Date: 09-06-2018

Case Style:

Case Number: 18-55911

Judge: Richard R. Clifton

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California (Los Angeles County)

Plaintiff's Attorney: Matt Matern, Launa Adolph and Kayvon Sabourian

Defendant's Attorney: Ashley Michelle Farrell, Mark D Kemple

Description: Great American Chicken Corp, Inc. (“GAC”), which does business in
California as Kentucky Fried Chicken, appeals the district court’s remand of
plaintiff Celena King’s putative class action to Los Angeles Superior Court. The
action was originally filed in that court and removed to federal court by GAC
under the Class Action Fairness Act (“CAFA”). It is undisputed that removal
under CAFA was proper here, but King sought remand to state court based on the
local controversy or home-state controversy exception to CAFA jurisdiction. The
question presented in this appeal is whether the district court correctly found that
King met her burden of proving a factual requirement for remand under these
exceptions, specifically that greater than two-thirds of the putative class members
were California citizens at the time the case was removed to federal court.
After GAC removed the case to federal court, King sought discovery from
GAC relevant to that factual question. GAC resisted King’s discovery requests. In
lieu of providing responses to the requests, GAC proposed a stipulation that at least
two-thirds (sometimes expressed as at least 67 percent) of the putative class
members under the definition proposed by King—current and former GAC
employees—had last-known addresses in California. King declined GAC’s
proposal, but the district court held that the stipulation resolved the discovery
dispute and ordered that it be accepted. Subsequently, based on the stipulation and
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other inferences, the district court granted King’s motion to remand, finding King
had made the necessary factual showing.
King had the burden to prove that “greater than two-thirds” of the putative
class members were “citizens” of California. See 28 U.S.C. § 1332(d)(4). The
stipulation left very little cushion, if any, to account for former employees who
were not domiciled in California at the time this case was removed to federal court,
because, for example, they had moved to another state. Similarly, there was little
margin to cover employees who may have had last-known addresses in California
but who did not qualify as citizens of California because they were not citizens of
the United States. There was no evidentiary basis for the district court to find that
subtracting those groups would not reduce the fraction of class members that were
California citizens at the time of removal to a level less than the required “greater
than two-thirds.” Because there was no other evidence before the district court on
that subject, the finding that more than two-thirds of the putative class members
were citizens of California at the time of removal was clearly erroneous. The order
of remand to state court must be vacated, and this case must be remanded to federal
district court for further proceedings. In district court, however, King should be
permitted to conduct jurisdictional discovery in this matter and to renew her
motion to remand.
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I. Background
King filed a putative class action complaint on behalf of all non-exempt
California GAC employees in the Los Angeles Superior Court on January 10,
2017. The complaint alleged various violations of California wage-and-hour laws.
A first amended complaint was filed on February 21, 2017. It defined the putative
class as “all current and former non-exempt employees of DEFENDANTS[1] in the
State of California at any time within the period beginning four (4) years prior to
the filing of this action and ending at the time this action settles or proceeds to final
judgment.” The district court later noted that the putative class may include as
many as 6,000 employees.
GAC removed the case to the United States District Court for the Central
District of California on June 19, 2017, pursuant to 28 U.S.C. §§ 1332(a), 1332(d),
and 1446(b). As will be explained in greater detail below, CAFA provides that
some class actions removed to federal court may be subject to remand to state court
if plaintiffs can make specified showings that the cases involve local controversies
and are not interstate disputes that qualify for adjudication in federal court. After
1 The plural “defendants” may be explained by the fact that the complaints
filed by King in state court named as defendants unidentified “Does,” in addition to
GAC. GAC was the only identified defendant, so we will continue to refer to it by
itself.
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removal, King sought jurisdictional discovery in the form of names, last-known
addresses, telephone numbers, and email addresses for all putative class members,
as well as information regarding the percentage of the putative class members
whose last-known address was in California.
