Celena King vs. Great American Chicken Corp., Inc et al

MEMORANDUM in Opposition to NOTICE OF MOTION AND MOTION to Remand Case to Los Angeles Superior Court 38

C.D. Cal.January 11, 2018

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP MARK D. KEMPLE (SBN 145219) ASHLEY FARRELL PICKETT (SBN 271825) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067-2121 Telephone: 310-586-7700 Facsimile: 310-586-7800 Email: kemplem@gtlaw.com farrellpicketta@gtlaw.com Attorneys for Defendant Great American Chicken Corp, Inc., d/b/a Kentucky Fried Chicken UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CELENA KING, individually and on behalf of all others similarly situated, Plaintiff, v. GREAT AMERICAN CHICKEN CORP, INC. d/b/a Kentucky Fried Chicken, a California Corporation; and DOES 1 through 50, inclusive, Defendants. CASE NO. 2:17-cv-04510-GW(ASx) DEFENDANT GREAT AMERICAN CHICKEN CORP, INC.’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND [Filed concurrently with Declaration of Geleen Limos; Declaration of Lenon Ford] Date: January 25, 2018 Time: 8:30 a.m. Dept.: 9D Judge: Hon. George H. Wu Action Filed: January 10, 2017 Action Removed: June 19, 2017 Trial Date: None Set Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 1 of 29 Page ID #:630 i DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. INTRODUCTION ..................................................................................................... 1 II. THE LEGAL STANDARD, AND PLAINTIFF’S EVIDENTIARY BURDEN IN ATTEMPTING TO MEET IT. ........................................................... 5 III. PLAINTIFF HAS FAILED TO PROVE THAT A CAFA EXCEPTION APPLIES. ................................................................................................................. 10 A. The Address Of A Putative Class Member Does Not Establish His/Her Citizenship At the Time of That Notation, Much Less Years Later. .............................................................................................................. 10 B. Plaintiff Conflates Domicile and Residency and Misrepresents the Authority Cited. ............................................................................................. 17 IV. CONCLUSION ........................................................................................................ 22 Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 2 of 29 Page ID #:631 ii DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Federal Cases Anthony v. Small Tube Mfg. Corp., 535 F. Supp. 2d 506 (E.D. Pa. 2007) ............................................................................ 16 Aviles v. Quik Pick Express, LLC, 2015 WL 6501824 (C.D. Cal. Sept. 23, 2015) ............................................................. 14 Axel Johnson, Inc. v. Carroll Carolina Oil Co. Inc., 145 F.3d 660 (4th Cir. 1998) ................................................................................ 2, 3, 12 Benko v. Quality Loan Serv. Corp., 789 F.3d 1111 (9th Cir. 2015) ........................................................................................ 7 Bragdon v. Abbott, 524 U.S. 624 (1998) ........................................................................................................ 3 Brinkley v. Monterey Fin. Servs., Inc., 2017 WL 1094062 (S.D. Cal. Mar. 23, 2017) .............................................................. 20 Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118 (9th Cir. 2017) ...................................................................................... 20 Calderon v. Total Wealth Mgmt., Inc., 2015 WL 5916846 (S.D. Cal. Oct. 8, 2015) ........................................................... 12, 13 Calingo v. Meridian Res, Co LLC, 2011 WL 3611319 (S.D.NY, Aug. 16, 2011) ................................................................. 2 Coleman v. Estes Express Lines, Inc., 631 F.3d 1010 (9th Cir. 2011) ........................................................................................ 8 Colorado River Water Conservation Dist. v. U. S., 424 U.S. 800 (1976) ........................................................................................................ 1 Davenport v. Lockwood, Andrews & Newnam, Inc., 854 F.3d 905 ................................................................................................................... 7 Doyle v. OneWest Bank, FSB, 764 F.3d 1097 (9th Cir. 2014) .................................................................................. 8, 15 Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 3 of 29 Page ID #:632 iii DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Duarte v. Standard Ins. Co., 2008 WL 3978082 (N.D. Cal. Aug. 26, 2008) ............................................................... 8 Dutcher v. Matheson, 840 F.3d 1183 (10th Cir. 2016) ...................................................................................... 7 Evans v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir. 2006) ............................................................................ 2, 7, 10 Garcia v. Task Ventures, LLC, 2016 WL 7093915 (S.D. Cal. Dec. 6, 2016) 95.22% ................................................... 20 Gavron v. Weather Shield Mfg., Inc., 2010 WL 3835115 (S.D. Fla. Sept. 29, 2010) ................................................................ 9 Gerstenecker v. Terminix Int’l, Inc., 2007 WL 2746847 (S.D. Ill. Sept. 19, 2007) .......................................................... 10, 14 Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) ........................................................................................................ 3 Graphic Comm. Local v. CVS Caremark Corp., 636 F.3d 971 (8th Cir. 2011) .......................................................................................... 2 Hargett v. RevClaims, LLC, 854 F.3d 962 (8th Cir. 2017) ........................................................................................ 12 Harris v. Bankers Life and Cas. Co., 425 F.3d 689 (9th Cir. 2005) .............................................................................. 5, 13, 21 Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564 (5th Cir. 2011) .................................................................................. 17, 18 Hood v. Gilster-Mary Lee Corp., 785 F.3d 263 (8th Cir. 2015) .................................................................................... 7, 12 Johnson v. Advance America, 549 F.3d 932 (4th Cir. 2008) ........................................................................................ 12 Jordan v. Nationstar Mort. LLC, 781 F.3d 1178 (9th Cir. 2015) ................................................................................ 1, 6, 7 Kanter v. Warner-Lambert Co., 265 F.3d 853 (9th Cir. 2001) ........................................................................ 5, 10, 11, 21 Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 4 of 29 Page ID #:633 iv DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) ........................................................................................................ 4 Lew v. Moss, 797 F.2d 747 (9th Cir.1986) ............................................................................. 10, 11, 15 Madden v. Cowen & Co., 576 F.3d 957 (9th Cir. 2009) .......................................................................................... 8 Mas v. Perry, 489 F.2d 1396 (5th Cir. 1974) .................................................................................. 3, 13 Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383 (6th Cir. 2016) ........................................................................................ 18 McMorris v. TJX Cos., 493 F.Supp.2d 158 (D. Mass. 2007) ............................................................................. 