Melvin Wallace v. ConAgra Foods, Inc. , 747 F.3d 1025 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-1485
___________________________
Melvin Wallace; Shirley Hardt; Lewis Simpson; William Cobb; Erica
Davis-Holder; Rotem Cohen; Julian Wagner; Rose Wagner; Erin Stilwell; Maria
Eugenia Saenz Valiente; Adam Burnham, individually and on behalf of all others
similarly situated
lllllllllllllllllllll Plaintiffs - Appellants
v.
ConAgra Foods, Inc., doing business as Hebrew National, a Delaware corporation
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the District of Minnesota - Minneapolis
____________
Submitted: December 19, 2013
Filed: April 4, 2014
____________
Before RILEY, Chief Judge, WOLLMAN and LOKEN, Circuit Judges.
____________
RILEY, Chief Judge.
Melvin Wallace and several other named consumers (collectively, consumers)
claim some Hebrew National beef products are not, as the label reads, “100%
kosher.” Seeking to represent a class consisting of all Hebrew National buyers in the
United States over a multi-year period, the consumers sued Hebrew National’s parent
corporation, ConAgra Foods, Inc. (ConAgra), in Minnesota state court, alleging
numerous violations of state law.1 As their purchase and consumption of the Hebrew
National brand products was not motivated by faith, the consumers do not assert any
personal religious injury. Instead, the consumers aver ConAgra’s representations that
kosher is the “New Organic,” a promise of food purity amid other products full of
artificial ingredients, led them to pay an unjustified premium for Hebrew National’s
ostensibly kosher beef.
ConAgra first removed to federal court, invoking the Class Action Fairness Act
of 2005 (CAFA), 28 U.S.C. § 1453, then moved to dismiss under Federal Rule of
Civil Procedure 12(b)(1) and (6), contending the consumers lacked Article III
standing and the district court lacked jurisdiction to address religious questions
underlying the consumers’ claims. Without addressing standing, the district court
decided the First Amendment prohibits the courts from adjudicating the consumers’
legal claims and, without noting 28 U.S.C. § 1447(c), dismissed the case with
prejudice. The consumers appeal. Because the consumers lack traditional Article III
standing to pursue this case, we vacate the district court’s judgment, reverse the
prejudicial dismissal, and instruct the district court to remand this case to state court
as required by 28 U.S.C. § 1447(c).
I. BACKGROUND
A. Factual Allegations
The consumers premise their suit on the following allegations, which we accept
as true at this juncture. ConAgra manufactures Hebrew National meat products
(notably hot dogs) using beef slaughtered by AER Services, Inc. (AER). The
1
The consumers assert counts for negligence; violation of the Nebraska
Uniform Deceptive Trade Practices Act, Neb. Rev. Stat. § 87-301 et seq.; violation
of the Nebraska Consumer Protection Act, Neb. Rev. Stat. § 59-1601 et seq.;
violation of multiple other state consumer protection laws; and breach of contract.
-2-
slaughtering takes place in the facilities of another entity, American Foods Group,
LLC (AFG), which sells meat classified as kosher to ConAgra and sells any
remaining meat to third parties. AER employs the religious slaughterers who perform
the “shechitah” (i.e., the ritual slashing of the cow’s throat) along with the other
individuals responsible for marking particular meat as kosher. One such individual
is supposed to inspect the freshly slaughtered carcass while another examines the
lungs for signs of injury. If a lung cannot hold air because, for example, there is a
small perforation, the meat should be deemed non-kosher. A third party kosher
certification entity named Triangle K, Inc., nominally monitors whether AER, AFG,
and ConAgra comply with the kosher rules. Triangle K is a for-profit New York
company owned and run by Ayreh Ralbag, an orthodox rabbi.
ConAgra promotes these kosher requirements as a reason to purchase Hebrew
National products, which cost more than similar non-kosher competitors. As
American consumers sought purer foods prepared in accordance with strict safety
standards, the kosher food industry expanded by catering to non-religious consumers.
Like the consumers bringing this case, an increasing number of Americans chose to
pay more for Hebrew National’s supposedly kosher products based on ConAgra’s
representations that the kosher label was a guarantee of quality and superior taste.
