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Robinson v. Avanquest North America Inc.

United States District Court, N.D. Illinois, Eastern Division

January 13, 2015

QUINCEY ROBINSON, individually and on behalf of all others similarly situated, Plaintiff,
AVANQUEST NORTH AMERICA INC., a California corporation, and AVANQUEST SOFTWARE S.A., a French company, Defendants.


CHARLES P. KOCORAS, District Judge.

This matter comes before the Court on the motion of Plaintiff Quincey Robinson ("Robinson"), individually, and on behalf of all others similarly situated, to remand the case. For the reasons set forth below, Robinson's motion to remand is denied.


On September 15, 2014, Robinson, an Illinois resident, originally filed this action, individually and on behalf of a putative class of similarly situated plaintiffs, in the Circuit Court of Cook County, Illinois, against Defendants Avanquest North America Inc. ("Avanquest"), a California corporation, and Avanquest Software S.A. ("Avanquest Software")[1], a French company, collectively ("Defendants").

Robinson alleges that Defendants develop software that they claim will increase the speed, performance, and stability of a personal computer ("PC"), protect against privacy risks, remove harmful errors, and improve Internet speeds. However, Robinson contends that Defendants deceptively market their Fix-It Utilities professional software (the "Software") and fail to deliver the level of utility advertised. Specifically, Robinson alleges that Defendants claim the Software is capable of, inter alia, "run[ning] diagnostic tests, fix[ing] PC problems in a flash and leav[ing] your computer running like new, " "[s]top[ping] PC [crashes & [f]reezes, " and "[r]epair[ing] [system] & [h]ard [d]rive [e]rrors, " but that "irrespective of its anti-virus feature, Fix-It Utilities primarily performs only two main functions: it is a registry cleaner and it removes superfluous temporary' files from a hard drive." Robinson alleges in his four-count complaint on behalf of himself and the putative class that Defendants: (i) violated the Illinois Consumer Fraud and Deceptive Business Act ("ICFA"), 815 ILCS 505/1, et seq. (Count I); (ii) fraudulently induced him to purchase the Software (Count II); (iii) breached their contract (Count III); and (iv) in the alternative to the breach of contract claim, became unjustly enriched as a result of the wrongful conduct (Count IV).

Robinson seeks a declaratory judgment declaring that Defendants' actions constitute a violation of the ICFA, fraudulent inducement, breach of contract and unjust enrichment (in the alternative of the breach of contract claim). Robinson also requests injunctive and other equitable relief as is necessary to protect the interests of himself and the class, including an order: (i) prohibiting Defendants from engaging in the wrongful and unlawful acts alleged; (ii) requiring Defendants to disclose and admit the wrongful and unlawful acts alleged; and (iii) requiring Defendants to fully disclose the true nature of their software products in the future. Finally, Robinson requests compensatory damages, restitution and disgorgement of all amounts by which Defendants have been unjustly enriched, attorneys' fees and costs, pre-judgment and post-judgment interest, and entering other injunctive and/or declaratory relief as is necessary to protect his interests and the interests of the class.

On October 15, 2014, Avanquest removed this action pursuant to 28 U.S.C. §§ 332, 1441(a)-(c), 1446 and 1453(b) to this Court, premising federal jurisdiction on diversity and the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d). Robinson now seeks remand, arguing that: (i) none of the individual class members can satisfy the requisite $75, 000 jurisdictional amount; and/or (ii) CAFA has not been satisfied. On November 3, 2014, Robinson filed a motion to remand. On November 24, 2014, Avanquest filed its opposition to the motion to remand. On December 5, 2014, Robinson filed his reply.


"[A]ny civil action brought in a State court of which the district courts of the United State have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). The removal statute is to be interpreted narrowly, and any doubt regarding jurisdiction should be resolved in favor of the states. Schur v. L.A. Weight Loss Ctrs, Inc., 577 F.3d 752, 758 (7th Cir. 2009). The removing party bears the burden of describing how the controversy exceeds the minimum amount required. Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005). "[T]he removing party's burden is to show not only what the stakes of the litigation could be, but also what they are given the plaintiff's actual demands... [t]he demonstration concerns what the plaintiff is claiming (and thus the amount in controversy between the parties), not whether the plaintiff is likely to win or be awarded everything he seeks." Brill, 427 F.3d at 449 (emphasis in original). "Once the proponent has plausibly suggested that the relief exceeds [the requisite amount], then the case remains in federal court unless the plaintiff can show it is legally impossible to recover that much." Horning v. Lab. Corp. of Am., No. 09 C 3421, 2009 WL 2905553, at *1 (N.D. Ill. Sept. 3, 2009) (citing Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir. 2008)).


In its opposition to the motion to remand, Avanquest provides two reasons for why federal jurisdiction is proper. First, Avanquest basis its removal on diversity jurisdiction, 28 U.S.C. § 1332(a)(1). Second, Avanquest relies on CAFA, 28 U.S.C. § 1332(d)(2) for removal. The Court only needs to address Avanquest's reliance on CAFA.

I. Federal Jurisdiction

A. The Notice of Removal

The Court must first discuss if Avanquest properly removed this case under CAFA in its notice of removal (the "Notice of Removal"). Avanquest cites to 28 U.S.C. §§ 1332, 1441(a)-(c), 1446 and 1453(b) in the Notice of Removal, but not specifically to subsection 28 U.S.C. § 1332(d)(2), which outlines the CAFA requirements. Avanquest does identify subsection 28 U.S.C. § 1332(a) when arguing for removal based on diversity jurisdiction. In the Notice of Removal, there is one paragraph that alludes to CAFA besides its reference in the heading: "[t]he State Court Action may also be removed to this Court by Avanquest pursuant to 28 U.S.C. § 1453(b) because Robinson's Complaint asserts class action claims." 28 U.S.C. § 1453(b) provides, in pertinent part, that "[a] class action may be removed to a district court of the United States in ...

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