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Notice of Removal

Case No. 5:17-cv-00603

371437 v1

SHOOK HARDY & BACON L.L.P.

Tammy B. Webb, SBN 227593

One Montgomery, Suite 2700

San Francisco, CA 94104

Telephone: (415) 544-1900

Facsimile: (415) 391-0281

tbwebb@shb.com

PATTERSON BELKNAP WEBB & TYLER LLP

Steven A. Zalesin (pro hac to be filed)

Michelle W. Cohen (pro hac to be filed)

1133 Avenue of the Americas

New York, NY 10036-6710

Telephone: (212) 336-2000

Facsimile: (212) 336-2222

Attorneys for Defendant

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

JACKIE FITZHENRY-RUSSELL, ON 

BEHALF OF HERSELF AND ALL 

OTHERS SIMILARLY SITUATED

Plaintiff,

v.

THE COCA-COLA COMPANY, 

Defendant.

Case No. 5:17-cv-00603

NOTICE OF REMOVAL

PLEASE TAKE NOTICE that Defendant The Coca-Cola Company (“Coca-Cola” or 

“Defendant”) hereby notices removal of this civil action pursuant to 28 U.S.C. §§ 1332, 1441, 1446, 

and 1453 from the Superior Court of the State of California, County of Santa Cruz, to the United 

States District Court for the Northern District of California, San Jose Division. The grounds for 

removal are set forth below.

BACKGROUND

1. Named Plaintiff Jackie Fitzhenry-Russell is a resident of Santa Cruz, California. 

(Compl. ¶ 5.) 

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2. Defendant, Coca-Cola, is a Delaware corporation with its principal place of business 

in Georgia. (Compl. ¶ 6.) Defendant markets the soft drink Seagram’s® Ginger Ale (“the Product”) 

across the United States.

3. On December 28, 2016, Plaintiff commenced this action by filing a Class Action 

Complaint in California Superior Court in the County of Santa Cruz. A true and correct copy of the 

Complaint is attached hereto as Exhibit A.

4. On January 5, 2017, Defendant was served with the Summons and Complaint. A true

and correct copy of the Proof of Service is attached hereto as Exhibit B.

5. Plaintiff’s claims in this case relate to the statement “MADE WITH REAL 

GINGER,” which appears on the label and packaging of the Product. Although the Product 

complies with all applicable federal rules and regulations governing food labeling and ingredients, 

Plaintiff contends that the phrase “MADE WITH REAL GINGER” would lead a reasonable 

consumer to believe that the Product contains “real ginger root,” and that drinking the Product 

confers “the health benefits associated with consuming real ginger root.” (Compl. ¶ 2 (emphasis 

added).)

6. Plaintiff now seeks to assert claims under the California Consumers Legal Remedies 

Act (“CLRA”), Cal. Civ. Code § 1750, et seq., the False Advertising Law (“FAL”), Cal. Bus. & 

Prof. Code § 17500, et seq., and the Unfair Competition Law, Id. § 17200, et seq., on behalf of a 

putative class of consumers consisting of “[a]ll persons”—without geographic limitation—who 

purchased the Product between December 23, 2012 and the present (“the Class Period”). (Compl. ¶¶ 

63, 71–78, 79–89, 98–110.) Plaintiff also purports to assert a class-wide cause of action for 

common-law fraud. (Compl. ¶¶ 90–97.)

7. This Notice of Removal is timely because it is filed within thirty days of Defendant’s 

receipt of the Complaint by service, as required by 28 U.S.C. § 1446(b).

8. Removal to the San Jose Division of the Northern District of California is proper 

because it is the division within which the state action is pending. See 28 U.S.C. § 1446(a); Civil LR 3-2(e).

9. In accordance with 28 U.S.C. § 1446(b), Defendant is filing with the state court, and 

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serving on the Plaintiff, a Notice of Removal. Promptly upon filing this Notice of Removal, copies 

will be filed with the Clerk of Court in the state court action.

BASIS FOR REMOVAL JURISDICTION

10. This Court has jurisdiction under the Class Action Fairness Act of 2005 (“CAFA”), 

Pub L. 109-2, 119 Stat. 4 (2005) (“CAFA”), codified in various sections of Title 28 of the United 

States Code including 28 U.S.C. §§ 1332(d) and 1453. 

11. CAFA provides that a class action against a non-governmental entity may be 

removed to federal court if: (1) the number of proposed class members is not less than 100; (2) any 

member of the proposed class of plaintiffs is a citizen of a state different from any defendant; and 

(3) the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and costs. 28 

U.S.C. §§ 1332(d)(2), 1332(d)(5), & 1453(b).

