McMullen v. Synchrony Bank , 82 F. Supp. 3d 133 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
VALERIE MCMULLEN, individually and
on behalf of others similarly situated,
Plaintiff,
v. Civil Action No. 14-1983
SYNCHRONY BANK, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Valerie McMullen has moved to remand this action to the Superior Court of the
District of Columbia or, in the alternative, for limited discovery related to her motion to remand.
Defendant JP Morgan Chase & Co. ("Chase") resists remand and discovery, claiming that this
Court has jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d).1
Upon careful consideration of the motion and the parties' memoranda, 2 the applicable law, and
the record, and for the reasons set forth below, the Court finds that it has jurisdiction under
CAFA, but that the local controversy exception may apply. Accordingly, the Court will deny the
motion to remand with leave to renew and will order limited discovery regarding the citizenship
of the putative class members.
FACTUAL BACKGROUND
McMullen, a citizen of the District of Columbia, brought this action against Chase,
Synchrony Bank, Wayne Bullen, Karim Steward, One World Fitness, Bullen Wellness,
Washington Chiropractic, and several John Does and John Doe Corporations. One World
1
Defendant Synchrony Bank has joined Chase's opposition to McMullen's motion to remand. See Not. of
Joinder in Def. Chase's Opp'n to Pl.'s Mot. for Remand [ECF No. 16].
2
Pl.'s Mot. to Remand [ECF No. 12] ("Mot."); Def.'s Opp'n [ECF No. 13] ("Opp'n"); Pl.'s Reply [ECF No.
18] ("Reply"); Def.'s Sur-Reply [ECF No. 19]; Pl.'s Opp'n to Sur-Reply [ECF No. 23].
1
Fitness is a local health club in Washington, D.C. owned by Bullen and Steward. McMullen
alleges that Bullen and Steward, through One World Fitness and two other District of Columbia
companies they owned—Bullen Wellness and Washington Chiropractic—fraudulently took out
lines of credit against customers and billed against these lines of credit without the customers'
knowledge or authorization. Synchrony Bank and Chase provided the lines of credit. McMullen
alleges that she is a One World Fitness customer harmed by the fraudulent scheme.
McMullen brought this action on September 12, 2014, in the Superior Court of the
District of Columbia for alleged violations of the D.C. Consumer Protection Procedures Act
("CPPA") and for fraud, conspiracy to commit fraud, conversion, and breach of contract. On
October 31, 2014, she filed an amended complaint on behalf of herself and all others similarly
situated under D.C. Code § 28-3905(k) (private right of action under the CPPA) and as a class
action. Chase then filed a Notice of Removal, pursuant to 28 U.S.C. § 1332(d), seeking to
remove the case to the U.S. District Court for the District of Columbia. Shortly thereafter,
McMullen filed a motion to remand to Superior Court or, in the alternative, for limited
discovery. Chase, joined by Synchrony Bank, resists the remand. Chase also opposes discovery.
LEGAL STANDARDS
CAFA was enacted "to amend the procedures that apply to consideration of interstate
class actions" to make it easier to establish federal diversity jurisdiction. Mississippi ex rel.
Hood, v. AU Optronics Corp., 134 S. Ct. 736, 744 (2014) (internal quotation marks omitted); see
also Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014) ("[N]o
antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate
adjudication of certain class actions in federal court."). A qualifying "class action" under CAFA
is "any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State
2
statute or rule of judicial procedure," 28 U.S.C. § 1332(d)(1)(B), in which "the number of
members of all proposed plaintiff classes in the aggregate" is at least 100, id. § 1332(d)(5)(B).
Because CAFA expanded diversity jurisdiction over CAFA class actions by replacing complete
diversity with "minimal diversity," AU Optronics, 134 S. Ct. at 740, federal courts may exercise
jurisdiction over a class action where "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). And in lieu of diversity jurisdiction's
general requirement that each plaintiff's claim exceed the sum or value of $75,000, "CAFA
grants federal jurisdiction over class . . . actions in which the aggregate amount in controversy
exceeds $5 million." AU Optronics, 134 S. Ct. at 740 (citing §§ 1332(d)(2), (d)(6), (d)(11)(A)).
