Cliff et al v. Savannah Law School, LLC et al
Filing
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ORDER dismissing as moot 7 Motion to Dismiss; granting 11 Motion to Remand to State Court. However, the Court DENIES Plaintiffs request for expenses including attorney fees. The Court DIRECTS the Clerk of Court to enter the appropriate judgment of remand and to CLOSE this case. Signed by District Judge R. Stan Baker on 10/12/18. (jrb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CAITLYN CLIFF; GEORGE DICKENS, III;
MELANIE FENLEY; ZACHARY GRUBER;
PETER LEYH; MYLEE McKINNEY; and
CASEY TUGGLE, Individually and on behalf
of others similarly situated,
Plaintiffs,
CIVIL ACTION NO.: 4:18-cv-104
v.
SAVANNAH LAW SCHOOL, LLC, et al.,
Defendants.
ORDER
Presently before the Court is Plaintiffs’ Motion to Remand this case to the State Court of
Chatham County. (Doc. 11.) Defendants are citizens of the State of Georgia and removed the
case to this Court pursuant to 28 U.S.C. § 1441 and § 1332 on May 3, 2018, (doc. 1), and Plaintiffs
filed this Motion soon thereafter. 1 On October 9, 2018, the parties presented arguments in a
hearing before the Court on whether the action should remain in federal court or be remanded to
state court. (Doc. 36.) For the reasons set forth herein, the Court GRANTS Plaintiffs’ Motion to
Remand, (doc. 11), DISMISSES as moot Defendants’ Motion to Dismiss, (doc. 7), and
REMANDS the case to the State Court of Chatham County. However, the Court DENIES
Plaintiffs’ request for expenses including attorney fees. The Court DIRECTS the Clerk of Court
to enter the appropriate judgment of remand and to CLOSE this case.
1
Defendants have filed a Motion to Dismiss, (doc. 7), which is also pending before the Court. As was
explained in the Order issued on October 4, 2018, (doc. 35), jurisdiction is a threshold issue that must be
considered first.
BACKGROUND
Plaintiffs filed this putative class action in the State Court of Chatham County, Georgia
against Defendants on March 23, 2018, after Defendant Savannah Law School announced its
closure. (Doc. 11, p. 2; doc. 1-1.) Plaintiffs defined their class as follows: “All persons who are
citizens of Georgia and who were enrolled in classes at Savannah Law School during the 2017–
2018 academic year or had applied for admission to Savannah Law School for the Fall 2018
semester.” (Doc. 11, p. 2.) Plaintiffs allege numerous injuries caused by the closing of the school
and bring claims of negligence, breach of contract, negligent misrepresentation, and civil
conspiracy. (Id.) In their Notice of Removal, Defendants put forth evidence that a named Plaintiff,
Peter Leyh, is a citizen of New Jersey, which they contend gave them a jurisdictional basis to
remove this case. (Doc. 1.)
DISCUSSION
I.
Whether Plaintiff’s Complaint Falls Within this Court’s Jurisdiction
Under the Class Action Fairness Act (“CAFA”), federal courts have original jurisdiction
over class actions in which the amount in controversy exceeds $5,000,000, any member of a class
of plaintiffs is diverse from any defendant, and the number of class members exceeds 100. 28
U.S.C. § 1332(d); Miedema v. Maytag Corp., 450 F.3d 1322, 1327 & n.4 (11th Cir. 2006). As the
removing party, Defendants bear the burden of proving the basis for federal court jurisdiction.2
2
Defendants argue the burden rests upon the Plaintiffs to disprove federal court jurisdiction. (Doc. 19, p.
7.) Throughout their pleadings, Defendants emphasize the United State Supreme Court’s holding in Dart
Cherokee Basin Operating Co. v. Owens, ___ U.S. ___, 135 S. Ct. 547 (2014), that no antiremoval
presumption attends cases invoking CAFA. However, nothing in CAFA or Dart Cherokee changes the
long-standing principle that the party seeking to invoke this Court’s jurisdiction carries the burden of
establishing the basis for that jurisdiction. Consequently, Defendants cannot merely rest on their allegations
of diversity when Plaintiffs have challenged that allegation. Moreover, even if Plaintiffs had the burden to
prove a lack of minimal diversity, they have met that burden by defining their class on the basis of
citizenship. See Gavron v. Weather Shield, No. 10–22088–CIV, 2010 WL 3835115, at *11 (S.D. Fla. Sept.
