UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MELANIE SLOAN, : : Plaintiff, : : Civil Action No.: 15-01389 (RC) v. : : Re Document Nos.: 7, 11, 13, 20 SOUL CIRCUS, INC., : : Defendant. :
MEMORANDUM OPINION G RANTING P LAINTIFF ’ S M OTION TO R EMAND , D ENYING AS M OOT D EFENDANT ’ S M OTION TO D ISMISS , D ENYING AS M OOT P LAINTIFF ’ S M OTION TO C ERTIFY C LASS , AND D ENYING AS M OOT D EFENDANT ’ S M OTION FOR P ROTECTIVE O RDER
I. INTRODUCTION Defendant Soul Circus, Inc. operate s UniverSoul Circus, a touri ng circus troupe that claims to be committed to the proper treatment of animals and o pposed to cruelty or mistreatment of animals. Contendi ng that the Circus’s claims ar e false and misleading under the District of Columbia Consumer P rotection Procedures Act (CPPA), Plaintiff Melanie Sloan filed suit against the Circus in the S uperior Court of the District o f Columbia. On behalf of herself and a class of all District of Colum bia residents who have purchase d UniverSoul Circus tickets in the past three years because of the C ircus’s false and misleading c laims, Ms. Sloan charged the Circus with violations of six CPPA subsections. She sought CPPA statutory remedies: treble damages, or $1,500 per violation, whi chever is greater; attorne y’s fees; punitive damages; an injunction against the Circus’s practices; and any other relief that the Court deems proper. Citing the parties’ complete diversity of citizenship and an am ount in controversy exceeding $75,000, the Circus removed to this Court under 28 U. S.C. § 1332 and moved to2 dismiss Ms. Sloan’s claims. Ms. Sloan moved to remand the case to D.C. Superior Court and argued that the Circus failed t o meet its burden to prove a suf ficient amount in controversy. While the Circus’s motion to dismiss and Ms. Sloan’s motion to remand were still pending, Ms. Sloan also moved for class certif ication under Federal Rule of Civil Procedure 23, and the Circus moved for a protective order in anticipation of discovery. Because the Court finds that the Circus’s estimates of the amount in controversy are too speculative to estab lish subject matter jurisdiction, the Courtwill grant Ms. Sloan’s motion to remand. Because the parties must therefore litigate Ms. Sloan’s claims in D.C. Superior Court, the Court denies as moot the C ircus’s motion to dismiss, Ms. Sl oan’s motion for class certification, and the Circus’s motion for a protective order. 1

II. FACTUAL BACKGROUND 2 According to the Complaint, Ms. S loan has a strong commitment t o the proper care of animals: she “does not patro nize, or purchase tickets to . . . businesses that . . . display wild animals such as elephants, lions and tigers, who cannot safely, humanely, and healthfully be kept in captivity.” Class Action Com pl. ¶ 7, ECF No. 1-1. The Circus operates a touring circus troupe

1 The Court also denies as moot t he Circus’s request for an oral hearing on its motion to dismiss and denies the Circus’s motion to amend its Notice of R emoval. See Reply Pl.’s Mem. Opp’n Def.’s Mot. Dismiss Pl.’s Compl. & Req. Oral Hr’g 10, ECF No. 10 (requesting oral hearing); Def.’s Mem. Opp’ n Pl.’s Mot. Remand 10 n.5, ECF No. 1 2 (moving to amend the Circus’s Notice of Removal); see also infra Part VII (discussing the C ircus’s motion to amend its Notice of Removal).
2 At the motion to dismiss stage, t he Court presumes that the pl aintiff’s factual allegations are true. See, e.g. , United States v. Philip Morris, Inc. , 116 F. Supp. 2d 131, 135 (D.D.C. 2000). Although at this time the Court’ s analysis focuses on the merit s of Ms. Sloan’s motion to remand, the Court nonetheless pres umes the plaintiff’s factual claims are true for these purposes. See, e.g. , Wexler v. United Air Lines, Inc. , 496 F. Supp. 2d 150, 152 (D.D.C. 2007) (accepting the plaintiff’s version of the facts as background in the Court ’s decision on a motion to remand).3 that performs under the name “UniverSoul Circus.” Id. ¶ 9. On June 11, 2015, Ms. Sloan received a promotional email th at offered tickets to the Circus ’s shows at the National Harbor in Prince George’s County, Maryla nd, scheduled for selected dates from June 24, 2015 through July 16, 2015. Id. ¶¶ 89, 92. Because Ms. Sloan would not purchase tickets to the Circus’s show if the show would “display wil d animals . . . who cannot safely , humanely, and healthfully be kept in captivity,” id. ¶ 7, Ms. Sloan visited the Cir cus’s website and viewed the Cir cus’s “Animal Rights [Policy] Stateme nt” before purchasing tickets to see the Circus’s show. Id. ¶ 93. The Animal Rights Policy Stateme nt made numerous representation s about the Circus’s strong commitment to animal right s, including statements saying that the Circus “is committed to the proper treatment of animals ,” “oppose[s] any form of cruelt y or mistreatment of animals,” and “will not tolerate any mistr eatment on [the] circus site.” Id. ¶ 38. Further, the Animal Rights Policy Statement proclaimed that “[i]n over 19 years and more t han 10,000 performances, none of our animal vendors have ever be en cited for animal abuse whi le performing at the UniverSoul Circus.” Id. The Circus’s website corroborat ed these statements by primaril y showing images of human performers, rather than animals. Id. ¶ 36. The Circus’s Animal Rights Polic y Statement and website assured Ms. Sloan of the Circus’s commitment to animal rights, and Ms. Sloan purchased t ickets to see the Circus’s show on July 11, 2015. Id. ¶ 93. If the Circus had not publis hed its Animal Rights Policy Statement, and if the Circus had included more images of animals on its we bsite, Ms. Sloan would have understood that the Circus would us e wild animals in its perfor mances—a practice that Ms. Sloan would not want to support. Id. ¶¶ 7, 94. But for the Circus’s Animal Rights Policy Statement and website, Ms. Slo an would not have purchased ticke ts to see the Circus’s show. Id. ¶ 94.4 As it turns out, Ms. Sloan claim s that some of the Circus’s ani mal vendors have received citations from the United States Department of Agriculture (USD A) for violating the Animal Welfare Act (AWA) 3 while touring with the Circus . Although the Circus itself does not have a license to exhibit animals in its performances, the Circus leas es animals from outside vendors who do have USDA licenses. Cla ss Action Compl. ¶¶ 43–44. And Ms . Sloan claims that, on at least seventeen occasions, USDA inspectors found that the Circu s’s vendors had violated the
AWA. See id. ¶¶ 62–64, 67, 69–71, 74–77, 79, 81, 84–86, 88; Class Action Co mpl. Ex. B, ECF No. 3-2 (compiling USDA inspection reports). Ms. Sloan further claims that the Circus’s animal vendors have also received USDA citations on other occasions, w hen they were not touring with the Circus. See id. ¶ 46; id. Ex. C. The Complaint also reports additional animal welfare is sues, arising outside of the AWA context , that afflicted animals leas ed by the Circus

. Id . ¶¶ 48–60, 66, 78, 80, 82–83. After Ms. Sloan learned about the Circus’s long history of cont racting with vendors who have been cited for AWA violati ons, Ms. Sloan chose not to atte nd the Circus’s show on July 11,
2015. Id. ¶ 95. She explained that she c hose not to attend because she “ did not want to support a circus that contracts with vendor s who mistreat animals and vio late animal welfare laws,” and because she “wants to teach her daughter about the humane treatment of animals.” Id.

