JOHNSON v. BANK OZK

Filing 20

ORDER GRANTING 11 Motion to Remand; and DENYING as moot 12 Motion to Dismiss. The case is remanded back to the State Court of Bibb County. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 4/26/2021. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
VALERIE F. JOHNSON,
Plaintiff,
v.
BANK OZK,
Defendant.
__________________

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CIVIL ACTION NO. 5:21-CV-44 (MTT)

ORDER
On February 3, 2021, Defendant Bank OZK removed this putative class action
from the Bibb County State Court to this Court pursuant to 28 U.S.C. §§ 1441 and 1446.
Doc. 1. The Court allegedly has original subject matter jurisdiction of this case pursuant
to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Id. ¶ 7. Plaintiff Valerie
F. Johnson has moved to remand the case back to the State Court of Bibb County.
Doc. 11. Because OZK has not established that CAFA’s minimum amount in
controversy requirement is met and thus has not established that the Court has subject
matter jurisdiction, Johnson’s motion to remand (Doc. 11) is GRANTED.
I. BACKGROUND
Johnson alleges three types of contract breaches against OZK in her putative
class action lawsuit. First, Johnson alleges that OZK improperly charged overdraft
fees1 when, in fact, there were sufficient funds in an account holder’s account. Doc. 1-1

The Court refers to both overdraft fees and insufficient funds fees simply as “overdraft fees.” Any
difference between the two is immaterial for the purpose of this Order. See Docs. 1-1 ¶ 1; 14 at 2.
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¶¶ 8-13. Second, Johnson alleges that OZK improperly charged multiple overdraft fees
on single attempted transactions. Id. ¶¶ 14-22. For these two claims, Johnson does not
allege that all overdraft fees were improper; rather, she challenges only the fees
assessed when a transaction did not actually overdraft an account and the fees
assessed on successive attempts to process a single transaction for which there were
insufficient funds. Third, Johnson alleges that OZK improperly charged balance inquiry
fees before cash withdrawals from out-of-network ATMs. Id. ¶¶ 23-27.
Johnson seeks to certify a class consisting of:
All Georgia citizens residing in the state of Georgia who, on or before July
31, 2018, were charged [overdraft fees] by [OZK] on items that did not
overdraw their accounts, or who were charged multiple [overdraft fees] by
[OZK] on the same item from an account held with [OZK], or who were
charged ATM Fees by [OZK] for balance inquires that preceded a cash
withdraw.
Id. ¶ 29.
Johnson argues that the Court does not have subject matter jurisdiction over this
case because OZK has not established that the amount in controversy exceeds $5
million, CAFA’s jurisdictional threshold. Doc. 11 ¶ 2. Therefore, Johnson argues, the
Court should remand the case back to the State Court of Bibb County. Id. ¶ 1.
II. DISCUSSION
A. Legal Standard
CAFA states that “[t]he district courts shall have original jurisdiction of any civil
action in which the matter in controversy exceeds the sum or value of $5,000,000,
exclusive of interest and costs, and is a class action in which … Any member of a class
of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2).
The statute also requires that there be at least 100 members of the putative class. 28

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U.S.C § 1332(d)(5)(B). Thus, CAFA grants federal courts jurisdiction over class actions
if: “(1) any member of the plaintiff class is a citizen of a state different from the state of
any defendant, (2) the aggregate amount in controversy exceeds $5 million, and (3) the
proposed plaintiff class contains at least 100 members.” Dudley v. Eli Lilly and Co., 778
F.3d 909, 911 (11th Cir. 2014) (citations omitted).
The party seeking to establish federal subject matter jurisdiction bears the
burden of showing that each of CAFA elements is satisfied. Lowery v. Ala. Power Co.,
483 F.3d 1184, 1207-08 (11th Cir. 2007). This includes “establishing the jurisdictional
amount by a preponderance of the evidence.” Id. at 1208. Although at an early stage
of litigation there is often nothing but the bare pleadings, the Eleventh Circuit has stated
that it may be appropriate to weigh competing evidence filed with a putative class action
to determine if the jurisdictional amount in controversy has been met. Id. at 1209 n.56.
Jurisdiction will be established if the “jurisdictional amount is either stated clearly on the
face of the documents before the court[] or readily deducible from them.” Id. at 1211;
Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 754 (11th Cir. 2010) (stating a party
may make factual allegations “combined with reasonable deductions, reasonable
inferences, or other reasonable extrapolations”). It is improper for a court to speculate
when determining whether the documents submitted by a party establish the
jurisdictional amount. Lowery, 483 F.3d at 1220. However, a court need not “suspend
reality or shelve common sense in determining whether the face of the complaint …
establishes the jurisdictional amount.” Roe v. Michelin N. Am., 613 F.3d 1058, 1062
(11th Cir. 2010) (citation omitted).

