Walker v. Morgan & Morgan, Jacksonville PLLC et al
Filing
38
ORDER denying 32 Motion to Remand. Signed by Judge Lisa G. Wood on 1/28/2025. (SLC)
In the United States District Court
for the Southern District of Georgia
Brunswick Division
BRANDON WALKER, individually
and on behalf of all others
similarly situated,
CV 224—088
Plaintiff,
v.
MORGAN & MORGAN, JACKSONVILLE
PLLC a/k/a Morgan & Morgan,
Jacksonville LLC and BRAD
MILKWICK,
Defendants.
ORDER
Before the Court is Plaintiff’s motion to remand.
32.
Dkt. No.
The motion has been fully briefed and is ripe for review.
See Dkt. Nos. 33 at 9-12, 34, 37.
BACKGROUND
After
working
being
as
a
injured
sheriff’s
in
a
deputy
motor
in
vehicle
McIntosh
accident
County,
while
Georgia,
Plaintiff Brandon Walker entered into a representation agreement
with the law firm of Morgan & Morgan, Jacksonville PLLC (“Morgan
& Morgan”) to represent his interests regarding the accident.
Dkt. No. 1-1 ¶¶ 9, 11; Id. at 20.
When Plaintiff contacted
Morgan & Morgan, he was told his case would be handled out of
the Brunswick, Georgia, office.
Plaintiff
was
also
told
that
Dkt. No. 1-1 ¶ 12.
Defendant
Brad
Milkwick
However,
in
the
Savannah, Georgia, office would handle his worker’s compensation
claim.
Id. ¶ 14.
compensation
Defendant Milkwick did not file a worker’s
notice,
which
insurance
carrier
paying
accident.
Id. ¶¶ 15, 16.
led
to
Plaintiff’s
Plaintiff’s
medical
group
bills
health
from
the
The group health insurance carrier
asserted a right for subrogation reimbursement of the claims
paid, and Morgan & Morgan paid the reimbursement of $17,318.78
out
of
the
driver’s
$25,000.00
insurance
Plaintiff
company.
received
Id.
¶¶
from
the
at-fault
20;
Id.
at
16,
33.
Plaintiff further claims Morgan & Morgan exposed him to hundreds
of thousands of dollars in future medical bills.
Id. ¶ 17.
Plaintiff also asserts that Morgan & Morgan failed to explore
other possible sources of compensation for Plaintiff’s injuries.
Id. ¶ 19.
Plaintiff
filed
this
lawsuit,
a
putative
class
action,
against Morgan & Morgan and Mr. Milkwick on June 20, 2024 in the
Superior Court of Glynn County, Georgia.
Id. at 3.
complaint,
the
Plaintiff
asserts
that,
at
time
In the
Plaintiff
retained Morgan & Morgan to represent him, the firm “was not
qualified or registered to do business in Georgia in violation
of O.C.G.A. § 14-11-711,” and, “[t]herefore, the collection of
any
fees
and
expenses
contemplated
in
the
unenforceable
fee
contract was wrongful, and Plaintiff is entitled to the return
of such money taken by [Morgan & Morgan].”
brings
claims
against
Morgan
& Morgan
2
Id. ¶ 21.
and
Mr.
Plaintiff
Milkwick
for
professional
negligence
(Count
I),
breach
of
fiduciary
duty
(Count II), disgorgement of fees (Count III), declaratory and
injunctive relief (Count III), 1 punitive damages (Count IV), and
attorney’s fees and costs of litigation (Count V).
Id. at 14-
17.
Defendants removed the case to this Court, basing subject
matter jurisdiction on the Class Action Fairness Act (“CAFA”),
and moved to compel arbitration.
found
that
the
arbitration
Dkt. Nos. 1, 8.
provision
in
the
The Court
representation
agreement was enforceable and granted the motion, staying these
proceedings until the arbitration’s completion.
Dkt. No. 31.
The same day the Order was entered, Plaintiff moved to remand
this action to the state court from which it was removed.
No. 32.
Dkt.
Plaintiff argues the Court must abstain from exercising
jurisdiction
over
this
case
exception contained in CAFA.
due
to
the
local
controversy
Id.
LEGAL AUTHORITY
“‘[P]laintiffs bear the burden of establishing that they
fall within CAFA’s local controversy exception.’”
Simring v.
GreenSky, LLC, 29 F.4th 1262, 1267 (11th Cir. 2022) (quoting
Evans v. Walter Indus., Inc., 449 F.3d 1159, 1164 (11th Cir.