III. PROCEDURAL HISTORY Instead of attending the Circus’s show, Ms. Sloan filed suit ag ainst the Circus in the Superior Court of the Distr ict of Columbia on August 10, 2015. See Class Action Compl. 1. On behalf of herself and a putative c lass of “all residents of the District [of Columbia] who, in the

3 Pub. L. No. 89-544, 80 Stat. 350 (1966) (codified as amended a t 7 U.S.C. §§ 2131–2159).5 last three years, purchased ticke ts to Defendant’s shows becaus e of Defendant’s unlawful trade practices,” Ms. Sloan charged t he Circus with violations of six subsections of the District of Columbia Consumer Protection Pro cedures Act (CPPA), D.C. Code § § 28-3901–28-3913. Class Action Compl. ¶¶ 11–12, 98. Ms. Sloa n alleged that the Circus represent[ed] that its services have a source, sponsorship, app roval, certification, characteristics, and/or ben efits that they do not have, in viol ation of . . . § 28-3904(a); . . . represent[ed] that persons engaged by, or exhibiting with , [the Circus] have a sponsorship, approval, status, affiliation, certification, or c onnection that the persons do not have, in violation of . . . § 28-3904(b); . . . represent[ed] that [the Circu s]’s services are of particu lar standard or quality, but which in fact, are of a di fferent standard or quality, in v iolation of . . . § 28-3904(d); . . . misrepresent[ed] material facts which have a tendency to mislead, in violation of . . . § 28-3904(e); . . . fail[ed] to state material f acts, which failure tends to mislead, in violation of . . . § 28-3904(f); and . . . us[ed] innuendo and ambiguity as to material facts, which have a tendency to mislead, in violation of . . . § 28-3904(f-1). Id. ¶ 98. Ms. Sloan sought CPPA statuto ry remedies: treble damages , or $1,500 per violation, whichever is greater; attorney’s fees; punitive damages; an inj unction against the Circus’s practices; and any other relief th at the Court deems proper. Id. at 22 (citing D.C. Code § 28-3905). The Circus removed to this Court under 28 U.S.C. § 1332 and 28 U.S.C. § 1441. See Def.’s Notice of Removal ¶ 9, E CF No. 1. In support of removal, the Circus’s Notice of Removal claimed that “the United States D istrict Court has subject matt er jurisdiction ove r this action pursuant to 28 U.S.C. § 1332 because there is complete diversity of citizenship between the Circus and all potential parties -plaintiff and the amount in co ntroversy . . . exceeds $75,000.” Id.6 The Circus explained that, because Ms. Sloan’s complaint allege d “tens of thousands” of potential CPPA violations and a c lass whose membership is “so n umerous that joi nder of all of them is impracticable,” the compl aint alleged at least fifty-on e CPPA violations in the aggregate.
Id. ¶¶ 5, 8; cf. Class Action Compl. ¶ 16. Assuming that each violation is enti tled to statutory damages at $1,500, the Circus reason ed that the total amount in controversy exceeded $75,000. Def.’s Notice of Removal ¶¶ 5, 8; see also D.C. Code § 28-3905(k)(2) (“Any claim under [the CPPA] . . . may recover . . . $1,500 per violation . . . , payable to the consumer . . . .”). After removing to this Court, the Circus moved to dismiss Ms. S loan’s claims. See Def.’s Mot. Dismiss, ECF No. 7. While t he motion to dismiss was pendin g, Ms. Sloan filed two additional motions: a motion to remand the case to D.C. Superio r Court, and a motion for class certification. See Pl.’s Mot. Remand, ECF No. 11; Pl. ’s Mot. Class Certification, ECF No. 13. Ms. Sloan’s motion to remand conte nds first that the Circus err ed by aggregating the class members’ claims to satisfy the j urisdictional amount requiremen t, and second that Ms. Sloan’s individual claims against the Circus do not meet the $75,000 am ount-in-controversy requirement. See Mem. P. & A. Supp. Pl.’s Mot. Remand 4–6, ECF No. 11-1. In opposition, the Circus challenge d Ms. Sloan’s motion to rema nd as untimely. Def.’s Mem. Opp’n Pl.’s Mot. Remand 3–6, ECF No. 12. To respond to Ms. Sloan’s nonaggregation argument, the Circus moved to a mend its Notice to invoke this C ourt’s jurisdiction under 28 U.S.C. § 1332(d), in addition t o jurisdiction under 28 U.S.C. § 1332(a). Id. at 10 n.5. Because a litigant may establish § 1332(d) di versity jurisdiction over a class action by showing that more than one hundred class members exis t and their aggregate claims put more than $5,000,000 in controversy, the Circus argued t hat “[t]he Court has diversity jurisdiction under § 1332(d) because Sloan’s proposed class has more than 100 potential memb ers with claims likely7 exceeding $5,000,000.” Id. at 18–21. To justify its class si ze estimates, the Circus prod uced an affidavit from the Circus’s di rector of operations, who atteste d to the Circus’s ticket purchases and advertising activities in the District of Columbia. See Johnson Aff., ECF No. 12-1. Lastly, the Circus maintained that Ms. S loan’s individual claims agains t the Circus put more than $75,000 in controversy anyway, so the C ourt still has diversity jurisdiction under 28 U.S.C. § 1332(a). Def.’s Mem. Opp’n Pl.’s Mot. Remand 10–18. Ms. Sloan’s reply responded with t wo attacks on the Circus’s in vocation of jurisdiction under 28 U.S.C. § 1332(d). First, she c ontended that the Circus ’s estimated number of potential class members is defective because it is ambiguous, speculative , and “an incomplete calculation” that does not address whether th e ticket purchasers during the last three years viewed the offending statements on the Cir cus’s website. Reply Mem. Supp. Pl.’s Mot. Remand 6–7, ECF No. 14. Second, Ms. Sloan charged t he Circus with assuming with out a legal basis that the CPPA allows consumers to recover sepa rate damages awards for simulta neous CPPA violations occurring in connection with asingle business transaction. Id. at 7–9. In response to the Circus’s § 1332( a) arguments, Ms. Sloan like wise asserted two counterarguments. First, she expl ained that the Circus’s statem ents about injunctive relief, punitive damages and attorney’s fees were factually unsupported and based on the faulty assumption that such claims may be aggregated for amount-in-con troversy purposes. Id. at 4–6. Second, she charged the Circus with making another assumption w ithout a legal basis: the assumption that, by merely observi ng a Circus communication tha t violated the CPPA, Ms. Sloan could recover CPPA statutory damages. Id. at 3–4. Because the Court agrees with Ms. Sloan’s view of the issue, th e Court will grant Ms. Sloan’s motion to remand.8 IV. TIMELINESS OF THE MOTION TO REMAND As an initial matter, the Court finds that Ms. Sloan’s motion t o remand is timely. “A motion to remand the case on the basis of any def ect other thanlack of subject ma tter jurisdiction must be made within 30 days after the filing of the notice of r emoval . . . .” 28 U.S.C. § 1447(c). But, “[i]f at any time before fin al judgment it appears that th e district court lacks subject matter jurisdiction, the case shall be remanded.” Id. In other words, “[s]ubject matter jurisdiction may be challenged at any point” dur ing the course of a lawsuit. Nat’l Consumers League v. Bimbo Bakeries USA , 46 F. Supp. 3d 64, 69 (D.D.C. 2014). For amount-in-controversy disputes , therefore, the thirty-day d eadline for motions to remand applies only to challenges based on a removing defendant ’s procedural“failure to provide sufficient facts in the N otice of Removal to establish the necessary amount in controversy.” See Nat’l Consumers League v. Flowers Bakeries, LLC. , 36 F. Supp. 3d 26, 30 (D.D.C. 2014). If the motion to re mand instead argues that, “ba sed on the facts contained in the Notice of Removal, defendant has fa iled to establish that the amount in controversy exceeds the statutory minimum as a matter of law,” it “presents a bona fide challenge to this Court’s subject matter jurisdiction.” Id. The thirty-day deadline does not apply to such a challenge. See id. Ms. Sloan’s motion to remand is a bona fide challenge to this Court’s jurisdiction, not a mere procedural challenge to the sufficiency of the Notice of R emoval. Ms. Sloan’s motion was filed thirty-six days after the C ircus’s Notice of Removal, so it was late under 28 U.S.C. § 1447(c)’s thirty-day deadline. See Pl.’s Mot. Remand 2 (dated October 1, 2015); Def.’s Notice of Removal 5 (dated August 26, 201 5). But in her motion, Ms. Sl oan asked the Court to hold that it lacks subject matter jurisd iction based on the facts provide d in the Notice of Removal; she did not allege that the Notice of R emoval failed to provide the fac ts necessary to est ablish subject9 matter jurisdiction. See Mem. P. & A. Supp. Pl.’s Mot. Rem and 3 (arguing that the Circu s failed to establish in its N otice of Removal “tha t the amount in contr oversy exceeds the $75,000 statutory minimum for divers ity jurisdiction required by 28 U.S .C. § 1332(a)” and thus “remand is mandatory”). And Ms. Sloan c larified that her motion brought a jurisdictional challenge when she explained that she was not br inging a procedural challenge subject to the thirty-day deadline.
See id. at 3 n.2. Because Ms. Sloan’s m otion to remand asserted a bona fide challenge to this Court’s jurisdiction, it is s till timely, despite 28 U.S.C. § 1 447(c)’s thirty-day deadline. 4