12. As set forth below, all of the requirements for removal are satisfied in this case.1

A. There are more than 100 Putative Class Members.

13. CAFA’s first requirement is that the proposed class comprises at least 100 members. 

See 28 U.S.C. § 1332(d)(5). 

14. Plaintiff’s proposed class includes “[a]ll persons who, between December 23, 2012 

and the present, purchased any of Defendants’ the Product [sic].” (Compl. ¶ 63.)

15. Plaintiff admits that, although she “does not know the exact size,” the class she 

purports to represent consists of “more than 100 persons.” (Compl. ¶ 65.)

16. Defendant’s sales data relating to the Product confirm that the potential class is 

greater than 100 consumers. See Exhibit C (Declaration of Kevin Hamilton).

17. Accordingly, the putative class satisfies the numerosity requirement for CAFA 

jurisdiction. See 28 U.S.C. § 1332(d)(5).

B. Minimal Diversity Exists Between the Parties.

18. CAFA’s second requirement, that any one member of the proposed class be a citizen 

of a state different from any defendant, is also satisfied. See id. § 1332(d)(2).

 

1 Removal is also proper pursuant to 28 U.S.C. § 1332(a) because there is complete diversity between 

Plaintiff and Defendant and the amount in controversy exceeds $75,000. 

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19. CAFA requires only “minimal” diversity, i.e., at least one plaintiff must be diverse in 

citizenship from any defendant. Id. § 1332(d)(2)(A).

20. Plaintiff alleges that she resides in Santa Cruz, and is thus a citizen of California for 

jurisdiction purposes. (Compl. ¶ 5.) She also purports to represent a nationwide class of consumers 

who purchased the Product over the last five years. (Compl. ¶ 63.) As such, the putative class likely 

includes citizens of all 50 states.

21. At the time this lawsuit was filed and at all times since, Defendant was and is a 

Delaware corporation with its principal place of business in Atlanta, Georgia. (Compl. ¶ 6.) 

Therefore, at the time this action was filed and at all times since, Defendant was and is a citizen of 

Delaware and Georgia. See 28 U.S.C. § 1332(c)(1). 

22. There is thus diversity of citizenship between Plaintiff and Defendant, see 28 U.S.C. 

§ 1332(d)(2), which not only satisfies CAFA’s minimal diversity requirement but also precludes 

application of the “local controversy” or “home state” exceptions of 28 U.S.C. §§ 1332(d)(3) and 

(d)(4). 

C. The Amount in Controversy Exceeds $5,000,000.

23. Third, and finally, CAFA requires that the “matter in controversy [must] exceed[] the 

sum or value of $5,000,000, exclusive of interest and costs.” See 28 U.S.C. § 1332(d)(2). “In any 

class action, the claims of the individual class members must be aggregated to determine whether the 

matter in controversy” meets this threshold. Id. § 1332(d)(6). 

24. For purposes of removal, a defendant need only make a “short and plain statement” 

showing that the grounds for federal jurisdiction are met. Id. § 1446; see Dart Cherokee Basin 

Operating Co. v. Owens, 135 S. Ct. 547, 553–54 (2014). The Supreme Court has explained that this 

requires merely a “plausible allegation” that the amount in controversy is greater than the 

jurisdictional threshold, not evidentiary submissions. Dart, 135 S. Ct. at 554. Even where, as here, 

the complaint does not specify the amount of damages sought, a defendant seeking removal of a 

putative class action is only required to show by a preponderance of evidence that the aggregate 

amount in controversy exceeds the jurisdictional minimum.” Rodriguez v. AT&T Mobility Servs. 

LLC, 728 F.3d 975, 981 (9th Cir. 2013); accord Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 

Case 5:17-cv-00603-EJD Document 1 Filed 02/06/17 Page 4 of 7
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683 (9th Cir. 2006). 

25. Defendant disputes all liability and damages. However, given the definition of the 

putative class and the volumes of sales of the Product that occurred during the putative Class Period, 

Plaintiff’s claims on behalf of herself and her proposed class for compensatory and punitive 

damages, and injunctive relief, if granted, would well exceed $5,000,000.

1. A Reasonable Estimate of Compensatory Damages Exceeds $5,000,000.

26. Plaintiff has failed to specify the amount of compensatory damages sought. (See 

generally Compl. Prayer for Relief.)

