Peacock v. The Cincinnati Insurance Company

Filing 16

MEMORANDUM OPINION AND ORDER granting 9 MOTION to Remand filed by Ray Peacock; This case is remanded to the CC of Tallapoosa Co., AL; The Clerk of the Court is directed to take appropriate steps to effect the remand; and Mr. Peacock's request for his costs and attorney's fees is denied. Signed by Honorable William Keith Watkins on 12/18/08. (Attachments: # 1 appeals checklist)(vma, )(cert copy to CC Tall Co., AL)

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION R A Y PEACOCK, on behalf of himself and o n behalf of all other Alabama citizens and e n titie s , in the State of Alabama similarly s itu a te d , P l a in tif f , v. T H E CINCINNATI INSURANCE CO., D e f e n d a n t. ) ) ) ) ) ) ) ) ) ) ) ) C A S E NO. 3:08-CV-455-WKW [WO] M E M O R A N D U M OPINION AND ORDER B e f o re the court is a motion to remand (Doc. # 9), filed by Plaintiff Ray Peacock (" M r. Peacock"). The motion is accompanied by a memorandum of law and a request for an a w a rd of attorney's fees and expenses. (Doc. # 10.) The Cincinnati Insurance Company (" C in cinn ati"), which is the defendant, filed a response in opposition. (Doc. # 11.) Mr. P e a c o ck replied (Doc. # 12), and Cincinnati filed a surreply (Doc. # 13). For the reasons set f o rth below, the motion to remand is due to be granted, but fees and expenses will not be a w a rd e d . I. FACTS AND PROCEDURAL HISTORY O n April 18, 2008, Mr. Peacock filed a class action complaint in the Circuit Court of T a llap o o sa County, Alabama, on behalf of himself and others similarly situated. The lawsuit a ris e s from Cincinnati's alleged practice in Alabama of imposing and collecting premiums f o r uninsured/underinsured ("UM") motorist coverage in excess of Cincinnati's liability lim its . Mr. Peacock alleges that he purchased a multi-vehicle personal automobile insurance p o lic y from Cincinnati that covered six of his vehicles. (Compl. 23.) He further avers that h is daughter, an insured under the policy, was involved in an automobile accident and s u s ta in e d bodily injuries from the fault of an uninsured motorist, but that Cincinnati denied h i m and his daughter the benefits of stacking more than three UM coverages, n o tw ith stan d in g "that UM premiums were paid on additional vehicles." (Compl. 24.) Because Alabama law only permits an additional two coverages to be stacked on his m u lti-v e h ic le personal automobile insurance policy,1 Mr. Peacock alleges that any UM c o v e ra g e issued by Cincinnati on his fourth, fifth and sixth automobiles was "unnecessary, illu s o ry, and of no additional benefit" to him. (Compl. 22.) Mr. Peacock seeks to recover th e premiums paid for UM coverage on his fourth, fifth and sixth vehicles and to represent a ll other Cincinnati policyholders in the state of Alabama who have paid "for additional UM c o v e ra g e on more than three (3) vehicles covered under a multi-vehicle insurance policy iss u e d by [Cincinnati]." (Compl. 25);(see also Compl. 10 ("[T]he damages sought by P la in tif f and the proposed class members constitute restitution or disgorgement of monies p aid for the unnecessary and illusory UM coverage described herein.").) By statute, all automobile insurance polices in the state of Alabama must include UM motorist coverage unless rejected by the insured, and an insured may stack up to two additional UM coverages on a single multi-vehicle policy. Ala. Code 32-7-23. 1 2 M r. Peacock's claims are for breach of contract, fraudulent misrepresentation, f ra u d u le n t suppression and concealment, and unjust enrichment. (Compl. at 14-18.) The ju r is d ic tio n section of the complaint contains the following limitation on damages: P la in tif f , individually and on behalf of the putative class, makes no claims p u r su a n t to federal law and further make [sic] no claims which would give rise to any federal cause of action. Plaintiff's claims are based solely upon A la b a m a state law. Additionally, Plaintiff on behalf of himself and putative c l a s s members, does not make any claim for relief, including both equitable re lie f and monetary damages, in excess of $74,500.00 in the aggregate for P la in tif f or any class member. Under no circumstances would the total amount o f relief, including both equitable relief and monetary damages, exceed $ 7 4 ,5 0 0 .0 0 in the aggregate for Plaintiff or each class member. Even