Wade Grant v. Capital Management Services, L

FILED
NOT FOR PUBLICATION SEP 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WADE GRANT, on behalf on himself, all No. 11-56200
other persons similarly situated and the
general public, D.C. No. 3:10-cv-02471-WQH-
BGS
Plaintiff - Appellee,
v. MEMORANDUM*
CAPITAL MANAGEMENT SERVICES,
L.P.,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted August 31, 2011**
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Capital Management Services, L.P. appeals from the district court’s order
granting Wade Grant’s motion to remand his class complaint alleging causes of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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action under the federal Telephone Consumer Protection Act (47 U.S.C. § 227 et
seq.) and the California Unfair Competition Law (Cal. Bus. & Prof. Code § 17200et seq.). We have jurisdiction pursuant to 28 U.S.C. § 1453(c)(1). We reverse.
Because neither the size of the proposed class nor the total amount in
controversy was apparent from the face of the class complaint, CMS need only
show by a preponderance of the evidence that Grant’s action places more than
$5,000,000 in controversy and implicates a class with greater than 100 members.
See Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007).
The TCPA prohibits persons from (1) making “any call,” (2) “using any
automatic telephone dialing system or an artificial or prerecorded voice,” (3) “to
any telephone number assigned to a . . . cellular telephone service . . . .” See 47
U.S.C. § 227(b)(1)(A).1 CMS submitted the Florczak declaration which stated that
a review of the company’s databases by its executive vice president of information
technology using technology designed to distinguish cell phone numbers from land
lines had revealed that CMS had (1) made over 10,000 calls to numbers assigned to
1
Calls otherwise in violation of the TCPA are not unlawful if made “for
emergency purposes or made with the prior express consent of the called party,” 47
U.S.C. § 227(b)(1)(A); however, “express consent” is not an element of a TCPA
plaintiff’s prima facie case, but rather is an affirmative defense for which the
defendant bears the burden of proof. See 23 F.C.C.R. 559, 565 (Dec. 28, 2007)
(“[W]e conclude that the creditor should be responsible for demonstrating that the
consumer provided prior express consent.”).
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California cell phones and (2) placed calls to more than 1,000 phone numbers
identified with a unique debtor residing in California. ER 10-11, 13-15. Given
that Grant’s complaint alleges that each call in violation of the TCPA would incur
no less than $500 in damages and that CMS presented evidence establishing that it
made over 10,000 calls to cellular phone numbers, CMS has shown that Grant “is
seeking recovery from a pot that . . . could exceed $5 million and [Grant] has
neither acknowledged nor sought to establish that the class recovery is potentially
any less.” Lewis v. Verizon Communications, Inc., 627 F.3d 395, 401 (9th Cir.
2010); Chabner v. United of Ohama Life Ins. Co., 225 F.3d 1042, 1046 n.3 (9th
Cir. 2000) (noting that courts may consider statutory damages, including treble
damages, for purposes of calculating amount in controversy). By presenting the
Florczak declaration and its addendum, CMS has “explained plausibly how the
stakes exceed $5 million” and how the proposed class exceeds 100 members.
Lewis, 627 F.3d at 401 (quoting Spivey v. Vertrue, Inc., 528 F.3d 982, 986 (7th Cir.
2008)).
In remanding the case due to CMS’s failure to present evidence that it used
an automated dialing system in connection with the calls averred to in the Florczak
delcaration, the district court effectively required that CMS admit liability under
the TCPA to remove the case to federal court—a result that is incompatible with
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Lewis. See 627 F.3d at 400 (holding that a party “need not concede liability” to
remove a case to federal court under CAFA.) In the absence of any evidence to
the contrary from Grant, CMS presented sufficient evidence to carry its burden of
proving that Grant’s action satisfied CAFA’s numerosity and amount in
controversy requirements and the district court erred in ruling otherwise.
We therefore reverse and remand to the district court for further proceedings
consistent with this disposition.
REVERSED.