Chipotle Timely Removed Dollar-Shorting Case, Judge Says

By Khorri Atkinson
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Law360 (February 24, 2021, 10:28 PM EST) -- A proposed class of consumers suing Chipotle Mexican Grill for allegedly pocketing the change from cash-paying customers lost their bid to kick the case back to Pennsylvania state court after a federal judge rejected claims that the restaurant chain missed the removal deadline.

In a 12-page order Tuesday, U.S. District Judge William S. Stickman IV faulted the consumers for choosing to serve the California-based restaurant via certified mail last August. This method, the judge found, had caused a delay in Chipotle even knowing it was being sued due to office closures amid the COVID-19 pandemic.

According to the order, discovery in the case revealed that Eduardo Marcias, a contract security guard, had signed for the mailing on Aug. 25 at the company's Newport Beach headquarters in the Golden State.

Marcias had told the court in sworn testimony that he temporarily filled in as security guard on the day the mail arrived, and that no one else was present at the office because of the pandemic.

Judge Stickman agreed with Chipotle that the company didn't miss the 30-day window when it sought to remove the case to federal court on Sept. 25. The judge ruled that "Chipotle did not authorize Marcias to accept the legal process" on the company's behalf, and neither did the plaintiffs meet their burden in establishing that he was Chipotle's authorized agent.

Chipotle had argued that the clock started ticking on Aug. 27, the day the sheriff in Allegheny County served the suit the customers lodged on Aug. 19 in the Court of Common Pleas in Allegheny County, Pennsylvania.

Representatives for the parties did not immediately reply Wednesday to requests for comment on the order. The proposed class filed its motion to remand in September. 

The suit alleged that customers visiting two different Chipotle locations outside Pittsburgh in August paid for their purchases with cash, but the restaurants rounded their bills up and kept the change.

Customer Bridget McMahon said she made a purchase of $15.51 at a Chipotle in Allison Park and paid with a $20 bill, but only got $4 in return. Megan Fox made a purchase at a location in Wexford for $8.72 and, after giving the cashier a $20 bill, was only given $11 in change.

Though the suit did not directly mention a coin shortage that the U.S. Treasury linked to the COVID-19 pandemic in June, the customers' attorney, Frank G. Salpietro of Rothman Gordon PC, had told Law360 that the pandemic "doesn't give Chipotle the license to line its own pockets at the expense of consumers."

The customers are represented by Frank G. Salpietro of Rothman Gordon PC.

Chipotle is represented by Lindsey C. Kennedy of Eckert Seamans Cherin & Mellott LLC.

The case is Fox et al. v. Chipotle Mexican Grill Inc., case number 2:20-cv-01448, in the U.S. District Court for the Western District of Pennsylvania.

--Additional reporting by Craig Clough and Matthew Santoni. Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

FOX et al v. CHIPOTLE MEXICAN GRILL, INC.


Case Number

2:20-cv-01448

Court

Pennsylvania Western

Nature of Suit

Personal Property: Other

Judge

William S. Stickman

Date Filed

September 25, 2020

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