unite to enforce a single title or right in which they have a common and undivided interest." The Court, however, never defined "common and undivided interest." As a result, the phrase "common and undivided ...