Hart v. ConAgra Foods, Inc., No. 1:07-CV-0395-JDT-WTL, 2007 WL 2286131 (S.D. Ind. Aug. 7, 2007)

Peanut Butter, Spinach, Tomatoes, Jalapeno Peppers…What is next on the FDA Food Watch list.  The plaintiff in this case arising out of the infamous peanut butter Salmonella contamination found himself in (forgive the pun) a sticky situation when he failed to protect himself from removal by attaching an affidavit or stipulation to his complaint. Not only did this plaintiff fail to take advantage of some Lysol to scrub away that pesky bacteria, but he also failed to protect himself from removal of his case under CAFA.

The plaintiff ate peanut butter manufactured by ConAgra Foods, Inc., at its Sylvester, Georgia, plant that had been contaminated by the Salmonellosis bacteria. As a result of eating the peanut butter, he suffered gastrointestinal problems and subsequently filed suit in state court on behalf of himself and all others in Indiana similarly situated. ConAgra removed the case based on diversity and under CAFA. The plaintiff argued, on motion to remand, that the amount in controversy failed to satisfy CAFA’s jurisdictional minimum of $5,000,000.

In Indiana, personal injury plaintiffs are statutorily prohibited from including a dollar figure in their complaints, so ConAgra was left to demonstrate that the amount in controversy satisfied the jurisdictional threshold by other means. The court noted that, to do so, it need only state a good faith basis for an estimate of its exposure in the case. ConAgra did so by estimating a class of at least 200, based on the plaintiff’s allegation that class members would total in the hundreds, and by pointing to similar class action filings in other jurisdictions involving the Salmonella contamination in which plaintiffs sought in excess of $25,000 per class member, as well as citing damage awards in excess of $25,000 per plaintiff in other Salmonella cases.

The court was not persuaded by the plaintiff’s arguments: (1) that the Center for Disease Control listed only sixteen cases of Indiana residents suffering serious Salmonella symptoms as a result of eating the contaminated peanut butter and (2) that he stated in his complaint that the total amount of damages in issue was less than $5,000,000. The court reasoned that even if there were only sixteen cases involving serious poisoning in the class, they nonetheless might be sufficient to push the amount in controversy over the $5,000,000 point. It also dismissed the idea that the plaintiff’s averment in his complaint regarding the amount of damages at issue could prevent removal, finding that such a representation “is of no moment unless it is made in the form of a stipulation or affidavit submitted at the time of the complaint’s initial filing.” The court pointed out that under its prior rulings, plaintiffs with claims below the federal jurisdictional threshold should anticipate the possibility of removal, and, if they wish to protect themselves from it, should attach an affidavit or stipulation to the complaint. Because the plaintiff failed to do so, he did left himself open to removal. This case, the court held, sticks in federal court.