In sum, "CAFA gives federal courts jurisdiction over certain class actions, . . . if the class has
more than 100 members, the parties are minimally diverse, and the amount in controversy
exceeds $5 million." Dart Cherokee, 135 S. Ct. at 552. The party supporting removal bears the
burden of establishing the Court's jurisdiction. Breakman v. AOL LLC, 545 F. Supp. 2d 96, 100
(D.D.C. 2008).
Even if a court otherwise has jurisdiction under CAFA, however, the statute provides
mandatory abstention provisions for actions that involve matters of principally local or state
concern. See 28 U.S.C. §§ 1332(d)(4). These provisions, known as the local controversy
exception and the home state exception, are "designed to draw a delicate balance between
making a federal forum available to genuinely national litigation and allowing the state courts to
retain cases when the controversy is strongly linked to that state." Hart v. FedEx Ground Package
Sys. Inc., 457 F.3d 675, 682 (7th Cir. 2006). Once a party establishes that CAFA's basic
jurisdictional requirements are satisfied, the burden shifts to the party seeking remand to
3
establish that a CAFA exception applies. Westerfeld v. Indep. Processing, LLC, 621 F.3d 819,
822–23 (8th Cir. 2010).
ANALYSIS
It is undisputed that McMullen has alleged a class action and that the parties are
minimally diverse. 3 Before the Court, then, are only three issues: (1) whether Chase has shown
that the putative class has at least 100 members; (2) whether Chase has shown that the amount in
controversy exceeds $5 million; and (3) if those two showings have been made by Chase,
whether McMullen has shown that CAFA's local controversy exception applies.
I. CLASS SIZE
In order for an action to be removable under CAFA, the proposed plaintiff class must
consist of 100 or more people. 28 U.S.C. § 1332(d)(5)(B). CAFA defines "class members" as
"the persons (named or unnamed) who fall within the definition of the proposed or certified
class." Id. § 1332(d)(1)(D).
Here, the amended complaint defines the class as former One World Fitness members
who received financing from defendant banks and asserts that "[o]n information and belief, there
are approximately one hundred One World Fitness customers who received [such] financing."
Am. Compl. ¶¶ 37–38. Nevertheless, McMullen argues that this action should be remanded
because Chase may not rely on her estimate alone and has therefore "failed to identify the size of
the class with any certainty." Mot. at 4. Indeed, this District Court has held that a defendant's
reliance on a plaintiff's estimate of class size alone fails to meet the defendant's burden of
establishing jurisdiction on plaintiff's motion to remand. See Wexler v. United Air Lines, Inc.,
496 F. Supp. 2d 150, 155 (D.D.C. 2007). But Chase does not merely rely on McMullen's
3
Plaintiff McMullen is a resident of the District of Columbia and defendant Chase is a Delaware
corporation with its principal place of business in New York.
4
estimated class size. Instead, Chase provides a declaration stating that its business records
indicate that Chase "financed 367 separate accounts for Bullen Wellness, the entity that allegedly
received the funds from Defendant Banks." Opp'n at 5 (citing Decl. of Kristina L. Ash [ECF No.
13-2] ¶ 3). Chase explains, moreover, that "[t]his number, while sufficient to support CAFA
jurisdiction, understates Plaintiff's proposed class, which also includes customers financed
through Defendant Synchrony Bank." Id. at 6. Faced with Chase's evidence, McMullen
concedes that it "satisf[ies] the CAFA numerosity requirement." Reply at 5. This Court agrees:
Chase has met its burden to show that the class size in this case meets CAFA requirements.
