Hart v. FedEx Ground Package System Inc. , 457 F.3d 675 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2903
JEFFREY HART,
Plaintiff-Appellant,
v.
FEDEX GROUND PACKAGE SYSTEM INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03:05-MD-527 RM—Robert L. Miller, Chief Judge.
____________
SUBMITTED JUNE 30, 2006—DECIDED AUGUST 9, 2006
____________
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. After Jeffrey Hart filed suit
against FedEx Ground Package System, Inc. (“FedEx
Ground”), in Pennsylvania state court, FedEx Ground
removed the case to federal court under the Class Action
Fairness Act of 2005, (CAFA), Pub. L. 109-2, 119 Stat. 4(2005); later, the case found its way to the Northern District
of Indiana, where Hart unsuccessfully tried to persuade the
district court that this case really belonged back in Pennsyl-
vania state court, under the “home-state controversy” or
“local controversy” exceptions to CAFA. Concluding that
Hart had the burden of showing that these exceptions
applied, the district court denied his motion to remand.
2 No. 06-2903
Hart appeals, see 28 U.S.C. § 1453(c), asking us to resolve
which party has the burden of proving whether these
exceptions to CAFA apply. Although we consider the
question close, we conclude that the structure of the statute
logically shifts the burden of persuasion to the plaintiff to
show that the general rule does not apply. We granted the
petition for the appeal in an order dated June 30, 2006, and
we now affirm.1
I
Hart initially filed this suit as a state court class action in
Pennsylvania, on behalf of himself and all persons that
FedEx Ground employed there as local package delivery
drivers who were or are improperly classified as “independ-
ent contractors.” FedEx Ground’s principal place of business
is in Pittsburgh, Pennsylvania, making it a citizen of
Pennsylvania for purposes of federal court diversity juris-
diction. See 28 U.S.C. § 1332(c)(1). Because Hart too is a
citizen of Pennsylvania, in the absence of CAFA nothing
would support federal subject-matter jurisdiction over these
claims. That is because § 1332 requires “complete diver-
sity,” meaning that no plaintiff may be from the same state
as any defendant, and in class actions only the citizenship
of the named plaintiff counts. See Strawbridge v. Curtiss, 7
U.S. (3 Cranch) 267 (1806) (complete diversity rule); Snyder
v. Harris, 394 U.S. 332, 340 (1969) (look only to citizenship
of named plaintiffs in a class). Ever since the Supreme
Court decided State Farm Fire & Casualty Co. v. Tashire,
386 U.S. 523 (1967), however, it has been established that
the grant of diversity jurisdiction in Article III of the
1
We also issued an order in this case on March 28, 2006,
explaining how we interpreted the timing requirements in CAFA
and indicating that a decision whether to accept the appeal would
follow.
No. 06-2903 3
Constitution permits the federal courts to decide cases with
only “minimal” diversity—that is, just one party with
citizenship different from all others—and that the “com-
plete” diversity requirement is statutory. See id. at 531.
Congress is naturally free to expand or contract the
statutory diversity jurisdiction, and it has done so from
time to time. For many years, it has permitted minimal
diversity suits under the federal interpleader statute, 28
U.S.C. § 1335. In 2005, it did the same thing for large
class actions, when it enacted CAFA. Section 1332(d)(2)
reads as follows:
The district courts shall have original jurisdiction of
any civil action in which the matter in controversy
exceeds the sum or value of $5,000,000, exclusive of
interest and costs, and is a class action in which
(A) any member of a class of plaintiffs is a citizen
of a State different from any defendant;
(B) any member of a class of plaintiffs is a foreign
state or a citizen or subject of a foreign state and
any defendant is a citizen of a State; or
(C) any member of a class of plaintiffs is a citizen
of a State and any defendant is a foreign state or a
citizen or subject of a foreign state.
Congress decided to qualify this rule of minimal diversity,
however, for class actions that were essentially local in
nature. If the minimal diversity rule of CAFA is an excep-
tion to the normal rule in § 1332 requiring complete
diversity, then the home-state and local controversy
provisions of § 1332(d)(4) are the exceptions to the excep-
tion. The subsection pertinent to Hart’s case is
§ 1332(d)(4)(B), which says that “[a] district court shall
decline to exercise jurisdiction [under § 1332(d)(2)]” if “two-
thirds or more of the members of all proposed plaintiff
classes in the aggregate, and the primary defendants, are
4 No. 06-2903
citizens of the State in which the action was originally
filed.” See also § 1332(d)(4)(A) (setting forth an alterna-
tive way to prove that the controversy is local).
