HARDY-GERENA v. OP2 LABS, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GIORDANO HARDY-GERENA,
Plaintiff,
v.
OP2 LABS, LLC, d/b/a Frog Fuel,
Defendant.
Case No. 25-cv-3510 (CRC)
MEMORANDUM OPINION AND ORDER
Plaintiff Giordano Hardy-Gerena alleges that Defendant OP2 Labs, LLC, d/b/a Frog Fuel
(“Frog Fuel”), violated the D.C. Consumer Protection Procedures Act (“DCCPPA”) by falsely
advertising the protein content in one of its dietary supplement products. Invoking the
DCCPPA’s “private attorney general” provisions, Hardy-Gerena seeks damages, attorneys’ fees,
and an injunction barring Frog Fuel from selling the product in the District of Columbia until it
corrects the product’s label and marketing materials. He filed this lawsuit in the Superior Court
of the District of Columbia, but Frog Fuel timely removed the case to this Court based on
diversity jurisdiction. Hardy-Gerena now moves to remand the case, arguing that it must hop
back to the D.C. Superior Court pond because the amount-in-controversy requirement is not met.
Concurring, the Court will grant Hardy-Gerena’s motion and remand the case.
I. Background
Frog Fuel sells Daily Recovery Protein, a “ready-to-drink dietary supplement.” Compl.
¶ 1; see also First Declaration of Alexander Kunz (“First Kunz Decl.”) ¶ 4. According to Hardy-
Gerena’s complaint, Frog Fuel advertises that Daily Recovery Protein is “the most advanced
protein engineered to support rapid recovery of muscles and connective tissue” and “100%
digestible in <15min.” Compl. ¶¶ 1, 19. The product’s nutrition label states that it contains 15
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grams of protein per serving and 22 amino acids. Id. Hardy-Gerena alleges that these claims are
“misleading” because Daily Recovery Protein contains collagen protein, which “does not
function or provide the same benefits as a ‘complete’ protein.” Id. ¶ 1. He claims that unlike
collagen protein, a “complete” protein has “all nine essential amino acids . . . that the body does
not produce on its own and at levels at or above levels of reference standard.” Id.
Hardy-Gerena purchased Daily Recovery Protein and another Frog Fuel product from
Amazon in June 2025. Id. ¶ 23. Through “third-party testing,” he purportedly discovered that
Daily Recovery Protein only contains 13.4 grams of protein per serving, not the 15 grams per
serving that Frog Fuel advertised. Id. ¶ 5. Thus, Hardy-Gerena says, Frog Fuel’s labeling and
marketing materials are again “misleading.” Id. ¶ 7.
Accordingly, Hardy-Genera filed this lawsuit in D.C. Superior Court pursuant to the
DCCPPA’s private attorney general provisions. See id. ¶ 26 (citing D.C. Code § 28–
3905(k)(1)(B)). He alleges that by advertising “an inaccurate amount of protein,” Frog Fuel’s
sale of Daily Recovery Protein was “unfair” and deprived the public of the right to truthful
information about consumer goods. Id. ¶¶ 36–39. His complaint seeks statutory damages,
punitive damages, attorneys’ fees, and an injunction barring Frog Fuel “from selling [Daily
Recovery Protein] in the District of Columbia until its label and marketing materials give truthful
information about the protein content[.]” Id. ¶ 40.
After being served with a copy of the complaint, Frog Fuel removed the case pursuant to
this Court’s diversity jurisdiction. See Notice of Removal ¶¶ 3–4 (citing 28 U.S.C.
§§ 1332(a)(1), 1441(a)). Frog Fuel submits that the parties are diverse and the amount-in-
controversy requirement is satisfied because it would cost more than $500,000 to comply with
the requested injunction. See id. ¶¶ 12–16; First Kunz Decl. ¶¶ 6–11. Hardy-Gerena now moves
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to remand the case to the D.C. Superior Court, asserting that Frog Fuel’s cost-of-compliance
calculation violates the non-aggregation principle, which prohibits the aggregation of claims by
multiple plaintiffs in assessing whether the amount-in-controversy requirement for diversity
jurisdiction has been satisfied. The motion to remand is fully briefed.
