Susan Marple, et al v. T-Mobile Central LLC

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, PASCO M. BOWMAN and BOBBY E. SHEPHERD (PUBLISHED) [3789552] [11-1490]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1490
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Susan Marple, et al.,
Appellee,
v.
T-Mobile Central LLC,
Appellant.

*
*
*
* Appeal from the United States
* District Court for the
* Western District of Missouri.
*
* [PUBLISHED]
*
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Submitted: May 9, 2011
Filed: May 19, 2011
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Before WOLLMAN, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
T-Mobile Central LLC appeals the district court’s1 remand of ten class actions
to the state court from which they were removed. T-Mobile argues that the district
court has jurisdiction under the Class Action Fairness Act (CAFA), 28 U.S.C.
1332(d)(6), because the aggregated amounts in controversy of the ten lawsuits exceeds
the $5 million CAFA threshold. This opinion explains the reasoning behind our
judgment affirming the district court’s order of remand entered on May 13, 2011.

1

The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.

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T-Mobile sued Missouri municipalities for refund of certain tax payments that
it had paid under protest. Because Missouri law requires taxpayers to file a
declaratory judgment action within ninety days of paying the disputed taxes, T-Mobile
filed ten separate lawsuits seeking to recoup tax payments made within ten specific
time periods. Susan Marple and Stephanie Worrell (together “Marple”) sued TMobile in state court for passing the contested tax onto consumers and sought to
recover any money that the Missouri municipalities refunded to T-Mobile. Marple
brought ten separate class actions, with each class action identifying and seeking the
same damages sought in one of the ten lawsuits filed by T-Mobile. After T-Mobile
removed the class actions to federal court, the district court granted Marple’s motion
to remand. We allowed T-Mobile to appeal the district court’s order of remand. 28
U.S.C. § 1453(c)(1).
The CAFA does not expressly contemplate aggregating the amounts sought in
separate class actions when determining whether the matter in controversy exceeds the
sum of $5,000,000. See 28 U.S.C. § 1332(d)(2), (6). The CAFA explicitly grants
original jurisdiction based on the aggregated claims of class members within “any
class action,” id., but is silent as to aggregating claims of class members between class
actions. Although a singular construction is often not meaningful for purposes of
statutory interpretation, see 1 U.S.C. § 1, the absence of provisions for aggregating
between class actions here suggests that the use of the singular is significant, id.
(stating that singular words do not include plural words if “the context indicates
otherwise”). In light of the CAFA’s detailed instructions for determining jurisdiction
and aggregating class member claims within a class action, we think Congress would
have similarly outlined how courts should aggregate between class actions had it
intended for courts to do so.
T-Mobile argues that Freeman v. Blue Ridge Paper Products, Inc., 551 F.3d 405
(6th Cir. 2008), dictates a different result. In Freeman, although the plaintiffs divided
their nuisance complaint into five separate suits covering distinct six-month time
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periods and limited the total damages for each suit to less than $5 million, the Sixth
Circuit aggregated the amounts in controversy from the separate lawsuits to find that
the CAFA threshold was met. Id. at 407. The Sixth Circuit ignored the structure
chosen by the plaintiffs because it concluded “there is no colorable basis for dividing
up the sought-for retrospective relief into separate time periods, other than to frustrate
CAFA.” Id. at 409. T-Mobile argues that here there is similarly no legitimate
justification for Marple’s chosen structure other than to avoid the CAFA.
Although Marple’s lawsuit superficially resembles the structure of the Freeman
plaintiffs’ lawsuit—both involve a cause of action broken into individual class actions
covering distinct time periods—the reason for Marple’s structuring decision is
fundamentally different. Critical to the outcome in Freeman was that each suit asked
for $4.9 million in damages, just under the CAFA threshold; the lawsuits were initially
brought as one and were divided only after the plaintiffs became aware of the danger
of removal; and the plaintiffs acknowledged that avoiding the CAFA was the only
reason for the division. Id. at 407; see also Proffitt v. Abbott Labs., No. 2:08-CV-151,
2008 WL 4401367, at *2-4 (E.D. Tenn. Sept. 23, 2008) (aggregating claims between
lawsuits based on a finding of a deliberate attempt to structure the lawsuit into
separate actions so as to circumvent the CAFA). In contrast, the structure of Marple’s
class actions exactly mirror the underlying ten lawsuits brought by T-Mobile and are
driven by T-Mobile’s own litigation decisions. Moreover, there is no indication that
Marple artificially divided the lawsuit to avoid the CAFA. Although the functional
effect of Marple’s ten separate lawsuits is avoidance of the CAFA, Marple did not
structure her lawsuit to circumnavigate it. Thus, to the extent we would follow the
Sixth Circuit, Freeman is distinguishable.
Accordingly, the judgment of the district court is affirmed.
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