2006)).
“That
exception
is
a
‘narrow
one,
with
all
doubts
resolved “in favor of exercising jurisdiction over the case.”’”
The complaint contains two causes of action labeled “Count
III.”
3
1
Id. (quoting Evans, 449 F.3d at 1163 (quoting S. Rep. No. 109-14
at 42, 2005 U.S.C.C.A.N. 3, 40)).
DISCUSSION
The local controversy exception provides:
A
district
court
jurisdiction . . .
shall
decline
to
exercise
(i) over a class action in which—
(I) greater than two-thirds of the members of
all proposed plaintiff classes in the
aggregate are citizens of the State in
which the action was originally filed;
(II) at least 1 defendant is a defendant-(aa)
from whom significant relief is
sought by members of the plaintiff
class;
(bb)
whose
alleged
conduct
forms
a
significant basis for the claims
asserted by the proposed plaintiff
class; and
(cc)
who is a citizen of the State in
which the action was originally
filed; and
(III) principal injuries resulting from the
alleged conduct or any related conduct of
each defendant were incurred in the State
in which the action was originally filed;
and
(ii) during the 3-year period preceding the filing of
that class action, no other class action has been
filed asserting the same or similar factual
allegations against any of the defendants on
behalf of the same or other persons
28
U.S.C.
Plaintiff’s
§
1332(d)(4)(A).
motion
to
In
remand,
4
their
opposition
Defendants
argue,
brief
among
to
other
things, that Plaintiff has failed to show (1) a “significant
defendant” is a resident of Georgia, § 1332(d)(4)(A)(i)(II)(aa)(bb), and (2) “greater than two-thirds” of the proposed class
are Georgia citizens, § 1332(d)(4)(A)(i)(I).
I.
Significant Defendant
The
parties
agree
defendant
who
a
Plaintiff
initiated
The
parties
is
citizen
this
dispute,
significant
defendant.
defendant’
is
significant
basis
class.”
a
that
Defendant
of
however,
Milkwick
Georgia,
action.
Dkt. No. 34 at 2.
the
is
the
only
state
in
which
§ 1332(d)(4)(A)(i)(II)(cc).
whether
Defendants
Mr.
Milkwick
contend
a
is
a
“‘significant
defendant
whose
alleged
conduct
forms
for
claims
asserted
by
proposed
the
Dkt. No. 34 at 2.
the
a
Defendants argue “the Complaint
alleges no claim by any putative class member based on [Mr.
Milkwick’s] alleged conduct—much less that his conduct forms a
‘significant basis’ for the class claims.”
Plaintiff
argument
and
presents
the
no
complaint
evidence
to
and
establish
Id.
instead
that
Mr.
relies
on
Milkwick’s
conduct “forms a significant basis” for the putative plaintiffs’
claims.
The Court looks to the complaint to determine what the
putative plaintiffs’ claims are.
Questions of law and/or fact common to all members of
the Class, include, inter alia:
(a) whether Morgan & Morgan Jax could bring claims
(actions) or lawsuits on a contingent basis where it
was prohibited from doing so by way of failing to
register with the Georgia Secretary of State;
5
(b) Whether Morgan & Morgan Jax, with it bringing
claims,
actions
and/or
lawsuits
on
behalf
of
[Plaintiff] and the putative class, is doing so
improperly, since it has a contingent interest in the
claim and, therefore, is bringing the claims on behalf
of itself, in part;
(c) whether, as a result, Plaintiff and the Class are
entitled to an award of compensatory damages;
(d) whether, as a result, Plaintiff and the Class are
entitled to an award of punitive damages;
(e) whether Plaintiff and the Class are entitled to
declaratory, injunctive, or other equitable relief
compelling Morgan & Morgan Jax to disgorge the
improperly collected fees and any improperly collected
expenses.
Dkt. No. 1-1 ¶ 31.
As is evident, these common questions of law
and fact are directed at Morgan & Morgan.
The complaint offers
no insight into whether Mr. Milkwick played a significant role—
as opposed to a lesser role, or even a minimal role—in entering
into representation contracts in Georgia or collecting resulting
fees.
While Plaintiff argues in his remand motion that “[t]here
is no doubt [] Defendant Milkwick has used these contracts and
wrongfully collected fees under them a substantial amount of
times,” dkt. no. 32 at 4, saying something is substantial does
not make it so.
Plaintiff provides no numbers or even estimates
to allow the Court to assess “how many members of the class were
harmed by [Mr. Milkwick’s] actions” or to compare “the relief
sought
between
[Mr.
