PITTSBURGH – A pair of Pennsylvania residents who filed a class action lawsuit against Chipotle Mexican Grill, claiming that the chain restaurant fails to provide proper amounts of change to its customers in exchange for purchased food, are now seeking to remand their case from a federal court to state court.
Megan Fox and Bridget McMahon of Allegheny County (on behalf of themselves and all others similarly situated) first filed suit in the Allegheny County Court of Common Pleas on Aug. 20 versus Chipotle Mexican Grill, Inc. (doing business as “Chipotle”) of Newport Beach, Calif.
“On Aug. 13, 2020, plaintiff Fox entered the Chipotle store in Wexford, Pennsylvania, ordered a steak burrito for $8.72 and tendered a $20 bill to the cashier. Consistent with what is believed to be defendant’s corporate policy, the defendant’s representative accepted the tender of $20, and handed Fox a receipt, her order and $11 change. The Chipotle receipt showed change due to Fox of $11.28, which was not the amount returned to her by Chipotle,” the suit said.
“On Aug. 18, 2020, plaintiff McMahon entered the Chipotle store in Allison Park, Pennsylvania, to purchase prepared food to go. Plaintiff’s total purchase was $15.51. To pay for the purchase, plaintiff tendered cash in the form of a $20 bill. The defendant’s cashier accepted the tender. After plaintiff McMahon’s order was prepared and bagged, the defendant’s cashier did not return the $4.49 in change indicated on the receipt. Instead, Chipotle returned only $4.00 to plaintiff, thereby converting $0.49 without providing a credit or other compensation to plaintiff.”
The named plaintiffs said they, and others just like them, were the victims of Chipotle pocketing and misappropriating funds belonging to the consumer for Chipotle’s financial benefit, rather than either (a) giving the correct amount of change, (b) rounding the purchase price down to benefit the consumer, or (c) giving the consumer credit toward a future purchase to offset the loss to the consumer.
“The actual price charged by Chipotle for food purchased is different, and more than the advertised price of the food. Moreover, the receipts provided to plaintiffs Fox and McMahon deceptively indicated that the plaintiffs, had, in fact, received change of more than they were actually given, thus covering up evidence of Chipotle’s improper actions,” the suit said.
UPDATE
On Sept. 25, Chipotle filed a notice of removal to bring the case to the U.S. District Court for the Western District of Pennsylvania, citing diversity grounds pursuant to the Class Action Fairness Act of 2005 (CAFA) and the amount in controversy, which could total more than $5 million.
However, the plaintiffs filed a counter-motion to remand the case on Sept. 29, arguing that Chipotle’s removal notice was filed in an untimely fashion.
Per a specific tenet of the statute under which the case was removed, the plaintiffs cited the following:
“The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.”
However, the removal notice was filed one day after the 30-day deadline passed and the plaintiffs argue it was thus grounds for the case to be remanded.
“Because the 30-day requirement is ‘mandatory’ and ‘cannot be extended’, plaintiffs respectfully move this Honorable Court to remand this case to the Allegheny County Court of Common Pleas,” the plaintiffs’ remand motion stated.
For counts of misappropriation and conversion, unfair trade practices, breach of contract/unjust enrichment and injunction, the plaintiffs are seeking an injunction preventing Chipotle from refusing to provide correct change to customers who tender cash as a form of payment for Chipotle’s goods or services, requiring Chipotle to provide a credit to their customers in those circumstances and for it to not market goods towards non-credit card paying-customers at a higher price than it does for credit card customers. The plaintiffs also request a trial by jury.
The plaintiffs are represented by Frank G. Salpietro of Rothman Gordon, in Pittsburgh.
The defendants are represented by Lindsey C. Kennedy of Eckert Seamans Cherin & Mellott in Pittsburgh, Elizabeth Bulat Turner and Robert Jennings Mollohan Jr. of Martenson Hasbrouck & Simon, in Atlanta, Ga.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-01448
Allegheny County Court of Common Pleas case GD-20-008917
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com