Relying on this provision, Hart alleged in his complaint
that federal jurisdiction was lacking in his case “because
the defendant and greater than two-thirds of the members
of the plaintiff class, if not all of the members of the
plaintiff class, are citizens of Pennsylvania.” FedEx Ground
filed a notice of removal claiming federal question jurisdic-
tion2 and diversity jurisdiction pursuant to CAFA,
§ 1332(d), stating that “[u]pon information and belief, some
of the proposed class members are not residents of Penn-
sylvania.”
After the case was removed, it was transferred to the
Northern District of Indiana by the Judicial Panel on
Multidistrict Litigation. In that court, Hart moved for
remand, relying on the home-state controversy exception to
CAFA’s jurisdictional rule. See § 1332(d)(4)(B). He argued,
relying on this court’s decision in Brill v. Countrywide
Home Loans, 427 F.3d 446, 447-49 (7th Cir. 2005), that
FedEx Ground, as the proponent of CAFA jurisdiction, bore
the burden of demonstrating not only that CAFA’s general
jurisdictional requirements were met, see § 1332(d)(2), but
also that none of the mandatory exclusions from CAFA
jurisdiction found in § 1332(d)(4) applied. Hart also argued
that allegations of residence are not sufficient to establish
citizenship for diversity purposes. Hart has waived the
latter objection, however, because he did not move for
remand within thirty days of removal. See Harmon v. OKI
Sys., 115 F.3d 477, 479 (7th Cir. 1997); 28 U.S.C. § 1447(c).
In response, FedEx Ground provided affidavits from three
of its employees who asserted that they had personal
2
The district court rejected this basis for federal jurisdiction
and FedEx Ground does not raise it in its petition.
No. 06-2903 5
knowledge that 12 members of the plaintiff class were not
citizens of Pennsylvania. The company argued in addi-
tion that Brill held only that the defendant bears the
burden of showing that CAFA’s threshold jurisdictional
requirements are satisfied and did not address which party
bears the burden of establishing that an exception to
CAFA’s minimal diversity jurisdiction applies. CAFA
contains an entirely new set of rules that, in FedEx
Ground’s view, are ambiguous enough to require courts to
resort to CAFA’s legislative history for illumination. That
history, it continues, shows that Congress wanted the
plaintiff to bear the burden of proving that the “local” or
“home-state” exception applies (or, put otherwise, that the
default rule of § 1332 requiring complete diversity applies).
In his reply, Hart noted that Brill rejected any reliance
on CAFA’s legislative history and again argued that FedEx
Ground had not met its burden because it had not
shown that less than two-thirds of the proposed plaintiff
class (66 people or less, since § 1332(d)(5)(B) also makes
CAFA inapplicable to classes with less than 100 members)
were citizens of Pennsylvania.
The district court denied the motion to remand, holding
that once FedEx Ground established that at least one
plaintiff was not a citizen of Pennsylvania, it was Hart’s
burden to show that the home-state controversy exception
was applicable. The district court relied on the wording of
the statute, stating that § 1332(d)(4)(B) “deals not with
whether the court has jurisdiction, but rather . . . whether
the right circumstances exist to prevent the court from
exercising jurisdiction.” The court noted that § 1332(d)(8)
supports this conclusion by allowing a party to argue that
§ 1332(d)(4)(B) precludes the exercise of jurisdiction even
after a class has been certified. The court added that
plaintiffs are not barred from making a future motion to
remand based on § 1332(d)(4), when appropriate.
We accepted this appeal so that we could address the
important question of which party has the burden of
6 No. 06-2903
establishing jurisdiction when the home-state and local
controversy provisions of CAFA are implicated.
II
A
Before addressing the merits of the petition, we explain
more fully our earlier holding that the 60-day time limit for
resolving CAFA appeals begins to run at the time a petition
is granted, not when it is initially filed. We join the Fifth,
Ninth, and Eleventh Circuits in this conclusion. Evans v.
