Scott v. Cricket Communications, LLC
Filing
30
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/19/2016. (ca2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL A. SCOTT,
:
Plaintiff,
:
v.
:
CRICKET COMMUNICATIONS, LLC,
:
Defendant.
Civil Action No. GLR-15-3330
:
MICHAEL A. SCOTT,
:
Plaintiff,
:
v.
:
CRICKET COMMUNICATIONS, LLC,
:
Defendant.
Civil Action No. GLR-15-3759
:
MEMORANDUM OPINION
THIS MATTER is before the Court on several motions related
to Plaintiff Michael A. Scott’s putative class action alleging
Defendant Cricket Communications, LLC (“Cricket”) violated the
Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301 et seq.
(2012).
Scott filed Motions to Remand (ECF No. 15, GLR-15-3330;
ECF No. 18, GLR-15-3759) and a Motion to Strike New Materials
and Arguments or for Leave to File a Surreply Addressing Them
(ECF No. 30, GLR-15-3330).
Cricket filed a Motion to Compel
Arbitration (ECF No. 20, GLR-15-3330), Motion to Dismiss or, in
the Alternative, to Stay (ECF No. 16, GLR-15-3759), and Motion
to Relate Case (ECF No. 16, GLR-15-3330).
All Motions are ripe
for disposition.
Having reviewed the Motions and supporting documents, the
Court finds no hearing necessary.
2016).
See Local Rule 105.6 (D.Md.
For the reasons outlined below, the Court will grant the
Motions to Remand and deny all other Motions as moot.
I.
BACKGROUND
Sometime between July 2013 and March 2014, Scott purchased
two
Samsung
Galaxy
S4
cellphones
“hundreds of dollars each.”
No. 2, GLR-15-3330).
from
Cricket
that
cost
(Class Action Compl. ¶¶ 26, 27, ECF
The paperwork accompanying the cellphones
expressly stated that Cricket’s Code Division Multiple Access
(“CDMA”)
network
(Id. ¶ 28).
provided
“unsurpassed
nationwide
coverage.”
Unbeknownst to Scott, however, at least as early as
July 2013, AT&T had acquired Cricket and intended to shut down
Cricket’s CDMA network and switch previous Cricket customers to
AT&T’s Global Systems for Mobile (“GSM”) network.
(Id. ¶ 5).
Though Cricket knew the CDMA network would be shut down, Cricket
“locked”
Scott’s
CDMA network.
cellphones
(Id. ¶ 7).
for
use
exclusively
on
Cricket’s
This rendered Scott’s cellphones
“useless and worthless” and “obsolete.”
(Id. ¶¶ 1, 7, 8).
Scott filed a putative Class Action Complaint on September
24,
2015
in
(“Scott I”).
the
Circuit
Court
for
Baltimore
(ECF No. 2, GLR-15-3330).
2
City,
Maryland
Scott defines the class
as “[a]ll Maryland citizens who, between July 12, 2013 and March
13, 2014, purchased a CDMA mobile telephone from Cricket which
was locked for use only on Cricket’s CDMA network.”
Action Compl. ¶ 51).
(Class
Scott raises a single claim for violation
of the MMWA stemming from alleged breaches of express warranties
and the implied warranties of merchantability and fitness for a
particular purpose.
(Id. ¶¶ 60–66).
On October 30, 2015, Cricket removed Scott I to this Court.
(ECF No. 1, GLR-15-3330).
Complaint
Petitioning
to
On November 10, 2015, Scott filed a
Stay
Threatened
Arbitration
in
Circuit Court for Baltimore County, Maryland (“Scott II”).
No. 2, GLR-15-3759).
II to this Court.
(ECF
On December 9, 2015, Cricket removed Scott
(ECF No. 1, GLR-15-3759).
2015, Scott filed a Motion to Remand Scott I.
15-3330).
the
On November 23,
(ECF No. 15, GLR-
On December 2, 2015, Cricket filed a Motion to Relate
Scott I to Bond v. Cricket Communications, LLC, No. WDQ-15-923
(D.Md. stayed Jan. 12, 2016).
(ECF No. 16, GLR-15-3330).