II. Legal Standards
A defendant generally may remove a case to federal court if it falls within the federal
court’s original jurisdiction. See 28 U.S.C. § 1441(a); District of Columbia v. Exxon Mobil
Corp., 89 F.4th 144, 148 (D.C. Cir. 2023). If the plaintiff moves to remand the case, the
removing party bears the burden of establishing the Court’s jurisdiction. Jenkins v. District of
Columbia, 79 F. Supp. 3d 265, 267 (D.D.C. 2015) (Cooper, J.). This Court “strictly construes
removal status because of federalism concerns,” and the Court “must resolve any ambiguities
concerning the propriety of removal in favor of remand.” Johnson-Brown v. 2200 M St. LLC,
257 F. Supp. 2d 175, 177 (D.D.C. 2003); see also Witte v. Gen. Nutrition Corp., 104 F. Supp. 3d
1, 3 (D.D.C. 2015) (“[A]ny doubts about the existence of subject matter jurisdiction are to be
resolved in favor of remand.”). “When it appears that a district court lacks subject matter
jurisdiction over a case that has been removed from a state court, the district court must remand
the case[.]” Republic of Venezuela v. Philip Morris Inc., 287 F.3d 192, 196 (D.C. Cir. 2002)
(citing 28 U.S.C. § 1447(c)).
III. Analysis
Hardy-Gerena asserts that the case must be remanded to D.C. Superior Court because this
Court lacks subject matter jurisdiction. Federal district courts have subject matter jurisdiction
over a civil action if “the matter in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a). There
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is no dispute that Hardy-Gerena and Frog Fuel are citizens of different states, see Compl. ¶¶ 13,
15; Notice of Removal ¶¶ 5–8, so the only remaining issue is whether the amount in controversy
exceeds $75,000.
According to Frog Fuel, the amount in controversy “clearly exceeds” this jurisdictional
threshold because the relief that Hardy-Gerena seeks—including statutory damages, attorneys’
fees, and an injunction requiring Frog Fuel to repackage and relabel its inventory—would cost
more than $500,000. Such an assertion “should be accepted when not contested by the plaintiff
or questioned by the court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81,
87 (2014). But since Hardy-Gerena disputes Frog Fuel’s contention, removal is only proper if
the Court finds by a preponderance of the evidence that the amount in controversy exceeds
$75,000. See id. at 88 (citing 28 U.S.C. § 1446(c)(2)(B)). Both parties may submit evidence,
including affidavits and declarations, to support their respective positions. See Gardner v. Erie
Ins. Co., 639 F. Supp. 3d 135, 140 (D.D.C. 2022). As noted above, Frog Fuel bears the burden
of establishing that the amount-in-controversy requirement is satisfied. See Organic Consumers
Ass’n v. R.C. Bigelow, Inc., 314 F. Supp. 3d 344, 352 (D.D.C. 2018) (citation omitted).
To determine whether there is a sufficient amount in controversy, the Court will consider
Hardy-Gerena’s claims for statutory damages, injunctive relief, and attorneys’ fees.1 The Court
1 Hardy-Gerena’s complaint also seeks punitive damages. See Compl. ¶ 39. But “the
mere possibility of a punitive damages award is insufficient to prove that the amount in
controversy requirement has been met.” Apton v. Volkswagen Grp. of Am., Inc., 233 F. Supp.