Walter Industries, Inc., 449 F.3d 1159, 1162-63 (11th Cir.
2006); Patterson v. Dean Morris L.L.P., 444 F.3d 365, 368
(5th Cir. 2006); Amalgamated Transit Union Local 1309,
AFL-CIO v. Laidlaw Transit Serv., Inc., 435 F.3d 1140,
1144 (9th Cir. 2006); see also Bush v. Cheaptickets, Inc., 425
F.3d 683, 685-86 (9th Cir. 2005) (calculating 60-day dead-
line for decision on merits of § 1453(c)(1) appeal from date
appeal was accepted).
Section 1453(c)(2), directs that “[i]f the court of appeals
accepts an appeal under paragraph (1), the court shall
complete all action on such appeal, including rendering
judgment, not later than 60 days after the date on which
such appeal was filed.” The language of § 1453(c) is ambigu-
ous as to whether an appeal exists when a party files an
application to appeal, or whether it exists only after the
appellate court accepts the appeal. We agree with our sister
circuits that Congress intended that an appeal would exist
only after the appellate court accepts the appeal. Evans, 449
F.3d at 1162-63; Patterson, 444 F.3d at 368-69; Amalgam-
ated Transit Union, 435 F.3d at 1144. Congress chose to
require the filing of an “application” with the court of
appeals, rather than filing a “notice of appeal” in the
district court. By requiring a party to file an application,
Congress copied the procedures for taking an appeal
pursuant to 28 U.S.C. § 1292(b). See id. Appeals filed
No. 06-2903 7
pursuant to § 1292(b) are governed by Federal Rule of
Appellate Procedure 5, which requires a party to file a
petition for permission to appeal; the appellate court then
either grants the petition, accepting the appeal for filing, or
denies the petition. We hold that Rule 5 governs the
initiation of appeals under § 1453(c) and thus an appeal
does not exist unless and until the appellate court grants
the petition. See Patterson, 444 F.3d at 369 (where a
party seeks permission to appeal, “there is logically no
appeal until the court vested with the authority to grant or
deny leave has done so.”). Once the court grants the petition
for permission to appeal pursuant to § 1453(c), it must
render judgment on the appeal within 60 days.
B
We turn now to the question of which party has the
burden of establishing federal jurisdiction when the home-
state or local controversy exceptions to CAFA are at issue.
As we noted earlier, CAFA amended the diversity juris-
diction statute, 28 U.S.C. § 1332, by adding provisions that
give federal courts original jurisdiction in class actions
where: (1) the aggregate amount in controversy exceeds
$5,000,000; (2) any member of the plaintiff class is a citizen
of a state different from any defendant (“minimal diver-
sity”); (3) the primary defendants are not states, state
officials, or other government entities against whom the
district court may be foreclosed from ordering relief; and (4)
the number of members of the plaintiff class is 100 or more.
See 28 U.S.C. §§ 1332(d)(2), (d)(5). The statute goes on to
say that a district court “shall decline to exercise jurisdic-
tion” if one of two exceptions to minimal diversity exists.
Under the “home-state controversy” exception, district
courts must decline to exercise jurisdiction where two-thirds
or more of the members of the proposed plaintiff class and
the primary defendants are citizens of the original filing
8 No. 06-2903
state. 28 U.S.C. § 1332(d)(4)(B). Under the “local contro-
versy” exception, district courts must decline jurisdiction
where four circumstances are met: (1) more than two-thirds
of the members of the proposed plaintiff class are citizens of
the original filing state; (2) at least one defendant is a
defendant from whom members of the proposed plaintiff
class seek significant relief, whose alleged conduct forms a
significant basis of the asserted claims, and who is a citizen
of the original filing state; (3) the principal injuries were
incurred in the original filing state; and (4) no other class
action asserting the same or similar factual allegations has
been filed against any of the defendants within the three
years preceding the filing of the case. 28 U.S.C.
§ 1332(d)(4)(A).
In general, of course, the party invoking federal juris-
diction bears the burden of demonstrating its existence,
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104
(1998); American Bankers Life Assur. Co. of Florida v.