if P la in tif f and class members recovered under each count of the complaint, the to ta l recovery for Plaintiff and putative class members would not exceed $ 7 4 ,5 0 0 .0 0 in the aggregate for each Plaintiff or class member and the total d a m a g e s for the entire class would not exceed $4,995,000, in the aggregate. P la in tif f , on behalf of himself and the putative class, states that the total d a m a g e s for the entire class, including equitable relief and monetary damages a r e $4,995,000 or less, and under no circumstances will the total damages, inclu d in g equitable relief and monetary damages, for Plaintiff and the entire c la s s , in the aggregate, exceed $4,995,000. (Compl. 10 (uppercase bold typeface omitted).) O n June 10, 2008, Cincinnati filed a timely notice of removal under the Class Action F a irn e ss Act ("CAFA"), 28 U.S.C. 1332(d), in the United States District Court for the M id d le District of Alabama. (Not. Removal (Doc. # 1).) In its notice of removal, Cincinnati a ss e rts that the court has jurisdiction over this action because the requisite diversity of c itiz e n sh ip exists, the putative class comprises at least 100 members, and the claims total m o re than $5 million, notwithstanding Mr. Peacock's attempt to limit damages. (Not. R e m o v a l at 1-2 & n.1.) Cincinnati attaches to its notice of removal the original complaint, 3 the circuit court civil cover sheet, and an affidavit from Steven W. Leibel ("Mr. Leibel"), C in c in n a ti's vice president of personal lines. Mr. Leibel attests that the total number of C in c in n a ti multi-vehicle personal automobile insurance policies in effect where more than th re e vehicles were covered on a multi-vehicle policy was 1,705 in 2006 and 1,661 in 2007. (L e ib e l Aff. at 1-2 (Ex. 3 to Not. Removal).) Mr. Peacock responded to Cincinnati's notice o f removal on July 10, 2008, by filing a motion to remand the case to the Circuit Court of T a llap o o sa County, challenging the propriety of removal based on a failure of Cincinnati to p ro v e that the amount in controversy exceeds $5 million. I I . STANDARD OF REVIEW F e d e r a l courts have a strict duty to exercise the jurisdiction conferred on them by C o n g re s s . Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996). However, "[f]ederal c o u rts are courts of limited jurisdiction." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1 1 th Cir. 1994). Thus, with respect to cases removed to this court pursuant to 28 U.S.C. 1441, the law of the Eleventh Circuit favors remand where federal jurisdiction is not a b so lu te ly clear. "[R]emoval statutes are construed narrowly; where plaintiff and defendant c la sh about jurisdiction, uncertainties are resolved in favor of remand." Burns, 31 F.3d a t 1095. III. DISCUSSION C in c in n a ti removed this action pursuant to 28 U.S.C. 1441(b) on the basis that this c o u rt has subject matter jurisdiction under CAFA, 28 U.S.C. 1332(d). Pursuant to CAFA, 4 f e d era l courts have original jurisdiction over class actions provided that three prerequisites a re met: (1) the aggregate of the claims of individual class members exceeds $5 million, e x c lu s iv e of interest and costs, 1332(d)(2), (6); (2) there are at least 100 members in the p ro p o se d plaintiff class, 1332(d)(5)(b); and (3) there is minimal diversity requiring only th a t one member of the plaintiff class be diverse from one defendant, 1332(d)(2). See also L o w e ry v. Ala. Power Co., 483 F.3d 1184, 1194 (11th Cir. 2007), cert. denied, 128 S. Ct. 2 8 7 7 (2008). M r. Peacock concedes that minimal diversity is present and that the putative class has a t least 100 members. (Pl. Mem. of Law at 5 (Doc. # 10).) Only the first element is at issue. W h e re the complaint alleges unspecified damages, the removing party bears the b u rd e n of establishing the jurisdictional amount by a preponderance of the evidence. L o w e r y , 483 F.3d at 1209-10. However, where as here the complaint contains a limitation e sta b lis h in g that the amount in controversy falls below the jurisdictional minimum, the re m o v in g party "must prove to a legal certainty" that the plaintiff's claims "must exceed" the ju ris d ic tio n a l amount. Burns, 31 F.3d at 1095. The removing defendant's burden is a "heavy o n e," but not an impossible one. Id. For instance, under the legal certainty test, "the re m o v in g defendant "could remain in federal court if he showed that, if plaintiff prevails on liab ility, an award below the jurisdictional amount would be outside the range of permissible a w a rd s because the case is clearly worth more than [the jurisdictional amount]." Id. at 1096. 