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B. Amount in Controversy
Two of CAFA’s elements are clearly satisfied and not disputed. Docs. 11; 14 at
1. There is at least minimal diversity of citizenship because Johnson is a resident of
Georgia and OZK is a corporation incorporated in Arkansas with its principal place of
business also in Arkansas. 2 Doc. 1-1 ¶¶ 4-5. Also, the putative class is composed of at
least 100 members; Johnson alleges that “thousands of [OZK’s] customers throughout
Georgia have been subjected to these practices that violated [OZK’s] standard form
contracts with its customers.” Id. ¶ 2. Therefore, the only issue relevant to this motion
is whether CAFA’s amount in controversy requirement is satisfied.
But the complaint does not clearly establish that the jurisdictional amount is met.
Thus, the Court must determine whether the minimum amount in controversy is “readily
deducible” from the documents before the Court. Lowery, 483 F.3d at 1211. To
establish the jurisdictional amount, OZK has submitted two affidavits from Cindy Wolfe,
the Chief Banking Officer for OZK. First, Wolfe stated that during the applicable time
period, OZK “assessed more than $5,000,000.00 in [overdraft fees] and [out-of-network
ATM balance inquiry fees] to its customers with accounts maintained in Georgia.” Doc.
1-2 ¶ 10. The second affidavit, submitted after Johnson moved to remand, stated that
during the applicable time period, “OZK assessed over $20,000,000.00 in [overdraft
fees] to its customers with accounts maintained in Georgia.” Doc. 14-1 ¶ 7.
Johnson argues that Wolfe’s affidavits are insufficient to establish the
jurisdictional amount because they are not specific to the putative class. Docs. 11 ¶ 1;

2 In fact, there appears to be complete diversity. However, jurisdiction under 28 U.S.C. § 1332(a) is
lacking because the amount in controversy for any one plaintiff would not amount to more than $75,000.
Therefore, OZK relies on CAFA, which allows the putative plaintiffs’ claims to be aggregated. Pretka, 608
F.3d at 751.

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19 ¶ 3. First, Wolfe’s affidavits do not address the amount of fees OZK charged to
customers for balance inquiries preceding a cash withdrawal from out-of-network ATMs.
Moreover, Wolfe’s affidavits make no effort to establish, or even estimate, the
percentage or amount of overdraft fees charged for successive attempts to process a
single transaction for which there were insufficient funds or the percentage or amount of
overdraft fees charged when the transaction did not actually overdraw the account. 3 In
short, Wolfe’s affidavits—the only evidence submitted by OZK—simply establish the
total amount of overdraft fees assessed during the relevant time period. The affidavits
shed no light on the overdraft fees charged for the transactions at issue.
The evidence submitted by Johnson, her recent bank statements, further
undercuts OZK’s argument that the amount in controversy includes “a vast majority” of
its total assessed overdraft fees. Doc. 14 at 7. It appears that Johnson was charged
more than forty overdraft fees during a twelve-month period. Doc. 19-1. However, only
four of those overdraft charges appear to be alleged contract breaches (one possible
overdraft fee assessed when sufficient funds may have been in Johnson’s account and
three successive charges on single attempted transactions). Id. at 10, 24. Accordingly,
this limited evidence suggests that most overdraft fees are not in dispute. Of course,
Johnson’s experience is far from conclusive, but her experience demonstrates the risk
of assuming anything from Wolfe’s affidavits.

OZK argues that the “multiple-presentment theory means that two of three possible [overdraft] fees for
every returned item are independently at issue.” Doc. 14 at 7. Evidence that the bank regularly charged
multiple overdraft fees on a single attempted transaction would have been helpful. However, knowing
that multiple fees possibly were charged is not. OZK further alleges that Johnson “calls into question the
very method by which Bank OZK calculates whether a customer has enough funds.” Id. Perhaps, but
that still does not mean that Johnson alleges every overdraft fee is a contract breach. For example, a
single overdraft fee when there were insufficient funds by any method of calculation is not in controversy.

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This case is similar to Dudley v. Eli Lilly and Company, in which the Eleventh
Circuit held that the putative class action defendants had failed to show the amount in
controversy exceeded $5 million. Dudley, 778 F.3d at 911. The defendants allegedly
had failed to make certain incentive/bonus payments to former employees if their
employment terminated before a given sales period ended. To establish CAFA’s
subject matter jurisdiction, the defendants submitted evidence that 922 former
employees were potential class members. Then, using the midpoint 4 of a previous
year’s range of incentive payments and using the plaintiff’s allegation that a promised
incentive trip was worth $5,000 per employee, the defendants argued that, in the
aggregate, 122 former employees could have lost $610,000, 339 former employees
could have lost $3,084,900, and 510 former employees could have lost $6,215,625. Id.
at 915.
The Eleventh Circuit noted that the complaint did not allege, as the defendants
had assumed in their amount in controversy calculation, that all the class members
were owed all possible categories of incentives. Further, the evidence establishing the
potential amount in controversy “failed to establish even generally the dollar amounts
that each of the [former employees] may have been denied in payment incentives as a
result of their termination dates.” Id. at 916. Thus, the Eleventh Circuit held that
because the defendant’s evidence only established how much each class member
“theoretically could have received … the district court was unable to make any
‘reasonable inferences and deductions drawn from that evidence to determine whether

The Eleventh Circuit noted that by using the midpoint numbers, the defendants had not established
whether the potentially withheld incentive payments were realistic compared to what the average
incentive payments were or realistic compared to what the individual class members had received before.
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the defendant has carried its burden’ of sustaining the jurisdictional threshold.” Id. at
917 (quoting S. Fla. Wellness, Inc. v. Allstate Ins. Co., 745 F.3d 1312, 1315 (11th Cir.
2014)).
The defendants in Dudley, unlike OZK, at least made some effort to quantify,
within the relevant universe, what amount was in dispute. OZK simply quantifies the
universe. Accordingly, OZK has not established by a preponderance of the evidence
that the amount in controversy in this case is at least $5 million.
III. CONCLUSION
For the foregoing reasons, OZK has not established by a preponderance of the
evidence that the Court has subject matter jurisdiction pursuant to CAFA. Accordingly,
Johnson’s motion to remand (Doc. 11) is GRANTED, and OZK’s motion to dismiss
(Doc. 12) is DENIED as moot.
SO ORDERED, this 26th day of April, 2021.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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