Levine v. BIC USA, Inc., No. 07-cv-1096-LAB, 2007 WL 2406897 (S.D.Cal. Aug. 20, 2007).

Ahhh, romance. The heat of the summer is melting us, but we are day dreaming of the Fall. Autumn will be upon us in just a few more hot, humid, sticky months; and you know what that means. Fall colors of red, brown, and orange will blanket the rolling countryside. Fireplaces will soon crackle with warm flames, and young romantics will snuggle under cozy blankets. Picture this, an eager young fellow, subdued by the scenery and time of year, pens his girl a short but detailed poem. He has imagined the perfect scene, and planned a lovers’ retreat to re-create his vision. As he carries out his plan, he brings his love to a secluded cabin in New England, bends down on one knee, and reads his poem aloud. He rises, expects to be overcome with sheer emotion from his partner, and then …

She rips the paper from his hand, screams incredulously her love should not be conditioned upon a pre-nuptial agreement (NOTE, our young lad should not have added that footnote), pulls out her BIC lighter and burns the ode in our young man’s face. Wow, that turned out badly. If only he hadn’t been so specific with his language.

In Levine v. BIC USA, Inc., plaintiff Kevin Levine may have similarly erred by being a bit too specific with the language in his complaint. Levine filed a purported class action against BIC for purportedly engaging in the fraudulent trade practice of selling lighters marked “Made in USA” that were apparently manufactured outside of the United States. BIC removed the action to Federal court, and Levine sought remand arguing failure to carry the burden of showing the jurisdictional amount of $5,000,000 had been met. Levine did not dispute that the class exceeded 100 members or the diversity of citizenship prongs of the removal analysis under CAFA.

The court noted that the true issue was “what amount is put ‘in controversy’ by the plaintiff’s complaint.” To that end, the court addressed the initial question of whether it was facially apparent from the complaint that there was a jurisdictional amount controversy, and what burden of proof applied, as instructed by the 9th Circuit’s opinions in Lowdermilk and Abrego. (Editors’ Note: See the CAFA Law Blog analysis of Lowdermilk posted on July 30, 2007 and the CAFA Law Blog analysis of Abrego posted on May 25, 2006).

In his complaint, Levine did not specify a total amount of damages sought, but did aver that the amount in controversy did “not exceed $74,999.99” as to each individual class member. The court concluded that while this allegation was not specifically pleading an express aggregate amount, this figure multiplied by the “undisputed minimum class size of 100 members” provided an amount in controversy on the face of the pleading that exceeded the CAFA jurisdictional amount, and denied Levine’s motion to remand.

I guess you could say that Levine was burned (that is really a bad / ironic pun … get it … BIC lighter) by his own pleading! His attempt to remand went up in smoke (really, stop us now)! His legal plan was “extinguished” when his argument ran out of “fuel” (ok, we will stop now)!