14 Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) ........................................................................................................ 11 Mondragon v. Capital One Auto Fin., 736 F.3d 880 (9th Cir. 2013) ................................................................................. passim Musgrave v. Aluminum Co. of Am., Inc., 2006 WL 1994840 (S.D. Ind. July 14, 2006) ............................................................... 14 Nichols v. Progressive Direct Ins. Co., 2007 WL 1035014 (E.D. Ky. 2007) ............................................................................. 16 Opelousas Gen. Hosp. Auth. v. Fairplay Sols., Inc., 655 F.3d 358 (5th Cir. 2011) .......................................................................................... 7 Perez v. Nidek Co. Ltd., 657 F. Supp. 2d 1156 (S.D. Cal. 2009) ........................................................................ 14 Phillips v. Severn Trent Env. Services, Inc., 2007 WL 2757131 (E.D. LA. Sept. 19, 2007) ................................................................ 9 Preston v. Tenet Healthsystem Memorial Med. Center, Inc., 485 F.3d 793 (5th Cir. 2007) .................................................................................... 9, 13 Reece v. AES Corp., 2013 WL 1342379 (E.D. Okla. Apr. 2, 2013) ................................................................ 8 Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 5 of 29 Page ID #:634 v DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reece v. AES Corp., 638 Fed.Appx. 755 (10th Cir. 2016) ............................................................................... 7 Roth v. CHA Hollywood Med. Ctr., L.P., 2013 U.S. Dist. LEXIS 194433 (C.D. Cal. Sept. 25, 2013) ......................................... 16 Serrano v. 180 Connect, Inc., 478 F.3d 1018 (9th Cir. 2007) ............................................................................ 1, 2, 6, 8 Serrano v. Bay Bread LLC, 2014 WL 4463843 (N.D. Cal. Sept. 10, 2014) ............................................................. 21 Snyder v. Harris, 394 U.S. 332 (1969) ........................................................................................................ 5 In re Sprint Nextel Corp., 593 F.3d 669 (7th Cir. 2010) .................................................................................... 8, 13 Tanoh v. Dow Chem. Co., 561 F.3d 945 ................................................................................................................... 6 In re Textainer P’ship Sec. Litig., 2005 WL 1791559 (N.D. Cal. July 27, 2005) ................................................................ 7 United Anderson v. Watts, 138 U.S. 694 (1891) ...................................................................................................... 18 United States v. Hunter, 101 F.3d 82 (9th Cir. 1996) ............................................................................................ 3 Unutoa v. Interstate Hotels and Resorts, Inc., 2015 WL 898512 (C.D. Cal. Mar. 3, 2015) .................................................................. 14 Vasserman v. Henry Mayo Newhall Memorial Hospital, 65 F. Supp. 3d 932 (C.D. Cal. 2014) ............................................................................ 12 Walden v. Broce Const. Co., 357 F.2d 242 (10th Cir. 1966) .................................................................................. 3, 13 Walker v. Apple, Inc., 2015 WL 12699871 (S.D. Cal. Sept. 17, 2015) ............................................................ 21 Westerfeld v. Indep. Processing, LLC, 621 F.3d 819 (8th Cir. 2010) .......................................................................................... 6 Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 6 of 29 Page ID #:635 vi DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Federal Statutes 28 U.S.C. § 1332 ................................................................................................................ 12 28 U.S.C. § 1332(d)(2)................................................................................................. 1, 5, 6 28 U.S.C. § 1332(d)(4)......................................................................................................... 6 28 U.S.C. § 1332(d)(4)(A) ................................................................................................... 1 28 U.S.C. § 1332(d)(4)(B) ................................................................................................... 1 28 U.S.C. § 1453(b) ............................................................................................................. 6 28 U.S.C § 1453(c)(2) .......................................................................................................... 7 Pub. L. No. 109-2, § 2(a)(4), 119 Stat. 5 ............................................................................. 6 Other Authorities Martinez v. Darden Restaurants, Inc. et al, USDC C.D. CA, Case No. 2:15- cv-03434-GW-GJS (2015) .............................................................................................. 4 Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 7 of 29 Page ID #:636 1 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Congress has expressed its “overall intent to strongly favor the exercise of federal jurisdiction over class actions with interstate ramifications.” Jordan v. Nationstar Mort. LLC, 781 F.3d 1178, 1183 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014)(emphasis added)). Here, it is uncontested that all elements of this Court’s jurisdiction under CAFA are satisfied, including diversity. Plaintiff does not challenge that the putative class of employees that she seeks to represent includes persons who were not California citizens at the time of the removal of this action on June 19, 2017, notwithstanding that Defendant’s files for such persons (which in most cases concern an employment relationship that began and ended long ago) list a California address in, for example, the application for that employment.1 Though CAFA jurisdiction is established, Plaintiff argues that this Court should not fulfill its “virtually unflagging obligation”2 to exercise the jurisdiction given to it under CAFA, because she suspects that an abstention doctrine (not the absence of a CAFA element3) may apply based on her conjecture that two-thirds of the individuals 1 For example, putative class member Lenon Ford was a non-California citizen at the time of the filing of the Complaint and removal notwithstanding that his employment file lists a California address. [See Declaration of Lenon Ford; Declaration of Geleen Limos (“Limos Dec.”), at ¶ 7.] Indeed, and apart from addresses not proving citizenship at the time they are given, such addresses often were provided many years ago, and certainly would not speak to where such persons reside (distinct from citizenship) many years later when this action was filed and/or when this action was eventually removed, and long after a majority of such persons had left Defendant’s employment. [Limos Dec., ¶¶ 4-6.] 2 It is a “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. U. S., 424 U.S. 800, 817 (1976). 3 The absence of a local controversy is not an element of federal jurisdiction, and satisfaction does not deprive the court of jurisdiction. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1023 (9th Cir. 2007) (“§§ 1332(d)(4) (A) and (B) require federal courts – although they have jurisdiction under section 1332(d)(2) – to ‘decline to exercise jurisdiction’ when the criteria set forth in those provisions are met”; they are “not Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 8 of 29 Page ID #:637 2 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 within her class definition may have been California citizens at the time the action was removed on June 19, 2017. Before reaching the speculative nature of the evidence Plaintiff presents in this regard, and as discussed in greater detail herein, it is black-letter law that, like all abstentions, “Congress intended the local controversy exception to be a narrow one, with all doubts resolved in favor of exercising jurisdiction over the case,” and that unlike an element of CAFA, “[t]he party seeking remand bears the burden to prove an exception to CAFA’s jurisdiction.”4 Turning to Plaintiff’s “proof,” it is woefully inadequate. In a bid to prove that two- thirds of these persons (some of whom have not worked for the company in five years) were citizens of both (i) the United States,5 and (ii) California on June 19, 2017 when this case was removed, Plaintiff points only the parties’ stipulation that two-thirds of the putative class, in whatever year these persons provided a contact information to their employer (which could have been more than a decade ago6), listed an in-state address as their contact address. That is it; that is her entire showing. Patently, this in no way proves (much less under the pro-removal standards that govern this question) (i) that each of these persons within this two thirds was a citizen of the United States and of California on the date he/she gave that contact address, much less that he/she was a citizen of the elements of jurisdiction”); Graphic Comm. Local v. CVS Caremark Corp., 636 F.3d 971, 973 (8th Cir. 2011) (“The local controversy provision, which is set apart from the above jurisdictional requirements in the statute, inherently recognizes the district court has subject matter jurisdiction by directing the court to ‘decline to exercise’ jurisdiction when certain requirements are met”); Calingo v. Meridian Res, Co LLC, 2011 WL 3611319, *4, 6 (S.D.NY, Aug. 16, 2011) (the “local controversy exception does not deprive the court of subject matter jurisdiction over the case”). 4 Evans v. Walter Indus., Inc., 449 F.3d 1159, 1163 (11th Cir. 2006) (first quote); Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021-22 (9th Cir. 2007) (second quote). 5 Axel Johnson, Inc. v. Carroll Carolina Oil Co. Inc., 145 F.3d 660, 663 (4th Cir. 1998)(“‘to be a citizen of a State within the meaning of the diversity statute, a natural person must both be a citizen of the United States and be domiciled within the State”). 6 See Limos Dec., at ¶¶ 4-6. Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 9 of 29 Page ID #:638 3 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States and of California, much less on June 19, 2017, when this action was removed. And, to be clear, and even putting aside the stale (and off-point) data on which Plaintiff seeks to rely, though it easily could have done so Congress did not legislate that this exception could be applied based on a person’s “residence.” And Congress knew well the important distinction drawn in the law between “residence” and “citizenship” when it passed CAFA in 2005.7 Congress, of course, legislates with such consideration in mind.8 But Congress did not provide that “residency” was the test. Instead, before a Court may abstain from favored CAFA jurisdiction over such matters, Congress required a plaintiff – who must bear the burden of proof concerning any abstention from CAFA – establish that two-thirds of the putative class were in fact “citizens” of the forum state at the time the action was removed. As discussed herein, “citizenship” of two-thirds of a putative class is a difficult proof, which likely could be met only by a plaintiff in smaller actions covered by CAFA, not sprawling actions like this, involving a highly transient 7 See e,g., Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660, 663 (4th Cir. 1998) (“As the Supreme Court has consistently held… state citizenship for purposes of diversity jurisdiction depends not on residence, but on national citizenship and domicile, ‘the existence of such citizenship cannot be inferred from allegations of mere residence, standing alone’); Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (“For diversity purposes, citizenship means domicile ... residence in the State is not sufficient”). See also Walden v. Broce Const. Co., 357 F.2d 242, 245 (10th Cir. 1966) (citizenship “imports permanent residence in a particular state with the intention of remaining;” “citizenship is not necessarily lost by protracted absence from home, where the intention to return remains”). 8 See e.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85 (1988) (as a matter of statutory construction, courts ”presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts.”); United States v. Hunter, 101 F.3d 82, 85 (9th Cir. 1996) (same); Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (when ”judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its ... judicial interpretations as well”). Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 10 of 29 Page ID #:639 4 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 group of workers9 and over 6,000 persons whose employments covered highly divergent time periods (in claims with lengthy statutes of limitation). That is by design. As Congress made plain, Congress wants such actions adjudicated in federal courts, and legislated to ensure that they would be. Plaintiff may not now rewrite that statute to replace Congress’ “citizenship” standard with a “residence, standard more to her liking. Indeed, a court could not do so.10 Nor may Plaintiff (nor a court) ignore that Congress identified the time for the inquiry as the date of removal (here, June 19, 2017), not a hodgepodge of dates over many prior years on which one person or another happened to fill out an address form with an employer from whom, in most cases, they have since long departed. Indeed, we know well how Plaintiff would be arguing to this Court, if Defendant GACC had removed based upon a diversity showing of nothing more than evidence that one putative class member had once listed as his/her contact address a non- California address, and argued such constituted “proof” of that person’s citizenship (and moreover, “proof” of that person’s citizenship years after that address was written provided). Plaintiff would be howling at the insufficiency of such “proof,”11 and no 9 See Limos Dec. at ¶ 8 (setting forth, as non-exhaustive example, that 2017 turnover rate for non-exempt California employees of GACC was 169.64%). 10 Nor may a court do so. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (“Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.”) (cit. omitted). 