V. STANDARD OF REVIEW “A civil action filed in state c ourt may only be removed to a U nited States district court if the case could originally have b een brought in federal court.” Nat’l Consumers League v. Flowers Bakeries , LLC ., 36 F. Supp. 3d 26, 30 (D.D.C. 2014) (citing 28 U.S.C. § 1441 (a)). As the party opposing the motion to r emand, the Circus “bears the burden of establishing that subject matter jurisdictio n exists in federal court.” Flowers Bakeries , 36 F. Supp. 3d at 30

4 Of course, Ms. Sloan worded he r motion carefully, to avoid cap ping the amount of damages she and the proposed cla ss may be eligible to recover. See Pl.’s Mot to Remand 1 (alleging that “Defendant’s Not ice of Removal fails to meet Def endant’s burden of proving that the amount in controversy is suffi cient to confer subject matte r jurisdiction,” not simply, for instance, that “the amount in con troversy is insufficient to co nfer subject matter jurisdiction”); Mem. P. &. A. Supp. Pl.’s Mot. Remand 1, 3, 5 (same). But even if Ms. Sloan’s motion is time-barred because it allege s a procedural defect with the Circus’s Notice of Removal , the Court may still raise the i ssue of its own subject matter jurisdiction sua sponte

. See 28 U.S.C. § 1447(c) (requiring remand whenever “it appears tha t the district court lacks subject ma tter jurisdiction,” without spec ifying any procedural prerequisites); Am. Library Ass’n v. FCC , 401 F.3d 489, 492 (D.C. Cir. 2005) (“It is well esta blished that a federal court cannot act in the absence of jurisdiction, and th at jurisdictional issues may be raised by the court sua sponte .” (citations omitted)); Bell v. U.S. Dep’t of Health & Human Servs. , 67 F. Supp. 3d 320, 321 (D.D.C. 2014) (“[T]he Court may analyze subje ct-matter jurisdiction sua sponte .”). As a practical matter, there fore, the timeliness of Ms. Sl oan’s motion to remand does not affect the validity of the Court’s jurisdictional analysis below.10 (internal quotation marks omitted) (quoting RWN Dev. Grp., LLC v. Travelers Indem. Co. of
Conn. , 540 F. Supp. 2d 83, 86 (D.D.C. 2008)); accord Doe v. Georgetown Synagogue—Kesher Israel Congregation , No. 15-0026, 2015 WL 4509553, at *2 ( D.D.C. July 24, 2015) (“ The party supporting removal bears the burde n of establishing the Court’s jurisdiction.” (in ternal quotation marks omitted) (quoting McMullen v. Synchrony Bank , 82 F. Supp. 3d 133, 138 (D.D.C. 2015))).

VI. DIVERSITY JURISDICTI ON UNDER 28 U.S.C. § 1332(a)
F ederal district courts have or iginal jurisdiction if the amountin controversy exceeds $75,000, exclusive of interest and c osts, and the action is between citizens of different states. 28
U.S.C. § 1332(a)(1). The parties’ dive rsity is not disputed here. See Mem. P. &. A. Supp. Pl.’s Mot. Remand 2. The Court’s analysis therefore addresses only wh ether the amount in controversy exceeds $75,000, as required to establish subject m atter jurisdiction under 28 U.S.C. § 1332(a).
A. The Dart Framework The Supreme Court recently artic ulated a two-phase framework fo r adjudicating amount-in-controversy challeng es to removal jurisdiction. See Dart Cherokee Basin Operating
Co. v. Owens , 135 S. Ct. 547, 553–54 (2014). In the first phase, “when a de fendant seeks federal-court adjudication, the de fendant’s amount-in-controver sy allegation should be accepted when not contested by the plainti ff or questioned by the court. ” Id. at 553. But if the plaintiff contests the defendant’s amount -in-controversy allegation, she triggers the second Dart phase.
Id. In the second phase, removal is pro per “if the district court f inds, by the preponderance of the evidence, that the amount in c ontroversy exceeds the jurisd ictional threshold.” Id. at 553–54 (internal quotation marks omitted) (quoting 28 U.S.C. § 1446(c) (2)(B)). “Discovery may be11 taken,” “both sides submit pr oof,” and in the end, “the distric t court must make findings of jurisdictional fact.” Id. at 554 (quoting H.R. Rep. N o. 112-10, at 16 (2011)). The defen dant still bears the burden to establish t he amount in controversy, though it must prove the amount in controversy by only a preponderance of the evidence, not to a l egal certainty. See id. (“[D]efendants do not need to prove to a legal certainty that t he amount in controversy requirement has been met.” (alte ration in original) (internal q uotation mark omitted) (quoting H.R. Rep. No. 112-10, at 16)); Doe v. Georgetown Synagogue—Kesher Israel Congregation , No. 15-0026, 2015 WL 4509553, at *2 ( D.D.C. July 24, 2015) (exp laining, in a post- Dart opinion, that the removing defenda nt still bears the burden of establishing jurisdiction). Because Ms. Sloan has challenged the Cir cus’s amount-in-controversy all egations, the Court’s analysis falls within this second Dart phase and follows its prescriptions. 5

