Ninth Circuit holds that district courts are limited to the complaint in deciding certain local controversy criteria for CAFA remand

On November 30, 2010, the Ninth Circuit agreed to hear a discretionary appeal in Coleman v. Estes Express Lines, Inc.  See prior post.  The Ninth Circuit accepted the appeal and provided some guidance in the Ninth Circuit as to whether such appeals should be taken.  Today, the Ninth Circuit issued its Opinion on the underlying issue.  Coleman v. Estes Express Lines, Inc. (9th Cir. Jan. 25, 2011).  Asked to decide whether a federal district court is limited to the complaint in deciding whether two of the criteria for the local controversy exception are satisfied, the Court held that the district court is so limited.

Coleman moved for remand under the local controversy exception. Estes opposed, arguing that two of the criteria for the local controversy exception were not satisfied. "First, Estes argued that Estes West had insufficient funds to satisfy a judgment, and that 'significant relief' therefore had not been 'sought' from it. See 28 U.S.C. § 1332(d)(4)(A)(i)(II)(aa). Second, Estes argued that Estes Express had almost complete control over the operations of Estes West, and that Estes West’s 'alleged conduct' therefore did not 'form a significant basis for the claims asserted by the proposed plaintiff class.' Id. § 1332(d)(4)(A)(i)(II)(bb)."  Slip op., at 5.  Estes then supplied a declaration to support its contentions.  The District Court refused to consider the declaration, finding that the complaint satisfied the criteria for remand.

Looking at the plain language of the statute, the Court found support for the concept that the pleadings govern the analysis:

The first criterion is whether “significant relief is sought” from a defendant who is a citizen of the state in which the suit is filed. 28 U.S.C. § 1332(d)(4)(A)(i)(II)(aa) (emphasis added). The 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 evidence. The second criterion is whether the defendant’s “alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class.” Id. § 1332(d)(4)(A)(i)(II)(bb) (emphasis added). Like the word “sought,” the word “alleged” makes clear that the second criterion is based on what is alleged in the complaint rather than on what may or may not be proved by evidence.

Slip op., at 8.

The Court then reviewed the legislative history and concluded that it supported the construction applied by the Court.  The Court commentd in passing that the declaration supplied by Estes was probably insufficient even if the District Court could have considered it.

The Court ended with a note about variations in pleading standards between state and federal courts:

We are aware of the difficulties that can be created by different pleading requirements in state and federal courts. A plaintiff filing a putative class action in state court need satisfy only the pleading standards of that court. It is therefore possible that if a putative class action is removed from state to federal court under CAFA the complaint, as originally drafted, will not answer the questions that need to be answered before the federal court can determine whether the suit comes within the local controversy exception to CAFA jurisdiction. In that circumstance, the district court may, in its discretion, require or permit the plaintiff to file an amended complaint that addresses any relevant CAFA criteria.

Slip op., at 21-22. The Court then affirmed the remand.

District Court de-CAFA-nates Hollinghurst v. Lacoste USA

United States District Court Judge Christina A. Snyder granted a motion to remand an action removed pursuant to the Class Action Fairness Act ("CAFA").  Hollinghurst v. Lacoste USA (C.D.Cal. June 28, 2010).  That part isn't so interesting.  The interesting part is that the Court found that the face of the initial complaint had enough information from which the defendant could have extrapolated an amount in controversy over $5 million.  The defendant argued that it was not until discovery responses were received that the calculation was possible.  The Court disagreed:

The only new information from plaintiff’s supplemental responses that defendant cites to in its notice was the frequency by which plaintiff was denied her meal breaks and rest periods (two to fifteen meal and/or rest breaks per week) and the amount of time plaintiff was made to work off-the-clock (twenty minutes to one hour per week). The frequency by which plaintiff was denied her meal breaks and rest periods was not a critical discovery because plaintiff has always sought unpaid wages and penalties based on the claim that all class members “were also prevented from taking all daily meal periods . . . and also prevented from taking any and all rest breaks.” See Compl. ¶ 5.  Therefore, from the outset defendant could have calculated the amount in controversy under the assumption that all rest breaks and meal periods had been denied to class members.