Each Hebrew National package says the contents are “Made With Premium
Cuts of 100% Kosher Beef.” ConAgra says Hebrew National “answer[s] to a higher
authority” and sells only products that “meet a higher standard.” ConAgra reported
“[t]he Kosher trend is . . . gaining momentum as more people come to understand the
quality connection associated with the Kosher seal – which certifies both high-quality
ingredients and processes that meet strict Kosher standards.” Hebrew National’s
director of marketing declared “[f]oods like Hebrew National’s 100 percent kosher
beef franks give parents quality assurance and purity of ingredients they can trust.”
-3-
Yet, according to the consumers, “manufacturing quotas—not kosher
rules—are the deciding factor as to whether any batch of meat harvested at the AFG
slaughterhouses is ultimately designated as kosher or non-kosher.” Employees face
such pressure to meet a quota of approximately 70% for kosher meat that “the kosher
inspection process becomes defective and unreliable” and some “meat from cows that
should not qualify for kosher certification ends up being marked kosher and used in
Hebrew National products.”
B. Procedural History
This case began as a state class action filed in Minnesota state court. ConAgra
removed to federal court in the District of Minnesota, then moved for dismissal
pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). Although ConAgra
itself first invoked federal jurisdiction, ConAgra submitted that the federal district
court lacked subject matter jurisdiction because (1) the consumers’ claims were
“barred” by the First Amendment, and (2) the consumers lacked Article III standing.
The district court granted ConAgra’s motion under Rule 12(b)(1), reasoning the First
Amendment stripped the federal courts of subject matter jurisdiction over the
consumers’ state law claims. The district court believed that “the determination of
whether a product is in fact ‘kosher[]’ [is] intrinsically religious in nature,” so
adjudicating this case “would necessarily intrude upon rabbinical religious
autonomy.” Finding “it lack[ed] the requisite subject matter jurisdiction to preside
over th[e] dispute,” the district court dismissed the case with prejudice. The
consumers now appeal.
II. DISCUSSION
It is a foundational principle in our legal system, enunciated by Justice
Brandeis in a familiar concurrence, that courts must make every effort to avoid
deciding novel constitutional questions. See Ashwander v. TVA, 297 U.S. 288, 345-
47 (1936) (Brandeis, J., concurring). “It is not the habit of the court to decide
questions of a constitutional nature unless absolutely necessary to a decision of the
-4-
case.” Burton v. United States, 196 U.S. 283, 295 (1905) (emphasis added). A
corollary to Burton’s cardinal rule is that if a case may be resolved on easy and settled
constitutional grounds, the court should do so instead of deciding the case on difficult
and novel constitutional grounds. See, e.g., Ashwander, 297 U.S. at 346 (Brandeis,
J., concurring). “[C]ourts should think hard, and then think hard again, before turning
small cases into large ones.” Camreta v. Greene, 563 U.S. ___, ___, 131 S. Ct. 2020,
2032 (2011). Rather than rushing to decide a difficult First Amendment question of
first impression in this circuit, we begin with “the threshold jurisdictional question:
whether” the consumers “ha[ve] standing to sue.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 102 (1998).
A. Article III Standing
Considering the question de novo, see, e.g., Red River Freethinkers v. City of
Fargo, 679 F.3d 1015, 1022 (8th Cir. 2012), we conclude the consumers lack
traditional Article III standing.
1. Economic Injury in Fact
ConAgra initially argues the consumers lack Article III standing because they
suffered no “concrete and particularized injury.” According to ConAgra, the
consumers’ failure to allege “that they keep kosher” is fatal to their case. The
consumers retort that the factual injury they allege was pecuniary, not religious: they
claim to have “paid a premium price for a deceptively marketed product that failed
to meet the manufacturer’s guarantee.” On this point, ConAgra’s argument is little
more than a dispute over how best to read the consumers’ complaint in the light most
favorable to the consumers. If the consumers’ complaint is accepted as true, the
consumers may have paid too much for Hebrew National products based on
ConAgra’s misleading representations. When the alleged harm is “economic,” “the
‘injury in fact’ question is straightforward.” Hein v. Freedom From Religion Found.,
Inc., 551 U.S. 587, 642 (2007) (Souter, J., dissenting); accord, e.g., Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184 (2000) (holding
-5-
plaintiffs had standing because their “economic interests” were “directly affected”);
Ben Oehrleins & Sons & Daughter, Inc. v. Hennepin Cnty., 115 F.3d 1372, 1379 (8th
Cir. 1997) (concluding even “indirect” financial harm “constitutes an injury in fact”).
