West v. Nissan North America, Inc. et al
ORDER denying 35 Motion to Supplement; granting 16 Motion to Remand. The case is remanded to the Circuit Court of Miller County, Arkansas, for further proceedings. Signed by Honorable Susan O. Hickey on March 4, 2014. (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TOM WEST, on behalf of himself
and all others similarly situated
Civil No. 4:13-cv-4070
NISSAN NORTH AMERICA, INC.
Before the Court is a Motion to Remand (ECF No. 16) filed on behalf of Plaintiff Tom
West (“West”). Defendant Nissan North America, Inc. (“Nissan”) has responded. (ECF Nos. 22
& 27). Plaintiff has replied. (ECF No. 23). The Court finds the matter ripe for consideration.
On November 1, 2011, West filed this class action against Nissan in the Circuit Court of
Miller County, Arkansas. West then filed a First Amended Complaint on November 23, 2011,
and a Second Amended Complaint on June 14, 2012.
In West’s Second Amended Complaint, he alleges that the 2004-2006 models of the
Nissan Titan, Nissan Armada, and Infiniti QX56 possess faulty braking systems and that Nissan
concealed this defect from customers. West seeks compensatory damages of $1,000 to repair the
defect in each vehicle, attorneys’ fees, pre- and post-judgment interest, and any other relief the
Court deems appropriate. The Second Amended Complaint contains a stipulation that damages
would not be accepted if they caused the amount in controversy to exceed $5,000,000.
The Second Amended Complaint pre-dated the United States Supreme Court’s March 19,
2013 opinion in Standard Fire Ins. Co. v Knowles, __ U.S. __, 133 S.Ct. 1345, 185 L.Ed.2d 439
(2013). In Knowles, the Supreme Court held that stipulations, like the one in West’s Complaint,
do not prevent removal under Class Action Fairness Act (“CAFA”). Id. Without the benefit of
the Knowles decision, Nissan assumed the stipulation was effective and chose not to remove the
case under CAFA at that time.
Following the Knowles decision, on June 28, 2013, West filed a Motion for Class
Certification. The motion sought to certify a class of 2004-2008 vehicles. As stated previously,
West’s Second Amended Complaint proposed a class of 2004-2006 vehicles. Thus, the Motion
for Class Certification seemingly expanded the class. Nissan assumed the additional 2007 and
2008 models established an amount in controversy over $5,000,000 and sought to remove the
action to federal court on that ground. Prior to removing the action, Nissan informed West of its
intent to remove.
In response, on July 24, 2013, at approximately 3:35 p.m., West’s counsel verbally
informed Nissan that the class expansion in the Motion for Class Certification was an
administrative error. At 4:48 p.m., West’s counsel served Nissan with a written stipulation
stating: “The case is limited to those owners or subsequent owners of the 2004-2006 models at
issue.” At 4:58 p.m., West’s counsel served Nissan with Responses to Nissan’s Request for
Admissions. In the Response to Admissions, West admitted that the class he represented did not
include owners of 2007 and 2008 model vehicles. At 7:17 p.m., West’s counsel served Nissan
with an Amended Motion for Class Certification. The amended motion was accompanied by a
“[P]lease find a service of copy of Plaintiff’s Amended Motion for Class
Certification which we will be filing first thing in the morning and to reflect the accurate years
for the class owners as 2004-2006.”
On July 25, 2013, at 8:00 a.m., West’s counsel filed an Amended Motion for Class
Certification, and at 8:27 a.m., Nissan was served with the file-marked cover page.
Subsequently, on that same day, Nissan’s counsel filed a Notice of Removal. In the Notice of
Removal, Nissan asserts that this Court has jurisdiction over the action under CAFA.
“CAFA provides the federal courts with original jurisdiction to hear a class action if the
class has more than 100 members, the parties are minimally diverse, and the matter in
controversy exceeds the sum or value of $5,000,000.” Knowles, 133 S.Ct. at 1348 (quotations
omitted). The defendant has the burden of establishing by a preponderance of the evidence that
the jurisdictional amount is satisfied. See Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009).
Under this standard, the defendant need not prove that the damages “are greater than the
requisite amount,” only that a fact-finder “might legally conclude that they are.” Id. (emphasis in
original). Once the defendant has met its initial burden, the plaintiff can avoid federal court only
by establishing “that it is legally impossible to recover in excess of the jurisdictional minimum.”
Nissan argues that West’s addition of the 2007 and 2008 models in his Motion for Class
Certification satisfies CAFA’s jurisdictional minimum. West contends that the 2007 and 2008
vehicles should not be considered in the amount in controversy because he amended his Motion
for Class Certification and he did not plead those models in his Second Amended Complaint.
The Court agrees with West for the following two reasons.