5 T o determine the amount in controversy in removal actions, a court can consider only th e notice of removal and accompanying documents, Lowery, 483 F.3d at 1213-14, at least f o r jurisdictional challenges brought within thirty days of removal, id. at 1218. Those d o c u m e n ts must "unambiguously establish federal jurisdiction," id. at 1213, and the court m u s t remand unless the jurisdictional amount "is either stated clearly on the face of the d o c u m e n ts before the court, or readily deducible from them," id. at 1211. "The absence of f a ctu a l allegations pertinent to the existence of jurisdiction is dispositive and, in such a b se n c e, the existence of jurisdiction should not be divined by looking to the stars." Id. a t 1215. A removing defendant can predicate jurisdiction either on the initial pleading, or "an a m e n d e d pleading, motion, order or other paper from which it may first be ascertained that th e case is one which is or has become removable." 28 U.S.C. 1446(b). When a defendant b a s e s removal on a document other than the initial pleading, three specific conditions must b e satisfied. There must be "(1) `an amended pleading, motion, order or other paper,' which (2 ) the defendant must have received from the plaintiff (or from the court, if the document is an order), and from which (3) the defendant can `first ascertain' that federal jurisdiction e x is ts ." Lowery, 483 F.3d at 1215 n.63 (quoting 28 U.S.C. 1446(b)). The general rule is th a t evidence "contemplated" by 28 U.S.C. 1446(b) is evidence "received from the p la in tif f s ." 2 Id. at 1221. Hence, "the defendant's appraisal of the amount in controversy . . . 2 The very narrow exceptions to that rule, see Lowery, 483 F.3d at 1215 n.66, are not argued here. 6 w ill ordinarily not provide grounds for his counsel to sign a notice of removal in good faith." Id . at 1215 n.63; see also Stroh v. Colonial Bank, N.A., No. 4:08-cv-73, 2008 WL 4831752, at *2 (M.D. Ga. Nov. 4, 2008). In support of his motion to remand, Mr. Peacock asserts generally that Cincinnati has n o t met its burden of establishing federal jurisdiction because it "ignores the fact that [Mr. P e a c o c k ] . . . has expressly limited any recovery to an amount below $4,995,000" and "fails to offer any acceptable evidentiary support of its assertion that the damages in this case e x c e e d $4,995,000." (Pl. Mot. Remand at 4.) The specific arguments for and against re m o v a l are threefold. The court addresses each in turn. F irs t , Mr. Peacock argues that Cincinnati's reliance on Mr. Leibel's affidavit as estab lish ing the amount in controversy is not permitted under Lowery because the document " w a s created by [Cincinnati], rather than received from [Mr. Peacock]." (Pl. Mem. of Law a t 6.) Cincinnati counters that the Eleventh Circuit permits consideration of affidavits p re p a re d and submitted by a defendant in removal actions. (Def. Resp. at 8 (Doc. # 11).) C in c in n a ti's argument is premised primarily on the Eleventh Circuit's decision in Miedema v . Maytag Corp., 450 F.3d 1322 (11th Cir. 2006), but without mention of Lowery. In Miedema, the defendant removed to federal court under CAFA, relying on a d e c la ra tio n submitted by one of the defendant's employees as proof that the $5 million ju ris d ic tio n a l minimum was met. 450 F.3d at 1325. The Eleventh Circuit agreed with the d istric t court that the analysis set out in the declaration was factually incomplete and could 7 n o t satisfy the defendant's burden of showing that the amount in controversy exceeded $5 m illio n . Id. at 1331. This part of the Miedema opinion, however, is of dubious precedential v a lu e in light of Lowery. Lowery held that "under 1446(b), in assessing the propriety of re m o v a l, the court considers the document received by the defendant from the plaintiff be it the initial complaint or a later received paper and determines whether that document and th e notice of removal unambiguously establish federal jurisdiction." Lowery, 483 F.3d a t 1213. "This inquiry is at the heart of a case . . . in which the plaintiffs challenge removal b y filing a timely motion to remand under 