The consumers’ alleged economic harm—even if only a few pennies each—is a
concrete, non-speculative injury. ConAgra’s argument on this point must fail.
2. Particularized, Actual Injury in Fact
Yet ConAgra has another standing challenge—this one well founded.
ConAgra argues that even if the consumers would have overpaid if the Hebrew
National products they bought were not actually kosher, the consumers “have not
alleged that the products they each purchased were defective.” ConAgra analogizes
this to a product defect case in which some products are admittedly defective, but
most are not. The consumers’ allegations do not establish that all or even most
Hebrew National products were not kosher, which means the particular packages of
processed beef they purchased may have been—and indeed more than likely
were—prepared in accordance with minimum kosher standards.
Article III requires “an injury [to] be concrete, particularized, and actual or
imminent.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. ___, ___, 130 S. Ct.
2743, 2752 (2010) (emphasis added). An alleged injury cannot be “too speculative
for Article III purposes.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2
(1992). If there is no “actual” harm, then there must at least be an “imminent” harm.
Id. As the Supreme Court emphasized just last year, “mere speculation” that injury
did or might occur “cannot satisfy the requirement that any injury in fact must be
fairly traceable to” the alleged source. Clapper v. Amnesty Int’l USA, 568 U.S. ___,
___, 133 S. Ct. 1138, 1148 (2013).
The consumers’ allegations fail to show that any of the particular packages of
Hebrew National beef they personally purchased contained non-kosher beef. The
consumers frankly admit that “it is impossible for any reasonable consumer to detect”
-6-
whether purportedly kosher meat is non-kosher. Instead, the consumers pin their
Article III hopes on the allegation that they “paid a premium price for the Hebrew
National products purchased believing them to be 100% strictly kosher, when they
weren’t.” The consumers maintain this general allegation, that the non-kosher status
of some packages of beef tainted all Hebrew National’s products, means they “are not
required to allege the specific products or packages that failed to meet the represented
standard.” (Emphasis added).
The consumers’ argument is inconsistent with Article III. The Supreme Court
has made it clear that standing must be particularized, meaning the alleged “injury
must affect the plaintiff in a personal and individual way.” Lujan, 504 U.S. at 560
n.1 (emphasis added). In the context of defective products, “it ‘is not enough’ for a
plaintiff ‘to allege that a product line contains a defect or that a product is at risk for
manifesting this defect; rather, the plaintiffs must allege that their product actually
exhibited the alleged defect.’” In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d
604, 616 (8th Cir. 2011) (emphasis added) (quoting O’Neil v. Simplicity, Inc., 574
F.3d 501, 503 (8th Cir. 2009)).
Without any particularized reason to think the consumers’ own packages of
Hebrew National beef actually exhibited the alleged non-kosher defect, the consumers
lack Article III standing to sue ConAgra. Accepting the consumers’ various
allegations, it remains entirely possible, maybe probable, that the packages of beef
they personally purchased and consumed met the “strict” standards advertised by
ConAgra. Even supposing the 70% kosher quota meant some beef was improperly
certified as kosher, the consumers give no reason to think all the beef marked as
kosher under the quota did not meet kosher standards. As we cannot discern from the
complaint how many packages were tainted with non-kosher beef, it is unclear
-7-
whether even a bare majority of Hebrew National packages were not kosher.2 Which
means, it is pure speculation to say the particular packages sold to the consumers
were tainted by non-kosher beef, while it is quite plausible ConAgra sold the
consumers exactly what was promised: a higher quality, kosher meat product. Time
and again the Supreme Court has reminded lower courts that speculation and
conjecture are not injuries cognizable under Article III. See, e.g., Clapper, 568 U.S.
at ___, 133 S. Ct. at 1148.
3. Injury in Law
The consumers’ effort to distinguish their case from a mine-run product
liability case is unconvincing: “‘Ah, but this is not a products-liability case!’ So
plaintiffs respond.” In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1016 (7th Cir.