First, West’s initial Motion for Class Certification cannot be considered because West
amended the motion prior to removal. The court’s jurisdiction is measured at the time of
removal. See Hargis v. Access Capital Funding, LLC, 674 F.3d 783, 789-90 (8th Cir. 2012). In
this case, before Nissan filed its notice of removal, West had filed an Amended Motion for Class
Certification limiting the class to the 2004-2006 models. Therefore, the jurisdictional inquiry is
limited to the Amended Motion for Class Certification. Nissan asserts that the Court should not
consider the Amended Motion for Class Certification because it was untimely. 1 However, at the
time of removal, the amended motion had not been excluded for untimeliness.
Second, even if the Court considers West’s first Motion for Class Certification, it does
not change the relief West may seek and, thus, has no bearing on the amount in controversy. The
Court relies on Hurst v. Nissan, 511 Fed. Appx. 584 (8th Cir. 2013). In Hurst v. Nissan North
America, the Eighth Circuit remanded a class action to Missouri state court because the amount
in controversy fell short of the CAFA jurisdictional requirement. Id. at 586. The defendant had
removed the case upon receiving the plaintiffs’ proposed jury instruction on punitive damages.
Id. at 585. The defendant argued that the punitive damages established the CAFA jurisdictional
minimum. Id. The Eighth Circuit disagreed. Id. at 586. The Eighth Circuit concluded that,
despite the instruction, the defendants failed to establish CAFA jurisdiction. Id. Missouri law
required punitive damages to be specifically pleaded in a complaint, and at the time of removal,
the plaintiffs’ complaint did not specifically allege punitive damages. Id. Thus, the Eighth
Circuit reasoned, the class could not legally seek punitive damages. Id. The Eighth Circuit
noted, however, that if punitive damages should “find their way into the case for consideration
by the jury (whether by formal amendment to the pleadings or otherwise), immediate removal
would be timely and almost certainly proper.” Id. at 586-87.
The state docket control order required West to file a class certification motion by June 21, 2013. (ECF No. 1-3).
West filed his initial Motion for Class Certification on June 28, 2013 and then filed his Amended Motion for Class
Certification on July 25, 2013. Thus, if the amended motion should not be considered due to its tardiness, it would
follow that the Court should not consider the original motion because West also filed it after the deadline.
Applying Hurst to this case, the issue is whether the expanded class definition in the first
Motion for Class Certification changes the relief West may seek. The parties do not cite any
Eighth Circuit or Arkansas cases that address this specific issue. However, “[d]istrict courts
typically . . . hold a plaintiff seeking class certification to the definition espoused in the relevant
complaint.” Savanna Grp., Inc. v. Trynex, Inc., No. 10-cv-7995, 2013 WL 66181, at *2 (N.D.
Ill. Jan. 4, 2013) (citing Clarke v. Baptist Mem’l Heatlhcare Corp., 264 F.R.D 375, 381 (W.D.
Tenn. 2009) (“To accommodate a new proposed class definition, plaintiffs will need to amend
the complaint.”); Costelo v. Chertoff, 258 F.R.D. 600, 604-05 (C.D. Cal. 2009) (“The Court is
bound to class definitions provided in the complaint and, absent an amended complaint, will not
consider certification beyond it.”); Heastie v. Cmty. Bank of Greater Peoria, 125 F.R.D. 669,
672 n.10 (N.D. Ill. 1989) (“[T]he class definitions proposed in [plaintiff’s] motion for class
certification differs from that set forth in her complaint. The Court has certified the class as
originally proposed, but [plaintiff] may file an appropriate motion to amend both her complaint
and the class definitions we have set forth here . . . .”).
Nissan concedes that courts generally hold plaintiffs to the class defined in their
However, Nissan argues this Court should include the 2007 and 2008 models
because it is not legally impossible for courts to consider a modified class definition on a motion
for class certification. Nissan relies on Savanna Group., Inc. v. Trynex, Inc., No. 10-cv-7995,
2013 WL 66181, at *2 (N.D. Ill. Jan. 4, 2013) and Menking ex rel. Menking v. Daines, 287
F.R.D. 174, 181 (S.D.N.Y. 2012).
In both Savanna and Menking, the plaintiffs proposed
different class definitions on motions for certification than they alleged in their complaints, and
the courts considered the modified definitions. Savanna, 2013 WL 66181, at *2-3; Menking, 287
F.R.D. at 181. However, the courts considered the different classes for certification purposes.
Savanna, 2013 WL 66181, at *2-3; Menking, 287 F.R.D. at 181. The courts did not treat the
motion for certification as de facto amendments to the plaintiffs’ complaints. Savanna, 2013 WL
66181, at *2-3; Menking ex rel. Menking v. Daines, 287 F.R.D. at 181. In Savanna, the court
specifically noted that the plaintiff may amend the class definition in its complaint to correspond
to the definition discussed in the certification. Savanna, 2013 WL 66181, at *3.