On
December 16, 2015, Cricket filed a Motion to Compel Arbitration
(ECF
No.
20,
GLR-15-3330)
and
Motion
to
Dismiss
Alternative, to Stay (ECF No. 16, GLR-15-3759).
2015, Scott filed a Motion to Remand Scott II.
GLR-15-3759).
or,
in
the
On December 21,
(ECF No. 18,
Finally, on February 26, 2016, Scott filed a
Motion to Strike New Materials and Arguments or for Leave to
3
File a Surreply Addressing Them (ECF No. 30, GLR-15-3330).
All
Motions are opposed.
II.
A.
DISCUSSION
Motions to Remand
1.
Scott I
a.
Legal Standard
Federal courts are courts of limited jurisdiction and “may
not
exercise
Mobil
Corp.
(2005).
jurisdiction
v.
Allapattah
absent
a
statutory
Servs.,
Inc.,
545
basis.”
U.S.
Exxon
546,
552
Under the Class Action Fairness Act (“CAFA”), federal
courts have jurisdiction over a class action when there is: (1)
minimal diversity, 28 U.S.C. § 1332(d)(2)(A); (2) an aggregate
amount
in
controversy
exceeding
$5
million,
exclusive
of
interest and costs, § 1332(d)(2); and (3) a class size greater
than 100 persons, § 1332(d)(5)(B).
There is minimal diversity under CAFA when “any member of
the class is a citizen of a state different from the defendant.”
28 U.S.C. § 1332(d)(2)(A).
In this context, “residency is not
sufficient to establish citizenship.”
Johnson v. Advance Am.,
549 F.3d 932, 937 n.2 (4th Cir. 2008).
Rather, “[t]o be a
citizen of a State, a person must be both a citizen of the
United States and a domiciliary of that State.”
Newman–Green,
(1989)).
Inc.
v.
Alfonzo–Larrain,
490
U.S.
Id. (citing
826,
828
“Domicile requires physical presence, coupled with an
4
intent to make the State a home.”
Id. (citing Miss. Band of
Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989)).
Factors
relevant
include
to
determining
an
individual’s
domicile
“current residence; voting registration and voting practices;
location of personal and real property; location of brokerage
and
bank
accounts;
membership
in
unions;
fraternal
organizations, churches, clubs, and other associations; place of
employment
or
registration;
business;
payment
of
driver’s
taxes;
as
license
well
as
and
automobile
several
others.”
Blake v. Arana, No. WQQ-13-2551, 2014 WL 2002446, at *2 (D.Md.
May 14, 2014) (quoting Dyer v. Robinson, 853 F.Supp. 169, 172
(D.Md. 1994)).
Though the Court typically construes removal jurisdiction
strictly, see Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d
255, 260 (4th Cir. 2005), there is no presumption in favor of
remand when cases are removed under CAFA, Dart Cherokee Basin
Operating Co., LLC v. Owens, 135 S.Ct. 547, 554 (2014).
The
“primary objective” of CAFA is to “ensur[e] ‘[f]ederal court
consideration
of
interstate
cases
of
national
importance.”
Standard Fire Ins. Co. v. Knowles, 133 S.Ct. 1345, 1350 (2013)
(citation omitted).
“CAFA’s ‘provisions should be read broadly,
with a strong preference that interstate class actions should be
heard in a federal court if properly removed by any defendant.”
5
Dart Cherokee, 135 S.Ct. at 554 (quoting S.Rep. No. 109–14, p.
43 (2005)).
To remove a class action under CAFA, “the party seeking to
invoke federal jurisdiction must allege it in his notice of
removal and, when challenged, demonstrate the basis for federal
jurisdiction.”
Strawn v. AT & T Mobility LLC, 530 F.3d 293, 298
(4th Cir. 2008); accord Dart Cherokee, 135 S.Ct. at 554.
A
removing
a
party
must
demonstrate
preponderance of the evidence.
A
notice
pleading
of
standard
removal
than
is
the
federal
jurisdiction
by
28 U.S.C. § 1446(c)(2)(B).
not
required
one
imposed
drafting an initial complaint.”