3d 4, 14 (D.D.C. 2017) (citation omitted). In any event, Frog Fuel has not explained—let alone
demonstrated—why a punitive damages award in this case would be large enough to satisfy the
amount-in-controversy requirement. See id. (declining to consider punitive damages when
assessing the amount in controversy because the defendants did not show that punitive damages
applied or would exceed the jurisdictional threshold); Breakman v. AOL LLC, 545 F. Supp. 2d
96, 106–07 (D.D.C. 2008) (applying the non-aggregation principle to a defendant’s speculative
claim that a “lump sum punitive damages award” would exceed $75,000).
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assumes that the amounts sought for each form of relief should be added together. See Zuckman
v. Monster Beverage Corp., 958 F. Supp. 2d 293, 297 (D.D.C. 2013). If the total “is at or below
$75,000, the action lies outside the Court’s diversity jurisdiction.” Id.
A. Statutory Damages
Hardy-Gerena first seeks statutory damages on his own behalf “[a]s a result of [Frog
Fuel’s] unfair and deceptive trade practice.” Compl. ¶¶ 12, 39. A prevailing DCCPPA plaintiff
“may recover or obtain . . . [t]reble damages, or $1,500 per violation, whichever is greater[.]”
D.C. Code § 28–3905(k)(2)(A)(i).2 To be sure, parties occasionally dispute what constitutes a
“violation” under this provision. See, e.g., Sloan v. Soul Circus, Inc., No. 15-cv-1389 (RC),
2015 WL 9272838, at *8 (D.D.C. Dec. 18, 2015) (acknowledging that “existing law is not
conclusive” but indicates that DCCPPA statutory damages flow from each purchase made
because of a deceptive advertisement rather than each instance in which the plaintiff viewed the
advertisement); Zuckman, 958 F. Supp. 2d at 299 (noting that the complaint was ambiguous as to
whether the plaintiff sought statutory damages for each instance in which he viewed the
allegedly-misleading advertisements). But in this case, Frog Fuel asserts that Hardy-Gerena’s
statutory damages would be $1,500 based on his one-time purchase of Daily Recovery Protein.
See Notice of Removal ¶ 17, Compl. ¶ 23. Because Hardy-Gerena does not dispute this figure,
the Court will use it when calculating the amount in controversy. Still, “more is needed to get
over the $75,000 hump.” Food & Water Watch v. Smithfield Foods, Inc., No. 21-cv-2065
(CRC), 2021 WL 8821537, at *2 (D.D.C. Dec. 6, 2021).
2 Neither party claims that treble damages in this case would exceed $1,500. Hardy-
Gerena purchased a bundle of two Frog Fuel products for $43.20. See Compl. ¶ 23.
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B. Injunctive Relief
Hardy-Gerena next seeks an injunction “on behalf of the general public” that would bar
Frog Fuel from selling Daily Recovery Protein in D.C. “until its label and marketing materials
give truthful information about [its] protein content[.]” Compl. ¶ 40. Frog Fuel insists that it
would cost over $500,000 to repackage and relabel its inventory of Daily Recovery Protein, so
the amount in controversy plainly exceeds $75,000. See Notice of Removal ¶¶ 12–16, 19; Def.’s
Opp’n to Pl.’s Mot. to Remand for Lack of Subject Matter Jurisdiction (“Opp’n”) at 5–7, 10–11.
To resolve Hardy-Gerena’s motion to remand, the Court assumes that (1) the cost of complying
with the requested injunctive relief may be considered when assessing the amount in
controversy, see R.C. Bigelow, 314 F. Supp. 3d at 348–49, and (2) Frog Fuel accurately
estimates the cost of compliance, see Pl.’s Mot. to Remand for Lack of Subject Matter
Jurisdiction (“Mot. to Remand”) at 4 (asserting that the amount in controversy is not met “[e]ven
if” the Court accepts Frog Fuel’s calculations). “The Court makes those assumptions because,
even drawing such inferences in favor of [Frog Fuel], the amount-in-controversy requirement has
nonetheless not been met here.” Earth Island Inst. v. BlueTriton Brands, 583 F. Supp. 3d 105,
109 (D.D.C. 2022).