27. However, Plaintiff alleges that, but for the challenged advertising statement, she and 

the putative class members “would not have purchased” the Product—“or, at a very minimum, she 

would have paid less for the soft drink.” (Compl. ¶ 59.)

28. Plaintiff also seeks “full restitution” of the purchase price for the Product paid by 

members of the class during the Class Period. (Compl. ¶¶ 87, 108, Prayer for Relief ¶ B.1.)

29. Plaintiff’s theory of damages thus implicates Defendant’s nationwide sales of the 

Product in setting the amount in controversy. Using data and records that Defendant maintains in 

the normal course of business, Defendant has conducted an analysis of sales of the Product to 

consumers in California over the Class Period, and determined that Defendant’s revenues from the 

Plaintiff’s home state alone were in excess of $5,000,000. See Exhibit C.

2

 When nationwide sales 

of the Product to members of the class across all states are taken into account, that number increases 

multi-fold, and far surpasses the minimum amount-in-controversy necessary to support removal 

under CAFA. See id.

30. Accordingly, the amount in controversy exceeds the jurisdictional threshold based on 

estimated compensatory damages alone. In addition, Plaintiff requests punitive damages for alleged 

fraud under California law. (Compl. Prayer for Relief ¶ C.2.) 

 

2

In determining whether the amount-in-controversy requirement is met, the court may consider evidence 

outside the complaint, including affidavits or declarations, or other “summary-judgment-type evidence 

relevant to the amount in controversy at the time of removal.” Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 

1197 (9th Cir. 2015) (citation omitted)).

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2. The Value of an Injunction Further Supports CAFA Jurisdiction.

31. The potential value of injunctive relief is further aggregated with compensatory 

damages to determine if the amount in controversy exceeds the CAFA threshold. Cohn v. Petsmart, 

Inc., 281 F.3d 837, 840 (9th Cir. 2002). The amount in controversy in class actions requesting an 

injunction may be determined by the cost of compliance by Defendant. See id.

32. In this case, Plaintiff seeks an injunction pursuant to the CLRA, the FAL, and the 

UCL enjoining Defendant from using certain ingredients or making particular advertising statements 

in conjunction with “any ginger beverage.” (See Compl. ¶¶ 76, 89, 100, Prayer for Relief ¶¶ A.1–4, 

B.2.) 

33. The potential costs to Defendant of complying with such an injunction would be 

significant. Depending on the specific relief awarded, it is possible that Defendant would have to 

redesign the Product’s packaging—or the packaging of other products not at issue in this case—

and/or implement changes to the manufacturing process. These costs, though difficult to quantify, 

could easily total hundreds of thousands, or even millions of dollars.

34. Accordingly, based on Defendant’s potential liability for damages and injunctive 

relief, the amount in controversy easily exceeds $5,000,000.

COCA-COLA HAS COMPLIED WITH ALL PREREQUISITES FOR REMOVAL.

35. For all of the foregoing reasons, this action is properly removed to this Court.

36. Defendant reserves the right to amend or supplement this Notice of Removal, and 

reserves all rights and defenses, including those available under Federal Rule of Civil Procedure 12.

///

///

///

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Notice of Removal

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WHEREFORE, Defendant respectfully removes this action from the Superior Court of the 

State of California, County of Santa Cruz (Case No. 16CV03346), to this Court pursuant to 28 

U.S.C. §§ 1332, 1441, 1446, and 1453. Pursuant to 28 U.S.C. § 1446(d), a copy of this Notice of 

Removal is being contemporaneously filed with the Clerk of the Santa Cruz County Superior Court 

and served upon plaintiff.

Dated: February 6, 2017 Respectfully submitted,

 /s/ Tammy B. Webb

Tammy B. Webb

SHOOK HARDY & BACON L.L.P.

One Montgomery, Suite 2700

San Francisco, CA 94104

Telephone: 415-544-1900

Facsimile: 415-391-0281

tbwebb@shb.com

Steven A. Zalesin (pro hac vice pending)

Michelle W. Cohen (pro hac vice pending)

PATTERSON BELKNAP WEBB & TYLER LLP

1133 Avenue of the Americas

New York, NY 10036-6710

Telephone: 212-336-2000

Facsimile: 212-336-2222

sazalesin@pbwt.com 

mcohen@pbwt.com

Attorneys for Defendant

The Coca-Cola Company

Case 5:17-cv-00603-EJD Document 1 Filed 02/06/17 Page 7 of 7