“to
on
meet
a
a
higher
plaintiff
in
Ellenburg v. Spartan Motors
Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008).
Under 28
U.S.C. § 1446(a), the removing party must provide only “a short
and plain statement of the grounds for removal.”
Although a
notice of removal is not a “pleading” as defined in Federal Rule
of Civil Procedure 7(a), the standard articulated in §1446(a) is
“deliberately parallel” to the notice pleading standard of Rule
8(a).
Ellenburg, 519 F.3d at 199 (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 553–55 (2007)).
b.
Analysis
Scott presents three primary arguments for why the Court
should grant his Motion to Remand.
First, Cricket does not
sufficiently allege the number of class members and amount in
6
controversy
required
for
CAFA
jurisdiction
because
Cricket’s
Notice of Removal addresses a class that Cricket defined, not
the far more narrow class that Scott defined in his Complaint
(the “Class”).
Scott discusses several Fourth Circuit cases he
reads as concluding that remand is warranted when a removing
party redefines and broadens the class defined in the complaint.
Second,
even
assuming
sufficiently alleging
present
facts
Cricket’s
Class.
MMWA
Cricket
met
preliminary
burden
of
federal jurisdiction, Cricket failed to
demonstrating
facts,
its
like
its
federal
jurisdiction
allegations,
are
because
broader
than
the
Third, Scott is the only named plaintiff in the putative
class
action
and
the
MMWA
expressly
prohibits
federal
jurisdiction over MMWA class actions with fewer than 100 named
plaintiffs.
In
response,
Cricket
maintains
that
Scott’s
principal
argument for seeking remand is that Cricket did not sufficiently
prove federal jurisdiction in its Notice of Removal.
Cricket
argues Scott misunderstands and overstates Cricket’s burden on
removal
because
in
United
States
held
challenged,
the
Dart
Cherokee,
that
removing
before
party
the
Supreme
federal
carries
a
Court
of
the
jurisdiction
is
burden
of
only
plausibly alleging that CAFA’s jurisdictional prerequisites are
satisfied.
Cricket contends that not only does its Notice of
Removal sufficiently allege federal jurisdiction, but also the
7
evidence it presented with its Notice of Removal and in response
to Scott’s Motion to Remand proves federal jurisdiction by a
preponderance of the evidence.
notwithstanding
the
MMWA’s
Finally, Cricket argues that
express
prohibition
of
MMWA
class
actions with less than 100 named plaintiffs, Congress enacted
CAFA long after it enacted the MMWA and many courts have held
that MMWA class action with less than 100 named plaintiffs are
permissible.
i.
Whether Cricket Sufficiently Alleges Federal
Jurisdiction
In its Notice of Removal, Cricket alleges the
Class
is
greater than 100 persons because “Cricket’s sales indicate that
Cricket sold at least 50,000 CDMA mobile telephones that were
shipped to and activated in Maryland between July 12, 2013 and
March 13, 2014.”
3330).
(Notice of Removal ¶ 4, ECF No. 1, GLR-15-
To calculate the amount in controversy, Cricket relied
on Scott’s allegations that he paid “hundreds of dollars” for
his cellphones to assume that each class member was harmed by a
maximum of $200 per cellphone purchase.
(Id. ¶ 10).
Cricket
then multiplied 50,000 by $200 to allege that the amount in
controversy is no less than $10 million—double the statutory
requirement.
Scott
requisite
(Id.).
argues
number
Cricket
of
class
does
not
members
8
sufficiently
and
amount
in
allege
the
controversy
because Cricket does not state how many of the approximately
50,000
CDMA
cellphones
Cricket
shipped
to
and
activated
in
Maryland were purchased by Maryland citizens and locked for use
only
on
Cricket’s
CDMA
network.
There
is
Cricket’s allegations are over-inclusive.
no
question
that
Cricket alleges the
entire population of CDMA cellphones shipped to and activated in
Maryland and asks the Court to Court to infer that a subset of
this
population—cellphones
network
and
sold
to
locked
for
Maryland
jurisdictional prerequisites.
use
only
on
the
citizens—satisfies
CDMA
CAFA’s
In all of the CAFA cases Scott
cites in which the courts examined over-inclusive notices of
removal, the courts analyzed whether the defendants had proved
federal jurisdiction, not whether they had alleged it.