Slip op., at 8, fn. 5.  The Court briefly noted a second ground supporting remand:

Additionally, the Court finds that defendant waived its right to remove when it demurred to dismiss the class allegations, a substantial affirmative action in which defendant submitted issues for determination in state court. By doing so, defendant indicated its willingness to litigate in state court before it filed its notice of removal to federal court.

Slip op., at 9.  It's a one-two punch:  a strict standard applied to the timing of first awareness of the right to remove under CAFA and a definitive finding that a demurrer to class action allegations is a submission to the jurisdiction of the superior court.

You can view the embedded opinion in the acrobat.com flash viewer below:

If the viewer isn't working for you (say, if you are viewing this on an iPad or iPhone), you can download the opinion here.  Thanks to the reader that alerted me to this decision.

Breaking News: Supreme Court holds that a corporation's "principal place of business" refers to the place where high level officers direct and control the company

A unanimous United States Supreme Court held today, in Hertz Corp. v. Friend, 559 U.S. ____ (February 23, 2010):

The federal diversity jurisdiction statute provides that "a corporation shall be deemed to be a citizen of any Stateby which it has been incorporated and of the State where it has its principal place of business." 28 U. S. C. §1332(c)(1) (emphasis added). We seek here to resolve different inter-pretations that the Circuits have given this phrase. In doing so, we place primary weight upon the need for judicial administration of a jurisdictional statute to remain assimple as possible. And we conclude that the phrase "principal place of business" refers to the place where thecorporation’s high level officers direct, control, and coordinate the corporation’s activities. Lower federal courts have often metaphorically called that place the corporation’s "nerve center."

Opinion, at 1.  In light of this holding, Tosco Corp. v. Communities for a Better Environment, 236 F. 3d 495 (9th Cir. 2001) is no longer good law.  The result is likely to be fewer diversity-based suits but more CAFA-based removals for class actions.

HealthMarkets, Inc. v. Superior Court tries to add clarity to parent-subsidiary jurisdictional questions

Greatsealcal100I must apologize. I know that you have been wondering whether a parent company purposefully avails itself of a forum solely because a subsidiary does so. And it took me hours to bring the answer to you. For that, I am ashamed. But the opportunity for redemption is at hand, as the Court of Appeal (Second Appellate District, Division Three) answered that question in HealthMarkets, Inc. v. Superior Court (Berman) (March 9, 2009).

After providing a basic primer on general personal jurisdiction, specific personal jurisdiction and the current condition of California law on the jurisdictional impact of subsidiaries, the Court held: “A parent company purposefully avails itself of forum benefits through the activities of its subsidiary, as required to justify the exercise of specific personal jurisdiction, if and only if the parent deliberately directs the subsidiary’s activities in, or having a substantial connection with, the forum state.” (Slip op., at pp. 10-11.) You’d think that a holding this absolute would take care of jurisdictional questions about subsidiaries, but I expect that what we will get, instead, are complaints with generic allegations about how the parent corporation “deliberately directed” the activities of its subsidiary in the forum state. And the never-ending chess game continues.

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Class action news of note: Tobacco II arguments leaves everyone guessing, and more

This past week, the California Supreme Court heard oral argument in the Tobacco II cases.  Extensive coverage of the oral argument is available from the UCL Practitioner in this post.  The obligatory reading of tea leaves has, in this instance, revealed little.  For examle, Mike McKee, writing for The Records, said, "Just a few weeks ago, the California Supreme Court ruled that lawsuits under the Consumer Legal Remedies Act can only be filed by individuals who suffer real damage from unlawful business practices. But during oral arguments on Tuesday it wasn't clear where the court stood on applying that same rule to every participant of class actions filed under the state's Unfair Competition Law."  (Mike McKee, Calif. Justices Air Standing for UCL Class Actions Against Tobacco Industry (March 4, 2009) www.law.com.)  Having watched the argument myself, I agree that it was hard to discern much from the Justices.  The cynic in me always assumes that the creep of Proposition 64 will keep on spreading its tendrils, but the argument itself gives me little actual evidence to support that guess.

