Curry v. Applebee’s International, Inc., 2009 WL 3855679, (S.D. Ohio November 17, 2009)

It is often said that if something is too good to be true it probably is. Weight conscious Applebee’s customers found this out the hard way. Apparently those oriental roll-ups on the special diet menu were as fattening as they tasted. Angered by pants that snugged too tight around the waistline, several customers filed law suits alleging fraud. These lawsuits led to the class action suit in Curry. 

At issue in the case was whether Curry could have the case remanded to state for improper removal to federal court. Curry alleged that removal was improper because Applebee’s failed to file for removal within 30 days of when they should have known that the amount in controversy had reached the $5,000,000 threshold. 

Curry contended that Applebee’s should have known that the case had reached the $5,000,000 threshold from Applebee’s own sales records. Applebee’s countered that Curry never alleged an amount in interrogatories and, furthermore, the entire sales records were not proper evidence because Applebee’s did know how much of the sales were the result of fraud. The U.S. District Court of Ohio agreed with Curry that the entire sales record was sufficient for the amount in controversy, and that the 30 day period had elapsed making removal improper.

The lesson learned here is two-fold. First, it is better to trust a Greek bearing a gift than a chain-restaurant bearing a healthy menu item. Second, the amount in controversy can be satisfied by the entire sales record, and, thus, starts the 30 day clock on removal. 

Finally, the writers at CAFA law blog hope that Applebee’s asserts the affirmative defense that customers “assumed the risk” by eating at Applebee’s in the first place. Was Chili’s closed?

By: Tanner Magee