White v. The Kroger Co.

Background

Phillip White filed this proposed class action against The Kroger Co. and other defendants. The complaint invoked the Class Action Fairness Act, a federal law that can provide federal jurisdiction over certain class actions. White moved under Federal Rule of Civil Procedure 41(a)(1)(2) to dismiss the action without prejudice, meaning he sought to end his claims while preserving the ability to bring them again.

White argued that discovery showed the damages potentially recoverable by the class did not satisfy the minimum amount required for jurisdiction under the Class Action Fairness Act. He also said that Kroger had engaged in persistent and escalating harassment and intimidation through subpoenas directed at him, his friends, his counsel, and his counsel’s family members.

Jurisdiction

The court held that White had not shown that dismissal for lack of federal jurisdiction was required. For a case filed originally in federal court, the plaintiff’s claimed amount controls if asserted in good faith, unless it appears to a legal certainty that the amount in controversy is below the jurisdictional threshold. The court found that White had not established that legal certainty, in part because the method for calculating any recovery based on a price premium remained unclear.

Requested conditions

Rule 41(a)(1)(2) allows a court to impose proper conditions on a voluntary dismissal. Kroger asked the court to require White to pay $225,528.25 in attorney fees and costs and to allow Kroger to complete third-party discovery concerning allegations that White’s counsel had used an unlawful scheme to obtain plaintiffs in this and other cases.

The court declined to impose those conditions. It distinguished a cited case in which a complaint’s theory had been found frivolous and the plaintiff’s counsel had been ordered to explain why fees should not be imposed. In this case, the court noted that Kroger’s motion to dismiss the complaint had been denied. Although the court said the claims might ultimately fail on their merits, it held that they could not reasonably be characterized as frivolous to support a fee award under Rule 11 or another basis. The court also questioned whether Kroger had a legally protectable interest in how White obtained counsel and held that continued discovery into those collateral issues was not an appropriate condition of dismissal.

Disposition

The court conditionally granted White’s motion to dismiss. The condition was that dismissal of White’s individual claims would be with prejudice, meaning those claims could not be brought again. The order would not take effect until July 7, 2023. Unless White filed a written election by that date to continue litigating instead of accepting dismissal with prejudice, the dismissal would take effect and the case would be closed without further notice or order.

The court also stated that, because no class had been certified, dismissal would not affect the claims of other proposed class members. The extracted opinion text additionally states that motions to seal were granted, but it does not identify those motions or explain their contents.