You Want to Remove under CAFA? In this Court, Like Rod Tidwell Says, You Better “Show Me the Money!”

Simenz v. Amerihome Mortgage Company, LLC, No. 07-C-601, 2007 WL 3129725 (E.D. Wis. Oct. 23, 2007).

Our favorite TV shows just haven’t been the same since the Hollywood writers returned from their strike. So, we have turned to movies when we are not writing for the CAFA Law Blog. We invite you relive some of your favorite movie moments with your favorite CAFA bloggers?

For this one, we’re turning to the one with that cute kid and a pre-couch-jumping Tom Cruise–Jerry Maguire. In this case, the Eastern District of Wisconsin remanded a case to state court where the defendant couldn’t show the court how that sometimes-elusive $5,000,000 amount in controversy was met.

You want to remove, you better show me the money! So while we’re telling you at the outset that the case was sent packing, don’t get downtrodden about it yet…we beg you to keep reading ‘til the end–take Laurel’s advice, “Don’t cry at the beginning of a date. Cry at the end, like I do.”

The plaintiff in this case filed his putative class action in Milwaukee County Circuit Court alleging that he, and others similarly situated, had been charged an illegal fee of $4 on their mortgage loans by the defendant. The complaint alleged that the mortgages at issue were secured by property within Wisconsin and that the class size was unknown but was believed to be at least 1,000. As far as damages, the complaint sought “twice the amount of the loan transaction, not to exceed $2,000 for each violation” or actual damages and punitive damages. The defendant removed the case under CAFA, but the judge determined it couldn’t show him where that $5,000,000 was.

The defendant multiplied the 1,000 class member approximation by $2,000 to get $2,000,000 and then stated there was a “possibility” that a punitive damages award of $3,000,000 could result, since an award of that amount wouldn’t be presumptively unconstitutional.

Alas, that was not enough to meet the “more likely than not” standard for establishing amount in controversy. Picture the court as Rod Tidwell: “If I have to ride you’re a** like Zorro, you’re gonna show me the money.”

The judge noted that the defendant did not offer any evidence demonstrating that the 1,000 class member estimate was correct or that it was likely a punitive damages award would be in an amount of the maximum damages allowed. The defendant didn’t even show the judge instances from other similar cases involving punitive damages awards in the $3 million range…or, actually, any similar cases involving punitive damages awards at all. The court therefore found that arguing the mere constitutionality of that size an award fell “far short of the more-likely-than-not standard.”

Maybe the defendant should quote Jerry: “I’m a cautionary tale.”