29, 2010) (“Unless a putative class is defined in terms of present citizenship, a plaintiff must submit some
evidence of class citizenship in order to satisfy his burden of proof.”) (emphasis omitted).
2
Lowery v. Ala. Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007) (citations omitted). “Consistent
with the limited nature of federal jurisdiction, a party seeking a federal venue must establish the
venue’s jurisdictional requirements.”
Id. at 1207 (citation omitted).
In the present case,
Defendants have not met this burden.
In order to prove minimal diversity under CAFA, Defendants must prove that any “member
of [the] class” is diverse from any defendant. 28 U.S.C. § 1332(d)(2)(A). The statute defines
“class members” as “the persons (named or unnamed) who fall within the definition of the
proposed or certified class.” 28 U.S.C. § 1332(d)(1)(D). Citizenship is determined as of the time
the complaint is filed. 28 U.S.C. § 1332(d)(7).
Looking to the Complaint, Plaintiffs have restricted their class to “persons who are citizens
of Georgia.” (Doc. 1-1, p. 18.) Accordingly, any individuals who were not Georgia citizens at the
time of filing are not, and cannot, “fall within the definition of the proposed . . . class.” 28 U.S.C.
§ 1332(d)(1)(D). As such, any non-Georgian would not be a “member of a class.” 28 U.S.C. §
1332(d)(2)(A). Put simply, Defendants cannot prove minimal diversity because any putative class
member with citizenship diverse to Georgia, by definition, would not fall within the proposed
class. See, e.g., Gallagher v. Johnson & Johnson Consumer Cos., 169 F. Supp. 3d 598, 604 (D.N.J.
2016) (“It is readily apparent that Plaintiff has chosen to limit the proposed class to citizens of this
state, and the Court is not at liberty at this stage to reject Plaintiff’s class definition and render a
different interpretation.”).
Thus, because non-Georgia citizens are precluded from class
membership, this case lacks diversity. Without diversity, this Court does not have jurisdiction and
is required to remand the action to state court. 28 U.S.C. § 1447(c). 3
3
Both parties made arguments regarding the “home-state” exception to original federal jurisdiction under
CAFA. (Docs. 11, 19.) This provision requires a federal court to decline to exercise jurisdiction if at least
two-thirds of the members of all proposed plaintiff classes in the aggregate and the primary defendants are
citizens of the state where the action was originally filed. 28 U.S.C. § 1332(d)(4)(B). As explained above,
3
Given this principle and the plain language of CAFA, Defendants’ evidence of Mr. Leyh’s
citizenship is inconsequential. If Mr. Leyh was indeed a citizen of New Jersey at the time this case
was filed, he is not—and indeed logically cannot be—a member of the proposed class. (See Doc.
23, pp. 3–4.) Equally inconsequential are Defendants’ arguments regarding the difficulty of
ascertaining the citizenship of law school students. While courts have indeed noted the difficulty
of such determinations, that difficulty has no bearing on whether this Court has jurisdiction.
Regardless of how convoluted the inquiry, if the result is that a Savannah Law School student is
ultimately found not to be a citizen of Georgia, that student would not be a member of Plaintiffs’
class.
At times in their pleadings and at oral argument, Defendants appeared to ask the Court to
ignore or invalidate the limited scope of Plaintiffs’ proposed class. 4 In essence, Defendants
contend that allowing Plaintiffs to limit the proposed class members to citizens of Georgia defeats
the purposes of CAFA. Indeed, Plaintiffs’ counsel admitted at oral argument that the class was
drafted so as to avoid litigating their case in federal court. However, every federal circuit court to
address these issues has rejected arguments similar to those made by Defendants, and recognized
that plaintiffs, as “masters of their complaint,” are permitted to define their class as they see fit.