II. AMOUNT IN CONTROVERSY
For CAFA to apply, the amount in controversy must exceed the sum or value of $5
million. 28 U.S.C. § 1332(d)(2). "[W]hen a defendant seeks federal-court adjudication, the
defendant's amount-in-controversy allegation should be accepted when not contested by the
plaintiff or questioned by the court." Dart Cherokee, 135 S. Ct. at 553. If a plaintiff contests
defendant's allegations, however, "§ 1446(c)(2)(B) instructs: '[R]emoval . . . is proper on the
basis of an amount in controversy asserted' by the defendant 'if the district court finds, by the
preponderance of the evidence, that the amount in controversy exceeds' the jurisdictional
threshold." Id. at 553–54. "'[T]o determine whether the matter in controversy exceeds the sum
or value of $5,000,000,' the 'claims of the individual class members shall be aggregated.'"
Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1347 (2013) (quoting 28 U.S.C. §
1332(d)(6); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 571 (2005)
("CAFA confers federal diversity jurisdiction over class actions where the aggregate amount in
controversy exceeds $5 million. It abrogates the rule against aggregating claims . . . .").
5
McMullen argues that Chase has identified only $10,710.00 in damages, exclusive of
costs and interest, for her. Mot. at 4. She also explains that, under the CPPA, she is entitled to
recover treble damages or $1,500 per violation, whichever is greater. Id. Trebling increases her
damages claim to $32,130.00. Id. Alternatively, the twenty-four CPPA violations alleged by
McMullen multiplied by $1,500 results in statutory damages of $36,000.00. 4 Id. Although
McMullen alleges that "the fraud perpetuated against [her] is typical, and representative, of the
fraud perpetuated against [the class]," and that she "is similarly situated with, and has suffered
similar injuries as, the members of the class she seeks to represent," Am. Compl. ¶¶ 40–41, she
argues that the damages suffered by the other class members are currently unknown, so no
additional math can be done to determine the amount in controversy without discovery, Reply at
5. 5
In response, Chase argues that McMullen's alleged damages should be applied to each of
the purported class members and then aggregated to find the amount in controversy. Opp'n at 6.
Chase therefore multiplied $32,130.00 by the number of putative class members having Chase
accounts (367) to arrive at an amount in controversy of $11,791,710.00, which plainly meets the
requirements of CAFA. Id.
Chase's calculations are supported by McMullen's statement that she "is seeking relief in
the amount of approximately $32,130.00 for each member of the putative class for damages
arising from the [l]ocal [d]efendants' conduct." Mot. at 9. Indeed, McMullen cannot argue that
the amount in controversy is indeterminable while at the same time conceding that there are at
least 367 class members and stating that she is seeking $32,130.00 for each class member. If
4
These damage amounts do not include the compensatory damages sought on behalf of the putative class
for the other alleged violations of D.C. law. See Am. Compl. ¶¶ 70, 79, 86, 95.
5
McMullen requests discovery from Chase and Synchrony Bank in the form of the "application for the
line(s) of credit," "promissory note," "sales authorization(s), and/or "purchase authorization(s)," "September 2014
billing statement," and "any document referring to the last known address" for each potential plaintiff. Reply at 7–8.
6
McMullen is seeking that amount for each member of the putative class, then the amount in
controversy is at least $11,791,710.00—well over $5 million. See, e.g., Cannon v. Wells Fargo
Bank, N.A., 908 F. Supp. 2d 110, 113–14 (D.D.C. 2012) (explaining that "[t]en violations of the
[CPPA] with [statutory] damages of $1,500 per violation for each of the 738 members of the
class amounts to a total of $11,070,000—more than double the amount in controversy
necessary"); Manson v. GMAC Mortg., LLC, 602 F. Supp. 2d 289, 294 (D. Mass. 2009)
(multiplying the class size by named plaintiff's estimated damages to calculate amount in
controversy); Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150, 155 (D.D.C. 2007)
(explaining that to determine the CAFA amount in controversy, "the average class member's
claim is multiplied by the number of class members"). McMullen has presented no evidence to
the contrary. Based on Chase's evidence of the number of putative class members and
McMullen's statement about the amount of money she seeks for each member of the class, it
appears that the amount in controversy exceeds $5 million.