11 Indeed, in Martinez v. Darden Restaurants, Inc. et al, USDC C.D. CA, Case No. 2:15-cv-03434-GW-GJS (2015), the same lawyers now representing plaintiff Celena here (Matern Law Group, PC) argued to this Court for application of a strict evidentiary standard against the evidence submitted by the defendants (sworn testimony) in opposition to Matern Law Group’s client’s motion to remand under the local controversy exception (which motion was denied by this Court). See id., Dkt. 18, at pp. 1-2 (attacking the defendants’ declarations as “conclusory”). We can imagine how these lawyers would argue, and what sanctions they would seek, if Defendant here had sought to remove based solely on an assertion that a former employee listed an out of state Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 11 of 29 Page ID #:640 5 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 doubt would be demanding remand and that the defendants be sanctioned for improvident removal. And they would be right. See Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 695-96 (9th Cir. 2005) (an allegation/admission by plaintiff in her complaint of her residence did not allege, much less “affirmatively reveal” for removal purposes, her citizenship).12 How then could Plaintiff – with the higher burden of proof, all presumptions running against her, and all doubts resolved against her – meet her burden of proof on the same question with nothing more than the supposed “proof” rejected in Harris? Plaintiff can’t. A mere address (much less an old one) is proof of no CAFA predicate for anyone (Defendant or Plaintiff). Yet that is the totality of Plaintiff’s “proof.” Plaintiff cannot rewrite the standard articulated by Congress against which that proof is judged – proof of citizenship – and Plaintiff’s motion utterly fails to carry her actual burden of proof. Her motion should be denied. II. THE LEGAL STANDARD, AND PLAINTIFF’S EVIDENTIARY BURDEN IN ATTEMPTING TO MEET IT. The Class Action Fairness Act of 2005, codified at 28 U.S.C. § 1332(d)(2) (“CAFA”), expanded the diversity jurisdiction of federal courts to hear class actions. Before CAFA, federal courts had diversity jurisdiction over a class action only if every named plaintiff was diverse from every named defendant, and the citizenship of unnamed class members was irrelevant. See Snyder v. Harris, 394 U.S. 332, 340 (1969). Congress, however, found that this rule resulted in “abuses of the class action device” that had attended state jurisprudence that had attended large and diverse class actions, contact address in his/her paperwork, arguing that this was “proof” of his/her non- California citizenship. 12 See also Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (though the plaintiff’s complaint alleged plaintiffs’ were “residents” of California, that did not supply the defendants with a basis to remove based on a contention that the plaintiff was a citizen of California, and defendant’s “failure to specify Plaintiffs’ state of citizenship was fatal to defendants assertion of diversity jurisdiction”). Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 12 of 29 Page ID #:641 6 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and therefore passed CAFA. Tanoh v. Dow Chem. Co., 561 F.3d 945, 952 (9th Cir. 2009, cert. denied, 130 S. Ct. 187 (2009); see also See Pub. L. No. 109-2, § 2(a)(4), 119 Stat. 5. CAFA grants a District Court jurisdiction to hear class actions where the amount in controversy exceeds $5 million and any one class member is diverse from any one defendant (28 U.S.C. § 1332(d)(2)) and permits defendants to remove qualifying actions to federal court (28 U.S.C. § 1453(b)). Remand of a class action otherwise properly removed under CAFA is only permitted where the party moving to remand can prove that a narrow exception exists. Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021-22 (9th Cir. 2007) (“[t]he party seeking remand bears the burden to prove an exception to CAFA’s jurisdiction.”); Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010) (“[o]nce CAFA’s initial jurisdictional requirements have been established by the party seeking removal . . . the burden shifts to the party seeking remand to establish that one of CAFA’s express jurisdictional exceptions applies.”). These narrow exceptions include the home-state exception and local controversy exception, each of turns (as is pertinent to this Motion) on whether the plaintiff can prove that two-thirds or more of all putative class members are citizens of California. 28 U.S.C. § 1332(d)(4). Importantly, in evaluating these questions, the traditional presumption against removal jurisdiction is reversed. “[T]he Supreme Court left no doubt ‘that no antiremoval presumption attends cases involving CAFA.’” Jordan v. Nationstar Mort. LLC, 781 F.3d 1178, 1183 (9th Cir. 2015) (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014)). Rather: “CAFA was not to be read narrowly, but as a broad grant of jurisdiction in interstate class actions. […] And the exception, specifically, was not to be read to create a jurisdictional loophole by which a plaintiff could defeat federal jurisdiction. [] To read the statute narrowly but give broad sweep to the local controversy exception, in direct contradiction of its plain language, Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 13 of 29 Page ID #:642 7 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would be to contort Congress’s intent as embodied in the statutory language.” Davenport v. Lockwood, Andrews & Newnam, Inc., 854 F.3d 905. 910 (6th Cir. 2017). As such, and apart from Congress’ “overall intent to strongly favor the exercise of federal jurisdiction over class actions with interstate ramifications”13: “CAFA’s language favors federal jurisdiction over class actions and CAFA’s legislative history suggests that Congress intended the local controversy [and home-state] exception[s] to be [] narrow [], with all doubts resolved in favor of exercising jurisdiction over the case.” Evans v. Walter Indus., Inc., 449 F.3d 1159, 1163 (11th Cir. 2006) (emph. added) (citing and quoting S. Rep. No. 109-14 at 42, U.S. Code Cong. & Admin. News 3, 40). See also Benko v. Quality Loan Serv. Corp., 789 F.3d 1111, 1116 (9th Cir. 2015) (same) Dutcher v. Matheson, 840 F.3d 1183, 1190 (10th Cir. 2016) (same); Reece v. AES Corp., 638 Fed.Appx. 755, 767–68 (10th Cir. 2016) (same); Opelousas Gen. Hosp. Auth. v. Fairplay Sols., Inc., 655 F.3d 358, 360 (5th Cir. 2011) (exceptions to CAFA are to be construed narrowly “with all doubts resolved in favor of exercising jurisdiction”); Hood v. Gilster- Mary Lee Corp., 785 F.3d 263, 265 (8th Cir. 2015) (“[a]ny doubt about the applicability of the local-controversy exception [should be] resolved against the party seeking remand”). Further, “[i]f a Federal court is uncertain the court should err in favor of exercising jurisdiction over the case.” In re Textainer P’ship Sec. Litig., 2005 WL 1791559, at *3 (N.D. Cal. July 27, 2005) (emph. added). Further still, and unlike other grounds for removal, CAFA creates a unique right to appellate review of orders remanding a CAFA removal. 28 U.S.C § 1453(c)(2). Against those presumptions, Plaintiff must prove14 with competent and admissible evidence15 that at least two-thirds of the putative class as defined were citizens (not merely residents) of California at the time of removal.16 13 Jordan, supra, 781 F.3d at 1183. Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 14 of 29 Page ID #:643 8 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Yes; this is a high burden. And as discussed in the Introduction to this Opposition, this is by Congressional design. See discussion above at page 3, supra, and the cases cited at footnotes 7 & 8, supra. For example, though Congress could have based the exception on residence, with knowledge of the significant legal distinction between residence on the one hand, and citizenship/domicile on the other, it chose the latter. And as discussed below, that actual pertinent inquiry – citizenship – is an individual, fact-intensive and subjective inquiry which goes to an individual’s personal belief as to their state of primary affiliation, which cannot be established in a court of law as a basis for a court to decline is “unflagging obligation” to exercise the jurisdiction given it by Congress, via “speculation,” “intuiti[on],” “assumptions,” or guesswork – even “sensible guesswork.” See e.g., ● Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013) (courts may not rely on “speculation,” “intuiti[on],” “assumptions,” or guesswork – even “sensible guesswork” – to find that the home-state or local controversy exception applies); ● In re Sprint Nextel Corp. (“Sprint”), 593 F.3d 669, 673-74 (7th Cir. 2010) (rejecting assertion that class definitions embedding criteria for residency, such as cell phone numbers with a forum state billing address, establishes the citizenship 14 See Serrano, supra, 478 F.3d at 1021-22 (“The party seeking remand bears the burden to prove an exception to CAFA’s jurisdiction.”); Madden v. Cowen & Co., 576 F.3d 957, 974 (9th Cir. 2009) (same); Coleman v. Estes Express Lines, Inc., 631 F.3d 1010, 1013 (9th Cir. 2011) (same). 