Evans, 319 F.3d 907, 909 (7th Cir. 2003); Shaw v. Dow
Brands, Inc., 994 F.2d 364, 373-74 (7th Cir. 1993). Federal
courts are courts of limited jurisdiction: “It is to be pre-
sumed that a cause lies outside this limited jurisdiction,
and the burden of establishing the contrary rests upon
the party asserting jurisdiction.” Kokkonen v. Guardian Life
Ins. Co. of America, 511 U.S. 375, 377 (1994) (internal
quotations omitted).
Recently, the Fifth and Eleventh Circuits decided,
consistently with the district court’s ruling and FedEx
Ground’s position, that once the removing defendants prove
the amount in controversy and the existence of minimal
diversity, the burden shifts to the plaintiffs to prove that
the local controversy exception to federal jurisdiction should
apply. See Frazier v. Pioneer Americas LLC, No. 06-30434,
2006 WL 1843629 (5th Cir. July 6, 2006); Evans, 449 F.3d
at 1165. The Eleventh Circuit offered three reasons for this
result: first, it thought that the Supreme Court’s decision in
No. 06-2903 9
Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691(2003), recognizing that the opponent of removal under 28
U.S.C. § 1441(a) must prove that there is an express
exception to removability, supported the same outcome
here; second, at least for cases involving the citizenship of
members of the plaintiff class, it predicted that the plaintiff
was best positioned to collect the relevant evidence; and
third, it drew an analogy to cases addressing the removal of
actions involving the Federal Deposit Insurance Corpora-
tion (FDIC), in which the opponent of removal must prove
the “state action” exception to federal jurisdiction. See
Evans, 449 F.3d at 1164-65. The Fifth Circuit agreed with
these reasons. Frazier, 2006 WL 1843629 at *2.
Although we are not persuaded that second and third
reasons that the Eleventh and Fifth Circuits gave provide
much support for their conclusion, we nonetheless agree
with the result they reached. The Eleventh Circuit began its
discussion of the “local controversy” exception by quoting
§ 1332(d)(4)(A), but then it moved directly to a discussion of
CAFA’s legislative history, to the analogy to § 1441(a) and
FDIC cases, and to its observation about relative ability of
each party to gather the relevant evidence. In so doing, we
think that it missed an important step, namely, the exami-
nation of the language of the statute before it. That lan-
guage, coupled with the Supreme Court’s Breuer decision,
leads to the conclusion that the party seeking to take
advantage of the home-state or local exception to CAFA
jurisdiction has the burden of showing that it applies.
We begin with the basic statutory provisions, which we
quoted earlier, that confer jurisdiction in the class actions
covered by CAFA. As is typical with jurisdictional statutes,
§ 1332(d)(2) begins with the phrase “[t]he district courts
shall have original jurisdiction” and goes on to define the
governing criteria. Compare 28 U.S.C. §§ 1331 (federal
question jurisdiction), 1332(a) (ordinary diversity and
alienage jurisdiction), 1333 (admiralty, maritime and prize
10 No. 06-2903
case jurisdiction), 1334 (bankruptcy jurisdiction), and 1335
(interpleader). The next subsection, § 1332(d)(3), describes
situations in which the district court is permitted to
“decline to exercise jurisdiction” “in the interests of justice
and looking at the totality of the circumstances.” Subsection
(d)(4), which follows immediately, stands out for its con-
trasting wording. It commands the district courts to decline
jurisdiction under paragraph 2 when either the “local” or
the “home state” factors are present. Subsection (d)(5) also
contains mandatory language making CAFA inapplicable to
class actions in which the primary defendants are states,
state officials, or other governmental entities against whom
the district court may be foreclosed from granting relief and
class actions involving less than 100 members. § 1332(d)(5).
Although the match is not perfect, the relation between
subparts (d)(2) and (d)(4) of CAFA is analogous to the
structure of 28 U.S.C. § 1441(a), which the Supreme Court
examined in Breuer. The general removal statute begins
with the phrase “[e]xcept as otherwise expressly provided by
Act of Congress,” and then goes on to delineate a defen-
dant’s right to remove from state court to federal court
those cases over which the federal courts have original
jurisdiction. The Court stated there that “[s]ince 1948 . . .
there has been no question that whenever the subject
matter of an action qualifies it for removal, the burden is on
a plaintiff to find an express exception.” 538 U.S. at 698.
CAFA expressly states that the district court “shall
decline to exercise jurisdiction” in two particular situations.
