United States Court of Appeals

For the Eighth Circuit

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No. 13-1606

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Matt Grawitch; MikeWoody,individuallyand on behalf of all others similarly situated

lllllllllllllllllllll Plaintiffs - Appellants

v.

Charter Communications, Inc.

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: January 16, 2014

 Filed: May 2, 2014 

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Before WOLLMAN, BYE, and MELLOY, Circuit Judges.

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WOLLMAN, Circuit Judge. 

Matt Grawitch and Mike Woody, the named plaintiffs in a purported class

action, filed suit against Charter Communications, Inc. (Charter), in Missouri state

court, claiming that Charter violated the Missouri Merchandising Practices Act

(MMPA), Mo. Rev. Stat. § 407.010 et seq., and breached its contract with the class

members. The complaint alleged that Charter had provided the class members with
Internet modems that were incapable of operating at the speed that Charter had

promised. Charter removed the case to federal district court and then moved to

dismiss the complaint. The district court granted Charter’s motion, and we affirm. 

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I. Background

Charter is a broadband communications company that provides cable, Internet,

and telephone services. The plaintiffs subscribed to Charter’s “Plus” Internetservice

under Charter’s Internet Residential Customer Agreement (the Agreement) in 2011. 

Charter provided the plaintiffs with DOCSIS 2.0 modems at the time their Internet

services were installed.

In December 2011, Charter upgraded its “Plus” and “Ultra” services in order

to provide its customers with increased download speeds of up to 30 megabits per

second (Mbps). Although DOCSIS 2.0 modems continued to function following the

upgrade, they could not operate at the 30 Mbpsspeed. Instead, DOCSIS 3.0 modems

were required to obtain the increased speed. Months after the upgrade, when the

plaintiffs discovered that they were not receiving the 30 Mbps download speed

because they did not have DOCSIS 3.0 modems, they contacted Charter and

requested a refund. Charter denied this request. 

The plaintiffs then filed suit in Missouri state court on behalf ofthemselves and

a proposed nationwide class defined as follows: “All persons who, from September

14, 2007, to the date of final judgment, subscribed to Charter Internet Residential

Service under the names of ‘Charter Plus,’ ‘Max’ and ‘Ultra’ speeds and which were

The Honorable Audrey G. Fleissig, United States District Judge for the

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Eastern District of Missouri. 

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provided a modem of less than DOCSIS 3.0 standard.” The plaintiffs alleged that 2

Charter violated the MMPA and breached the Agreement by representing that the

plaintiffs would receive the 30 Mbps download speed, while failing to provide them

with modems that could operate at that speed. The plaintiffs further alleged that they

suffered damages of “the difference in the cost and value of the service they paid for,

and the useable service they received[,]” and that these damages exceeded $50,000

collectively, but not individually. 

Charter removed the case to federal district court under the Class Action

Fairness Act of 2005 (CAFA), 28 U.S.C. §§ 1332(d), 1453, and then moved to

dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim. The district court dismissed the complaint with prejudice on three

independent grounds, concluding (1) that the plaintiffs had not pleaded facts

sufficient to demonstrate pecuniary loss, (2) that the plaintiffs’ January 2012 bills

gave them notice that their modems needed to be upgraded to obtain the increased

download speed, and (3) that the plaintiffs’ claims were foreclosed by a speed

disclaimer in the Agreement. The plaintiffs moved to alter or amend the judgment, 

and for the first time argued that the case should have been remanded to state court

because the district court lacked subject matter jurisdiction. The district court denied

the motion. On appeal, the plaintiffs challenge each of the grounds the district court

relied on in granting Charter’s motion to dismiss and, in the alternative, argue that the

district court did not have jurisdiction. 

 

Charter submitted an affidavit along with its notice of removal establishing

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that it has more than 50,000 customers nationwide that “receive internetservice under

the names ‘Charter’s Plus,’ ‘Max’ and ‘Ultra Speeds’ and lease a DOCCSIS 1.0 or a

DOCCSIS 2.0 modem.”

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II. Discussion

A. Removal

We review a court’s exercise of removal jurisdiction de novo. See Hargis v.

Access Capital Funding, LLC, 674 F.3d 783, 789 (8th Cir. 2012). “Under CAFA,

federal courts have jurisdiction over class actionsin which the amount in controversy

exceeds $5,000,000 in the aggregate; there is minimal (as opposed to complete)

diversity among the parties, i.e., any class member and any defendant are citizens of

different states; and there are at least 100 membersin the class.” Westerfeld v. Indep.

Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010). “[A] party seeking to remove

under CAFA must establish the amount in controversy by a preponderance of the

evidence[.]” Hargis, 674 F.3d at 789 (first alteration in original) (quoting Bell v.

HersheyCo., 557 F.3d 953, 958 (8thCir. 2009)). “Under the preponderance standard,

‘[t]he jurisdictional fact . . . is not whether the damages are greater than the requisite

amount, but whether a fact finder might legally conclude that they are[.]’” Id. (first

and second alterations in original) (quoting Bell, 557 F.3d at 959). The court’s

jurisdiction is measured at the time of removal. Id. 

The plaintiffs argue that removal under CAFA was improper because Charter

failed to prove by a preponderance of the evidence that the amount in controversy

exceeded $5 million. Accordingly, the plaintiffs contend that the district court should

have remanded the case to state court because it did not have subject matter

jurisdiction. In their complaint, however, the plaintiffs alleged a nationwide class

consisting of at least 50,000 members, who overpaid for Internetservices each month

from September 14, 2007, to the date of final judgment. Furthermore, the plaintiffs

sought to recover up to $50,000 in damages per class member. Based on these

allegations, a jury might conclude that the class suffered damages of more than $5

million dollars, even if the individual class members’ monthly overpayment was

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minimal. We thus conclude that Charter met its burden of showing that the amount

in controversy exceeded CAFA’s $5 million jurisdictional threshold. 

B. Motion to Dismiss

“We review de novo the district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), accepting the plaintiff’s factual allegations

as true and construing all reasonable inferences in favor of the plaintiff.” Alexander

v. Hedback, 718 F.3d 762, 765 (8th Cir. 2013). “To withstand a motion under Rule

12(b)(6), a complaint must plead sufficient facts to ‘state a claim to relief that is

plausible on its face.’” Id. (quoting Retro Television Network, Inc. v. Luken

Commc’ns, LLC, 696 F.3d 766, 768 (8th Cir. 2012)). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. 

The plaintiffs argue that even if the district court had jurisdiction, it erred in

dismissing their complaint for failure to plead facts sufficient to demonstrate

pecuniary loss. Under Missouri law, the plaintiffs must prove that they suffered

pecuniary loss in order to prevail on their MMPA claim, see Ward v. W. Cnty. Motor

Co., 403 S.W.3d 82, 84 (Mo. 2013) (en banc), and breach of contract claim, see

Keveney v. Mo. Military Acad., 304 S.W.3d 98, 104 (Mo. 2010) (en banc). The

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plaintiffs contend that they adequately pleaded damages by alleging that they suffered

a monetary loss of “the difference in the cost and value of the services they paid for,

and the useable service they received.” The complaint, however, does not allege facts

to support the plaintiffs’ allegation of damages because it does not allege that the

plaintiffs paid extra for the 30 Mbps download speed. Moreover, according to

The parties agree that Missouri law governs the merits of their dispute.

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Charter, the plaintiffs could not make that allegation because Charter provided the

service upgrade for free. In the absence of factual support for the plaintiffs’

allegation of damages, the plaintiffs’ complaint is insufficient to withstand a motion

to dismiss under Rule 12(b)(6). See Farm Credit Servs. of Am., FLCA v. Haun, 734

F.3d 800, 806 (8th Cir. 2013).

The plaintiffs further contend that “[i]f, based on the pleading, there are no

damages, then there cannot be an amount in controversy of more than five million

dollars.” The plaintiffs thus maintain their claim that removal under CAFA was

improper. As set forth above, we measure the district court’s jurisdiction at the time

of removal. At that time, the district court could fairly assume that the plaintiffs had

stated a claim and that a fact finder might legally conclude that the class damages

were greater than $5 million. Indeed, the plaintiffs themselves did not challenge

removal until after their claims were dismissed. Accordingly, we find no error in

removing this case under CAFA, even though this case waslater dismissed for failure

to plead pecuniary loss. Because we conclude that the district court correctly

dismissed the plaintiffs’ complaint for failure to plead facts sufficient to demonstrate

pecuniary loss, we need not address the remaining grounds upon which the district

court granted Charter’s motion to dismiss.

III. Conclusion

The judgment is affirmed.

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