2002). The consumers “describe the injury as financial rather than physical and seek
to move the suit out of the tort domain and into that of contract (the [product] was not
the flawless one described and thus is not merchantable, a warranty theory) and
consumer fraud (on the theory that selling” beef products that might not be kosher,
“and thus worth less than represented, is fraudulent).” Id. at 1017. Article III cannot
be so easily fooled.
Viewing the consumers’ argument most charitably, the argument proceeds in
three steps. First, multiple states have created causes of action that do not require a
particularized showing of individual injury to recover. Second, Congress extended
federal jurisdiction to these causes of action under CAFA. Third, CAFA’s extension
of federal jurisdiction to these state causes of action means the consumers need only
2
For example, even if only half of all cows processed by AER and AFG met
kosher standards (meaning 20% of all cows were marked improperly) five out of
every seven cows marked as kosher would still be kosher. For most of the beef
labeled as kosher not to be kosher, in fact, one would have to assume fewer than 35%
of all cows processed by AER and AFG met kosher requirements—an assumption for
which there is no basis in the complaint.
-8-
show a bare statutory violation—injury in law rather than an injury in fact—to satisfy
Article III. Assuming the first step is correct (an assumption we make to avoid
unnecessary analysis of state law), we are not convinced by the consumers’ argument
at the other two steps.
To interpret CAFA as a congressional attempt to extend federal jurisdiction to
cases involving no injury in fact would force us to presume—without any basis in the
statutory text, see 28 U.S.C. § 1453, and in contradiction to long-settled constitutional
precedent, see, e.g., Lujan, 504 U.S. at 560—that Congress intended to stretch, if not
breach, the constitutional limits on federal jurisdiction. We never assume the
people’s elected representatives would so casually disregard the Constitution they
have sworn to uphold. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg.
& Constr. Trades Council, 485 U.S. 568, 575 (1988). To the contrary, recognizing
that “Congress is predominantly a lawyer’s body,” we “assume that our elected
representatives . . . know the law.” Albernaz v. United States, 450 U.S. 333, 341
(1981) (omission in original) (internal quotations omitted). Our “respect for
Congress” also leads us to “assume [Congress] legislates in the light of constitutional
limits.” Rust v. Sullivan, 500 U.S. 173, 191 (1991). For these reasons, “[w]ithout the
‘clearest indication’ that Congress intended to enact a constitutionally suspect
statute,” Union Pac. R.R. v. DHS, 738 F.3d 885, 893 (8th Cir. 2013) (quoting NLRB
v. Drivers Local 639, 362 U.S. 274, 284 (1960)), we “construe the statute to avoid
[constitutional] problems,” De Bartolo, 485 U.S. at 575.
The consumers’ jurisdictional theory presents a serious constitutional problem.
Article III, to be sure, vests Congress with significant authority over federal
jurisdiction. Congress can “elevat[e] to the status of legally cognizable injuries
concrete, de facto”—i.e., factual—“injuries that were previously inadequate in law,”
Lujan, 504 U.S. at 578, which means “[t]he actual or threatened injury required by
Art. III may exist solely by virtue of ‘statutes creating legal rights, the invasion of
which creates standing,’” Warth v. Seldin, 422 U.S. 490, 500 (1975) (quoting Linda
-9-
R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)). But Congress’ ability to do so
remains firmly circumscribed by Article III itself. See, e.g., Ass’n of Data Processing
Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154 (1970). As the Supreme Court said in
Lujan, “‘[Statutory] broadening [of] the categories of injury that may be alleged in
support of standing is a different matter from abandoning the requirement that the
party seeking review must himself have suffered an injury.’” 504 U.S. at 578(alterations in original) (emphasis added) (quoting Sierra Club v. Morton, 405 U.S.
727, 738 (1972)).
“[T]he requirement of injury in fact is a hard floor of Article III jurisdiction
that cannot be removed by statute.” Summers v. Earth Island Inst., 555 U.S. 488, 497
(2009) (emphasis added). Rather than confronting the difficult constitutional
question whether Congress can drill through this hard floor of injury in fact by
creating an injury in law (i.e., a statutory cause of action requiring no showing the
plaintiff was personally and actually harmed),3 “we follow ‘the traditional rule’ and
‘independently inquire whether there is another interpretation, not raising . . . serious
constitutional concerns, that may fairly be ascribed to [the statute].’” Union Pac., 738
F.3d at 893 (alteration and omission in original) (quoting DeBartolo, 485 U.S. at
577).