Thus,
none of the cases Scott cites is helpful to determining whether
Cricket’s over-inclusive allegations pass muster.
The only CAFA case Scott cites that addresses whether a
defendant
has
sufficiently
alleged
federal
jurisdiction
is
Covert v. Auto. Credit Corp., 968 F.Supp.2d 746 (D.Md. 2013).
In
that
case,
this
Court
concluded
the
defendant
failed
to
sufficiently allege federal jurisdiction because it “completely
omit[ted] to allege the size of the putative class.”
968
F.Supp.2d
at
751.
Indeed,
“[n]owhere
in
the
Covert,
notice
of
removal [did] Defendant allege that the size of the putative
class [was] greater than 100 persons.”
9
Id. at 749.
This Court
concluded the complete failure to allege a jurisdictional fact
rendered the notice of removal defective.
Id.
This case is distinguishable from Covert because Cricket
did not completely fail to allege the requisite number of class
members or amount in controversy.
Cricket alleged “the total
amount in controversy is, at a minimum, $10,000,000,” (Notice of
Removal
¶
10),
and
“the
aggregate
number
of
putative
members is greater than 100 persons,” (id. ¶ 4).
class
The only
shortcoming in Cricket’s allegations, if any, is that they are
not
tailored
include
“a
to
the
short
and
Class.
plain
Scott’s
statement
allegations,
of
the
however,
grounds
for
removal,” 28 U.S.C. § 1446(a), and they give Scott fair notice
of
the
grounds
upon
which
federal
jurisdiction
purportedly
rests, see Twombly, 550 U.S. at 555 (quoting Conley v. Gibson,
355
U.S.
41,
47
(1957)).
Accordingly,
the
Court
concludes
Cricket sufficiently alleges federal jurisdiction under CAFA.
ii.
Because
Whether Cricket Proves Federal Jurisdiction
by a Preponderance of the Evidence
Scott
challenges
must
the
present
basis
jurisdiction,
Cricket
facts
jurisdiction.
See Strawn, 530 F.3d at 298.
for
proving
federal
federal
By strategically
defining the Class as including only Maryland citizens, Scott
places Cricket in somewhat of a predicament: Scott can’t prove
there is at least $5 million in controversy without extensive
10
discovery of facts related to the domiciles of potentially tens
of thousands of Cricket customers.
Cricket confirms that it
does not possess any information relevant to the domiciles of
customers
who
purchased
and
activated
CDMA
cellphones
in
Maryland during the relevant period because “[b]uying a cell
phone
does
not
require
a
recitation
of
one’s
life
story.”
(Def.’s Opp. Mot. Remand at 13, ECF No. 18, GLR-15-3330).
Lacking information relevant to domicile, Cricket presents
evidence that is broader than the Class.
declaration
of
Rich
Cochran,
Strategic
Cricket offers the
Business
Systems
and
Operations Professional, who states that between July 12, 2013
and
March
13,
2014,
Cricket
customers
who
listed
Maryland
addresses on their accounts purchased at least 47,760 cellphones
locked to Cricket’s CDMA network.
18-1).
(Cochran Decl. ¶ 6, ECF No.
Assuming $200 in damages per phone, Cricket estimates
the amount in controversy is $9,552,000.
Cricket implicitly asks the court to infer that out of the
47,760
CDMA
residents
cellphones
during
the
shipped
relevant
to
and
period,
activated
Cricket
25,000 of these phones to Maryland citizens.1
by
sold
Maryland
at
least
Cricket maintains
“there is no conceivable possibility that the number of putative
class members and the amount in controversy could fall below the
1
25,000 Maryland citizens multiplied by $200 in damages per
cellphone equals $5 million in controversy.
11
CAFA floor.”
(Def.’s Opp’n Mot. Remand at 11).
Cricket further
contends it is an “absurd proposition” that nearly half of the
Maryland
residents
who
purchased
CDMA
cellphones
during
the
relevant period were domiciled in a state other than Maryland.