Milkwick
and
Morgan
&
Morgan]
and
each
defendant’s ability to pay a potential judgment.”
Evans, 449
F.3d
significant
at
1167
(“[W]hether
a
putative
6
class
seeks
relief
from
an
in-state
defendant
includes
not
only
an
assessment of how many members of the class were harmed by the
defendant’s actions, but also a comparison of the relief sought
between all defendants and each defendant’s ability to pay a
potential judgment.” (quoting Robinson v. Cheetah Transp., No.
No. Civ.A. 06-0005, 2006 WL 468820, at *3 (W.D. La. Feb. 27,
2006))).
The
factual
allegations
in
the
complaint
involving
Mr.
Milkwick are only that he gave Plaintiff legal advice regarding
his worker’s compensation claim that breached the standard of
care.
Dkt. No. 1-1 ¶¶ 15, 16.
No allegations in the complaint
indicate that a significant number or percentage of putative
class members may have claims against Mr. Milkwick, or indeed
that any plaintiff other than Plaintiff Walker has such a claim.
“In short, there is simply no evidence that [Mr. Milkwick] was
‘significant’ with respect to liability.”
Evans, 449 F.3d at
1167.
“Th[e local controversy] exception is a ‘narrow one, with
all doubts resolved “in favor of exercising jurisdiction over
the case.”’”
Simring, 29 F.4th at 1267 (quoting Evans, 449 F.3d
at 1163 (quoting S. Rep. No. 109-14 at 42, 2005 U.S.C.C.A.N. 3,
40)).
The limited facts before the Court are not sufficient to
show
that
Mr.
Milkwick—the
significant defendant.
only
Georgia
defendant—is
a
Therefore, Plaintiff has not met his
7
burden of establishing that this case falls within CAFA’s local
controversy exception.
II.
Citizenship
Id.
of
Two-thirds
of
the
Putative
Class
Members
Plaintiff
putative
also
class
fails
to
members
§ 1332(d)(4)(A)(i)(I).
show
are
that
two-thirds
citizens
of
of
the
Georgia.
Defendants argue “Plaintiff produces no
evidence of the proposed class’s citizenship,” dkt. no 34 at 3,
and
“Plaintiff’s
class
definition
contains
no
reference
to
citizenship and did not expressly limit the proposed class to
Georgia citizens,” id. at 12.
Plaintiff argues “[t]he proposed
class
are
is
seeking
damages
that
uniquely
felt
in
Georgia-
negligent legal representation and the wrongful taking of fees
by Defendants who could not legally represent class members in
the State of Georgia.”
Dkt. No. 32 at 3.
“Class action plaintiffs can prove that two-thirds of the
putative class are citizens of a certain state in two ways.”
Smith v. Marcus & Millichap, Inc., 991 F.3d 1145, 1156 (11th
Cir.
2021).
“The
first
way,
as
our
sister
circuits
have
recognized, is to limit the class definition to citizens of a
certain state.”
Id. (citing In re Hannaford Bros. Co. Customer
Data Sec. Breach Litig., 564 F.3d 75, 77, 81 (1st Cir. 2009)
(recognizing that defining class to exclude “any persons and
entities who are not citizens of the State of Florida” defeated
federal
jurisdiction
under
CAFA
8
pursuant
to
the
local
controversy exception); Johnson v. Advance Am., 549 F.3d 932,
937–38 (4th Cir. 2008) (recognizing plaintiffs had “taken care”
to avoid federal jurisdiction under CAFA by limiting the class
to South Carolina citizens); In re Sprint Nextel Corp., 593 F.3d
669, 676 (7th Cir. 2010) (observing that if the plaintiffs had
“defined their class as all Kansas citizens who purchased text
messaging
instead
from
of
Sprint
Kansas
Nextel
or
an
“the
residents,
alleged
coconspirator”
plaintiffs
could
have
guaranteed that the suit would remain in state court” (first
emphasis in original))).
The second way for a plaintiff to
prove that two-thirds of the putative class are citizens of a
certain
state
is
to
“provide
evidence
of
the
class
members’
state of residence as well as evidence showing their intent to
remain in that state.”
Id. at 1157 (citing Evans, 449 F.3d at
1165; Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
48 (1989) (“[D]omicile is established by physical presence in a
place
in
connection
with
a
certain
one’s intent to remain there.”)).
state
of
mind
concerning
“[C]ourts look to various
factors in determining a person’s intent to remain in a state,
including property or business ownership, where the plaintiffs
pay taxes and are registered to vote, and sworn statements of
intent
to
remain[;]
[a]ll
of
these
forms
of
directly to the parties asserting citizenship.”
