Gale v. Chicago Title Ins Co et al

Filing 365

ORDER granting 351 Motion to Dismiss. Please see attached Ruling and Order for details. Signed by Judge Robert N. Chatigny on 9/30/2017. (Chenoweth, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOHN Q. GALE and
JOHN Q. GALE, LLC,
Plaintiffs,
v.
CHICAGO TITLE INSURANCE CO.,
ET AL.,
Defendants.

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Case No. 3:06-CV-1619 (RNC)

RULING AND ORDER
Plaintiffs John Gale (“Gale”) and John Q. Gale, LLC (“Gale
Law Firm”) filed this suit in federal court under the Class
Action Fairness Act (“CAFA”), 28 U.S.C. §§ 1332(d), on behalf of
themselves and others, for damages and equitable relief against
title insurance companies doing business in Connecticut alleging
violations of the Connecticut Unfair Trade Practices Act
(“CUTPA”), Conn. Gen. Stat. § 42-110b(a), and the Connecticut
Unfair Sales Practices Act (“CUSPA”), Conn. Gen. Stat. § 24-111.
Plaintiffs have filed a fourth amended complaint (“4AC”), which
deletes the class allegations in the original complaint.
Defendants have moved to dismiss arguing principally that CAFA
jurisdiction no longer exists as a result of the amendment and
there is no other basis for subject matter jurisdiction.
Plaintiffs respond that because CAFA jurisdiction attached with
the filing of the original complaint, the 4AC does not divest the

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Court of jurisdiction.

After considering the parties’

submissions, I conclude that the claims in the 4AC should be
dismissed without prejudice to refiling in state court.
I.

Background
Familiarity with the history of this long-pending litigation

is presumed.
follows.

In relevant part, the procedural history is as

On March 23, 2011, plaintiffs’ motion for class

certification was granted, allowing class treatment pursuant to
Federal Rule of Civil Procedure 23(b)(2).
240).

Order 15 (ECF No.

On August 23, 2011, defendants moved to decertify the

class, arguing that the monetary relief plaintiffs sought was
foreclosed by the Supreme Court’s ruling in Wal Mart Stores, Inc.
v. Dukes, 564 U.S. 338 (2011).

Mot. ¶¶ 3-4 (ECF No. 255).

On

March 22, 2012, defendants’ motion to decertify the class was
granted without prejudice to the filing of a new motion for class
certification.

Minute Entry (ECF No. 308).

In March 2016, plaintiffs reported that in an effort to try
to move the case along they had decided to proceed solely on
their individual claims for declaratory and injunctive relief.
conference was held to discuss the best way to proceed.
Entry (ECF No. 340).

Minute

At the conference, defendants stated that

“the first order of business” should be “for the plaintiffs to
move to amend” their complaint.

Tr. 9-10 (ECF No. 346).

Pursuant to the discussion at the conference, plaintiffs filed

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A

the 4AC dropping the class allegations.

The 4AC alleges that

jurisdiction is proper under 28 U.S.C. § 1332(d)(2)(A) because
this was a class action involving diverse parties and more than
$5,000,000 in controversy when the action was brought.

28 U.S.C.

§ 1332(d)(2)(A); Fourth Am. Compl. ¶ 13 (ECF No. 342).1
Defendants responded to the 4AC by filing the present motion to
dismiss for lack of subject matter jurisdiction.
II. Discussion
All Circuits that have considered the question agree that
failure of class certification under CAFA does not prevent a
district court from retaining jurisdiction over individual
claims.

See F5 Capital v. Pappas, 856 F.3d 61, 77 (2d Cir.

2017); Louisiana v. Am. Nat’l Prop. & Cas. Co., 746 F.3d 633, 635
(5th Cir. 2014); Metz v. Unizan Bank, 649 F.3d 492, 500-01 (6th
Cir. 2011); Buetow v. A.L.S. Enters., Inc., 650 F.3d 1178, 1182
n.2 (8th Cir. 2011); United Steel, Paper & Forestry, Rubber,
Mfg., Energy, Allied Indus. & Serv. Workers Int’l Union v. Shell
Oil Co., 602 F.3d 1087, 1091-92 (9th Cir. 2010); Cunningham
Charter Corp. v. Learjet, Inc., 592 F.3d 805, 806-07 (7th Cir.
2010); Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 n.12 (11th
Cir. 2009).

In none of those cases, however, were the class

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Plaintiffs concede they cannot satisfy the requirements
for diversity jurisdiction under 28 U.S.C. § 1332(a) because the
amount in controversy is less than $75,000. Pls.’ Mem. in Opp’n
(ECF No. 354) at 14 n.13.
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allegations dropped from an amended complaint.

Ordinarily, when

a plaintiff voluntarily amends a complaint filed in federal
court, the court must look to the amended complaint to determine
subject matter jurisdiction.

Rockwell Int’l Corp. v. United

States, 549 U.S. 457, 473-74 (2007).

Defendants contend that

this rule requires dismissal of the 4AC.
Plaintiffs contend that Rockwell applies only to federal
question jurisdiction and thus does not apply to a case under
CAFA, which is anchored in diversity jurisdiction.
Opp’n 11-12 (ECF No. 354).