1447(c)." Id. (internal footnote omitted); see a ls o id. at 1218. Importantly, Lowery preempted any argument that its holding conflicted w ith Miedema: [ O ]u r reading of 1446(b) and 1447(c) does not conflict with our recent d e c is io n in Miedema . . . . In Miedema, the application of 1446(b) was not b e f o re the court. The district court in Miedema had considered evidence that w o u ld likely fall outside the constraints of 1446(b), but we concluded that, e v e n if all the evidence the district court looked to could properly be c o n sid e re d , the defendants had failed to carry their burden. . . . Because the e v id e n c e was insufficient to establish jurisdiction, we never examined 1446(b) or the propriety of the court's consideration of this evidence. Id . at 1215 n.65. Here, because Mr. Peacock filed his motion to remand within thirty days of the re m o v a l, the court is constrained by Lowery in the evidence which it can consider in d e te rm in in g the propriety of removal. The affidavit submitted by Cincinnati is from one of its corporate officers. The information provided by the corporate officer concerns the n u m b e r of multi-vehicle personal automobile insurance policies Cincinnati had in effect in 8 A la b a m a over a specified two-year period "where more than three vehicles were covered on a multi-vehicle policy." (Leibel Aff. at 1-2.) There is no indication that this information was re c eiv e d from Mr. Peacock, and it would be illogical to make that assumption given that f ig u re s concerning policies sold and in effect in Alabama relate to the very core of C incin n ati's business. Accordingly, the court finds that consideration of Mr. Leibel's af fid av it is not permitted under Lowery.3 See also Thrift Auto Repair, Inc. v. U.S. Bancorp, N o . 1:07-cv-1051, 2007 WL 2788465, at *3 (N.D. Ga. Sept. 21, 2007) (refusing to consider a f f i d a v it from defendant, submitted with removal petition, on the basis of Lowery and re je c tin g defendant's reliance on Miedema). Second, Cincinnati argues that jurisdiction in this court is established by multiplying th e number of potential class members by the jurisdictional minimum of Alabama circuit c o u rts . Half of Cincinnati's equation, however, relies on the premise that the number of p o ten tial class members can be established by the figures set out in Mr. Leibel's affidavit. (L e ib e l Aff. 3.) As discussed above, Lowery precludes consideration of that affidavit for p u r p o s e s of determining whether Cincinnati meets its burden of establishing that the class c la im s in the aggregate potentially are valued at more than $5 million. The statistics as to the Cincinnati relies on Pearson's Pharmacy, Inc. v. Blue Cross & Blue Shield of Ala., No. 3:05-cv-1072, 2007 WL 3496031 (M.D. Ala. Nov. 14, 2007), a proposed class action complaint removed pursuant to CAFA, in which this court found that an affidavit submitted by the removing defendant was insufficient to satisfy its burden of establishing the amount in controversy. Id. at *2. Pearson's Pharmacy is not binding, but, importantly, the plaintiff in that case did not seek to exclude the affidavit on the ground that it was not evidence "received from the plaintiff[]," Lowery, 483 F.3d at 1221. (See, e.g., 3:05-cv-1072 (Doc. # 7).) This issue was not raised by the plaintiff in Pearson's Pharmacy and was inadvertently overlooked by the court. The plaintiff assumed the affidavit's admissibility, albeit wrongly so, and focused instead on the evidentiary deficiencies of the attestations themselves. 3 9 c las s size cannot be gleaned from the complaint; thus, to accept Cincinnati's equation would re q u ire the court "to engage in impermissible speculation evaluating without the benefit o f any evidence" the size of the class. Lowery, 483 F.3d at 1220. Because a crucial figure in the equation offered by Cincinnati is missing, its argument fails.4 Having considered the n o tic e of removal and the complaint, which comprises the "limited universe of evidence" a p p ro p ria te for consideration, Lowery, 483 F.3d at 1214, the court finds that these documents f a ll far short of "unambiguously establish[ing] federal jurisdiction," id. at 1213. Third, Cincinnati's remaining arguments and Mr. Peacock's rebuttal focus on whether M r. Peacock's limitation on damages is sufficient to prevent removal. (Def. Resp. at 8-11; P l. Mem. of Law at 13-14.) Cincinnati says that