GAC failed to provide the information sought by the discovery requests. It
argued, among other things, that the precise requests posed by King would not
satisfy her burden to prove the requirements for remand. As an alternative, GAC
offered to stipulate that at least two-thirds of the putative class members had lastknown
addresses in California, though GAC also argued that this would not be
enough for King to meet her burden. King declined GAC’s offer.
The precise term of the stipulation was not entirely clear. No formal
stipulation was filed with the court. It arose during the court’s resolution of the
discovery dispute. GAC described it to the district court as a stipulation “that at
least two-thirds (at least 67%) of the putative class are shown with addresses in
California.” King characterized it as a stipulation “that two-thirds of the putative
class members had a last-known residential address in California.”
At a scheduling conference on November 30, 2017, the discovery dispute
was raised with the district court. The court concluded that the stipulation was
sufficient to satisfy King’s requests and declined to order GAC to provide
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additional discovery. The district court’s minute order following the conference
stated that, “[i]n lieu of the requests for discovery, the Court finds [GAC’s]
stipulation is sufficient in that at least 67% of the last-known addresses are in
California.” (Emphasis in original.)
King moved to remand the case to state court. GAC argued that the motion
to remand should be denied because King had not established that over two-thirds
of the putative class members were California citizens. After a hearing, the district
court granted the motion to remand on January 30, 2018. In that order, the court
relied upon the stipulation “that at least two-thirds of the putative class members
had last-known addresses in California.”
GAC petitioned for permission to appeal, and we granted that petition on
July 9, 2018. This appeal followed.
II. Discussion
Under CAFA, federal courts have original diversity jurisdiction over class
actions where the aggregate amount in controversy exceeds $5,000,000, where the
putative class size exceeds 100 persons, and where, among other possibilities, “any
member of a class of plaintiffs is a citizen of a State different from any defendant.”
28 U.S.C. § 1332(d)(2)(A), (d)(5)(B). In its notice of removal, GAC noted that
this action satisfied these requirements. Regarding the last element, that at least
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one member of the putative class was a citizen of a state other than California,
GAC specifically identified one class member who was a citizen of Texas at the
time of removal. King has not disputed that these requirements were met in this
case.
The statute includes a number of exceptions that require a federal district
court to decline jurisdiction even if the above requirements were met. They
include what are commonly referred to as the local controversy exception, see 28
U.S.C. § 1332(d)(4)(A); see also Mondragon v. Capital One Auto Fin., 736 F.3d
880, 881 (9th Cir. 2013), and the home-state controversy exception, see 28 U.S.C.
§ 1332(d)(4)(B); see also Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1019 (9th
7
Cir. 2007).2 These exceptions require the party seeking remand to state court to
prove, among other things, that greater than two-thirds of proposed class members
2 In its entirety, the relevant subsection of CAFA, 28 U.S.C. § 1332(d)(4),
provides:
A district court shall decline to exercise jurisdiction under
paragraph (2)--
(A)(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 Sate 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; or
(B) two-thirds or more of the members of all proposed
plaintiff classes in the aggregate, and the primary
defendants, are citizens of the State in which the action
was originally filed.
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“are citizens of the State in which the action was originally filed.” 28 U.S.C. §§
1332(d)(4)(A), (B).
The only issue on appeal is whether King met her burden to establish that
greater than two-thirds of the putative class members were California citizens as of
the date the case became removable. See 28 U.S.C. § 1332(d)(7). CAFA was
intended to strongly favor federal jurisdiction over interstate class actions. See
Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118, 1121 (9th Cir. 2017). The
burden of establishing that a CAFA exception applies is on King, as the party
seeking to remand. Id. The individual factors of a party’s citizenship are
“essentially factual.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986). King must
establish the required facts by a preponderance of evidence. Mondragon, 736 F.3d
at 884.
A. Our opinion in Mondragon
In Mondragon we vacated an order of remand based on the local controversy
exception in a putative class action because the plaintiff “submitted no evidence
regarding the disputed issue, the citizenship of prospective class members.” Id. at
