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Lamond v. Pepsico

June 8, 2007

KELLY LAMOND, FOR HERSELF AND FOR A CLASS OF PERSONS SIMILARLY SITUATED, PLAINTIFFS,
v.
PEPSICO, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Bumb, United States District Judge

OPINION

I. Introduction

This matter comes before the Court upon the Court's sua sponte inquiry regarding subject matter jurisdiction. Shortly after the Defendants removed this class action Complaint to this Court, and prior to any responsive pleadings being filed, six of the ten Defendants either settled with or were dismissed by the Plaintiff, Kelly Lamond (the "Plaintiff"). The remaining Defendants -- having sought and obtained continuances to file their responsive pleadings -- filed a joint motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) in lieu of answers. During the pendency of the motion to dismiss, two other Defendants either settled or were dismissed by Plaintiff. Only two Defendants, Pepsico ("Pepsico") and Sunny Delight Beverage Company ("Sunny Delight"), remain. Pepsico and Sunny Delight are collectively referred to as the "Defendants".

During the pendency of the Defendants' motion to dismiss, questions were raised in this Court's mind regarding its jurisdiction to hear this case. The Court informed the parties of its concern and requested the parties to brief the issue. In their papers, the Defendants argue in support of this Court's jurisdiction. Plaintiff, however, seeks a remand of her case to the Superior Court.

For the reasons set forth below, this Court finds that the Defendants have failed to carry their burden of proving that this Court has jurisdiction. Accordingly, a remand is proper.

II. Procedural History

The Plaintiff, Kelly Lamond, filed a "Class Action Complaint" in the Superior Court of New Jersey for Camden County on May 24, 2006. Lamond filed the Complaint "for herself and on behalf of a class of all persons in New Jersey who, within the past four years, purchased beverages with the tendency to contain benzene." See Pl.'s Compl. at ¶ 1. She asserted claims against Defendants Pepsico, Inc., Kraft Foods, Inc., Cadbury Schweppes Americas, Meridian Beverage Company, The Coca-Cola Company ("Coca-Cola"), Faygo Beverages, Inc., Giant Food Stores, LLC, Safeway, Inc., Sunny Delight Beverages Company, and Talking Rain Beverage Company. In the Class Action Complaint, Plaintiff averred that "there [was] a reasonable likelihood that the recovery in [the] case [would] exceed $15,000," and that the "class [was] composed of thousands of members." See Pl.'s Compl. at ¶ 48.

On July 6, 2006, Coca-Cola removed the case to this Court pursuant to 28 U.S.C. §§ 1332(d), 1441, 1446, and 1453. At the time of the removal, the Plaintiff had not effected valid service of process upon any of the Defendants. Consequently, no responsive pleadings had been filed in the Superior Court. In its removal petition, Coca-Cola alleged that (1) the class involved more than 100 members based upon Plaintiff's assertion that the class was composed of "thousands of members;" (2) that there was minimal diversity because Plaintiff was a citizen of New Jersey and Coca-Cola was a citizen of Delaware and Georgia; and (3) that, based upon the allegations in the Complaint, the claim of the proposed class members exceeded $5,000,000 in the aggregate. Thus, Coca-Cola alleged that this Court had jurisdiction pursuant to 28 U.S.C. § 1332(d).

On July 31, 2006, Plaintiff and all named Defendants entered into an agreement to extend the time to file answers to the Class Action Complaint until September 27, 2006. On September 27, 2006, the Plaintiff served the Summons and Complaint on each Defendant.*fn1

On October 6, 2006, Plaintiff filed an Amended Complaint, labeled "First Amended Class Action Complaint" (the "Amended Complaint"). The Amended Complaint asserted claims against only Pepsico, Kraft Foods, Coca-Cola, and Sunny Delight.*fn2

The Plaintiff had either settled with the remaining original Defendants or was in the settlement process with others. See Pl.'s Br. at 5. In her Amended Complaint, Lamond defined the class in the same manner as the initial Complaint, but limited the class number to "at least hundreds, if not thousands of members." See Pl's Amended Complaint at ¶ 28. Unlike the original Complaint, which merely stated a likelihood of recovery of greater than $15,000, the Plaintiff did not set forth any amount in her amended pleading.

On November 10, 2006, Defendants Pepsico, Sunny Delight, and Coca-Cola filed a joint Motion to Dismiss in lieu of answers.*fn3

III. Plaintiff's Claims

Plaintiff, on behalf of herself and those similarly situated, complains that the Defendants manufactured and sold beverages that had a "tendency" to contain benzene. See Pl.'s Compl. at ¶ 1. The benzene was allegedly formed by the interaction of two ingredients, a preservative and an acid. When the beverages were exposed to heat or light these two ingredients formed benzene. See Pl.'s Compl. at ¶ 18. Plaintiff alleges that

Defendants knew that their beverages could form benzene under certain conditions, but nevertheless continued to manufacture and sell beverages with the preservative and acid formulations. See Pl.'s Compl. at ¶ 20. They did so, Plaintiff alleges, without disclosing this issue to the consumer.

Notably, Plaintiff does not allege any physical or emotional injury or harm of any kind (i.e., non-economic harm) to herself or any putative class member whatsoever. Nor does she allege that the Food and Drug Administration (the "FDA") has prohibited the sale of such beverages. See Pl.'s Compl. at ¶ 19. Rather, she alleges that the FDA has urged the beverage industry to prevent the formation of benzene in beverages, but the Defendants nonetheless have sold and continue to sell beverages with the above formulations. Had she known of the purported tendency to contain benzene, she would not have purchased these beverages. See Pl.'s Compl. at ¶ 68.

In sum, Plaintiff's Complaint alleges the following ...


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