Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150 (D.D.C. 2007).
The Editors think that Gershwin’s “Rhapsody in Blue” was probably playing in the minds of United Air Lines’ lawyers as they read the recent opinion of the United States District Court for the District of Columbia, as it joined the formation of courts agreeing that the removing defendant has the burden of proof of jurisdiction under CAFA, including the burden to prove existence of the amount in controversy.
In Wexler v. United Air Lines, Sara Wexler claims she and a class of air travelers who purchased tickets from UAL during a three year time period suffered damage from fraud, negligence, breach of contract and unjust enrichment when UAL cancelled their itinerary after they missed the first leg of their trips.
Ms. Wexler’s attempt to fly the friendly skies between Chicago and Washington, D.C. was more expensive than she planned. Although Ms. Wexler had purchased a round trip ticket from D.C. to Chicago, she found alternate transportation to Chicago and did not use her plane ticket for that portion of her trip. UAL cancelled her reservation under its policy to cancel the full round trip reservation when the passenger does not report for the first leg of the trip. When Ms. Wexler tried to check in at the airport for her return flight, she was informed of the cancellation. Since she still needed to get home, she paid $917 for the only remaining available seat on her scheduled flight. When she was back on the ground in D.C., she sued UAL for its unfriendly policy.
UAL removed the case, alleging it met requirements for traditional diversity jurisdiction and diversity jurisdiction under CAFA. The court rejected UAL’s claim that Wexler’s individual claim put more than $75,000 in controversy, then analyzed the possibility of jurisdiction under CAFA. Citing Morgan v. Gay, DiTolla v. Doral Dental, Miedema v. Maytag, Abrego v. Dow Chemical, and Brill v. Countrywide, the court affirmed its position that the burden of proving CAFA jurisdiction rests with the removing party. (Editors’ Note: See analysis of these cases posted on January 19, 2007 and December 7, 2006 (Morgan), December 28, 2006 (DiTolla), August 22, 2006 and critique on August 22, 2006 (Miedema), May 25, 2006 (Abrego), and November 2, 2005 (Brill).)
(Editors’ Note: For further discussion on the concept of Minimal Diversity and why Abrego is incorrectly decided, see the CAFA Law Blog’s recent analysis, “Hot Off the Press,” posted May 5, 2005, which introduces the recently published law review article entitled “CAFA’s New Minimal Diversity Standard For Interstate Class Actions Creates A Presumption That Jurisdiction Exists, With The Burden Of Proof Assigned To The Party Opposing Jurisdiction,” authored by CAFA Law Blog Editors Hunter Twiford, Anthony Rollo and John Rouse).
The court assumed that the value of each class member’s claim was approximately $912. This missing variable from the amount in controversy equation therefore was the number of potential class members. This, said the court, was information uniquely in UAL’s possession. However, UAL failed to offer any proof of the number of potential class members. Instead, UAL relied on Wexler’s allegation that there were “thousands” of potential class members. Finding this insufficient when the likely size of the class was unclear, the court remanded the putative class action to state court, holding that UAL failed to establish with sufficient proof that the amount in controversy of all the proposed class members’ claims in the aggregate exceeded $5,000,000.