Page 3
Putative Class Action Over Wet Wipes Labeling Fails to Meet Filing Threshold—Ninth Circuit
Opinion Says Despite Both Sides Arguing for Diversity Jurisdiction, Parties Have Failed to Show That Amount in Controversy Requirement Is Met in Case Involving Low-Cost Product
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that federal jurisdiction is lacking over a putative class action asserting, in claims under California laws, that Kleenex “germ removal wet wipes” bear deceptive labels that misled the plaintiffs into believing that the merchandise contained a germicide, not just soap, finding that the claimants failed to show that the amount in controversy meets the statutory threshold even if diversity of citizenship exists.
Suit was brought under California’s Consumers Legal Remedies Act, False Advertising Law, and Unfair Competition Law.
Writing for the court, Circuit Judge Milan D. Smith said the second amended complaint alleged neither diversity of citizenship nor the amount in controversy. He rejected the suggestion that judicial notice could be taken that the maker of the product, Kimberly-Clark, resides in Delaware and Texas based on the listing of offices in those states.
Siding with the Tenth Circuit and rejecting a contrary view of the Fifth Circuit, he declared:
“We…hold that plaintiffs may not avoid pleading jurisdiction by relying on judicial notice.”
Proposed Pleading
The plaintiffs—two residents of California and one consumer in Wyoming—were invited to move for leave to file a third amended complaint but, Smith said, the “Plaintiffs only succeeded in fixing the diversity-of-citizenship problem.”
The proposed pleading, he wrote, fails to reflect that the amount in controversy meets the requirements of 28 U.S. Code §1332. That statute requires that what is at stake “exceeds the sum or value of $75,000, exclusive of interest and costs” and that in class actions “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs.”
Smith said even taking into account that “California contains about 1/8 of the U.S. population,” assuming that each class member suffered damages of $1,000 and attorney fees were factored in, it could be said “to a legal certainty” that the minimum amount in controversy would not be reached.
“[W]e conclude that neither we nor the district court has subject-matter jurisdiction to hear this case,” the jurist wrote. “As a result, we vacate the judgment against Plaintiffs and remand with instructions to dismiss this case without prejudice.”
Senior Circuit Judge N. Randy Smith and Senior District Court Judge Douglas L. Rayes of the District of Arizona, siting by designation, joined in the opinion.
Defense Judgment
Yesterday’s decision followed an appeal of a judgment in favor of the defendant entered after Magistrate Judge Laurel Beeler of the Northern District of California granted of a motion to dismiss without leave to amend on Dec. 21, 2023, finding that [t]he labels here are not deceptive.”
She also said the court lacks jurisdiction over the Wyoming resident.
The case is Rosenwald v. Kimberly-Clark Corporation, 24-299.
Representing the plaintiffs was David M. Rosenberg-Wohl of the San Francisco-based Hershenson Rosenberg-Wohl APC. Kimberly-Clark was represented by Theodore J. Boutrous, Jr., Timothy W. Loose, Patrick J. Fuster, and Tin Le of the Los Angeles office of Gibson, Dunn & Crutcher LLP.
Copyright 2025, Metropolitan News Company