5 Dart did not prescribe procedures gove rning what it means for “both sides [to] submit proof” in the second phase of an amo unt-in-controversy adjudica tion. See Dart Cherokee Basin Operating Co. v. Owens , 135 S. Ct. 547, 554 (2014); see also Ibarra v. Manheim Invs., Inc. , 775 F.3d 1193, 1199–1200 & n.4 (9th Cir. 2015) (observing that “[t] he Supreme Court did not decide the procedure for each side to submit proof on remand,” and ins tructing the district court to “set a reasonable procedure in the first instance so that each side ha s a fair opportunity to submit proof”). Post- Dart cases have allowed both sides to “ submit proof” in different w ays. For instance, courts have adjudicat ed the amount in controversy on the basis of the parties’ filings and supplemental affidavits or declarations. See, e.g. , Dudley v. Eli Lilly & Co. , 778 F.3d 909, 914–17 (11th Cir. 2014); Garnett v. ADT LLC , 74 F. Supp. 3d 1332, 1334–36 (E.D. Cal. 2015). In other cases, courts have allowe d or ordered th e parties to f ile additional briefing. See, e.g. , Scenic Health Alliance, Inc. v. State Farm Mut. Auto. Ins. Co. , No. 14-52900, 2015 WL 4999640, at *1 (S.D. Fla. Aug. 24, 2015) (noting that the defen dant was given leave to file a brief “Sur-reply” to the p laintiff’s motion to remand); Hughes v. Fosdick , No. 14-5350, 2015 WL 3372396, at *1 (N.D. Cal. Apr. 29, 2015) (recounting how the Co urt requested supplemental briefing and ordered production of additional evidence). In line with Dudley and Garnett , the Court declines to reque st additional briefing from the parties. Because the Circu s has invoked jurisdiction under the Class Action Fairness Act (CAFA), see infra Part VII, the Circus suffers little from this decision. “[U]nd er CAFA, class actions may be removed at any point during the pendency of the l itigation in state court, so long as removal is initiated within t hirty days after the defendant is put on notice that a case which was not removable based on the fac e of the complaint has become removable.” Dudley , 778 F.3d12 The Supreme Court did not otherw ise alter preex isting doctrines governing jurisdiction under 28 U.S.C. § 1332(a). Cf. Dart , 135 S. Ct. at 554 (pointing outthat “no antiremoval presumption attends cases invoking [ the Class Action Fairness A ct],” but declining to rule on whether such a presumption is proper in “mine-run diversity cas es”). Just as it was before Dart , therefore, when a removing defendant seeks to establish this Co urt’s diversity jurisdiction under 28 U.S.C. § 1332(a), there is “a s trong presumption that the pl aintiff has not claimed a large amount in order to confer juris diction on a federal court.” Breakman v. AOL LLC , 545 F. Supp. 2d 96, 103 (D.D.C. 2008) (alterations and internal quotation ma rks omitted) (quoting RWN Dev. Grp., LLC v. Travelers Indem. Co. of Conn. , 540 F. Supp. 2d 83, 89 (D.D.C. 2008)). “[T]he court must resolve any ambiguities c oncerning the propriety of remova l in favor of remand.” Zuckman v. Monster Beverage Corp. , 958 F. Supp. 2d 293, 297 (D.D.C. 2013) (alteration in origina l) (internal quotation marks omitted) (quoting Johnson–Brown v. 2200 M Street LLC , 257 F. Supp. 2d 175, 177 (D.D.C. 2003)). B. Nonaggregation In class actions and cases with multiple plaintiffs, an additio nal consideration applies to the amount-in-controversy analy sis: class action plaintiffs’ cl aims are generally not aggregated to establish the amount in controve rsy for diversity jurisdiction under 28 U.S.C. § 1332(a). See Nat’l Consumers League v. Flowers Bakeries, LLC. , 36 F. Supp. 3d 26, 32 (D.D.C. 2014) (“‘The separate and distinct claims of two or more plaintiffs cannot b e aggregated in order to satisfy the jurisdictional amount requirement ’ except ‘in cases in which tw o or more plaintiffs unite to

at 913 (citing 28 U.S.C. § 1453(b), a nd explaining that the “tr aditional one-year window for removal does not apply to class actions”). Thus, if while in D. C. Superior Court more evidence about potential damages comes t o light and shows an amount in c ontroversy sufficient to give this Court jurisdiction, the Cir cus may remove once again to fe deral court. See id. at 917.13 enforce a single title or rightin which they have a common and undivided interest.’” (alteration omitted) (quoting Snyder v. Harris , 394 U.S. 332, 335 (1969))). This principle extends to CPPA private attorney general actions brought on behalf of a class. “[C]ourts within this di strict have unanimously conclude d that so long as individual consumers are eligible to recove r individual damages, the consu mers do not have a ‘common and undivided interest’ that may be aggregated under the non-aggreg ation principle announced in Snyder .” Flowers Bakeries , 36 F. Supp. 3d at 32. Thus, “only the damages to which [the plaintiff] would be personally e ntitled—rather than those on be half of the public—will count toward satisfying the $75,000 jur isdictional threshold.” Nat’l Consumers League v. Bimbo Bakeries USA , 46 F. Supp. 3d 64, 72 (D.D.C. 2014) (al teration in original) (internal quotation marks omitted) (quoting Zuckman v. Monster Beverage Corp. , 958 F. Supp. 2d 293, 297–98 (D.D.C. 2013)). 6 Applying this principle to Ms. S loan’s claims here, the Court m ust assess, for purposes of subject matter jurisdictio n under 28 U.S.C. § 1332(a), only the amount in controversy between the Circus and Ms. Sloan—not the total amount in controversy be tween the Circus and Ms.

6 One exception exists when a plai ntiff brings a CPPA claim for disgorgement, rather than damages. Because proceeds from a disgorgement claim are ta ken directly from a defendant to a common fund, a collective disgorgement claim is a “common and undivided interest” that may be aggregated. Nat’l Consumers League v. Flowers Bakeries, LLC. , 36 F. Supp. 3d 26, 32 n.3 (D.D.C. 2014). But Ms. Sloan does not seek disgorgement here. Compare Williams v. Purdue Pharma Co. , No. 02-0556, 2003 WL 24259557, at *5 ( D.D.C. Feb. 27, 2003) ( finding that the plaintiffs sought disgorgement when they cla imed the defendants were “liab le for a refund of all moneys acquired,” and accordingly aggregating the plaintiffs’ claims t o assess the amount in controversy), with Class Action Compl. 22 (seeking C PPA statutory remedies but no t a lump-sum refund of monies the Ci rcus acquired through its alleg edly unlawful trade practices); see also Mem. P. & A. Supp. Pl.’s Mot. R emand 5 n.3 (“Plaintiff seeks i ndividual statutory damages and not the disgorgement of a common fund to be divided amongst individual claimants . . . .”). The Court therefore will not aggregate the proposed class’s claims to assess the amount in controversy for juris diction under 28 U.S.C. § 1332(a ).14 Sloan’s proposed class. With t his in mind, the Court now turns to that analysis. Because the CPPA allows prevailing plainti ffs to recover statutory damages, attorney’s fees, punitive damages, and injunctive relief, the Court addresses each possib le basis for the amount in controversy in turn. C. Statutory Damages A prevailing CPPA plaintiff may r ecover “[t]reble damages, or $ 1,500 per violation, whichever is greater.” D.C. Code § 28-3905(k)(2)(A). Ms. Sloan’ s complaint claims this amount of damages, without estimating the total statutory damages she believes she deserves. See Class Action Compl. 22 (seeking an order from the Court “ordering Def endant to pay to Plaintiff and to the Class, treble damages , or $1,500 per violation, whicheve r is greater”). Because neither party argued for an amount in c ontroversy based on an award of treble damages, the Court will not consider that rout e to jurisdiction. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 12–15 (focusing arguments on whether Ms. Sloan might have been expose d to fifty-one alleged CPPA violations valued at $1,500 per vi olation, not on he r actual or treble damages); Reply Mem. Supp. Pl.’s Mot. Remand 3–4 (same); see also Schneider v. Kissinger , 412 F.3d 190, 200 n.1 (D.C. Cir. 2005) (“[A] litigant ha s an obligation to spell out its arguments squarely and distinctly, or else foreve r hold its pea ce.” (quoting United States v. Zannino , 895 F.2d 1, 17 (1st Cir. 1990))). But the amount in controver sy based on “$1,500 per violation” i s equally unclear, despite the briefing on that calculati on. Most significantly, the parti es disagreed about how to count “violations.” The Circus implied that an alleged “ violation” oc curred every time Ms. Sloan “viewed, received, or [was] otherw ise exposed to” the Circus’s communications with D.C. residents. Def.’s Mem. Opp’n Pl.’s Mot. Remand 14–15. The Circu s also implied that multiple15 “violations” could occu r in connection with asingle ticket pur chase. See id. at 20–21 (calculating an aggregate amount in controversy by multiplying the estimated number of class members who purchased tickets (2,667) by the number of violations per ticke t purchaser (6) and by the amount of damages per violation ($1,500) to obtain $24,003,000 in tota l damages). Ms. Sloan found the Circus’s co ntentions ungrounded. She conten ded, first, that the Circus jumped to conclusions by ass uming that each of its communications in the past three years was a “violation”; not all of the Circus’ s communications were necessarily unlawful under the CPPA. Reply Mem. Supp. Pl.’s Mot. Remand 2–3. Second, Ms. S loan noted that the Circus failed to cite legal authority supporting the proposition that a consumer’s mere observation of a merchant’s communications can t rigger CPPA statutory damages. Id. at 3–4. Finally, Ms. Sloan asserted that it is unclear under the law “whether the CPPA all ows separate recoveries for multiple simultaneous violations of the CPPA occurring in conne ction with a single transaction.”
Id. at 7–9 (emphasis omitted). In sup port, Ms. Sloan cited two cas es—including one in this Court—that counted violations of a consumer protection statute by the number of transactions, not the number of legal violations alleged. See id. at 8 (citing Charvat v. GVN Mich., Inc. , 561 F.3d 623, 631–32 (6th Cir. 2009) (allowi ng one statutory damage s award per allegedly unlawful phone call), and Zuckman v. Monster Beverage Corp. , 958 F. Supp. 2d 293, 300–01 (D.D.C. 2013) (allotting one CPPA statutory d amages award per purchase of the defendant ’s product)). The Court agrees with Ms. Sloan’s view of the matter. It is tru e that a person can violate the CPPA “whether or not any c onsumer is in fact misled, deceiv ed or damaged thereby.” D.C. Code § 28-3904. But the CPPA specifi es that, for claims brought by testers and nonprofit organizations, damages claims may seek “relief from the use of a trade practice . . . when that trade practice involves consumer goods or services that [the co nsumer tester or nonprofit16 organization] purchased or received .” D.C. Code § 28-3905(k)(1)(B) (emphasis added); see also
id. § 28-3905(k)(1)(C) (using nearly ide ntical language). The stat ute implies therefore that CPPA statutory damages awards flow from a purchase or receipt of consumer goods or services—not the mere observation of a merchant’s unl awful communication. 7 And this Court has already applied that type of calculation in a previous case. See Zuckman v. Monster Beverage Corp. , 958 F. Supp. 2d 293, 297–301 (D.D.C. 2013) (rejecting the defendant ’s argument that CPPA “‘violations’ include not simp ly purchases of cans, but also in stances of viewing allegedly misleading advertising,” and inst ead adopting the plaintiff’s b inding stipulations that he was asserting claims based only on his goods purchased). The Court therefore rejects th e Circus’s assumption that a CPPA violation occurred every time Ms. Sloan “viewed, received, o r [was] otherwise exposed to ” one of the Circus’s advertisements. See Def.’s Mem. Opp’n Pl.’s Mot . Remand 15. Although existing law is not

