Hicks v. Grimmway Enterprises, Inc. et al, No. 3:2022cv02038 - Document 25 (S.D. Cal. 2023)

Court Description: ORDER Denying 9 Motion for Leave to Amend the Operative Complaint; Denying 7 Plaintiff's Motion to Remand to State Court; and Denying ( 8 -1) Plaintiff's Motion for Jurisdictional Discovery. Signed by Judge Janis L. Sammartino on 5/9/23. (aas)

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Hicks v. Grimmway Enterprises, Inc. et al Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ELIZABETH HICKS, an Individual on behalf of herself and all others similarly situated and the general public, 13 14 15 16 17 18 Case No.: 22-CV-2038 JLS (DDL) ORDER (1) DENYING PLAINTIFF’S MOTION FOR LEAVE TO AMEND THE OPERATIVE COMPLAINT; (2) DENYING PLAINTIFF’S MOTION TO REMAND TO STATE COURT; AND (3) DENYING PLAINTIFF’S MOTION FOR JURISDICTIONAL DISCOVERY Plaintiff, v. GRIMMWAY ENTERPRISES, INC., a Corporation with Headquarters in California; and DOES 1–100, inclusive, Defendants. (ECF Nos. 7, 8-1, 9) 19 20 21 22 23 Presently before the Court are Plaintiff Elizabeth Hick’s Motion for Leave to Amend 24 the Operative Complaint (“Mot. to Amend,” ECF No. 9), Motion to Remand to State Court 25 (“Remand Mot.,” ECF No. 7), and Motion for Jurisdictional Discovery (“Discovery Mot.,” 26 ECF No. 8-1). Defendant Grimmway Enterprises, Inc. filed responses in opposition to 27 each of Plaintiff’s motions (“Amend Opp’n,” ECF No. 18; “Remand Opp’n,” ECF No. 16; 28 “Discovery Opp’n,” ECF No. 17). Plaintiff filed replies in support of the motions (“Amend 1 22-CV-2038 JLS (DDL) Dockets.Justia.com 1 Reply,” ECF No. 20; “Remand Reply,” ECF No. 19; “Discovery Reply,” ECF No. 21). 2 Having carefully considered the Parties’ briefing and the law, the Court DENIES 3 Plaintiff’s Motion for Leave to Amend the Operative Complaint, DENIES Plaintiff’s 4 Motion to Remand to State Court, and DENIES Plaintiff’s Motion for Jurisdictional 5 Discovery. 6 BACKGROUND 7 In this putative class action, Plaintiff alleges that Defendant, a California agricultural 8 corporation, misrepresented the environmental impact of its farming practices through its 9 advertising and “Inaugural Report on Environmental, Social and Governance Actions” 10 (“ESG Report”). See First Amended Complaint (“FAC,” ECF No. 1-8) ¶¶ 1–4, 19–26. 11 Specifically, Plaintiff alleges that Defendant’s statements about “regenerative farming,” its 12 Environmental, Social, and Governance (“ESG”) commitments, and “preserving natural 13 resources” were “false, deceptive, and misleading.” Id. ¶¶ 15–16. According to Plaintiff, 14 Defendant’s “method of growing its goods is causing severe harm to the ecosystem, and to 15 its neighbors and communities.” Id. ¶ 3. 16 Plaintiff purports to represent a class of consumers who “would not have purchased 17 (or would not have paid a premium)” for Defendant’s products had they known of 18 Defendant’s allegedly misleading statements. Id. ¶ 16. The FAC asserts three causes of 19 action: (1) false advertising in violation of California Business & Professions Code 20 §§ 17500 et seq., FAC ¶¶ 43–48; (2) “unlawful, unfair, or fraudulent” business practices in 21 violation of California Business & Professions Code §§ 17200 et seq., FAC ¶¶ 49–60; and 22 (3) violation of the Consumer Legal Remedies Act (“CLRA”), California Civil Code 23 §§ 1750 et seq., FAC ¶¶ 61–69. 24 Plaintiff initiated this putative class action by filing a complaint in the Superior Court 25 of San Diego County on September 29, 2022. ECF No. 1-3.1 Plaintiff filed the FAC in 26 27 28 1 Defendant submitted two requests for judicial notice asking this Court to take judicial notice of Plaintiff’s initial state court complaint. See ECF Nos. 16-2, 18-1. This document has already been submitted as an exhibit to Defendant’s Notice of Removal. Therefore, the Court need not take judicial notice of it. See 2 22-CV-2038 JLS (DDL) 1 Superior Court on November 22, 2022. See FAC. Defendant removed the case to this 2 Court on December 22, 2022. See Notice of Removal (“Not. of Removal,” ECF No. 1). 