(Id.).
Cricket relies on three cases outside the Fourth Circuit to
argue Cricket’s over-inclusive evidence is sufficient to prove
federal jurisdiction.2
the
Fourth
Circuit
As Scott highlights, however, courts in
have
consistently
remanded
putative
class
actions when defendants present evidence that is broader than
the class defined in the complaint.
Scott identifies at least
three examples from the United States District Court for the
Southern District of West Virginia.
First, in Krivonyak v. Fifth Third Bank, No. 2:09-CV-00549,
2009 WL 2392092, at *2 (S.D.W.Va. Aug. 4, 2009), the plaintiffs
defined the class as those borrowers whose loans Fifth Third
Bank
(“Fifth
Third”)
serviced
and
who
Fifth
Third
charged
multiple late fees for the same late payment or did not credit
for full or partial payments.
Fifth Third presented evidence
that they serviced 2,201 total loans to West Virginia consumers
and
estimated
that
because
the
2
plaintiffs
were
each
seeking
See Raskas v. Johnson & Johnson, 719 F.3d 884 (8th Cir.
2013), Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395 (9th Cir.
2010), and Spivey v. Vertrue, Inc., 528 F.3d 982, 983 (7th Cir.
2008).
12
$4,400 in civil penalties, the total amount in controversy was
approximately $9.6 million.
Krivonyak, 2009 WL 2392092, at *2.
Fifth Third failed, however, to present any evidence regarding
how many of the 2,201 total borrowers were charged multiple late
fees or not credited for full or partial payments.
Id. at *5.
In other words, Fifth Third failed to prove how many borrowers
were
in
the
plaintiffs’
narrowly
tailored
class.
Without
evidence of the number of class members, the Court concluded
Fifth Third failed to prove federal jurisdiction because the
amount in controversy was merely speculative.
Id. at 5—7.
Second, in Caufield v. EMC Mortgage Corp., 803 F.Supp.2d
519, 526 (S.D.W.Va. 2011), the plaintiffs defined the class as
those borrowers whose loans defendant EMC Mortgage Corp. (“EMC
Mortgage”) serviced and who EMC Mortgage charged specific fees
in
violation
of
West
Virginia
statutory
law.
EMC
Mortgage
offered evidence that it was servicing approximately 700 West
Virginia
loans,
which
is
the
number
it
used
to
attempt
demonstrate there was more than $5 million in controversy.
at 527.
to
Id.
EMC Mortgage, however, presented no evidence of how
many of the total West Virginia loans EMC Mortgage subjected to
the late fees specified in the plaintiffs’ class definition.
Id. at 526—27.
As such, the Court concluded EMC Mortgage
failed to demonstrate the requisite number of class members or
13
amount in controversy, specifically finding the defendant relied
on nothing more than “conjecture.”
Id.
Third, in Pauley v. Hertz Glob. Holdings, Inc., No. 3:1331273, 2014 WL 2112920, at *1 (S.D.W.Va. May 19, 2014), the
plaintiffs defined the class as customers who rented cars from
defendants
Hertz
Corporation
(“Hertz”)
and
Dollar
Thrifty
Automotive Group, Inc. (“Dollar Thrifty”) and after receiving
and paying parking citations issued during the rental period
were
nevertheless
Dollar
Thrifty.
controversy
charged
Hertz
administrative
attempted
requirement
by
to
offering
a
fees
prove
by
CAFA’s
declaration
Hertz
and
amount
that
in
Hertz
collected $5.6 million in administrative fees associated with
parking citations.
Id. at *2.
Because Hertz presented no
evidence regarding how much of the $5.6 million Hertz collected
from customers who were charged administrative fees after paying
the
underlying
failed
to
controversy.
parking
citations,
demonstrate
there
was
the
court
concluded
at
least
$5
Hertz
million
in
Id. at *5.
The Court rejects Cricket’s assertion that the foregoing
cases are “outliers.”
n.4).