As Hardy-Gerena correctly notes, Frog Fuel’s notice of removal “ignores the non-
aggregation principle entirely[.]” Mot. to Remand at 5. Under that principle, a party may not
aggregate “separate and distinct claims of two or more plaintiffs . . . in order to satisfy the
jurisdictional amount requirement” under 28 U.S.C. § 1332(a). Earth Island Inst., 583 F. Supp.
3d at 109 (quoting Snyder v. Harris, 394 U.S. 332, 335 (1969)). In actions brought under the
DCCPPA’s private attorney general provisions, the “plaintiff and the members of the public he
represents have separate and distinct claims for relief[.]” Witte, 104 F. Supp. 3d at 6 (citing
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Nat’l Consumers League v. Flowers Bakeries, LLC, 36 F. Supp. 3d 26, 32 (D.D.C. 2014)). So
when a plaintiff seeks injunctive relief on behalf of himself and the general public, courts in this
district have routinely applied the non-aggregation principle. See, e.g., Earth Island Inst., 583 F.
Supp. 3d at 109–10 (collecting cases); Toxin Free USA v. J.M. Smucker Co., 507 F. Supp. 3d
40, 45 (D.D.C. 2020) (“Courts in this district have consistently held that defendants removing
DCCPPA actions ‘cannot rely on the total cost of compliance with the plaintiff’s requested
injunction to establish the amount-in-controversy” requirement of § 1332(a).’” (citation
omitted)); Smith v. Abbott Lab’ys, Inc., No. 16-cv-501 (RJL), 2017 WL 3670194, at *2 (D.D.C.
Mar. 31, 2017) (“[T]he overwhelming weight of authority within the District indicates that
defendants seeking to remove [DCCPPA] actions cannot rely on the total cost of compliance
with the plaintiff’s requested injunction to establish the amount-in-controversy[.]”). Put another
way, “the cost of compliance that a court should consider when determining the amount in
controversy is the total amount divided among the beneficiaries of the injunction.” Animal
Legal Def. Fund v. Hormel Foods Corp., 249 F. Supp. 3d 53, 60 (D.D.C. 2017).
While Frog Fuel’s cost of compliance with the requested injunction may well exceed
$500,000 in total, the relevant question is Frog Fuel’s cost of compliance per D.C. consumer.
See Earth Island Inst., 583 F. Supp. 3d at 110 (citing Inst. for Truth in Mktg. v. Total Health
Network Corp., 321 F. Supp. 3d 76, 91 (D.D.C. 2018)). Frog Fuel “does not even attempt” to
make this showing. Id. It does not identify the number of Daily Recovery Protein consumers in
the District. Nor does it provide data that would allow the Court to estimate the number of
consumers. And, as Hardy-Gerena correctly points out, “there would need to be [fewer] than
eight consumers of [Daily Recovery Protein] in the District of Columbia in order for [Frog Fuel]
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to reach the required amount in controversy of $75,000.” Mot. to Remand at 6.3 In short, Frog
Fuel has not carried its burden of demonstrating “that the cost of the injunction divided pro rata
among the members of the general public of Washington, D.C. would exceed the jurisdictional
threshold.” Toxin Free USA, 507 F. Supp. 3d at 46 (quoting Animal Legal Def. Fund, 249 F.
Supp. 3d at 60–61).