7 Because, when the CPPA authorizes consumers’ claims (unlike when it authorizes testers’ and nonprofit organizati ons’ claims), the CPPA does no t include language about “goods or services . . . purchased or received ,” the statute does not clearly s pecify whether an individual consumer’s alleged CPPA violation must flow from a purchase or receipt of goods or services. See D.C. Code § 28-3905(k)(1)(A) (decl aring merely that “[a] consu mer may bring an action seeking relief from the use of a trade practice in violation of a law of the District”). But “[a] provision that may seem ambiguous in isolation is often clarifi ed by the remainder of the statutory scheme”—for instance, w hen “the same terminology is u sed elsewhere in a context that makes its meaning clear.” United Sav. Ass’n of Tex. v. Timb ers of Inwood Forest Assocs., Ltd. , 484 U.S. 365, 371 (1988). Here, the CPPA uses the same term in its provisions authorizing claims by consumers, testers, and nonprofit organizati ons: the consumer, tester, or nonprofit organization may “bring an action seeking relief from the use of a trade practi ce in violation of a law of the D istrict.” See D.C. Code § 28-3905(k)(1)(A), (B), (C) (emphasis added). For te sters’ and nonprofit organizations’ “action[s] seeking r elief,” the statute clarifie s that those actions may arise from consumer goods or services purchased or received to test those goods or service s’ qualities. See id. § 28- 3905(k)(B), (C). In doing so, the statute also implies that any “action seeking relief” should arise from the purchase or rec eipt of consumer goods or service s. Because the CPPA uses the identical term (“action seeking r elief”) to authorize consumers ’ claims, see id. § 28-3905(k)(A), the surrounding context clarifies that consumers’ claims also s hould arise from the purchase or receipt of consumer goods or services.17 conclusive, see supra note 6, it indicates that CPPA st atutory damages do not flow f rom each instance Ms. Sloan viewed the Cir cus’s advertisements, but inst ead from each purchase Ms. Sloan made because of those advertisements. Even assuming that all Circus advertisements in the past three years violated the CPPA, the Circus did not show tha t Ms. Sloan’s mere observation of those advertisements can trigger statutory damages. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 12–15 (failing to support its assumption that every observed CP PA violation means an additional $1,500 in statutory damages). Nor d id the Circus support its as sumption that multiple CPPA violations, in connect ion with a single purchase, mean that a c onsumer can receive multiple $1,500 statutory damages awards. See id. at 20–21 (failing to cite supporting law). 8 Tellingly, the Circus did not provide the Court with even an estimate of Ms. S loan’s total statutory damages. Instead, the Circus merely declared that “it is inconceivable” that Ms. Sloan did not view, receive, or otherwise become exposed to “at least fifty-one of [the Circus’s] communications” in the three-year period before s he filed her complaint. See id. at 12, 15.

8 Odd results would follow if the C ourt were to accept the Circu s’s theory that, when a communication violates multiple CPPA provisions at once, mere o bservation of that communication can trigger multiple statutory damages awards. Fo r instance, consider a situation in which Consumer A saw a false or misleading communication tentimes, Consumer B saw the same communication just once , and both consumers went on to buy one ticket that was identical to the other’s. Under the Circus ’s theory, Consumer A could pre ss a claim for far greater statutory damages than Consumer B, even though Consumer A purch ased the same number of tickets (one). Likewise, consider the situation in which Consumer C saw the co mmunication once and bought ten tickets for his enti re extended family, but Consumer D saw the communication fifty times and bought only one ticket. Even i f Consumer D spent less money on her one ticket than Consumer C did on his ten (which w ould likely be the case), Con sumer D could claim far greater statutory damages than Consumer C under the Circus’s theory of damages. “In statutory interpretation it is a given that statutes must b e construed reasonably so as to avoid absurdities . . . .” In re Nofziger , 925 F.2d 428, 434 (D.C. Cir. 1991) (per curiam). The Court cannot adopt the Circus’s damages theory when such absurd consequences might follow.18 Because the Circus’s claims about Ms. Sloan’s statutory damages are speculative and unsupported, the Circus failed to e stablish Ms. Sloan’s total s tatutory damages by a preponderance of the evidence. See Wexler v. United Air Lines, Inc. , 496 F. Supp. 2d 150, 154 (D.D.C. 2007) (“[J]urisdiction cannot be based on probabilities , surmise or guesswork.” (internal quotation marks omitted) (quoting Hohn v. Volkswagen of Am., Inc. , 837 F. Supp. 943, 945 (C.D. Ill. 1993))). To avoid engaging in a speculative calculation, t he Court will therefore estimate the amount in controversy between Ms. Sloan and the Circus based onthe approach taken in Zuckman v. Monster Beverage Corp. See 958 F. Supp. 2d 293, 297–301 (D.D.C. 2013). In
Zuckman , the Court assumed that purch ases, not “instances of viewing a llegedly misleading advertising,” matter for the statutory damages calculation. See id. Here, Ms. Sloan’s complaint asserts that she purchased four tickets to the Circus. Class Ac tion Compl. ¶ 93. If each ticket purchase merits one award of $1,500 i n statutory damages, then Ms. Sloan’s total statutory damages would be just $6,000—far below the $75,000 amount in co ntroversy required to establish jurisdiction under 28 U.S.C. § 1332(a). To establish $75,000 in controversy, the Circus must make up the difference from other sources. As the analysis below shows, it cannot. D. Attorney’s Fees “Attorney fees are part of the amount in controversy if they ar e provided for by statute or
contract.” Info. Strategies, Inc. v. Dumosch , 13 F. Supp. 3d 135, 144 (D.D.C. 2014) (quoting Zuckman v. Monster Beverage Corp. , 958 F. Supp. 2d 293, 301 (D.D.C. 2013)). A prevailing CPPA plaintiff may recover “[r]eas onable attorney’s fees” by st atute. D.C. Code § 28-3905(k)(2)(B). The Court theref ore considers attorney’s fe es as part of the amount in controversy here.19 The Circus’s attorney’s fees ana lysis was, however, just as spe culative and unsupported as its statutory damages anal ysis. Instead of providing the Cou rt with an estimate of the amount of attorney’s fees Ms. Sloan ma y recover, the Circus merely dec lared that “it is abundantly clear that, if Sloan were to prevail , her attorneys’ fee demand likel y would be in the high tens of thousands of dollars.” Def.’s Me m. Opp’n Pl.’s Mot. Remand 17. The Circus reasoned, therefore, that Ms. Sloan’s att orney’s fee demand “is quite lik ely enough to satisfy the amount in controversy on its own.” Id. To justify its statements, the C ircus alluded to this Court’s o pinion in Dumosch , 13 F. Supp. 3d at 144–45, in which the Court found that the plaintiff failed to show, as a “legal certainty,” that the defenda nt would not receive $75,000 in att orney’s fees. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 17