Because the class has more than 100 members, the amount in controversy exceeds $5
million, and the parties in this class action are minimally diverse, this Court has jurisdiction over
this action pursuant to CAFA. See, e.g., Dart Cherokee, 135 S. Ct. at 552.
III. LOCAL CONTROVERSY EXCEPTION
Of course, "the law is not complete without its exceptions." Hollinger v. Home State
Mut. Ins. Co., 654 F.3d 564, 569 (5th Cir. 2011). "CAFA requires federal courts to decline
jurisdiction over a proposed class action if either of the following narrow exceptions is proven by
a preponderance of the evidence: (1) the local controversy exception, 28 U.S.C. § 1332(d)(4)(A);
or (2) the home state exception, 28 U.S.C. § 1332(d)(4)(B)." Id. at 569–70. Relevant here,
7
CAFA's local controversy exception 6 "'is intended to respond to concerns that class actions with
a truly local focus should not be moved to federal court under this legislation because state courts
have a strong interest in adjudicating such disputes.'" Coffey v. Freeport McMoran Copper &
Gold, 581 F.3d 1240, 1243 (10th Cir. 2009) (quoting S. Rep. No. 109-14, at 39 (2005)).
Nevertheless, "CAFA's legislative history . . . indicates [that] Congress intended the local
controversy exception to be 'narrow,' with all doubts resolved 'in favor of exercising jurisdiction
over the case.'" Woods v. Standard Ins. Co., 771 F.3d 1257, 1265–66 (10th Cir. 2014) (quoting
S. Rep. No. 109-14, at 39, 42 (2005)). Accordingly, where a court has found that the removing
party has satisfied CAFA's basic jurisdictional requirements, the party seeking to remand bears
the burden of establishing that CAFA's local controversy exception applies. See, e.g.,
Westerfeld, 621 F.3d at 823.
There are four requirements of the local controversy exception to federal CAFA
jurisdiction:
[i](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. § 1332(d)(4)(A). "These elements ensure that the exception is invoked when the class
is primarily local, the lawsuit is against 'at least one real in-state defendant whose alleged
conduct is central to the class claims and from whom the class seeks significant relief,' the
6
CAFA's local controversy exception appears to be a matter of first impression in this Circuit.
8
injuries the defendant allegedly caused occurred within the forum, and no other similar class
actions have been filed against any of the defendants." Vodenichar v. Halcon Energy Props.,
Inc., 733 F.3d 497, 507 (3d Cir. 2013) (quoting 151 Cong. Rec. S999-02, 2005 WL 283380
(daily ed. Feb. 7, 2005) (statement of Sen. Arlen Specter)).
Here, the parties agree that the third and fourth elements of the local controversy
exception have been satisfied: the "principal injuries" occurred in the District of Columbia where
the action was originally filed, and "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"
during the three-year period prior to the filing of this complaint. 28 U.S.C. §§ 1332(d)(4)(A)(i)–
(ii). For the exception to apply, then, McMullen bears the burden of establishing that the other
two elements are also satisfied: that there is at least one local defendant who qualifies under the
CAFA local controversy exception, and that at least two-thirds of the members of the proposed
plaintiff class are citizens of the District of Columbia.
A. Status of Defendants
The local controversy exception requires that there be at least one local defendant from
whom "significant relief is sought," and whose "alleged conduct forms a significant basis for the
claims asserted." Id. § 1332(d)(4)(A)(i)(II). It is undisputed that, for the purposes of CAFA,
Bullen is a citizen of Maryland and Synchrony Bank and Chase are also out-of-state citizens.