Instead of engaging with the myriad cases applying the non-aggregation principle to
DCCPPA actions, Frog Fuel tries to swim against the current. It accuses Hardy-Gerena of
engaging in “artful pleading” by “deliberately styl[ing] his complaint to obscure the true scope of
his claims and avoid federal jurisdiction.” Opp’n at 5; see also id. at 6 (describing Hardy-
Gerena’s invocation of the DCCPPA’s private attorney general provisions as a “strategic
pleading tactic”), 7 (“[Hardy-Gerena] must not be permitted to hide from the fact that any
injunction issued in this Action would have consequences well beyond D.C.”).4 Rhetorical
flourishes aside, Frog Fuel does not cite any case law suggesting that a plaintiff cannot
“maneuver himself away from federal jurisdiction” by seeking injunctive relief on behalf of the
3 The data that Frog Fuel does provide cuts against its own argument. In opposing
Hardy-Gerena’s motion to remand, Frog Fuel asserts that it sold approximately $14 million of
Daily Recovery Protein in the United States in 2024. See Opp’n at 7; Second Declaration of
Alexander Kunz ¶¶ 4–5. It then claims that $28,128.61 (i.e., 0.2 percent of total sales) is
“attributable to D.C. consumers,” presumably because D.C. has approximately 0.2 percent of the
U.S. population. Even if the Court accepts this estimate, it strongly suggests that there are far
more than eight consumers of Daily Recovery Protein in the District. Accordingly, the cost of
compliance per D.C. consumer would be significantly less than the $75,000 threshold.
4 As evidence that Hardy-Gerena is “deliberately misleading” the Court about the impact
of his proposed injunction, Frog Fuel notes that his attorneys are “prepar[ing] to represent
another plaintiff in a class-action lawsuit in California” based on its claims about Daily
Recovery Protein. Opp’n at 6; see Second Declaration of Alexander Kunz, Ex. A. It is unclear
how a different plaintiff’s pre-suit notice regarding a proposed class-action lawsuit in California
has anything to do with whether Frog Fuel has demonstrated that the amount in controversy in
this case exceeds $75,000.
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general public. Id. at 6. Instead, the requested injunction appears to be “a straightforward
invocation of [Hardy-Gerena’s] rights to seek relief under the DCCPPA.” Reply in Supp. of
Pl.’s Mot. to Remand at 4; see D.C. Code § 28–3905(k)(1)(B) (providing that an individual may
bring an action under the DCCPPA “on behalf of both the individual and the general public”
(emphasis added)); Int’l Rts. Advocs. v. Mars, Inc., No. 24-cv-894 (RCL), 2025 WL 819580, at
*5 (D.D.C. Mar. 13, 2025) (“A plaintiff’s choice to invoke [the DCCPPA’s private attorney
general] provision, and thus bring about its attendant jurisdictional consequences, is not some
random accident of fate or act of nature; it is the exercise of a right conferred by representative
democratic processes, of the sort that courts must ordinarily respect.”).
Because Frog Fuel has not shown that the cost of repacking and relabeling its inventory
of Daily Recovery Protein would exceed $75,000 per D.C. consumer, it has not established that
diversity jurisdiction exists based on the requested injunctive relief. See Organic Consumers
Ass’n v. Handsome Brook Farm Grp. 2, LLC, 222 F. Supp. 3d 74, 78 (D.D.C. 2016) (Cooper,
J.).
C. Attorneys’ Fees
Hardy-Gerena’s complaint also seeks “reasonable attorneys’ fees.” Compl. ¶¶ 39–40.
Frog Fuel asserts that this request alone satisfies the amount-in-controversy requirement because,
in its estimation, the expected fees in this case would exceed $1.3 million. See Opp’n at 8–10.
This is too thin a lily pad to stand on.
First, Frog Fuel’s argument is premised on its assertion that “the entire amount of
attorneys’ fees and costs” should be “attributed solely” to Hardy-Genera. Id. at 8. In its view,
the non-aggregation principle is inapplicable because Hardy-Genera’s attorneys are “not doing
any additional work on behalf of the general public that [they are] not already doing for [him].”