15 Duarte v. Standard Ins. Co., 2008 WL 3978082, *5 (N.D. Cal. Aug. 26, 2008) (considering only “competent and admissible evidence” in ruling on motion to remand). Reece v. AES Corp., 2013 WL 1342379, *6 (E.D. Okla. Apr. 2, 2013) (Local controversy not established under CAFA where Plaintiff failed to establish “required citizenship of the class members through admissible evidence.”). 16 Doyle v. OneWest Bank, FSB, 764 F.3d 1097, 1098 (9th Cir. 2014) (“For the purpose of considering the applicability of the exceptions to CAFA jurisdiction, the District Court should have determined the citizenship of the proposed plaintiff class based on [plaintiff’s] complaint “as of the date the case became removable.”). Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 15 of 29 Page ID #:644 9 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of class members; “People with Kansas cell phones presumably have them because they have lived or worked in the state at some time, and the current Kansas mailing address suggests that they still do;” “[O]ne would think that the vast majority of individual Kansas cell phone users do in fact live in that state and that the vast majority of them view it as their true home…. [I]t’s hard to believe that those nondomiciliaries are collectively more than a drop in the bucket when it comes to class composition. . . . [¶] But that’s all guesswork. Sensible guesswork, based on a sense of how the world works, but guesswork nonetheless. There are any number of ways in which our assumptions about the citizenship of this vast class might differ from reality.… Ultimately, we agree with the majority of district courts that a court may not draw conclusions about the citizenship of class members based on things like their phone numbers and mailing addresses.”); ● Preston v. Tenet Healthsystem Memorial Med. Center, Inc., 485 F.3d 793, 798-801 (5th Cir. 2007) (holding that putative class members medical records, containing primary billing addresses, were insufficient to establish citizenship; “[plaintiffs] presented no evidence… to demonstrate that these patients not only resided in Orleans Parish at the given addresses but also were domiciled in Louisiana at the time of Hurricane Katrina”); ● Phillips v. Severn Trent Env. Services, Inc., 2007 WL 2757131, *3 (E.D. LA. Sept. 19, 2007) (remand based on class limit to “only those people who were residing in or occupying a premise” in a particular Louisiana county during a one-week period in May 2007, rejected; though “there is some intuitive appeal to the claim” that two-thirds of the people who lived in the county during that week were citizens of Louisiana at the time the complaint was filed just two months later, court found that such intuition did not establish by a preponderance of the evidence that the citizenship requirement was satisfied); ● Gavron v. Weather Shield Mfg., Inc., 2010 WL 3835115, at *3 (S.D. Fla. Sept. 29, 2010) (presumption of citizenship based on property ownership or residence Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 16 of 29 Page ID #:645 10 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “contravenes the requirement that doubts regarding the local controversy exception be resolved in favor of exercising federal jurisdiction.”; “[plaintiff’s] requested presumption—that two-thirds of owners of Florida property are citizens of Florida—would require the Court to engage in guesswork that is impermissible under the Evans framework.”).17 III. PLAINTIFF HAS FAILED TO PROVE THAT A CAFA EXCEPTION APPLIES. Plaintiff’s entire showing is premised on a stipulation that the employment documents (e.g., applications) of at least two-thirds of the putative class – comprised of persons who worked for Defendant for any time period within the last five years regardless of their hire date – lists a California address. Plaintiff claims that for each of these persons, that mere address, which may have been noted years ago – indeed in many instances over a decade ago – somehow proves on the standards set forth above, that the person was a citizen of both the United States and the State of California as of June 19, 2017. Plaintiff’s assertion is preposterous. A. The Address Of A Putative Class Member Does Not Establish His/Her Citizenship At the Time of That Notation, Much Less Years Later. An individual’s state of citizenship is not determined by reviewing where he or she may reside at a given time – much less a prior time. Instead, a natural person’s citizenship may only be determined by (i) confirming s/he is a citizen of the United States, and (b) then determining the location of his/her permanent home – also known as his/her domicile and identified as “where [s/he] resides with the intention to remain or to which [s/he] intends to return.” Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001); see also Lew v. Moss, 797 F.2d 747, 749 (9th Cir.1986) (citing Owens v. Huntling, 115 F.2d 160, 162 (9th Cir.1940)) (“a person is ‘domiciled’ in a location where 17 Compare, Gerstenecker, supra, 2007 WL 2746847, at *2 (“plaintiffs ask this Court to conclude that because the real property at issue is located in Illinois, two thirds of the members of the proposed class in the aggregate are citizens of Illinois. That may or may not be true but either conclusion requires a leap of faith this Court cannot make.”) Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 17 of 29 Page ID #:646 11 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 he or she has established a ‘fixed habitation or abode in a particular place, and [intends] to remain there permanently or indefinitely.’”). Said another way, if and when a natural person’s U.S. citizenship is established, the state citizenship of that natural person has long been understood to be equated with their “domicile.” See e.g. Kanter, 265 F.3d at 857 (cit. omitted) (“To be a citizen of a state, a natural person must first be a citizen of the United States. [A] natural person's state citizenship is then determined by her state of domicile, not her state of residence.”). A natural person’s “domicile” is considered to be established by the person’s “physical presence in a place,” coupled with an “intent to remain there.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989). An individual’s intent to remain in a location is established via evidence of various objective factors, including but not limited to: (i) where the individual’s spouse and family resides, (ii) where s/he is employed, (iii) where s/he is registered to vote, (iv) where s/he has a driver’s license, and (v) where s/he pays state taxes. Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986) (holding that “determination of an individual's domicile involves a number of factors (no single factor controlling), including: current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver's license and automobile registration, and payment of taxes.”). Accordingly, “[a] person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state.” Kanter, 265 F.3d 857 (citing Weible v. United States, 244 F.2d 158, 163 (9th Cir. 1957)) (“Residence is physical, whereas domicile is generally a compound of physical presence plus an intention to make a certain definite place one's permanent abode, though, to be sure, domicile often hangs Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 18 of 29 Page ID #:647 12 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 on the slender thread of intent alone, as for instance where one is a wanderer over the earth. Residence is not an immutable condition of domicile.”) (emphasis added)). Simply, residence does not equate to citizenship, as circuit courts to address the issue have held (both after and before CAFA was passed). See e.g.:  Mondragon, supra, 736 F.3d at 884 (“That a [class member] may have a residential address in California does not mean that person is a citizen of California.”);18  Hood v. Gilster-Mary Lee Corp., 785 F.3d 263, 265–66 (8th Cir. 2015) (citing In re Sprint Nextel Corp., 593 F.3d 669, 674 (7th Cir.2010) and Mondragon, supra) (“A court may not draw conclusions about the citizenship of class members based on things like their phone numbers and mailing addresses.”);  Hargett v. RevClaims, LLC, 854 F.3d 962, 965 (8th Cir. 2017) (“the term ‘citizen’ in 28 U.S.C. § 1332 has long meant something different from ‘resident.’ … A complaint or notice of removal resting on residency, then, will not establish citizenship […] This rule is not new.”);  Johnson v. Advance America, 549 F.3d 932, 937 n.2 (4th Cir. 2008) (“residency is not sufficient to establish citizenship”);  Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 145 F.3d 660, 663 (4th Cir. 1998) (“As the Supreme Court has consistently held… state citizenship for purposes of diversity jurisdiction depends not on residence, but on national 18 While Mondragon addressed the two-thirds requirement in the context of CAFA’s local controversy exception, courts within the Ninth Circuit have subsequently applied this requirement in the context of CAFA’s home state exception’s two-thirds requirement. See, e.g., Calderon v. Total Wealth Mgmt., Inc., 2015 WL 5916846, at *2 (S.D. Cal. Oct. 8, 2015) (considering local controversy and home-state exception and holding that “the Court cannot infer the class is more than two-thirds California citizens based solely on the allegations of the SAC and the single piece of evidence submitted addressing only residency of an unknown number of potential members”); Vasserman v. Henry Mayo Newhall Memorial Hospital, 65 F. Supp. 3d 932, 984, n.151 (C.D. Cal. 2014) (considering and denying home-state exception under Mondragon). Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 19 of 29 Page ID #:648 13 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 citizenship and domicile, ‘the existence of such citizenship cannot be inferred from allegations of mere residence, standing alone’);  Harris v. Bankers Life and Cas. Co., 425 F.3d 689, 695-96 (9th Cir. 2005) (a complaint alleging a plaintiff’s residence did not allege, much less “affirmatively reveal” for removal purposes, the citizenship of the plaintiff);  In re Sprint Nextel Corp. (“Sprint”), 593 F.3d 669, 673-74 (7th Cir. 2010) (holding that “being a resident isn’t the same thing as being a citizen, that is to say, a domiciliary” and courts could not “draw conclusions about the citizenship of class members” based on mailing addresses and phone numbers);  Preston v. Tenet Healthsystem Memorial Med. Center, Inc., 485 F.3d 793, 798-801 (5th Cir. 2007) (holding that putative class members medical records, containing primary billing addresses, were insufficient to establish citizenship; “A party’s residence in a state along does not establish domicile”; “[plaintiffs] presented no evidence… to demonstrate that these patients not only resided in Orleans Parish at the given addresses but also were domiciled in Louisiana at the time of Hurricane Katrina”).  Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir. 1974) (“For diversity purposes, citizenship means domicile...residence in the State is not sufficient.”);  Walden v. Broce Const. Co., 357 F.2d 242, 245 (10th Cir. 1966) (citizenship “imports permanent residence in a particular state with the intention of remaining;” “citizenship is not necessarily lost by protracted absence from home, where the intention to return remains”); District courts are in accord. See e.g.:  Calderon, supra, 2015 WL 5916846, at *2 (considering local controversy and home-state exception and holding that “the Court cannot infer the class is more than two-thirds California citizens based solely on the allegations of the SAC and the single piece of evidence submitted addressing only residency of an unknown number of potential members”); Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 20 of 29 Page ID #:649 14 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28  Aviles v. Quik Pick Express, LLC, 2015 WL 6501824, at *3 (C.D. Cal. Sept. 23, 2015) (putative class limited to California “residents” fell short of the local controversy exception’s two-thirds requirement, because “California residency is not the same as California citizenship” for jurisdictional purposes);  Unutoa v. Interstate Hotels and Resorts, Inc., 2015 WL 898512, at *4 (C.D. Cal. Mar. 3, 2015) (CAFA home state exception inapplicable where “Plaintiff fails to submit any proof that 2/3 of the class members (current and former employees in California) were California citizens at the time of removal”);  Perez v. Nidek Co. Ltd., 657 F. Supp. 2d 1156, 1162-63 (S.D. Cal. 2009) (denying remand where putative class was defined to include persons who underwent a certain surgery in California because even though “the members of the proposed class underwent [the] surgery in California, there is no evidence that 2/3 of them actually resided and continue to reside in California”);  McMorris v. TJX Cos., 493 F.Supp.2d 158, 162-6 (D. Mass. 2007) (that “this putative class that is composed entirely of residents of Massachusetts, does not, by definition, foreclose the inclusion of non-citizens as well”);  Musgrave v. Aluminum Co. of Am., Inc., 2006 WL 1994840, at *2-3 (S.D. Ind. July 14, 2006) (holding that, “without further evidence,” the court could not determine whether two-thirds of a class that included “former mine workers, adjoining landowners and/or other individuals who worked/lived at or near the Squaw Creek Mining Operations ... [and] their spouses, widows, widowers, and families with children” were state citizens);  Gerstenecker v. Terminix Int’l, Inc., 2007 WL 2746847, at *2 (S.D. Ill. Sept. 19, 2007) (“In essence, plaintiffs ask this Court to conclude that because the real property at issue is located in Illinois, two-thirds of the members of the proposed class in the aggregate are citizens of Illinois. That may or may not be true but either conclusion requires a leap of faith this Court cannot make.”). Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 21 of 29 Page ID #:650 15 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Motion asks that this Court ignore this overwhelming authority, and guess19 that the last-known address each putative class member provided to Defendant at some point during his/her employment proves his/her citizenship at the time of removal. Plaintiff’s request fails on several levels. First, to be clear, Plaintiff offers no evidence (much less competent and admissible evidence) that at any point in time any putative class member was (i) a U.S. citizen, and (ii) and intended to remain in California. Indeed, literally no evidence demonstrating that, at any point in time, any member of the putative class was a U.S. citizen,20 had spouses and family residing in California, was employed in California, was registered to vote in California, had a California driver’s license, and/or paid California state taxes is provided.21 Plaintiff’s Motion does not even attempt to establish these facts as to Plaintiff. Instead, the Motion relies exclusively on the stated last-known address each putative class member provided to Defendant at some point during his/her employment (including many years ago). Second, even if the last-known address a putative class member provided to Defendant somehow proved that individual’s citizenship (i.e. domicile) at that point in time (it patently does not), such in no way proves that putative class member’s citizenship as of Defendant’s June 19, 2017 removal.22 See e.g.: 19 See cases cited at pages 8:6-10:5 of this brief which prohibit such guesswork. 