McMullen asserts that One World Fitness, Bullen Wellness, and Washington
Chiropractic are citizens of the District of Columbia because they "were limited liability
companies formed under the laws of the District of Columbia with their principal place of
business located in the District of Columbia." Mot. at 8 (citing Am. Compl. ¶¶ 10–12). In
support of her argument, McMullen cites CAFA's definition of a corporation's citizenship, which
9
provides that "a corporation shall be deemed to be a citizen of every State and foreign state by
which it has been incorporated and of the State or foreign state where it has its principal place of
business." 28 U.S.C. § 1332(c)(1). In response, Chase does not dispute McMullen's factual
allegations about where these companies were formed or where their primary place of business is
located, but rather argues that One World Fitness, Bullen Wellness, and Washington
Chiropractic are limited liability companies—not corporations—and therefore CAFA's definition
of a corporation's citizenship does not apply. Opp'n at 13. Instead, Chase contends, these
companies "carry the citizenship of their members for diversity purposes," and McMullen failed
to produce any evidence identifying the companies' members or their members' citizenship. Id.
at 13–14.
What Chase and McMullen have apparently failed to notice is that CAFA specifically
provides that "an unincorporated association shall be deemed to be a citizen of the State where it
has its principal place of business and the State under whose laws it is organized." 28 U.S.C. §
1332(d)(10). Here, it is not contested that One World Fitness, Bullen Wellness, and Washington
Chiropractic each had their principal place of business in the District of Columbia and were
organized under the laws of the District of Columbia. Accordingly, these businesses are citizens
of the District of Columbia under CAFA. See, e.g., Cedar Lodge Plantation, LLC v. CSHV
Fairway View I, LLC, 768 F.3d 425, 426 (5th Cir. 2014) (explaining that, pursuant to 28 U.S.C.
§ 1332(d)(10), defendant limited liability companies are citizens of Delaware and Illinois, and
noting that the district court incorrectly applied a non-CAFA standard).
As for Steward, McMullen asserts that he "provided a sworn verification in a separate
matter pending before this [district court] in which he states that he is a citizen of the District of
Columbia." Mot. at 8 (citing Ex. 1 to Mot., Compl. in Case No. 14-cv-1868 [ECF No. 12-12]).
10
This pleading is dated October 8, 2014, which was prior to the filing of McMullen's amended
complaint on October 31, 2014. In response, Chase puts forward various documents in an
attempt to show that Steward is a citizen of Maryland, 7 but these documents—all of which place
Steward in Maryland prior to October 2014—fail to outweigh a sworn statement from Steward
himself.
Chase also argues that Steward's citizenship cannot be considered by the Court because
he was not served within the 120-day time limit under Federal Rule of Civil Procedure 4(m),
which Chase contends expired on January 12, 2015. Opp'n at 9–10; Def.'s Sur-Reply at 3. But
the Federal Rules of Civil Procedure do not apply to a civil action until it is in federal court. See
Fed. R. Civ. P. 81(c). Hence, "service must be completed within 120 days of the date of
removal, not the original filing in state court." Henok v. Chase Home Fin., LLC, 890 F. Supp.
2d 65, 71 n.4 (D.D.C. 2012). This case was not removed until November 24, 2014, so the 120-
day deadline has not yet run. Accordingly, the fact that Steward had not yet been served when
McMullen filed her motion to remand is inconsequential to this analysis. 8
Having determined that there are local defendants, the Court must now resolve whether
"significant relief is sought" from these local defendants and whether the "alleged conduct" of
these local defendants "forms a significant basis for the claims asserted by the proposed plaintiff
class." 28 U.S.C. § 1332(d)(4)(A)(i)(II)(aa)–(bb). Both questions entail analysis of the
complaint because "[t]he word 'sought' focuses attention on the plaintiff's claim for relief—that
is, on what is 'sought' in the complaint—rather than on what may or may not be proved by
7
Chase's exhibits include Steward's Maryland voting registration from 1991; a copy of a traffic violation
entry on the website for the District Court for Prince George's County (MD) dated September 29, 2014, listing
Steward's address in Maryland; and a copy of a list of violations on the website for the Circuit Court for Anne
Arundel County (MD) dated August 2013 through June 2014, listing Steward at a different address in Maryland and
noting that, as of April 8, 2014, the court received a "return notice—unable to forward" from Steward's mailing
address.