It is reasonable to understand these as two “express excep-
tions” to CAFA’s normal jurisdictional rule, as the Supreme
Court used that term in Breuer. The case might be different
if Congress had put the home-state and local controversy
rules directly into the jurisdictional section of the statute,
§ 1332(d)(2), but it did not. We acknowledge that the
language of § 1332(d)(4) is mandatory, in contrast with the
permissive language of § 1332(d)(3), but that alone proves
No. 06-2903 11
little. Nothing indicates that the kinds of exceptions to
which the Supreme Court referred in Breuer were permis-
sive only.
We could stop here, but for the sake of completeness it
is also worth noting that this outcome is consistent with the
legislative history of CAFA. The Senate Judiciary Commit-
tee unambiguously signaled where it believed the burden
should lie. The Committee report said “[o]verall, new
section 1332(d) is intended to expand substantially federal
court jurisdiction over class actions. Its 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.” S. Rep. 14, 109th Cong. 1st
Sess. 43 (2005). The report goes on to state,
[I]t is the intent of the Committee that the named
plaintiff(s) should bear the burden of demonstrating
that a case should be remanded to state court (e.g., the
burden of demonstrating that more than two-thirds of
the proposed class members are citizens of the forum
state). Allocating the burden in this manner is impor-
tant to ensure that the named plaintiffs will not be able
to evade federal jurisdiction with vague class definitions
or other efforts to obscure the citizenship of class
members. The law is clear that, once a federal court
properly has jurisdiction over a case removed to federal
court, subsequent events generally cannot ‘oust’ the
federal court of jurisdiction. While plaintiffs undoubt-
edly possess some power to seek to avoid federal juris-
diction by defining a proposed class in particular ways,
they lose that power once a defendant has properly
removed a class action to federal court.
Id.
Our holding that the plaintiff has the burden of persua-
sion on the question whether the home-state or local
controversy exceptions apply is also consistent with the
12 No. 06-2903
stated purposes of the statute. Congress made the following
findings when it enacted CAFA:
(4) Abuses in class actions undermine the national
judicial system, the free flow of interstate commerce,
and the concept of diversity jurisdiction as intended
by the framers of the United States Constitution, in
that State and local courts are—
(A) keeping cases of national importance out of
Federal court;
(B) sometimes acting in ways that demonstrate bias
against out-of-State defendants; and
(C) making judgments that impose their view of the
law on other States and bind the rights of the
residents of those States.
Pub.L. 109-2, § 2, Feb. 18, 2005, 119 Stat. 4. These excep-
tions 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.
C
The district court left open the possibility that the
plaintiffs here might file another motion to remand under
§ 1332(d) (which imposes no time limit on such a motion),
once the case has been developed further. We therefore
comment briefly on what information or evidence is suffi-
cient to meet their burden. When a party seeks removal, it
“must present evidence of federal jurisdiction once the
existence of that jurisdiction is fairly cast into doubt.” In re
Brand Name Prescription Drugs Antitrust Litig., 123 F.3d
599, 607 (7th Cir. 1997) (emphasis in original). For exam-
ple, if the plaintiff states in its complaint that it seeks a
particular amount in damages, the defendant must chal-
No. 06-2903 13
lenge that amount and “support its assertion with ‘compe-
tent proof.’ ” Rexford Rand Corp. v. Ancel, 58 F.3d 1215,
1218 (7th Cir. 1995) (quoting McNutt v. General Motors
Acceptance Corp., 298 U.S. 178, 189 (1936)). We explained
in Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536 (7th
Cir. 2006), that this means that the proponent of jurisdic-
tion bears the risk of nonpersuasion on the contested
factual assertions that are pertinent to the jurisdictional
issue. Id. at 540. The examples we gave of such assertions
included “where each party resides plus any plans for
change of residence, in order to establish domicile, or what
state issued a corporation’s charter.” Id. These kinds of
questions are pertinent for both a defendant removing
under CAFA and a plaintiff seeking to establish either the
home-state or local controversy exception. Hart and the
plaintiffs have the right, through appropriate discovery, to
explore the facts relevant to the court’s jurisdiction as the
case progresses.
III
For these reasons, we AFFIRM the district court’s remand
order.
14 No. 06-2903
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-9-06