Meanwhile, the significance of the Ninth Circuit's decision in Davis v. HSBC Bank Nevada, N.A., et al. (February 26, 2009) reached the legal media:  "In a blow to plaintiffs class action lawyers, the 9th U.S. Circuit Court of Appeals has made it tougher to hold that a national company is a 'citizen' of California merely based on the disproportionate size of the state's population."  (Pamela A. MacLean, 9th Circuit Deals a Blow to Plaintiffs Lawyers in 'Principal Place of Business' Test (March 9, 2009) www.law.com.)  Not that Tosco actually held that a state's population size governed corporate citizenship, but the remainder of the article is accurate.  This blog noted the decision in this short post.

Finally, while a bit late to the party, another ISP and the defunct Adzilla were sued for deep packet inspection for the purposes of obtaining the advertising holy grail: complete knowledge of each consumer's behaviors and preferences.  (Ryan Singel, Another ISP Ad Snooper Hit With Lawsuit (March 3, 2009) www.wired.com.)  I've already expressed my contempt for this behavior by ISPs.  Luckily, these projects appear dead in the United States.  But don't count on them staying down forever.

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Indispensable new decision about indispensable parties: Tracy Press, Inc. v. Superior Court

Greatsealcal100There is a fair body of jurisprudence in the federal courts about what constitutes an "indispensable party" to an action.  It's not all that surprising, given how finicky those federal courts are about having jurisdiction.  In California, on the other hand, where jurisdiction is, in kind terms, flexible, you have a tougher time finding authority about indispensable parties (a person or entity whose presence is necessary to adjudicate the action).

The Court of Appeal (Third Appellate District) recently had an opportunity to at least discuss the concept of indispensable parties.  In Tracy Press, Inc. v. The Superior Court of San Joaquin County (July 16, 2008), the Court considered whether the failure to name a city councilmember as a party to the Petition for Writ of Mandate before the Court of Appeal was a fatal defect to that Petition, given that the councilmember had been a party to a petition filed in the Superior Court.

First, the Court considered whether the omitted party could be overlooked as a defect in the pleading.  The Court concluded that such an omission could not be disregarded as a defect, due to the possibility that the outcome would affect the absent party's rights:

Failing to name an individual as a real party in interest in the pleading that initiates the action is not a defect.  It does not render the pleading defective; it merely defines the parties, leaving out the individual not named. . . .

Issuing an order requiring Tucker to act in a mandamus proceeding in which she was not named and has not appeared would affect Tucker’s substantial rights.  This court obtains jurisdiction to enter an order against a person only if the person is named as a party and duly served with notice of the action.  “[T]he rights of a person cannot be affected by a suit to which he is a stranger.”  (Whitney v. Higgins (1858) 10 Cal. 547, 551.)

(Slip op., at pp. 7-8.)

Having determined that Tucker wasn't a party to the action and couldn't be deemed a party to the action, the Court then considered whether Tucker was an indispensable party, defining the concept and the consequences:

A person must be made a party of a proceeding if “(1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”  (Code Civ. Proc., § 389, subd. (a).)  If such a person cannot be joined, “the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.  The factors to be considered by the court include:  (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”  (Code Civ. Proc., § 389, subd. (b).)