. But because Dumosch predates the Supreme Court’s opinion in Dart Cherokee Basin Operating Co. v. Owens , 135 S. Ct. 547 (2014), it has limited weight. Compare Dart , 135 S. Ct. at 547 (decided December 15, 2014), with Dumosch , 13 F. Supp. 3d at 135 (dated February 10, 2014). Dumosch ’s attorney’s fee analysis is even less on point here because it analyzes fees using the “legal certainty” standard i n the context of a Rule 12(b)(1) motion to dismiss for lack of j urisdiction, not the preponderan ce of the evidence standard Dart endorsed in the context of a motion to remand. Compare Dart , 135 S. Ct. at 554, with Dumosch , 13 F. Supp. 3d at 140–41, 144–45. Setting Dumosch aside, the Court is left with the Circus’s bald assertions tha t Ms. Sloan’s attorney’s fee demand “likely woul d be in the hig h tens of thou sands of dollars” and “is quite likely enough to satisfy the am ount in controversy on its own.” Def.’s Mem. Opp’n Pl.’s Mot. Remand 17

. These statements do not establis h the amount of attorney’s fees in controversy for two reasons. First, they implicitly aggregate Ms. Sloan’s attor ney’s fees with those of the20 potential class, which “is not appropriate in a CPPA case.” Nat’l Consumers League v. Gen. Mills, Inc. , 680 F. Supp. 2d 132, 141 (D.D.C. 2010); accord Zuckman , 958 F. Supp. 2d at 301 (“[F]ees cannot be aggregated w ith those of the general public in order to satisfy the $75,000 threshold.”). Second, they are “ based on pure conjecture” and a re therefore “inadequate to support an assertion of dive rsity jurisdiction.” Breakman v. AOL LLC , 545 F. Supp. 2d 96, 107 (D.D.C. 2008) (internal quotation mark omitted) (quoting Your Girl Friday, LLC v. MGF Holdings, Inc. , No. 06-0385, 2006 WL 1028959, at *2 (D.D.C. Apr. 18, 2006)). Moreover, as this Court has noted in the past, “ the Court is not entirely co mfortable with the premise that an action should be retained in feder al court where satisfaction o f the amount in controversy requirement depends upon a lump sum award of attorney’s fees.” Id. In the alternative, the Circus ar gues that if the Court were to use a “33% rule of thumb” and assume Ms. Sloan would recei ve attorney’s fees equal to thi rty-three percent of her damages, “the likelihood of the total amount in controversy exceeding $7 5,000 is increased substantially.” Def.’s Mem. Opp’n Pl.’s Mot. Remand 17

. But this line of reasoning a lso lacks substance. As discussed above, the Circus’s cl aims about Ms. Sloan’s statutory damages are speculative and unsupported. See supra Part VI.C. Just as zero and zero do not make one, adding thirt y-three percent of a speculative amount of damages to the speculative a mount of damages does not make the sum less speculative. And if Ms. Sloan’s statutory damages amount to $1,500 per ticket, or $6,000 total, then under the “33% rule of thumb,” Ms. Sloan’s s hare of the attorney’s fees would be just $2,000. See generally Zuckman , 958 F. Supp. 2d at 301–02 (calculating a class member’s share of the attorney’s fees ba sed on a “reasonable contingencyfee”—thirty-three percent of the amount the class member could rec over in statutory damages). To gether with $6,000 in statutory21 damages, the amount in controversy is $8,000. The Circus is sti ll far short of the $75,000 amount in controversy required to invoke this Court’s jurisdiction und er 28 U.S.C. § 1332(a). E. Punitive Damages Prevailing plaintiffs may obtain pun itive damages under the CPP A. See D.C. Code § 28-3905(k)(2)(C). “Punitive damages may generally be included when calculating the amount in controversy under 28 U.S.C. § 1332(a).” Wexler v. United Air Lines, Inc. , 496 F. Supp. 2d 150, 154 (D.D.C. 2007). But, as with statutory damages and atto rney’s fees, “punitive damages should be apportioned to each consumer.” Breakman v. AOL LLC , 545 F. Supp. 2d 96, 107 (D.D.C. 2008). The Circus made another sweep ing claim about the amount of puni tive damages in controversy here: “G iven the extremely br oad scope of the condu ct Sloan identif ies as potentially violative of the CPPA, it stands to reason that any punitive damages award would be quite large—large enough to at least double the amount in controversy .” Def.’s Mem. Opp’n Pl.’s Mot. Remand 16

. This claim fails for the same r easons as the Circus’s claims about Ms. Sloan’s statutory damages and attorney’s f ees. It is “completely specul ative” and “factually unsupported,” so it should not be included in determining the a mount in controversy. Wexler , 496 F. Supp. 2d at 154–55; see Def.’s Mem. Opp’n Pl.’s M ot. Remand 15–16 (lacking any citations supporting the proposit ion that Ms. Sloan’s punitive damages award would be “at least double the amount in controversy”); see also Wexler , 496 F

. Supp. 2d at 154–55 n.4 (noting that a claim for punitive damages would also have to overcome the su bstantial hurdles imposed by
State Farm Mutual Auto Insurance Co. v. Campbell , 538 U.S. 408, 419 (2003)). Like the Circus’s claims about attorney’s fees, the Circus’s punitive da mages assertions add speculation to speculation by asking the Court to double an unspecified bas e amount in controversy.22 Furthermore, the Circus failed to explain how punitive damages, which cannot be aggregated, would be apportioned to each consumer in the class. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 15–16 (neglecting to discuss aggr egation or nona ggregation). And again, if Ms. Sloan’s sta tutory damages amount to $6,000, d oubling that amount still does not get the Circus anywhere ne ar the statutory threshold. On the record as it stands, the best estimate the Court can make of the amount in controversy is $6, 000 in statutory damages and $2,000 in attorney’s fees, which, when doubled for punitive dam ages, results in a total of $16,000. This total is barely one fif th the amount the Circus m ust prove to establish this Court’s jurisdiction under 28 U.S.C. § 1332(a). F. Injunctive Relief The CPPA allows a prevailing pl aintiff to obtain an injunction against the defendant. D.C. Code § 28–3905(k)(2)(D). Some cases in this circuit imply that injunctive costs may factor into the amount in controvers y as a cost to the defendant. See, e.g. , Comm. for GI Rights v. Callaway , 518 F.2d 466, 472–73 (D.C. Cir. 1975) (alluding to injunctive costs from the defendants’ position, but concludi ng that the jurisdictional am ount was satisfied “either from the standpoint of the plainti ffs or the defendants”); Wexler v. United Air Lines, Inc. , 496 F. Supp. 2d 150, 153–54 (D.D.C. 2007) (discussing i njunctive costs but find ing that the defendant failed to meet its burden to establish suc h costs). But other cases in th is circuit question injunctive costs’ inclusion. See, e.g. , Breakman v. AOL LLC , 545 F. Supp. 2d 96, 105–06 (D.D.C. 2008); Nat’l Org. for Women v. Mut. of Omaha Ins. Co. , 512 F. Supp. 100, 107–08 (D.D.C. 1985). In particular, these cases take i ssue with injunctive costs’ inclu sion in class actions for damages and injunctive relief, because doi ng so would undermine the nonaggr egation principle laid down in Snyder v. Harris , 394 U.S. 332, 335 (1969). See Breakman , 545 F. Supp. 2d at 105; Nat’l Org.23 for Women , 612 F. Supp. at 108. Given “the l ongstanding directive that f ederal jurisdiction should be strictly interpreted,” the Court also questions wheth er injunctive costs are appropriate for inclusion in the amount in controversy here. See Breakman , 545 F. Supp. 2d at 105. But even assuming arguendo that injunctive costs could be inclu ded, the Circus did not argue for specific injunctive co sts’ inclusion in the amount incontroversy. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 10–18 (av oiding discussion of specific injunctive costs). The Circus instead relies on a conclusory ge neralization that such costs “ make[] it all the more certain” that Ms. Sloan’s claims exceed $75,000. See id. at 11–12 n.6. The Court will thus deem the argument waived. See Johnson v. Panetta , 953 F. Supp. 2d 244, 250 (D.D.C. 2013) (“[U]ndeveloped arguments . . . are deemed waived.”). * * * In sum, the Circus has not met its burden to show by a preponde rance of the evidence that the amount in controversy between the Circus and Ms. Sloan is g reater than $75,000. Its claims about the amount of statutory d amages, attorney’s fees, and pun itive damages are all speculative and unsupported. The Circus also i nappropriately aggregates cla ss-wide attorney’s fees and class-wide punitive damages in its assertions. On this record, the Court can find just $16,000 in controversy between Ms. Sloan a nd the Circus—an amount far less than the $75,000 threshold required to establish this Court’s jurisdiction under 28 U.S.C. § 1332(a). See supra Part VI.E. Accordingly, § 1332(a) does not allo w the Court to adjudicate this action. Hence, the Circus’s only hope is to demonstrate this Court’s jurisd iction under ano ther statutory grant of jurisdiction.