(See Def.’s Opp’n Mot. to Remand at 14
Just last year, in James v. Santander Consumer USA, Inc.,
JFM-15-654, 2015 WL 4770924, at *5 (D.Md. Aug. 12, 2015), this
Court also concluded that defendants fail to demonstrate federal
jurisdiction
under
CAFA
when
they
14
present
evidence
that
is
broader than the class defined in the complaint.
In James, the
plaintiff defined the class to include only those individuals
whose cars were repossessed by defendant Santander Consumer USA,
Inc. (“Santander”) under closed end credit contracts (“CLECs”)
and who did not receive proper pre- and post-sale notifications.
Id. at *3.
Santander attempted to demonstrate the requisite
number of class members and amount in controversy by offering
evidence of the total number of vehicles Santander repossessed
and sold under CLECs.
Id. at *2.
Santander, however, did not
present any evidence regarding how many of the repossessions
Santander conducted without sending the proper pre- and postsale notifications.
Id.
Consequently, this Court concluded
Santander failed to prove federal jurisdiction under CAFA and
remanded the case.
Id. at *3.
Here, Cricket, like the defendants in Krivonyak, Caufield,
Pauley, and James, presents evidence that is over-inclusive—the
Class includes only Maryland citizens, but Cricket’s evidence
pertains
to
all
consumers
who
provided
Maryland
Residency is not tantamount to citizenship.
F.3d at 937 n.2 (4th Cir. 2008).
addresses.
See Johnson, 549
Assuming $200 in controversy
per class member, Cricket must prove at least 25,000 consumers
who purchased locked CDMA cellphones during the relevant period
are domiciled in Maryland.
See id. (citing Newman–Green, Inc.
v. Alfonzo–Larrain, 490 U.S. 826, 828 (1989)) (explaining that
15
“[t]o be a citizen of a State, a person must be both a citizen
of the United States and a domiciliary of that State”).
But,
Cricket presents no evidence of any of the factors relevant to
domicile, such as where the consumers are registered to vote,
where they pay taxes, or where they are employed.
2014
WL
2002446,
factors
(listing
result,
at
relevant
the
Court
*2
(quoting
would
to
have
Dyer,
853
determining
to
See Blake,
F.Supp.
at
domicile).
speculate
to
172)
As
determine
a
the
number of class members that purchased CDMA cellphones and the
amount in controversy.
The Court concludes, therefore, that
Cricket fails to prove federal jurisdiction by a preponderance
of the evidence.
Cricket further argues that from a practical perspective,
requiring defendants to prove state citizenship when a plaintiff
challenges CAFA removal would completely prohibit CAFA removal
because that would be an “impossible burden of proof.”
Opp’n Mot. to Remand at 12).
obvious
that
customers’
companies
state
of
(Def.’s
Cricket maintains “[i]t should be
like
Cricket
citizenship,
do
which
not
would
keep
track
require
of
asking
every customer to divulge whether or not he or she ‘intends to
make the State a home.’”
also
contends
companies
to
that
prove
(Id.) (citation omitted).
prohibiting
state
CAFA
citizenship
removal
would
by
Cricket
requiring
belie
CAFA’s
“‘primary objective’ of ‘ensuring Federal court consideration of
16
interstate
cases
of
national
importance.’”
Standard Fire, 133 S. Ct. at 1350).
(Id.)
(quoting
This Court is not persuaded
for several reasons.
First,
Scott,
complaint,
and
he
as
the
can
plaintiff,
choose
to
is
the
master
circumscribe
of
his
definition to avoid federal jurisdiction under CAFA.
his
class
Johnson v.
Advance Am., 549 F.3d 932, 937 (4th Cir. 2008); see Morgan v.
Gay, 471 F.3d 469, 474 (3d Cir. 2006) (“The Supreme Court has
long
held
that
plaintiffs
may
limit
their
claims
to
avoid
federal subject matter jurisdiction. . . . CAFA does not change
the proposition that the plaintiff is the master of her own
claim.”).
Second, Cricket maintains that it should be excused
from tailoring its evidence to the Class because Cricket does
not
obtain
information
relevant
to
the
domiciles
customers as part of its normal business practices.
Hertz’s
normal
precisely
when
business
its
practices
customers
paid
did
not
their
of
its
In Pauley,
entail
parking
learning
citations
because there is no evidence Hertz required its customers to
provide
this
information.