it is not, but it reaches its conclusion by a p p lyi n g an incorrect burden of proof. Cincinnati's arguments for shifting the burden of p ro o f to Mr. Peacock "to prove `to a legal certainty' that the claim is really for less than the ju risd ictio n a l amount in controversy" (Def. Resp. at 11) simply cannot be reconciled with E v a n s v. Walter Industries, Inc., 449 F.3d 1159 (11th Cir. 2006). It is now settled in this c irc u it that "CAFA does not change the traditional rule that the party seeking to remove the c a se to federal court bears the burden of establishing federal jurisdiction." Id. at 1164; see a l so Lowery, 483 F.3d at 1208 (observing that the Eleventh Circuit has joined other circuits The court, thus, need not reach the parties' arguments pertaining to the use of the circuit court's jurisdictional minimum as a multiplier or Cincinnati's reliance on the circuit court civil action cover sheet, and nothing in this opinion should be interpreted as having spoken on these issues. 4 10 " in following the settled practice of placing the burden of proof on the removing defendant" in CAFA removals). The legal sufficiency of Mr. Peacock's limitation on damages finds support in the w e ll-es tab lish e d principle that a plaintiff is the "`master of the complaint'" and can plead his c la im s so as to avoid federal court jurisdiction. Holmes Group, Inc. v. Vornado Air C ir c u la tio n Sys., Inc., 535 U.S. 826, 831 (2002) (quoting Caterpillar Inc. v. Williams, 482 U .S . 386, 398-99 (1987)). "If [the plaintiff] does not desire to try his case in the federal court h e may resort to the expedient of suing for less than the jurisdictional amount, and though h e would be justly entitled to more, the defendant cannot remove." St. Paul Mercury Indem. C o . v. Red Cab Co., 303 U.S. 283, 294 (1938). Cincinnati does not question that Mr. P e a c o c k is the master of his complaint, nor does it challenge Mr. Peacock's authority to limit th e damages claims of putative class members. Removing defendants in at least two other C A F A actions failed to hurdle the legal certainty standard when faced with class damages lim ita tio n s similar to Mr. Peacock's. Compare Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F .3 d 994, 996 (9th Cir. 2007) (alleging in the jurisdiction section of the complaint that "`[t]he a g g re g a te total of the claims pled herein do not exceed five million dollars'"), and Morgan v . Gay, 471 F.3d 469, 471 (3d Cir. 2006) (alleging that "`the total amount of such monetary re lief for the class as a whole shall not exceed $5 million in sum or value'"), with (Compl. a t 6, alleging "that the total damages for the entire class, including equitable relief and m o n e ta r y damages are $4,995,000 or less, and under no circumstances will the total damages, 11 in c lu d in g equitable relief and monetary damages, for Plaintiff and the entire class, in the a g g re g a te , exceed $4,995,000"). Cincinnati's arguments fail to sustain its burden on removal. Cincinnati points to Mr. P e a c o ck 's allegations revealing that his daughter suffered bodily injuries exceeding $60,000 a t the fault of an uninsured motorist. (Compl. 6, 24.) Cincinnati then argues that this a m o u n t is sought in addition to the alleged stipulated damages request of $4,995,000, thus, incre asin g the damages sought to more than $5 million. (Def. Resp. at 9-10.) Cincinnati's a rg u m e n t, however, assumes too much. Cincinnati has not identified any paragraph in the c o m p la in t where Mr. Peacock makes an actual demand for the recovery of this type of relief, a n d Mr. Peacock argues that there is no such demand. 5 (See, e.g., Compl. 10 ("[T]he d a m a g e s sought by Plaintiff and the proposed class members constitute restitution or d is g o rg e m e n t of monies paid for the unnecessary and illusory UM coverage described h e re in ." ).) Rather, the more logical reading of the complaint is that the allegations s u rro u n d in g his daughter's accident are included to give context as to when Mr. Peacock The limitation on aggregate damages for the class made in state court was "subject to the requirements of Alabama Rule of Civil Procedure 11." Lowery, 483 F.3d at 1220. Similarly, counsel's representations in his pleadings filed in this court in support of the motion to remand are subject to the strictures of Rule 11(b) of the Federal Rules of Civil Procedure. See Federated