(Slip op., at p. 8-9.)  Importantly, the Court explained that the absence of an indispensable party does not deprive a Court of jurisdiction over the matter:

“‘Failure to join an “indispensable” party is not “a jurisdictional defect” in the fundamental sense; even in the absence of an “indispensable” party, the court still has the power to render a decision as to the parties before it which will stand.  It is for reasons of equity and convenience, and not because it is without power to proceed, that the court should not proceed with a case where it determines that an “indispensable” party is absent and cannot be joined. [Citation.]’  [Citation.]”  (Save Our Bay, supra, 42 Cal.App.4th at p. 692, quoting Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 500.)

(Slip op., at p. 10.)  Further, the Court retains discretion as to whether to dismiss the action for failure to name the indispensable party.  (Slip op., at p. 10-11, citing Kaczorowski v. Mendocino County Bd. of Supervisors (2001) 88 Cal.App.4th 564, 568.) 

Ultimately, the Court decided that it could not issue an Order that would potentially conflict with an Order of the Superior Court granting protection to a party not present before the Court of Appeal. Unfortunately, Tracy Press, Inc. never had its Petition heard on the merits.  It probably lost the Petition on the procedural issue due to a mistake in the formatting of its Petition.  It appears from the Opinion that Tracy Press, Inc. failed to designate "Real Parties in Interest" in its Petition:

Tracy Press claims that it failed to name any real party in interest and that the clerk of this court added the City as a real party in interest.  The City makes no argument that it was not properly named in the petition, only that Tucker, an indispensable party, was not named.

(Slip op., at p. 5, fn. 6.)

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Profit Concepts Management, Inc. v. Griffith provides further guidance on "prevailing party" definition

Greatsealcal100 In complex litigation, as jurisdictional and factual circumstances become increasingly complicated, it is regularly difficult to ascertain the identity of prevailing parties.  In Profit Concepts Management, Inc. v. Griffith, the Court of Appeal (Fourth Appellate District, Division Three) offers some additional guidance on the concept.  Specifically, the Court considered whether a defendant that successfully quashed service for lack of personal jurisdiction was a "prevailing party" entitled to recover attorney's fees pursuant to a fee recovery clause in a contract underlying the dispute.

The Court first established the framework for its analysis: "Attorney fees are allowable as costs under Code of Civil Procedure section 1032 when they are authorized by contract. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).)" (Slip op., at p. 3.)  Next, the Court noted that authority cited in the trial court by appellant (Berard Construction Co. v. Municipal Court (1975) 49 Cal.App.3d 710) relied upon a prior version of Civil Code section 1717 that had been amended subsequently.  The Court than analyzed the outcome of the matter before it to determine if Griffith prevailed:

The only claims before the trial court were contained in Profit Concepts’s complaint, which sought compensatory and punitive damages in an amount to be determined, as well as preliminary and permanent injunctive relief. The case in California has been finally resolved. What was awarded on Profit Concepts’s complaint? Zero. Thus, the contract claim was finally resolved within the meaning of Hsu v. Abbara, and that case does not use the term “merits.”

(Slip op., at 7.)  Here's the real catch to all of this:  "Griffith moved to quash service of summons for lack of personal jurisdiction. Profit Concepts filed a notice of nonopposition to the motion to quash, and the trial court granted the motion."  (Slip op., at 3.)  You'd have to imagine that Profit Concepts would have opposed the Motion to Quash if it knew that the granting of the Motion would have resulted in Griffith obtaining attorney's fees as the "prevailing party."  While this action isn't complex, you can certainly imagine situations like this arising in complex actions with dozens of defendants and cross-defendants.  Moral:  Be careful who you name as a party in a contract-based action.  You might be writing them a check for their attorney's fees.

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Ninth Circuit confronts Morton's Fork in Negrete v. Allianz Life Insurance Co.