8
Steward was subsequently served on January 27, 2015, at a District of Columbia address. See Return of
Service/Aff. [ECF No. 22].
11
evidence," and likewise "the word 'alleged' . . . is based on what is alleged in the complaint rather
than on what may or may not be proved by evidence." Coleman v. Estes Exp. Lines, Inc., 631
F.3d 1010, 1015 (9th Cir. 2011).
The Court begins with the "significant basis" requirement. The Third Circuit has stated
that "[w]hether the [local] defendant's alleged conduct is significant cannot be decided without
comparing it to the alleged conduct of all the Defendants . . . . The local defendant's alleged
conduct must be an important ground for the asserted claims in view of the alleged conduct of all
the Defendants." Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 157 (3d Cir. 2009).
Here, Chase does not dispute that the local defendants form a significant basis for the
claims asserted by the proposed plaintiff class. Indeed, the local defendants are allegedly
responsible for setting in motion the actions that subsequently harmed McMullen and the rest of
the putative class. McMullen alleges that Steward "is the principal owner of Bullen Wellness
and One World Fitness," and that these companies were instrumentalities used to further
Steward's fraudulent scheme to defraud One World Fitness customers. Am. Compl. ¶ 9. Once
unauthorized lines of credit had been obtained by Steward and the local businesses, Steward
would then bill against the line of credit without the customer's knowledge. Id.; see also id.
¶¶ 18–19, 29. The banks—non-local defendants—then "aggressively pursued repayment of the
invalid debt . . . [and] failed to provide any documentation [related to the alleged indebtedness]."
Id. ¶ 1. As presented in the amended complaint, then, the local defendants' conduct is an integral
part of the putative class's claims, and therefore forms "a significant basis for the claims asserted
by the putative class." See Williams v. Homeland Ins. Co. of NY, 657 F.3d 287, 291 (5th Cir.
2011) (finding that local defendant's conduct formed a significant basis for the claims asserted
12
where "[local defendant's] alleged conduct forms the basis of all claims against itself, but also
forms a significant basis of the claims against the other defendants").
Regarding the "significant relief" requirement, McMullen argues that she "is seeking
relief in the amount of approximately $32,130.00 for each member of the putative class for
damages arising from the [l]ocal [d]efendants' conduct." Id. at 9. Chase's only response is that
the putative class is unlikely to recover from the local defendants. But Chase does not explain
how it squares its interpretation requiring plaintiff to show a "likelihood of recovery" with the
language of the statute, which requires that the Court consider only relief sought, not relief likely
to be obtained. See, e.g., Coffey, 581 F.3d at 1245 (noting that "[t]he statutory language is
unambiguous" and a "'defendant from whom significant relief is sought' does not mean a
'defendant from whom significant relief may be obtained' . . . [;] nothing in the language of the
statute . . . indicates Congress intended district courts to wade into the factual swamp of
assessing the financial viability of a defendant as part of this preliminary consideration"). The
amended complaint seeks damages from all defendants, and nothing in it suggests that the local
defendants are nominal or that the putative class is not seeking significant monetary relief from
them. See Am. Compl. ¶¶ 52, 59, 70, 79, 86, 95, 99, & Prayer for Relief.
Accordingly, McMullen has shown that there is at least one local defendant in this action
from whom significant relief is sought by members of the plaintiff class, and whose alleged
conduct forms a significant basis for the claims asserted by the proposed plaintiff class.
B. Citizenship of Proposed Plaintiff Class
The final element that McMullen must establish for the local controversy exception to
apply is that "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"—here, the District of
13
Columbia. 28 U.S.C. § 1332(d)(4)(A)(i)(I). When the Court analyzes the citizenship of the
proposed plaintiff class, "there must ordinarily be at least some facts in evidence from which the
district court may make findings regarding class members' citizenship for purposes of CAFA's
local controversy exception." Mondragon v. Capitol One Auto Finance, 736 F.3d 880, 884 (9th
Cir. 2013); see also In re Sprint Nextel Corp., 593 F.3d 669, 673–76 (7th Cir. 2010); Preston v.