Plaintiff
presents
no
evidence
of
the
evidence
relate
Id.
putative
class
members’ physical presence in Georgia or their intent to remain
9
there.
Thus, the only way for Plaintiff to show that two-thirds
of the putative class are citizens of Georgia is to limit the
class definition to citizens of Georgia.
Id. at 1156.
the
complaint
class
definition
contained
in
the
Here,
does
not
establish the citizenship of the class members for purposes of
CAFA’s local controversy exception.
Plaintiff defines the class
of individuals as those who:
(a)
entered into a contract of representation in
Georgia with Defendant Morgan & Morgan Jax prior
to
Defendant
registering
with
the
Georgia
Secretary of State on April 27, 2023;
(b) were represented by Defendant Morgan & Morgan Jax
in litigation and/or prelitigation processes,
including
but
not
limited
to
settlement
discussions;
(c) had their case(s) resolved prior to or on the
date of the class certification; and
(d) paid Defendant Morgan & Morgan Jax's legal
expenses and fees in relation to their case(s).
Dkt. No. 1-1 ¶ 25 (emphasis added).
Plaintiff limits the class
to those who entered into a contract in Georgia, not to Georgia
citizens.
Georgia
An individual could easily be from a state other than
and,
for
example,
be
involved
in
a
car
accident
in
Georgia and retain Morgan & Morgan by signing a representation
agreement
in
Georgia.
“[T]his
class
establish
that
the
is
up
class
made
[of
definition
two-thirds
does
not
Georgia]
citizens—meaning individuals who currently reside in [Georgia]
and have an intent to remain.”
Smith, 991 F.3d at 1157 (finding
that the class definition of those “who resided in” the state
10
within
the
past
four
years
does
not
meet
CAFA’s
citizenship
requirement because “residency does not equate to citizenship”).
The Eleventh Circuit has held that “only the class definition
itself—not
other
portions
of
the
complaint—can
restrict
the
scope of a class for purposes of . . . establishing the twothirds requirement.”
Simring, 29 F.4th at 1267 (citing Smith,
991 F.3d at 1156–57 (determining the citizenship of the class
members
by
looking
to
“the
class
definition
on
its
face”)).
Even if the Court looks to other portions of the complaint,
CAFA’s
two-thirds
citizenship
requirement
is
not
met.
See,
e.g., Dkt. No. 1-1 ¶ 1 (Plaintiff “seeks to represent the former
clients
of
Defendant
Morgan
&
Morgan
.
.
.
who
signed
representation agreements with the entity, pursued legal actions
with Defendant Morgan & Morgan . . . as counsel, and Morgan &
Morgan . . . were paid fees and expenses for legal services
under
their
fee
contracts.”);
id.
¶ 28
(“Members
are
widely
dispersed throughout Georgia.”).
“Because the local controversy exception is a narrow one,
we
must
resolve
any
doubts
against
this
exception
to
CAFA.”
Simring, 29 F.4th at 1268 (citing Evans, 449 F.3d at 1163).
Here,
Plaintiff
has
presented
no
evidence
to
support
the
citizenship of the putative class, and Plaintiff has defined the
class without regard to the members’ citizenship.
Accordingly,
the Court finds Plaintiff has not met his burden to show that
two-thirds of the putative class members are Georgia citizens.
11
Id. (comparing Smith, 991 F.3d at 1159 (“With only generalized
data and no specific facts to support the citizenship of any
member of the putative class, doubts abound in this case. As the
plaintiffs’ evidence fails to prove citizenship of any member of
the class, it fails to establish more than two-thirds of the
class are Florida citizens.”)).
Therefore, Plaintiff has not
met
that
his
burden
of
establishing
CAFA’s local controversy exception.
this
case
falls
within
Id.
CONCLUSION
Plaintiff has failed to show that Defendant Milkwick, the
only defendant who is a citizen of Georgia, is a significant
defendant, and Plaintiff has failed to show that two-thirds of
the putative class members are citizens of Georgia.
Plaintiff
has, therefore, failed to meet his burden of establishing that
this
case
falls
within
CAFA’s
local
controversy
exception.
Accordingly, Plaintiff’s motion to remand this case to state
court based on the local controversy exception, dkt. no. 32, is
DENIED.
SO ORDERED, this 28th day of January, 2025.
HON. LISA GODBEY WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
12
_
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