Mut. Ins. Co. v. McKinnon Motors, LLC., 329 F.3d 805, 808 & n.6 (11th Cir. 2003) (reciting that plaintiff's attorneys were officers of the court and "subject to sanctions under Federal Rule of Civil Procedure 11 for making a representation to the court for an improper purpose"). Counsel for Mr. Peacock expressly represents that his client "limit[s] the amount in controversy to less than the jurisdictional amount," "does not seek or plead damages for bodily injury for himself or any other person" and "does not plead, nor does he seek, any form of damages beyond the restitution of monies paid for the illusory UM coverage described in [his] complaint." (Pl. Reply at 8 (Doc. # 12); see also Pl. Mem. of Law at 13-14.) The court finds that counsel's representations are consistent with the complaint's provisions, and there is nothing in the record which persuades the court that counsel's representations are "presented for any improper purpose" or otherwise are made in bad faith. Fed. R. Civ. P. 11(b). 5 12 learn ed of Cincinnati's conduct about which he complains in this lawsuit. Moreover, Mr. P e a c o ck 's cap on damages is in the "aggregate" for the "entire class" and encompasses "the to ta l damages," both equitable and monetary, for "the entire class." (Compl. at 6.) The cap m a k e s no exception for additional damages and, thus, contradicts Cincinnati's argument that d a m a g e s in addition to the cap are sought. Cincinnati also points out that theoretically under Alabama law a jury could award, a n d the class could accept, more than $5 million in damages even with the express limitation in the complaint. The defendant in Burns raised, but the court rejected, a substantially id e n tic a l argument, holding that it was insufficient to demonstrate to a legal certainty that the a m o u n t in controversy was satisfied.6 See 31 F.3d at 1097 (adopting defendant's "approach w o u ld allow state rules of procedure to determine when federal jurisdiction existed"). Based on the foregoing, the court finds that Cincinnati has not met its burden of e s ta b l is h in g to a legal certainty that the aggregate of the claims of the individual class The Third Circuit's admonitions in Morgan, however, are worth noting. See 471 F.3d. at 476-78. There, the court "admonish[ed] that a verdict in excess of the demand could well be deemed prejudicial to the party that sought removal to federal court when the party seeking remand uses a damages-limitation provision to avoid federal court." Id. at 477. The Third Circuit pointed out "the potential availability of judicial estoppel" should the plaintiffs later seek an award exceeding $5 million and further caution[ed] . . . that the plaintiffs in state court should not be permitted to ostensibly limit their damages to avoid federal court only to receive an award in excess of the federal amount in controversy requirement. The plaintiff has made her choice, and the plaintiffs in state court who choose not to opt out of the class must live with it. Id. at 477-78 (internal footnote omitted). 6 13 m em b ers meets the jurisdictional minimum of $5 million. Accordingly, Mr. Peacock's m o tio n to remand is due to be granted.7 I V . CONCLUSION F o r the foregoing reasons, it is ORDERED that: (1 ) (2 ) M r. Peacock's motion to remand (Doc. # 9) is GRANTED; T h is case is REMANDED to the Circuit Court of Tallapoosa County, A la b a m a ; (3 ) th e Clerk of the Court is DIRECTED to take appropriate steps to effect the re m a n d ; and (4 ) M r. Peacock's request for his costs and attorney's fees is DENIED. D o n e this 18th day of December, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE In his motion to remand, Mr. Peacock contends that the court should award him costs, expenses and attorney's fees pursuant to 28 U.S.C. 1447(c), arguing that Cincinnati "lack[ed] any objectively reasonable basis for removing this matter." (Pl. Mem. of Law at 16.) The award, however, is discretionary, and, having reviewed the record as a whole, the court does not find that Cincinnati's removal was so "lacking in merit as to justify such an award." Sapp v. AT&T Corp., 215 F. Supp. 2d 1273, 1279 (M.D. Ala. 2002). It was not objectively unreasonable "to test the bounds of Lowery and CAFA in this class action setting." C & E, Inc. v. Friedman's Jewelers, Inc., No. CV 107-122, 2008 WL 64632, at *3 (S.D. Ga. Jan. 4, 2008). 7 14

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