In this case, the Court concludes that West’s Motion for Class Certification did not
modify the relief West may seek. Like the courts noted above, this Court declines to treat West’s
Motion for Class Certification as an amendment to West’s complaint. The class in the Second
Amended Complaint includes the 2004-2006 models. Accordingly, the Court will only consider
the 2004-2006 models to determine the amount in controversy.
However, if the 2007 and 2008
models make their way into the case, whether by formal amendment to the pleadings or
otherwise, immediate removal would likely be timely and proper. See Hurst, 511 Fed. Appx. at
Nissan argues that even if the class is limited to the 2004-2006 vehicles, the suit is
removable because amount in controversy exceeds $5,000,000.
West asserts that Nissan’s
attempt to remove based on the 2004-2006 class definition is untimely. In response, Nissan
contends that the Amended Motion for Class Certification triggered removal under 28 U.S.C. §
1446(b)(3) because the motion was the first motion filed after the Knowles decision. In other
words, Nissan contends the action was not removable by its initial pleadings with the damages
stipulation but when West filed the Amended Motion for Class Certification, following the
Knowles decision invalidating stipulations, the case became removable.
West filed a Motion to Supplement the Motion to Remand (ECF No. 35). West seeks to supplement his Motion to
Remand with a brief written by Nissan for a case in the Northern District of California. In the brief, Nissan argues
that it is “improper to seek to amend the class definition through a class certification.” Thus, in the brief, Nissan
agrees with West’s position in this case. Nissan has responded (ECF No. 36). The Court has ruled in West’s favor
without considering the proposed supplement. Accordingly, West’s Motion to Supplement Motion to Remand (ECF
No. 35) is DENIED.
Federal law specifies that a defendant seeking removal must file a “notice of removal . . .
within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading.” 28 U.S.C. § 1446(b)(1). “If the case stated by the initial pleading is not
removable, a notice of removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one which is or has become removable.”
28 U.S.C. § 1446(b)(3). “The key is whether the [paper] itself clearly and unequivocally
provides the requisite notice of removability.” State Farm Fire and Cas. Co. v. Valspar Corp.,
Inc., 824 F. Supp. 2d 923, 931 (D.S.D. 2010). “A decision in a separate case with different
parties” is not an “order or other paper.” Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 969
(8th Cir. 2007). Federal courts must resolve all doubts about federal jurisdiction in favor of
remand and are to strictly construe legislation permitting removal. Id.
The Court concludes that West’s Amended Motion for Class Certification did not trigger
removal under section 1446(b)(3). West’s motion itself did not provide any new grounds for
removal. The amended motion sought the same relief as the Second Amended Complaint, and
Nissan chose not to seek removal on the receipt of that complaint. The only new grounds for
removal came from the Knowles decision that invalidated the stipulation in West’s complaint,
and the Eighth Circuit has held that a decision in a separate case with different parties does not
trigger removal under section 1446(b)(3). See Dahl, 478 F.3d at 969. Because West’s Amended
Motion for Class Certification does not provide a new ground for removal, the Court concludes
that the motion did not trigger removal under section 1446(b)(3). Accordingly, Nissan had no
statutory basis to remove the action, and the Court must remand it to state court. 3
Judge Holmes recently came to a similar conclusion in Roller et. al. v. TV Guide Online Holdings, LLC, No. 5:13CV-05214 (W.D. Ark. Jan. 22, 2014). Like Nissan, the defendant in Roller assumed a damages stipulation in an
West’s Motion for Remand includes a request for costs and attorneys’ fees. Pursuant to
28 U.S.C. § 1447(c), in the discretion of the Court, an order remanding a case may require
payment of just costs, including attorneys’ fees. “Absent unusual circumstances, courts may
award attorneys’ fees under 1447(c) only where the removing party lacked an objectively
reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists,
fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). Given the
unsettled nature of this area of the law, the Court concludes that an award of costs and attorneys’
fees under 1447(c) would be inappropriate.
For the reasons stated above, the Court finds that Plaintiff’s Motion to Remand (ECF No.
16) should be and hereby is GRANTED. The case is remanded to the Circuit Court of Miller
County, Arkansas, for further proceedings.
IT IS SO ORDERED, this 4th day of March, 2014.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
amended complaint was effective and chose not remove the case. Id. at 4. Subsequently, the state court reinstated
the plaintiff’s amended complaint. Id. at 2. The reinstated complaint sought the same relief as the amended
complaint. Id. Upon service of the reinstated complaint, the defendant removed the case, arguing that the damages
stipulation prohibited earlier removal. Id. at 4. Judge Holmes disagreed and remanded the case. Id. He stated that
the defendant “could have and should have removed [the] case” upon service of the amended complaint because
“the law at that time was not so well-settled as to prevent even an attempt at removal.” Id. at 6. He further noted
that the defendant “simply did not want to expand the resources that removal litigation would have required at that
point in time, [and n]ow that the work has been done for it, [the defendant] seeks to reap the benefits of someone
else’s efforts.” Id.
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