VII. CAFA JURISDICTION UNDER 28 U.S.C. § 1332(d) In its opposition to Ms. Sloan’s M otion to Remand, the Circus m oved under 28 U.S.C. § 1653 to amend its Notice of Remova l to plead an aggregate amo unt in controversy “in excess24 of $5,000,000.” Def.’s Mem. Opp’n Pl.’s Mot. Remand 10 n.5; see also 28 U.S.C. § 1653 (“Defective allegations of jurisdiction may be amended, upon te rms, in the trial or appellate courts.”). If more than $5,000,000 i s in controversy, then this case falls within the Court’s jurisdiction under 28 U.S.C. § 1332(d) , which was enacted as pa rt of the Class Action Fairness Act of 2005 (CAFA) 9 and which allows a removing party to aggregate the amount in c ontroversy to establish federal-court jurisdiction. See 28 U.S.C. § 1332(d)(2), (6); see also Standard Fire Ins. Co. v. Knowles , 133 S. Ct. 1345, 1348 (2013) (explaining that federal distric t courts have original jurisdiction over class actions in which the class has more than one hundred members, the parties are minimally divers e, and the aggregate amount in controversy exceeds $5,000,000). As an initial matter, the Circu s’s motion is improperly filed. See D.D.C. Local Civ. R. 7(i) (requiring a motion for l eave to file an amended pleading to be accompanied by an original of the proposed pleading as amended). The Court will, however, follow precedent in this district and entertain the Circus’s amended statement. See Breakman v. AOL, LLC , 545 F. Supp. 2d 96, 102 (2008) (citing 28 U.S.C. § 1653, a nd explaining that, “[f]i nding other issues dispositive,” the Court would entertain the defenda nt’s corrected statement of ci tizenship for its diversity jurisdiction analysis). As explained below, the Court fi nds that the Circus has not est ablished jurisdiction under 28 U.S.C. § 1332(d). See infra Parts VII.B–C. 10 The Court will therefore deny the Circus’s

9 Pub. L. No. 109-2, 119 Stat. 4 (2005) ( codified as amended at 28 U.S.C. §§ 1711–1715, 1332, 1453). 10 Ms. Sloan did not contend that the proposed class has fewer th an the one hundred members required for CAFA jurisdiction. See Reply Mem. Supp. Pl.’s Mot. Remand 6–7 (arguing that the Circus’s “pr oof” of the number of potential c lass members was “fatally defective,” but not that the num ber of potential class members was less than one hundred). See generally 28 U.S.C. § 1332(d)(5)(B ) (declaring CAFA jurisdiction inappli cable to class actions in which “the number of members of all proposed plaintiff class es in the aggregate is less than 100”).25 motion to amend as futile. See generally Ali v. Carnegie Inst. of Wash. , 309 F.R.D. 77, 87 (D.D.C. 2015) (explaining that anamended pleading is futile if it cannot withsta nd a dispositive motion).
A. The Dart Framework in the CAFA Context The Dart framework is applicable in the CAFA context to amount-in-contr oversy challenges to removal jurisdiction. See Dart Cherokee Basin Operating Co. v. Owens , 135 S. Ct. 547, 551–54 (2014) (articulating the fra mework within a case al leging CAFA jurisdiction). Thus, as before, the Circus must estab lish the requisite amount in co ntroversy by a preponderance of the evidence. Id. at 553–54. In the CAFA context, how ever, the requisite amount is greater—it must exceed $5,000,000—and class members’ claims are aggregated . 28 U.S.C. § 1332(d)(2), (6);
accord Dart , 135 S. Ct. at 551–52. In the removal context, two additional procedural differences e xist between cases invoking CAFA jurisdiction and ca ses invoking plain diversity j urisdiction. First, Dart eliminated in CAFA cases the ant iremoval presumption typically applied in diversity cases. Compare Dart , 135 S. Ct. at 554 (“[N]o antiremova l presumption attends case s invoking CAFA.”), with Zuckman v. Monster Beverage Corp. , 958 F. Supp. 2d 293, 297 (D.D.C. 2013) (“[T]he Court must resolve any a mbiguities concerning the propr iety of removal in favor of remand.” (internal quotation marks omitted) (quoting Johnson–Brown v. 2200 M Street LLC , 257 F. Supp. 2d 175, 177 (D.D.C. 2003))).