Congress clearly incorporated Article III’s traditional limits into CAFA. In
drafting the Act, Congress was not required to restate existing standing law, nor to
specify that Article III limited CAFA’s reach, because “Congress legislates against
3
This constitutional question recently reached the Supreme Court without
yielding an answer. See First Am. Fin. v. Edwards, 567 U.S. ___, ___, 132 S. Ct.
2536, 2536-37 (2012) (per curiam) (dismissing the writ of certiorari as improvidently
granted).
-10-
the background of . . . standing.” Bennett v. Spear, 520 U.S. 154, 163 (1997).4
Congress passed CAFA to “restore the intent of the framers of the United States
Constitution by providing for Federal court consideration of interstate cases of
national importance under diversity jurisdiction.” CAFA, Pub. L. No. 109–2,
§ 2(b)(2), 119 Stat. 4, 5 (2005) (emphasis added). This stated purpose is wholly
inconsistent with the notion Congress wished to reject Article III’s historic injury in
fact requirement. CAFA’s repeated reference to “cases” must be read to incorporate
the Supreme Court’s well-known explication of that word’s constitutional meaning.
See, e.g., Lujan, 504 U.S. at 560. We therefore hold CAFA does not purport to
extend federal jurisdiction to state claims—if any exist—permitting recovery for bare
statutory violations without any evidence the plaintiffs personally suffered a real,
non-speculative injury in fact.
Not only have the consumers failed to provide any basis to think the particular
packages they purchased were tainted, they affirmatively allege they could not
possibly tell if the packages were not kosher. Because the consumers suffered no
“particularized[] and actual” injury, Monsanto, 561 U.S. at ___, 130 S. Ct. at 2752,
we are bound to conclude the consumers lack traditional Article III standing and
CAFA does not extend federal jurisdiction to this case. See Clapper, 568 U.S. at ___,
133 S. Ct. at 1148; Zurn, 644 F.3d at 616.
B. Remedy
By a different route, we have reached the same conclusion as the district court:
the federal courts lack jurisdiction over this case. But this does not mean the district
court was correct in dismissing the case with prejudice. When it becomes clear a case
originally filed in federal court does not belong there because the plaintiffs lack
4
While Bennett expressly addressed prudential standing, the point is even more
applicable here, for unlike prudential standing, Article III standing cannot be
“negated” by Congress, “expressly” or otherwise. Bennett, 520 U.S. at 163; see, e.g.,
Camp, 397 U.S. at 154.
-11-
Article III standing, generally the appropriate remedy is to dismiss without prejudice.
See, e.g., Constitution Party of S.D. v. Nelson, 639 F.3d 417, 420 (8th Cir. 2011).
If, on the other hand, the case did not originate in federal court but was
removed there by the defendants, the federal court must remand the case to the state
court from whence it came. “If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall be remanded.” 28
U.S.C. § 1447(c) (emphasis added); see also 28 U.S.C. § 1453(c)(1) (specifying that,
with one inapplicable exception, § 1447 “shall apply to any removal of a case under
this section” (emphasis added)). These words, “on their face, give . . . no discretion
to dismiss rather than remand an action.” Int’l Primate Prot. League v. Adm’rs of
Tulane Educ. Fund, 500 U.S. 72, 89 (1991) (omission in original) (internal quotation
omitted) (reversing and remanding “with instructions that the case be remanded to the
[state court]”); see also, e.g., McGee v. Solicitor Gen. of Richmond Cnty., Ga., 727
F.3d 1322, 1326 (11th Cir. 2013). Because this case began in the First Judicial
District Court, Dakota County, Minnesota, that is where this case must return.5
III. CONCLUSION
We vacate the district court’s judgment, reverse the district court’s dismissal
with prejudice, and remand to the district court with instructions to return this case
to the Minnesota state court for lack of federal jurisdiction.
______________________________
5
Even if the district court were right that the First Amendment stripped the
federal courts of jurisdiction over this case, remand would still be the correct remedy
because § 1447(c) plainly applies to any lack of “subject matter jurisdiction,” not
merely one predicated on missing Article III standing.
-12-