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Id. Frog Fuel does not cite any case law for this proposition, perhaps because this Court and
several others in the district have routinely rejected similar arguments in DCCPPA cases. See,
e.g., Nat’l Consumers League v. Starbucks Corp., No. 24-cv-421 (AHA), 2025 WL 315141, at
*3 (D.D.C. Jan. 28, 2025) (“[C]ourts have explained that it is error to aggregate attorneys’ fees in
[DCCPPA] cases brought on behalf of the general public.”); Food & Water Watch, 2021 WL
8821537, at *3 (“Many courts in this district have applied [the non-aggregation] principle in
DCCPPA cases seeking relief on behalf of the general public[.]”); Zuckman, 958 F. Supp. 2d at
301 (“[T]he Court may consider only [the plaintiff’s] share of the total fees when calculating the
amount in controversy.”); Nat’l Consumers League v. Gen. Mills, Inc., 680 F. Supp. 2d 132, 141
(D.D.C. 2010) (“[L]ike aggregation of damages, aggregation of attorneys’ fees is not appropriate
in a [DCCPPA] case.”); Breakman, 545 F. Supp. 2d at 107 (“[A]ttorneys’ fees should be
apportioned among all of the consumer plaintiffs.”). Here too, Frog Fuel’s argument wilts in the
face of consensus.
Second, even if the Court attributed the attorneys’ fees in this case to Hardy-Gerena alone
(and ignored the non-aggregation principle), Frog Fuel’s estimation of $1.3 million in fees is
“too speculative.” Animal Legal Def. Fund, 249 F. Supp. 3d at 63. To arrive at this figure, Frog
Fuel cites the Laffey matrix and fee awards in three DCCPPA cases. See Opp’n at 8–9. But this
“cobbling together” of billing rates and hours expended in other cases is simply “not helpful to
the Court.” Animal Legal Def. Fund, 249 F. Supp. 3d at 63. Again, “[n]umerous courts have
held that a defendant’s conjecture regarding the possible amount of fees is inadequate to support
an assertion of diversity jurisdiction.” Breakman, 545 F. Supp. 2d at 107 (citation and internal
quotation marks omitted); see also Clean Label Project Found. v. Now Health Grp., Inc., No. 21-
cv-11 (JDB), 2021 WL 2809106, at *7 (D.D.C. July 6, 2021) (concluding that “[a] citation to the
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fee award in one prior DCCPPA case” and a “conclusory assertion” that the plaintiff’s litigation
expenses would exceed $75,000 “is too speculative to form a sufficient basis for establishing
diversity jurisdiction”); Animal Legal Def. Fund, 249 F. Supp. 3d at 63 (“Conclusory assertions
and rhetoric are not sufficient to satisfy Defendant’s burden to establish the amount in
controversy[.]”); Gen. Mills, 680 F. Supp. 2d at 140 (noting that the defendant’s “conservative
estimate” of attorneys’ fees amounted to “conclusory guesswork”).
Because Frog Fuel’s argument regarding attorneys’ fees is “speculative,” and any fees
would be “apportioned among all of the consumer plaintiffs,” they “do not factor in to the
amount in controversy required for diversity jurisdiction.” Breakman, 545 F. Supp. 2d at 107–
08.5 Accordingly, Frog Fuel has failed to carry its burden of establishing this Court’s subject
matter jurisdiction.
5 In any event, courts in this district are “not entirely comfortable with the premise that an
action should be retained in federal court where satisfaction of the amount in controversy
requirement depends upon a lump sum award of attorneys’ fees.” Breakman, 545 F. Supp. 2d at
107; see also R.C. Bigelow, Inc., 314 F. Supp. at 354 (same); Food & Water Watch, 2021 WL
8821537, at *3 (noting that “[a] long line of cases forecloses th[e] tactic of “lean[ing] on
attorneys’ fees to push the amount in controversy over the $75,000 threshold”).
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IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that [6] Plaintiff’s Motion to Remand for Lack of Subject Matter
Jurisdiction is GRANTED. It is further
ORDERED that the Clerk of the Court remand the above-captioned matter to the
Superior Court of the District of Columbia.
SO ORDERED.
CHRISTOPHER R. COOPER
United States District Judge
Date: May 29, 2026
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