Defendants’ reply brief cites

diversity cases in which Rockwell has been applied.
Mem. 2-3 (ECF No. 358).

Pl.’s Mem.

Defs.’ Reply

In any event, it is not clear that this

case should be treated like a diversity case that satisfied the
requirements of 28 U.S.C. § 1332(a) at the time it was filed.
Congress enacted CAFA to deal with the specific problem of
class action litigation of “national importance” being brought
in state courts due to forum shopping.

Mississippi ex rel. Hood

v. AU Optronics Corp., 134 S. Ct. 736, 739 (2014).

When a case

originally brought in federal court pursuant to CAFA can no
longer be considered a class action, CAFA’s purposes do not
justify maintaining federal jurisdiction.

Nor is continued CAFA

jurisdiction in such a case justified by concerns about forum
shopping, the reason often given for continuing jurisdiction in
removed cases.

See In Touch Concepts, Inc. v. Cellco P’ship, 788

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F.3d 98, 101 (2d Cir. 2015); In re Burlington N. Santa Fe Ry.
Co., 606 F.3d 379, 381 (7th Cir. 2010) (citing Rockwell, 549 U.S.
at 473-74 & n.6; United Steel, 602 F.3d at 1091-92; and
Cunningham, 592 F.3d at 807).
Whether a plaintiff who brings a CAFA case in federal court
can plead away jurisdiction under Rockwell by filing an amended
complaint that drops the class allegations appears not to have
been decided by any Court of Appeals.

However, in a CAFA case

that was removed to federal court, the Second Circuit quoted from
Rockwell then stated in dictum that, “if this case had been filed
originally in federal court, the district court would have had to
dismiss it as soon as [the plaintiff] filed the First Amended
Complaint, which dropped all class-action allegations and thereby
destroyed the only basis for federal jurisdiction.”
Concepts, Inc. v. Cellco P’ship, 788 F.3d at 101.

In Touch
The Court’s

statement strongly suggests that Rockwell applies in this
instance.
During oral argument on the present motion, plaintiffs’
counsel stated that the Second Circuit’s statement should be
interpreted as an indication of what would happen if a plaintiff
filed a CAFA complaint in federal court then abandoned the class
allegations without first making an effort to have the class
certified.

Tr. 16 (ECF No. 360-1).

That reading is possible

because the plaintiff in In Touch seems to have dropped the class

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allegations before seeking class certification.
100.

See 788 F.3d at

It is far from clear, however, that CAFA jurisdiction

continues, notwithstanding Rockwell, unless the plaintiff has
engaged in what appears to be forum manipulation.

It may well be

that Rockwell requires dismissal for lack of jurisdiction
whenever a complaint filed in federal court is voluntarily
amended to delete the basis for jurisdiction, as defendants
argue.
Plaintiffs contend that their amendment was not voluntary
within the meaning of Rockwell.

They explain that their decision

to withdraw the class allegations was motivated by a desire to
advance this long-delayed case to a resolution.

They also

explain that they subsequently filed the 4AC only because the
defendants requested that they do so.

Defendants respond that

plaintiffs were not forced to drop their class claim but instead
made a strategic decision to do so, which they communicated to
the Court orally and in writing before the defendants requested
that they file an amended complaint in accordance with Rule 15.
I am sympathetic to the plaintiffs’ position and regret that
the lengthy delays they experienced in this litigation may have
contributed to their decision to forego all class claims.
However, it is far from clear that their decision to drop the
class allegations was not voluntary within the meaning of
Rockwell.

What makes an amendment voluntary or involuntary is

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not well-defined.

After fully considering the parties’

arguments, I think it would be difficult for me to find that
plaintiffs’ decision to drop the class allegations, a decision
they made independently and announced before the telephone
conference, was other than voluntary under Rockwell.
The Court of Appeals recently noted that when a district
court finds that a CAFA case cannot proceed as a class action,
jurisdiction over the individual claims continues to exist but
the court has discretion to dismiss the individual claims without
prejudice to refiling in state court.
at n.14.

See F5 Capital, 856 F.3d

This suggests that in deciding the present motion, the

Court may be guided by the factors relevant to a determination
whether to exercise supplemental jurisdiction, as at least one
court has done in dismissing a CAFA case originally brought in
federal court following dismissal of the class claims with
prejudice.

See Taragan v. Nissan N. Am., No. C 09-03660 SBA,

2011 WL 941132, at *4 (S.D. Cal.)
In this case, given the uncertainty regarding the existence
of jurisdiction, I think it makes sense to dismiss the individual
claims without prejudice.

It would be unfortunate if the parties

were to continue to invest substantial time and money in this
litigation only to have the Court of Appeals decide that
jurisdiction was lacking once plaintiffs decided to abandon any
class claims.

That is a substantial risk, in my opinion,

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particularly in view of the statement in In Touch.

Dismissal of

the individual claims without prejudice is also appropriate
because the claims raise unsettled questions of state law that
may be better resolved in state court.
III.

Conclusion
Accordingly, the motion to dismiss is hereby granted.

The claims in the 4AC are dismissed without prejudice.

The Clerk

may enter judgment and close the file.
So ordered this 30th day of September 2017.

/s/RNC
Robert N. Chatigny
United States District Judge

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