881. We concluded that the plaintiff, Jose Mondragon, “did not present any
evidence of the citizenship of the putative class members” in his motion to remand,
but “[i]nstead, he sought to rely entirely on his proposed class definitions, arguing
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that the court should infer from those definitions that more than two-thirds of the
class members were citizens of California.” Id. at 882. Mondragon, like the
plaintiff here, had the burden to “establish that greater than two-thirds of
prospective class members were citizens of California as of the date the case
became removable.” Id. at 883. Our court joined the Fifth, Seventh, and Eleventh
Circuits in concluding that a district court must base its findings about class
members’ citizenship on “at least some facts in evidence” for the local controversy
exception to apply. Id. at 884. Mondragon failed “to produce any evidence
regarding citizenship in the face of [the defendant’s] challenge to his jurisdictional
allegations” and therefore did not meet his burden. Id.
We were careful to point out that “the burden of proof placed upon a
plaintiff should not be exceptionally difficult to bear.” Id. at 886. Instead, a
district “court should consider ‘the entire record’ to determine whether evidence of
residency can properly establish citizenship.” Id. (quoting Preston v. Tenet
Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 793, 800 (5th Cir. 2007)). We
noted, moreover, that “[a]s a general proposition, district courts are permitted to
make reasonable inferences from facts in evidence, and that is true in applying the
local controversy exception under CAFA, as well.” Id.
B. Evidence of citizenship in this case
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In the current case, the district court relied in its order of remand upon the
stipulation that “at least two-thirds of the putative class members had last-known
addresses in California.” Elsewhere, as previously noted, the district court
described the stipulation as being that “at least 67% of the last known addresses [of
the putative class members] are in California.” Those two fractions are not exactly
the same, of course, because two-thirds actually translates into 66 & 2/3 percent,
not 67 percent.
To qualify for remand under the local controversy exception in CAFA, King
had to establish that “greater than two-thirds” of the class members were citizens
of California. On its face, a stipulation that spoke to “at least two-thirds” of the
class members would be insufficient, because “at least” is not the same as
“greater.”
The alternative understanding of the stipulation, “at least 67 percent,” would
produce a figure “greater than two-thirds,” but by an extremely narrow margin. If
we assume for the moment that the class included 6,000 members, as the district
court estimated it might, two-thirds would be 4,000, while 67 percent would be
4,020. “Greater than two-thirds” would mean at least 4,001, so “at least 67
percent,” or 4,020, would leave a cushion of only 19 class members.
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While King’s burden of proof should not be “exceptionally difficult to bear,”
Mondragon, 736 F.3d at 886, she did not meet it here. In addition to the former
employee identified by GAC in its notice of removal who had become a citizen of
Texas, GAC provided evidence that at least one other employee permanently
moved to Arizona. It seems likely that at least some others in the group would
have moved out of California as well. Given the class definition, many of the
addresses were at least four years old, and there was evidence that GAC’s records
included last-known addresses that were even older. Moreover, it is not
implausible that at least a few GAC employees were citizens of other states even if
they temporarily had a residential address in California, such as an out-of-state
student working while attending college in California. A person’s state of
citizenship is established by domicile, not simply residence, and a residential
address in California does not guarantee that the person’s legal domicile was in
California. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).
In addition, it is very likely that some putative class members were not
United States citizens. CAFA expresses the requirement for remand that at least
two-thirds of the proposed class members be “citizens of the State,” in this case
California. “To be a citizen of a state, a natural person must first be a citizen of the
United States.” Kanter, 265 F.3d at 857. It cannot be assumed that all residents of
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California are citizens of the United States. There is no evidence in the record
regarding what proportion of California residents are not citizens, let alone what
proportion of GAC employees, but it is not obvious that the number would be
fewer than one-third of 1 percent, or fewer than 19 out of 6,000.
In sum, given the narrow cushion provided by the stipulation, the likelihood