20 Many of Defendant’s employees are not U.S. citizens, but instead are authorized to work in the United States via a work permit, green card or other authorizing documentation. [See Limos Dec. at ¶ 9.] 21 Lew, supra, 797 F.2d 750 (holding that “determination of an individual's domicile involves a number of factors (no single factor controlling), including: current residence, voting registration and voting practices, location of personal and real property, location of brokerage and bank accounts, location of spouse and family, membership in unions and other organizations, place of employment or business, driver's license and automobile registration, and payment of taxes.”). 22 Doyle, supra, 764 F.3d at 1098 (citing Mondragon, 736 F.3d at 883-84) (“For the purpose of considering the applicability of the exceptions to CAFA jurisdiction, the Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 22 of 29 Page ID #:651 16 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ● Roth v. CHA Hollywood Med. Ctr., L.P., 2013 U.S. Dist. LEXIS 194433, *8-10 (C.D. Cal. Sept. 25, 2013) (“[plaintiff never established that the putative class members residing in California during the class period were California citizens to begin with. Therefore, showing that putative class members—California citizens or not—did or did not change their addresses sheds but dim light on the home-state- controversy exception. Indeed, having a California address does not automatically render one a California citizen. And thus changing that address does not necessarily alter a person's citizenship.”; “proving residency is not an element of the home-state-controversy exception.”); ● Anthony v. Small Tube Mfg. Corp., 535 F. Supp. 2d 506, 517 (E.D. Pa. 2007) (“Plaintiffs provided no evidence that these individuals were ever, or have remained, domiciled in Pennsylvania. Though this may be a reasonable inference, it does not satisfy the plaintiff’s burden of proof. Individual employees may retire and move away. Employees may change jobs and move to another State or country. Employees may also commute from an out-of-state location.”); ● Nichols v. Progressive Direct Ins. Co., 2007 WL 1035014, at * 3 (E.D. Ky. 2007) (holding it would be “sheer speculation” to conclude that at least two-thirds of the members of a proposed “statewide class” spanning approximately five years “remained citizens of the state” at the time of removal). Notably, because Plaintiff’s putative class extends back four years from January 10, 2017 [Dkt. No 1-1, at ¶5] – or to January 10, 2013 – some of the addresses were necessarily provided far more than 4 years before Defendant’s June 19, 2017 removal. There is simply no basis on which to assume each putative class members’ residence, much less citizenship, remained in California for that extended period of time. * * * District Court should have determined the citizenship of the proposed plaintiff class based on [plaintiff’s] complaint “as of the date the case became removable.”). Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 23 of 29 Page ID #:652 17 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As the Ninth Circuit and other federal circuit and district courts around the nation have consistently and unequivocally held, citizenship is a highly factual and subjective inquiry, and courts may not rely on “speculation,” “intuiti[on],” “assumptions,” or guesswork – even “sensible guesswork” – to find that the home-state or local controversy exception applies.23 Yet, that is all Plaintiff offers here – guesswork that a putative class member who provided Defendant with an address located in California at some point during their employment was a U.S. citizen and state citizen of California at that time, and remained a California citizen as of Defendant’s June 19, 2017 removal. Patently, Plaintiff has not met her substantive and evidentiary burden that at least two-thirds of the putative class were California citizens at the time of Defendant’s removal, and her Motion to Remand consequently fails as a matter of law. B. Plaintiff Conflates Domicile and Residency and Misrepresents the Authority Cited. Plaintiff’s Motion not only fails to address any of the above black-letter authority – which notably has been cited to Plaintiff several times now24 – it also relies on inapposite and/or out-of-date authority. Initially, Plaintiff’s reliance on Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 573 (5th Cir. 2011) is misplaced, as Hollinger is easily distinguishable. In Hollinger the putative class was limited to persons who “purchased an automobile insurance policy in Texas . . . and whose policies were in effect . . . up to the date of judgment.” Id. at 568 (emph. added). Plaintiff further established via competent and admissible evidence that “99% of the automobiles” insured by defendants were located in Texas. Id. Further, plaintiff established “evidence of insurance of personal property (motor vehicles – likely garaged at the residence of the owner) located in Texas” and that defendants were limited by Texas state law to issuing “auto insurance policies only for vehicles located in Texas.” 23 See cases cited at pages 8:6-10:5 of this brief which prohibit such guesswork. 24 See e.g. Dkt. Nos., 15, 19, 28. Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 24 of 29 Page ID #:653 18 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Id. at 573 (emph. added). Given the foregoing competent and admissible evidence, the Hollinger court concluded that plaintiff had shown by a preponderance of evidence that the class members’ maintenance of Texas insurance policies through judgment reflected their intent to remain citizens of Texas. Id. at 574. Plaintiff offers none of this here. 25 Similarly, when read closely and in context of every other circuit court’s holding that residency does not equate to citizenship, Mason v. Lockwood, Andrews & Newnam, P.C., 842 F.3d 383 (6th Cir. 2016) is revealed to be flawed and ultimately does not support Plaintiff’s positon. In Mason, a divided Sixth Circuit panel parted ways from every other circuit in holding that although a court cannot rely upon a residency-domicile presumption to establish CAFA jurisdiction, it could rely upon such a presumption to find an exception to CAFA jurisdiction. However, the dissent observed that the majority had “split[] with five other circuits” and, in so doing, had also overlooked its obligation to exercise the jurisdiction given to it. Id. at 399. The dissent correctly reasoned that federal courts “cannot presume a fact that allows us to decline jurisdiction, any more than we can presume a fact that allows us to find that jurisdiction exists in the first place.” Id. Thus, “just as we cannot presume that residency equals citizenship when determining whether jurisdiction exists, neither can we apply that same presumption when determining whether we can decline jurisdiction.” Id. We further note that errant and Circuit-departing majority in Mason wholly ignored that the distinction between “residence” and domicile was well known to Congress when it drafted and passed CAFA, which does not use the former term. Congress must be presumed to choose its word with intent, and knowledge of the legal backdrop against which it acts. Simply, Mason is a deeply flawed and minority decision. It should not be followed. Next Plaintiff cites to Mondragon for the proposition that “a party with the burden of proving citizenship may rely on the presumption of continuing domicile, which 25 In conjunction with her Hollinger citation, Plaintiff cites to United Anderson v. Watts, 138 U.S. 694, 702 (1891) a 127 year old decision that has no relevancy to removal, much less CAFA or the home-state or local controversy exceptions. Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 25 of 29 Page ID #:654 19 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 provides that, once established, a person’s state of domicile continues [we note that Plaintiff has never established domicile in the first instance, that could be presumed continued] unless rebutted with sufficient evidence of change” [Mtn., at 4:19-22] and “the Ninth Circuit has expressly rejected the notion that ‘evidence of residency can never establish citizenship.’” [Id. at 5:2-3.] Plaintiff misinterprets Mondragon and notably again conflates residency with domicile and citizenship. The Mondragon Court held that the local controversy exception did not apply because the plaintiff failed to satisfy his burden of showing that more than two-thirds of the putative class members were “citizens” of California. Specifically, the plaintiff in Mondragon brought claims related to automobile finance contract disclosures on behalf of a putative class “defined to be limited to persons who ‘purchased a vehicle in California for personal use to be registered in the State of California.’” Id. at 883. The plaintiff sought remand on the basis that the class would “necessarily be California citizens,” based on the class definition. Id. The Ninth Circuit disagreed, reasoning that: “We imagine that some [relevant] automobiles were purchased and registered in California by members of the military, by out-of-state students, by owners of second homes, by other temporary residents who maintained legal citizenship in other states, and by persons who live in California but are not U.S. citizens. That a purchaser may have a residential address in California does not mean that person is a citizen of California. In addition ... we imagine that at least some purchasers who were California citizens at the time of purchase subsequently moved to other states, such that they were not California citizens anymore.” Id. (emph. added). Based on that uncertainty, the Court concluded that “[t]here is simply no evidence in the record to support a finding that the group of citizens outnumbers the group of non-citizens by more than two to one” [id] and vacated the district court’s remand order. Id. at 886. Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 26 of 29 Page ID #:655 20 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Motion ignores this holding and instead cites to a portion of the Opinion in which the Court explained that an “inference” may be sufficient “if the class is defined as limited to citizens of the state in question, but otherwise such a finding should not be based on guesswork.” Id. at 881-82. In so citing, Plaintiff misrepresents the application of Mondragon to the instant case. Because Plaintiff’s Complaint is in no way limited to “citizens” of California, Plaintiff’s argument is entirely unavailing. Plaintiff’s citation to Brinkley v. Monterey Fin. Servs., Inc., 2017 WL 1094062, at *5 (S.D. Cal. Mar. 23, 2017) is similarly unavailing, as the Order on which Plaintiff relies was appealed and vacated by the Ninth Circuit on October 20, 2017. See Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118, 1122 (9th Cir. 2017) (“Brinkley has failed to prove that two-thirds of class members are California citizens because there is no evidence regarding the citizenship of class members ...”; “Brinkley alternatively argues that […] Monterey fails to identify a single non-California or Washington citizen whose telephone conversation it recorded. This argument misstates the burden of proof in CAFA exception cases. The burden is not on Monterey to prove the inapplicability of a CAFA exception. Rather, the burden is on Brinkley, as the party seeking remand, to prove the applicability of a CAFA exception.”). Finally, each of the remaining cases cited by Plaintiff’s is distinguishable and contains flawed reasoning. In Garcia v. Task Ventures, LLC, 2016 WL 7093915 (S.D. Cal. Dec. 6, 2016) 95.22% of the putative class consented to releasing their contact information to plaintiff’s counsel who utilized this contact information to demonstrate that, as of removal, at least 97% of the putative class members who provided contact information listed a mailing address in California. Id., at *4. Based on this evidentiary showing, and its finding that the Complaint “limit[ed] the claims to California plaintiffs” (which, as discussed supra, Plaintiff’s Complaint plainly does not do) the Garcia court – without discussion or consideration of the ample authority outlined by Defendant above – found it reasonable to presume that greater than two-thirds of the putative class were California citizens. Id. That District Court decision is contrary to overwhelming Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 27 of 29 Page ID #:656 21 DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION TO REMAND LA 133443056v6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 authority and ignores the precise legal test stated by Congress, and the presumptions recognized by the Ninth Circuit and all other Circuit courts pertaining to CAFA and evaluation of exceptions to it. Similarly, in Serrano v. Bay Bread LLC, 2014 WL 4463843 (N.D. Cal. Sept. 10, 2014) the court incorrectly and without substantive discussion found that plaintiff’s evidence demonstrating that, shortly after removal, at least 99.7% of the putative class members had a mailing address in California was sufficient to establish that at least two-thirds of the putative class were California citizens. Id., at *2-3. Lastly, in Walker v. Apple, Inc., 2015 WL 12699871, (S.D. Cal. Sept. 17, 2015), the Complaint at issue was “limited to California residents” and – on this basis – the court used flawed reasoning to hold that at least two-thirds of the putative class was comprised of California citizens. Id. at *4-5. Again, each of these cases is not only factually distinct from the instant case, but stands in stark contrast to the overwhelming appellate and reasoned district court authority discussed in detail above which demonstrates that residency does not equate to citizenship as a matter of law. The Ninth Circuit has flatly rejected the notion that an address denotes residency and in turn establishes citizenship. And it, and other circuits, reject the use of guesswork (much less guesswork remote in time to the ultimate question) – including “sensible guesswork” – as a method of proof to establish an exception to favored CAFA jurisdiction. See cases cited at pages 8:6-10:5 of this brief which prohibit such guesswork. Moreover, were the holdings relied on by Plaintiff correct, a defendant could remove a class action to federal court on a diversity showing of nothing more than a non- forum address listed by a putative class member in an employment application penned years before the removal. As the Ninth Circuit as made plain, this would not be accepted as “proof” of that person’s citizenship, such a removal would be remanded, and the defendant sanctioned. Harris, 425 F.3d at 695-96 (a complaint alleging a plaintiff’s residence did not allege, much less “affirmatively reveal” for removal purposes, the citizenship of the plaintiff); Kanter, 265 F.3d at 857 (though the plaintiff’s complaint alleged plaintiffs’ were “residents” of California, that did not supply the defendants with Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 28 of 29 Page ID #:657 Case 2:17-cv-04510-GW-AS Document 40 Filed 01/11/18 Page 29 of 29 Page ID #:658