Tenet Healthsystem Memorial Med. Ctr., Inc., 485 F.3d 793, 798–802 (5th Cir. 2007).
McMullen contends that it is clear that "greater than two-third of all class members are
citizens of the District of Columbia" based solely on the allegations in the amended complaint.
Mot. at 7. She points to paragraph 37, which states that "[t]he class shall be defined as former
One World Fitness customers in the District of Columbia who received health care financing
from GE Capital or Chase Health Advance." Am. Compl. ¶ 37 (emphasis added). Notably,
however, defining the class as "customers in the District of Columbia" does not directly translate
to "customers who are citizens of the District of Columbia." Customers in the District of
Columbia may have once been citizens of the District but are no more, or they could even be
individuals who have never been citizens of the District. Some health clubs may have many
members who work in the District but who live in Maryland or Virginia. And it is not clear that
McMullen intends the putative class to be only citizens of the District of Columbia: she argues in
her reply simply that "[g]iven the nature of health clubs whose customers typically live in the
vicinity of the health club, it is reasonable to infer that two-thirds of the members of the proposed
class are citizens of the District of Columbia." Reply at 9. Moreover, Chase points out that other
sentences in the complaint use broader language, such as "One World fitness customers who
received financing from Defendant Banks." Opp'n at 8 (citing Am. Compl. ¶ 36).
14
In sum, McMullen has not clearly limited the class to District of Columbia citizens and
has failed to provide any evidence concerning the citizenship of the putative class members. So
although it may be likely that many putative class members are citizens of the District of
Columbia, "[t]here is simply no evidence in the record to support a finding that the group of
citizens outnumbers the group of non-citizens by more than two to one." Mondragon, 736 F.3d
at 884; see also Sprint, 593 F.3d at 671–76 (vacating remand where the class as defined included
only people who had a Kansas cell phone number, a Kansas billing address, and paid a Kansas
fee, but plaintiff had not submitted any evidence of the class members' Kansas citizenship).
McMullen, anticipating that more is needed to meet her burden, requests an order for
expedited discovery. Reply at 10. She asserts that the information pertaining to the class
members' citizenship is in the possession of the defendants, specifically Chase and Synchrony
Bank. Chase's sur-reply, which the Court will grant leave to file, argues simply that discovery is
not merited because there are no local defendants. But the Court has rejected that argument.
Hence, the Court finds that expedited discovery on the issue of class citizenship is
appropriate and required here. See Richins v. Hofstra Univ., 908 F. Supp. 2d 358, 360
(E.D.N.Y. 2012) (permitting limited, expedited discovery on the issue of the citizenship of
members of the plaintiff class); see also Abdale v. North Shore-Long Island Jewish Health
System, Inc., No. 13-CV-1238, 2014 WL 2945741, at *10 (E.D.N.Y. Jun. 30, 2014) (ordering
discovery before ruling on applicability of local controversy exception); Barricks v. Barnes-
Jewish Hosp., No. 11–CV–1386, 2012 WL 1230750, at *2 (E.D. Mo. Apr. 12, 2012) (same).
Accordingly, the Court will grant limited discovery tailored to resolving whether more than two-
thirds of the putative class are citizens of the District of Columbia. The parties will therefore be
ordered to confer and submit a joint proposed discovery plan within thirty days of this
15
Memorandum Opinion and Order. The discovery plan shall not exceed ninety days and shall
specify the types of discovery to be conducted.
CONCLUSION
For the reasons set forth above, the Court will deny (with leave to renew) the motion to
remand and will order limited discovery regarding the citizenship of the putative plaintiff class.
A separate Order has been issued on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: February 13, 2015
16