Nevertheless,
the
district
court
granted the plaintiffs’ motion to remand because Hertz did not
prove the amount of administrative fees it charged its customers
after the customers paid their parking citations.
WL 2112920, at *5.
17
Pauley, 2014
Third,
the
Court
disagrees
that
requiring
defendants
to
prove state citizenship when a plaintiff challenges CAFA removal
would
contravene
jurisdiction
over
CAFA’s
objective
interstate
cases
of
of
preserving
national
federal
importance.
Limiting a class to citizens of only one state creates an action
that is inherently intrastate.
And, as the United States Court
of Appeals explained in Johnson, in enacting CAFA, “Congress did
not give federal courts jurisdiction over all class actions;”
rather, it “specifically exclude[ed] [class actions] consisting
of ‘primarily local matters.’”
549 F.3d at 938.
In sum, Cricket fails to prove federal jurisdiction by a
preponderance of the evidence because Cricket does not tailor
its evidence to Scott’s narrowly defined Class.
Furthermore,
granting Scott’s Motion to Remand comports with the discretion
afforded plaintiffs in drafting their complaints and Congress’s
intent
in
passing
CAFA.
Accordingly,
the
Court
will
grant
Scott’s Motion to Remand.3
2.
Scott II
Cricket argues the Court should not remand Scott II because
federal
jurisdiction
exists
under
the
look-through
doctrine
discussed in Vaden v. Discover Bank, 556 U.S. 49 (2009).
3
Scott
The MMWA does not save Cricket’s Notice of Removal because
it provides that MMWA class actions must name at least 100
plaintiffs, see 15 U.S.C. § 2310(d)(3)(C) (2012), and Scott is
the only plaintiff named in his Complaint, (see ECF No. 2, GLR15-3330).
18
contends that even assuming the look-through doctrine applies,
remand is warranted because Cricket’s Notice of Removal is based
entirely on the look-through doctrine and the Court does not
have CAFA or federal-question jurisdiction over Scott I.
The
Court agrees with Scott.
Section 4 of the Federal Arbitration Act (“FAA”), 9 U.S.C.
§ 4 (2012), authorizes a district court to entertain a petition
to
compel
arbitration
if
the
court
would
have
jurisdiction,
“save for [the arbitration] agreement,” over “a suit arising out
of the controversy between the parties.”
Bank, 556 U.S. 49, 52 (2009).
Vaden v. Discover
In Vaden, the Supreme Court held
that in a stand-alone action to compel arbitration pursuant to
Section 4 of the FAA, a federal court may “look through” the
petition and grant the requested relief if the court would have
federal-question jurisdiction over the underlying controversy.
Id. at 62.
Relying on Vaden, Cricket asks the Court to look through
Scott
II
and
jurisdiction
conclude
over
that
Scott
the
Court
II
because
the
has
subject
Court
has
matter
federal-
question and CAFA jurisdiction over the underlying controversy—
Scott I.
neither
As the Court explained above, however, the Court has
subject-matter
Accordingly,
Vaden
nor
CAFA
provides
no
19
jurisdiction
basis
for
over
the
Scott
I.
Court’s
jurisdiction over Scott II, and the Court will grant Scott’s
Motion to Remand.
III. CONCLUSION
Based
on
the
foregoing
reasons,
the
Court
will
GRANT
Scott’s Motions to Remand (ECF No. 15, GLR-15-3330; ECF No. 18,
GLR-15-3759)
Materials
and
and
DENY
as
Arguments
moot
or
Scott’s
for
Leave
Motion
to
to
File
Strike
a
New
Surreply
Addressing Them (ECF No. 30, GLR-15-3330) and Cricket’s Motion
to
Compel
Arbitration
(ECF
No.
20,
GLR-15-3330),
Motion
to
Dismiss or, in the Alternative, to Stay (ECF No. 16, GLR-153759), and Motion to Relate Case (ECF No. 16, GLR-15-3330).
separate Order follows.
Entered this 19th day of August, 2016
/s/
____________________________
George L. Russell, III
United States District Judge
20
A
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