Johnson v. Advance Am., 549 F.3d 932, 937 (4th Cir. 2008) (recognizing that plaintiff had limited
the Court lacks CAFA jurisdiction because the parties are not minimally diverse, and a court cannot rule
on an exception to the exercise of jurisdiction if it does not have jurisdiction in the first instance. See
Johnson, 549 F.3d at 938 (declining to address the home-state exception when minimal diversity did not
exist). However, even if Mr. Leyh could somehow be included in the class and even if he was a New Jersey
citizen, the result would be the same. According to Plaintiffs’ Complaint, all other members of the class
are Georgia citizens. (Doc. 1-1, pp. 10–11, 18.) A single diverse party does not dilute the two-thirds
threshold of the home-state exception, and the Court would be required to abstain from exercising
jurisdiction due to this provision. 28 U.S.C. § 1332(d)(4)(B). This provides an independent basis to grant
Plaintiffs’ Motion to Remand.
4
However, Defendants’ counsel candidly admitted at the hearing that they were not aware of a provision
that would allow the Court to rewrite the proposed class. They also admitted that they would not have
sought to remove this case if they did not think Mr. Leyh was a non-Georgia citizen.
4
proposed class members to South Carolina citizens to avoid to federal jurisdiction and holding that
remand was proper as court lacked jurisdiction under CAFA given that limitation); see also In Re
Sprint Nextel Corp., 593 F.3d 669, 673 (7th Cir. 2010) (“Alternatively, the plaintiffs might have
defined their class as all Kansas citizens . . . . [B]y using that definition, the plaintiffs could have
guaranteed that the suit would remain in state court.”); In Re Hannaford Bros. Co. Customer Data
Security Breach Litig., 564 F.3d 75, 80 (1st Cir. 2009) (recognizing that defining the class to
include only citizens of a particular state can defeat federal jurisdiction under CAFA). While
CAFA was enacted to provide greater access to federal court, it is the Court’s job “to effectuate
the intent expressed in the plain language Congress has chosen, not to effectuate purported policy
choices regardless of language.” Id. at 80.
This Court cannot deviate from the unambiguous text of CAFA or ignore the text of
Plaintiffs’ Complaint. The plain language of CAFA requires minimal diversity as to the proposed
class to remain in federal court and the plain language of Plaintiffs’ Complaint reveals that no such
diversity exists. Accordingly, the Court GRANTS Plaintiffs’ Motion to Remand. (Doc. 11.)
II.
Whether Plaintiffs are Entitled to an Award of Expenses Including Attorney Fees
The final issue before the Court is Plaintiffs’ request for attorney fees. (Doc. 11, p. 10.)
Under 28 U.S.C. § 1447(c), “[A]n order remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a result of the removal.” When making
its determination, a court should consider the “reasonableness of the removal,” and whether
removal was sought merely to delay litigation. Martin v. Franklin Capital Corp., 546 U.S. 132,
140 (2005).
Here, the Court finds no basis for awarding expenses including attorney fees. This case
presented a complex question of law on which neither the Eleventh Circuit Court of Appeals nor
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the Supreme Court has ruled. Without a case directly addressing the availability of CAFA
jurisdiction when a named Plaintiff is a non-citizen, Defendants were able to argue in good faith
that the Court should look beyond Plaintiffs’ class description to find minimal diversity. Further,
Defendants had a good faith basis for believing Mr. Leyh is a citizen of New Jersey. Awarding
attorney fees in such an instance would discourage attorneys from zealously representing their
clients with creative arguments on undecided issues of law. Additionally, “parties who reasonably
believe it is their right to have their case heard in federal court should not be discouraged from
seeking to exercise that right.” Johnson v. Advance America, 596 F.Supp.2d 922, 930 (D. S.C.
2008).
Accordingly, the Court DENIES Plaintiffs’ Motion for Attorney Fees. (Doc. 11.)
CONCLUSION
For the above-stated reasons, the Court GRANTS Plaintiffs’ Motion to Remand, (doc. 11),
DISMISSES as moot Defendants’ Motion to Dismiss, (doc. 7), and REMANDS this case back
to the State Court of Chatham County. However, the Court DENIES Plaintiffs’ request for
expenses including attorney fees, (doc. 11). The Court DIRECTS the Clerk of Court to enter the
appropriate judgment of remand and to CLOSE this case.
SO ORDERED, this 12th day of October, 2018.
R. STAN BAKER
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
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