Ninth Circuit SealIn a decision issued yesterday, the Ninth Circuit struck down an Order by District Court Judge Snyder that would have prohibited the nominal target of the Order, defendant Allianz, from settling similar or identical class actions pending in other state and federal courts without including, or obtaining consent from, plaintiff's co-lead counsel in the certified nationwide class action matter pending before Judge Snyder. (Negrete v. Allianz Life Insurance Co. (9th Cir. Apr. 29, 2008) ___ F.3d ___.)  The Order at issue in Negrete provided:

Any discussions of a settlement that would affect any claims brought in this litigation, other than claims of an individual plaintiff or class member, must be conducted or authorized by plaintiffs’ Co-Lead Counsel. Any proposed settlement that resolves, in whole or in part, the claims brought in this action shall first be subject to review and approval by the Court in this litigation.

(Slip op., at pp. 4579-80.)

Allianz argued that (1) the Order was actually an injunction, (2) the injunction in question was not proper under the All Writs Act, and, (3) even if it was, it was barred by the Anti-Injunction Act.  The Ninth Circuit agreed.  The Ninth Circuit first analyzed the Order and determined that, in effect, it was an injunction affecting the proceedings in other courts.  Turning to the All Writs Act, and theoretical circumstances where an injunction of this ilk might pass muster, the Court said:

Negrete Counsel floated out the specter of a reverse auction, but brought forth no facts to give that eidolon more substance. A reverse auction is said to occur when “the defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a settlement with in the hope that the district court will approve a weak settlement that will preclude other claims against the defendant.” Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 282 (7th Cir. 2002). It has an odor of mendacity about it. Even supposing that would be enough to justify an injunction of one district court by another one, there is no evidence of underhanded activity in this case. That being so, if Negrete’s argument were accepted, the “reverse auction argument would lead to the conclusion that no settlement could ever occur in the circumstances of parallel or multiple class actions — none of the competing cases could settle without being accused by another of participating in a collusive reverse auction.” Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1189 (10th Cir. 2002) (internal quotation marks omitted).

(Slip op., at pp. 4587-88.)  Turning to the Anti-Injunction Act, the Court described its restrictive provisions:

The authority conferred upon federal courts by the All Writs Act is restricted by the Anti-Injunction Act, which is designed to preclude unseemly interference with state court proceedings. It declares that: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. Therefore, unless one of the exceptions applies, the district court erred when it issued the injunction in question here.

At the outset, it is important to note that the Anti-Injunction Act restriction is based upon considerations of federalism and speaks to a question of high public policy. It is not a minor revetment to be easily overcome; it is a fortress which may only be penetrated through the portals that Congress has made available.

(Slip op., at pp. 4588-89, footnotes omitted.)

In this particular instance, one can sympathize both with the District Court and the Ninth Circuit (which seems to get so little sympathy).  On the one hand, the Ninth Circuit was obligated to respect the notions of federalism and limited jurisdiction granted to the federal courts.  On the other hand, this decision seems to invite the johnny-come-lately filers that simply watch for class action filings and jump the train, rather than investing any energy or resources in developing their own cases.  But is the outcome all bad?  Certainly, if I was prosecuting what I believed to be a bona fide class action, one in which the defendant was coming to the table to talk class settlement, I'd be mightily aggravated if some district court in some far away state told the defendant that they couldn't talk to me about settling my case without including some other counsel from some other case.  On the other hand, if I were stranded by Negrete while a defendant dodged my case to sort out a settlement with other counsel, that woud surely tweak me as well.  In the later instance, I'd have to resort to intervening in settlement approval proceedings in the event that the settlement was demonstrably deficient.  Negrete will generate some troubling outcomes, but I suspect that there is no viable alternative.  We have to assume that preliminary and final settlement approval in class actions won't be handed out where it isn't justified.  Perhaps this blog's recent post about Judge Alsup's denials of preliminary approval offer some comfort that the system works without the need for district court's to engage in jurisdictional wars over cases with other state and federal courts.

And it really is Morton's Fork, and not Hobson's choice or the prisoner's dilemma.  Neither settlement collusion and crashing nor internecine conflict in the court system are desirable alternatives.

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