The Court therefore cons iders the point conceded. See generally Cefarrati v. JBG Props., Inc. , 75 F. Supp. 3d 58, 69 (D.D.C. 2014) (noting that when “a part y files an opposition to a motion and addresses only certa in arguments raised by the movan t, this court routinely treats the unaddressed arguments as conceded ” (internal qu otation mark omi tted) (quoting Inst. for Pol’y Studies v. U.S. Cent. Intelligence Agency , 246 F.R.D. 380, 386 n.5 (D.D.C. 2007))). Accordingly, the Court’s analysis below is limited to whether this case has the aggregate amount in controversy required for CAFA jurisdiction.26 Second, Congress eliminated in CAF A cases the one-year deadline to remove typically applied to diversity cases. See 28 U.S.C. § 1453(b) (“[T]he 1-y ear limitation under section 1446(c)(1) shall not apply . . . .”); see also id. § 1446(c)(1) (“A case may not be removed . . . on the basis of jurisdiction conf erred by section 1332 more than 1 year after commencement of the action . . . .”); Dudley v. Eli Lilly & Co ., 778 F.3d 909, 912 (11th Cir. 2015) ( explaining that “a CAFA defendant who fails to meet hi s burden for removal at the early stages of litigation may still have recourse to the federa l courts later, after a fuller record has been developed in discovery in the state court”). Despite these new considerations, the Dart framework still places the burden to establish federal-court jurisdiction on the party seeking removal. See McMullen v. Synchrony Bank , 82 F. Supp. 3d 133, 138 (D.D.C. 2015) (explai ning, while describing C AFA jurisdiction, that “[t]he party supporting removal bears th e burden of establishing the C ourt’s jurisdiction”); see also Woods v. Standard Ins. Co. , 771 F.3d 1257, 1262 (10th Cir. 2014) (same ). The Circus must therefore show that the aggregat e amount Ms. Sloan’s class acti on puts in controversy is greater than $5,000,000. And even though the C ourt may not apply an ant iremoval presumption, the Circus must still prove the a ggregate amount in controversy by a preponderance of the evidence.
Dart , 135 S. Ct. at 553–54. B. Aggregated Statutory Damages 28 U.S.C. § 1332(d)(6) declares tha t “the claims of the individ ual class members shall be aggregated to determine whether the matter in controversy excee ds . . . $5,000,000.” Thus, as a threshold matter, the Circus mu st identify the claims to be agg regated. See, e.g. , Ibarra v. Manheim Invs., Inc. , 775 F.3d 1193, 1198–99 (9th Cir. 2015) (describing the defend ant’s amount-in-controversy calculati on and rejecting it largely because it imprecisely defined the27 claims to be aggregated). The C ircus, however, f ails to identif y claims that correspond to the proposed class described in Ms. S loan’s complaint. Its assumpti ons on this issue create bedrock uncertainties that ultimately defeat the Circus’s efforts to es tablish CAFA jurisdiction. Ms. Sloan’s proposed class includ es “all residents of the Distr ict who, in the last three years, purchased tickets to [the Circus’s] shows because of [th e Circus’s] unlawful trade practices.” Class Action Compl . ¶ 12. Elsewhere in her complain t, Ms. Sloan alleged that the Circus’s “unlawful trade pract ices” took the form of communicat ions that made false and misleading statements to the public. Id. ¶¶ 10, 90–91, 98. Under the class definition, therefore, class members must meet at leas t seven conditions: (1) they mus t be District of Columbia residents, (2) they must have vi ewed a Circus communication, (3 ) the Circus communication they viewed must have been one Ms. Sloan alleged is unlawful, ( 4) the class members must have bought Circus tickets, (5) they must have bought those tickets in the three years before Ms. Sloan filed her complaint, (6) they m ust have bought those tickets after viewing the allegedly unlawful communication, and (7) they mus t have bought those tickets because of the allegedly unlawful communication. The Circus, however, failed to gra pple with the nuances of Ms. Sloan’s class definition. Instead, it defined the claims it aggregated based on just the number of ticket purchasers from the District of Columbia in the thr ee-year period referenced in the complaint. Def.’s Mem. Opp’n Pl.’s Mot. Remand 20. The Circus , using location da ta it has fo r forty-six percent of ticket purchasers during that three-y ear period, asserted that it sold at least 11,470 ticke ts to District residents. Id. Because the Circus’s records show ed that the average purchaser bought 4.3 tickets, the Circus divided 11,470 by 4.3 to obtain “a minimum potential class size of 2,667 members.”
Id. From there, the Circus multiplied 2,667 by six (the number of CPPA “violations” the Circus28 assumed Ms. Sloan alleged for each ticket purchase) and then ag ain by $1,500 (the statutory damages per “violation”) to obt ain an aggregate amount in contr oversy of $24,003,000. See id. at 20–21. Because the Circus did not incor porate all of the elements of M s. Sloan’s class definition, however, this calculation is unpers uasive from the very beginni ng. When the Circus estimated that 2,667 District residents woul d be class members, it did so solely on the basis of their (1) residency and their (2) ticke t purchase in (3) the last thr ee years. It erroneously included people who, for instance, bought tic kets without ever viewing aCircus communication; bought tickets after viewing a Circu s communication, but not one that was allegedly unlawful; or bought Circus tickets, but not because of viewing an allegedly unlawful Circus communication. For these reasons, the Circus’s 2,667 figure is likely too large. G iven such a shaky foundation for the rest of the Circus’s calcul ation, the Circus’s $24,003,000 esti mated amount in controversy is exceptionally speculative. As this Court has already not ed, “jurisdiction cannot be based on probabilities, surmise or guesswork.” Wexler v. United Air Lines, Inc. , 496 F. Supp. 2d 150, 154 (D.D.C. 2007) (internal quotation marks omitted) (quoting Hohn v. Volkswagen of Am., Inc. , 837 F. Supp. 943, 945 (C.D. Ill. 1993)). To be sure, in the CAF A context, the Court may not resolve ambiguities in favor of remand. Dart Cherokee Basin Operating Co. v. Owens , 135 S. Ct. 547, 554 (2014). But even in the CAFA context, unsupported sp eculations cannot serve as the foundation for this Court’s jurisdiction. As the N inth Circuit has explained, “CAFA’s requi rements are to be tested by consideration of real evidence and the reality of what is at st ake in the litigation, using reasonable assumptions underlyi ng the defendant’s theory of dam ages exposure.” Ibarra v. Manheim Invs., Inc. , 775 F.3d 1193, 1198 (9th Cir. 2015). And though a damages ass essment29 “may require a chain of reasoning that includes assumptions,” those assumptions “cannot be pulled from thin air but need some reasonable ground underlying them.” Id. at 1199; see also,

e.g. , Dudley v. Eli Lilly & Co. , 778 F.3d 909, 915–16 (11th Cir. 2014) (a ffirming the district court’s finding that the defenda nt failed to establish the amount in controversy, given that the defendant “erroneously assumed tha t all former [Fixed Duration Employees] were eligible for all benefits and damages, without o ffering any proof as to this poi nt”). Here, the Circus’s calculations do not reflect “the reality of what is at stake in the litigation.” Ibarra , 775 F.3d at 1198. As explained above, t he Circus aggregated a n inflated set of claims because it incl uded claims of ticke t purchasers to whom Ms. Sloan’s class definition may not extend. Furthermore, the Cir cus assumed without justificati on that multiple CPPA violations, in connection with a sin gle purchase, mean that a consumer can receive multiple $1,500 statutory damages awards. See Def.’s Mem. Opp’n Pl.’s Mot. Remand 20–21; see also supra Part VI.C (explaining why this assumption i s improper). Because the Circu s’s claims about the aggregate statutory damages in this cas e are speculative and unsupported, the Circus has failed to establish the amount of aggregated statuto ry damages in controversy by a preponderance of the evidence. 11 C. Aggregated Attorney’s Fees, P unitive Damages, and Injunctiv e Relief In its arguments about CAFA jur isdiction, the Ci rcus has not pr esented arguments or evidence about attorney’s fees , punitive damages, or injunctive relief. See Def.’s Mem. Opp’n

11 The Circus also noted that, because it has residency data for only forty-six percent of the tickets it sold to its shows in the District of Columbia ar ea, the amount in controversy could be “at least $53,100,000.00,” taking a ll tickets sold to its D. C. shows into account. Def.’s Mem. Opp’n Pl.’s Mot. Remand 21 n.10. Because this calculation uses the same faulty assumptions used for the Circus’s $24,003,000 figure, see id. , the Circus has also fai led to establish its $53,100,000 figure by a preponderance of the evidence.30 Pl.’s Mot. Remand 18–21. The Court therefore deems these argume nts waived. See Johnson v.
Panetta , 953 F. Supp. 2d 244, 250 (D.D.C. 2013). But for the reasons s et forth previously concerning plain diversity jur isdiction, any assertions on thes e issues with respect to CAFA jurisdiction would fail as well. * * * Just as the Circus did not estab lish the requisite amount in co ntroversy for diversity jurisdiction under 28 U.S.C. § 1332(a) , the Circus likewise did not establish the requisite amount in controversy for CAFA jurisd iction under 28 U.S.C. § 1332(d). Its aggregated statutory damages estimate is far too speculative, and it failed to make arguments about additional sources of the amount in controversy. B ecause the Circus’s CAFA argumen ts are futile and would not alter this Court’s l ack of jurisdiction over Ms. Sloan’s suit, the Circus’s motion to amend its Notice of Removal is denied.

CONCLUSION Because this case does not fall w ithin the Court’s jurisdiction under either 28 U.S.C. § 1332(a) or 28 U.S.C. § 1332(d), it mu st be remanded to the Su perior Court of the District of Columbia. Accordingly, Ms. Sloan’s motion to remand (ECF No. 11 ) is GRANTED , the Circus’s motion to dismiss (ECF No. 7) is DENIED AS MOOT , Ms. Sloan’s motion for class certification (ECF No. 13) is DENIED AS MOOT , and the Circus’s motion for a protective order (ECF No. 20) is DENIED AS MOOT . An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: December 18, 2015 RUDOLPH CONTRERAS United States District Judge