that some putative class members were legally domiciled in or subsequently
relocated to another state, and the probability that some class members were not
United States citizens, we cannot conclude that there was sufficient evidence to
support a finding that greater than two-thirds of the putative class members were
California citizens. The order of remand to Los Angeles Superior Court must be
vacated.
We appreciate why the district court drew the inference that it did, and why
it hoped to avoid discovery that could be burdensome and contentious. The
impression that this case would qualify for the local or home-state controversy
exception is easy to understand. It seems unlikely that allowing this case to
proceed in state court would defeat “CAFA’s primary objective: ensuring Federal
court consideration of interstate cases of national importance.” Standard Fire Ins.
Co. v. Knowles, 568 U.S. 588, 595 (2013) (internal quotation marks omitted).
GAC has affirmatively acknowledged that it is incorporated in the state of
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California and, in its own words, has its “principal (indeed, exclusive) place of
business” there. King’s claim is based entirely on California law. Although the
stipulation GAC offered and that the district court adopted spoke to only “at least
two-thirds” of the employees having California addresses, it is hard to imagine that
the proportion would not be substantially larger than that. King speculated that it
would exceed 90 percent. The geography of California, notably the substantial
distances between California’s major population centers and other states, make it
unlikely that many of GAC’s employees traveled from residences outside of
California. Jobs at fast food restaurants are not likely to attract employees
commuting great distances. Though some employees might have maintained legal
domiciles in other states, that number was probably not great.
The problem is that this impression rests on guesswork. See Mondragon,
736 F.3d at 884 (“A jurisdictional finding of fact should be based on more than
guesswork.”). There was no evidence to support a factual finding that the
proportion of California citizens was greater than two-thirds. With the likelihood
that some number of the employees were not legally domiciled in California, that
others may later have moved out of state, and that some were not citizens, the
stipulation was insufficient, and there was no other evidence to fill the gap.
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In Mondragon we suspected that the plaintiff in that case could, if he
decided to expend the effort, come up with sufficient evidence to establish that
two-thirds of prospective class members were citizens of California. Id. at 885.
The same is true in this case.
The ultimate outcome here does not mean that a stipulation could never
establish state citizenship for purposes of the local or home-state controversy
exceptions to CAFA jurisdiction. Nor does it mean that a similar stipulation would
be insufficient if it provided a more substantial cushion and was bolstered by
evidence that the number of class members who were not domiciled in California
or might not qualify as citizens are likely covered by the cushion. We have
previously noted that “[w]e do not think . . . that evidence of residency can never
establish citizenship.” Id. at 886. There simply needs to be sufficient evidence to
support a factual finding by a preponderance of evidence that greater than twothirds
were California citizens at the time of removal.
Though we have concluded that King did not prove by a preponderance of
the evidence that greater than two-thirds of the putative class members were
California citizens, it is clear from the record that King did not have a full
opportunity to do so. GAC resisted King’s requests for jurisdictional discovery.
The district court accepted GAC’s stipulation instead of permitting King to pursue
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that discovery. In its order, the district court expressed support for allowing King
additional jurisdictional discovery, if necessary. In Mondragon, we vacated the
district court’s order and remanded “with instructions to allow Mondragon an
opportunity, if he so chooses, to renew his motion to remand and to gather
evidence to prove that more than two-thirds of putative class members are citizens
of California.” Id. We do the same here. If GAC complains that the burden
placed on it is too onerous, it is free to propose a stipulation that would better
address King’s burden.

Outcome:
The district court’s finding that King proved by a preponderance of the
evidence that greater than two-thirds of the putative class members were California
citizens was not supported by sufficient evidence. The order of remand must be
vacated. On remand to the district court, however, King should be given an
opportunity to seek additional jurisdictional discovery and to renew her motion to remand.

VACATED and REMANDED for further proceedings.

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