3 After removal, Defendant filed a Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404, 4 see ECF No. 2, and a Motion to Strike Pursuant to California Code of Civil Procedure 5 § 425.16, ECF No. 3. Subsequently, Plaintiff filed the instant motions. See Mot. to 6 Amend; Mot. to Remand; Mot. for Discovery. On May 1, the Court denied Defendant’s 7 Motion to Transfer, finding that transferring the case to the Eastern District would not serve 8 the convenience of the Parties or the interests of justice. See ECF No. 24. 9 10 This Order solely addresses Plaintiff’s Motions for Leave to Amend the Operative Complaint, to Remand to State Court, and for Jurisdictional Discovery. 2 11 PLAINTIFF’S MOTION TO AMEND THE OPERATIVE COMPLAINT 12 The Court will first address Plaintiff’s request for leave to amend the FAC. Plaintiff 13 contends that a grammatical error resulted in an expanded class definition, which 14 Defendant improperly seized upon to remove the case to federal court. See Plaintiff’s 15 Memorandum of Points and Authorities in Support of the Motion for Leave to Amend the 16 Operative Complaint (“Amend Mem.,” ECF No. 9-1). Plaintiff wishes to amend the 17 putative class definition to reflect her intention that this case be litigated in state court. See 18 Amend Mem. at 9 (“[A]t all times[, ]Plaintiff . . . intended for this action to remain in 19 California State Court.”). 3 20 /// 21 /// 22 /// 23 24 26 Patoc v. Lexington Ins. Co., No. 08-01893 RMW (PVT), 2008 WL 3244079, at *1 n.3 (N.D. Cal. Aug. 5, 2008) (“Because this complaint is already before the Court as an exhibit to the Notice of Removal, the Court does not need to take judicial notice of this complaint.”), aff’d, 366 F. App’x 795 (9th Cir. 2010). Accordingly, Defendant’s requests for judicial notice are DENIED as moot. 27 2 An order on Defendant’s Motion to Strike will issue separately in due course. 28 3 Pin citations refer to the CM/ECF page numbers electronically stamped at the top of each page. 25 3 22-CV-2038 JLS (DDL) 1 I. Legal Standard 2 Generally, “post-removal amendments to the pleadings cannot affect whether a case 3 is removable, because the propriety of removal is determined solely on the basis of the 4 pleadings filed in state court.” Williams v. Costco Wholesale Corp., 471 F.3d 975, 976 5 (9th Cir. 2006); see also Doyle v. OneWest Bank, FSB, 764 F.3d 1097, 1098 (9th Cir. 2014) 6 (“[T]he District Court should have determined the citizenship of the proposed plaintiff 7 class based on [the plaintiff’s] complaint ‘as of the date the case became removable.’” 8 (quoting Mondragon v. Capital One Auto Fin., 736 F.3d 880, 883 (9th Cir. 2013))); 28 9 U.S.C. § 1332(d)(7) (“Citizenship of the members of the proposed plaintiff class shall be 10 determined . . . as of the date of the complaint or amended complaint . . . indicating the 11 existence of Federal jurisdiction.”). In Benko v. Quality Loan Service Corporation, 789 12 F.3d 1111 (9th Cir. 2015), however, the Ninth Circuit held that “plaintiffs should be 13 permitted to amend a complaint after removal to clarify issues pertaining to federal 14 jurisdiction under CAFA.” Id. at 1117 (emphasis added). The Ninth Circuit explained that 15 when “a defendant removes a case to federal court under CAFA, and the plaintiffs amend 16 the complaint to explain the nature of the action for purposes of our jurisdictional analysis, 17 we may consider the amended complaint to determine whether remand to the state court is 18 appropriate.” Id. at 1117. 19 Later, in Broadway Grill, Inc. v. Visa Inc., 856 F.3d 1274 (9th Cir. 2017), the Ninth 20 Circuit proscribed limitations on the exception established in Benko. In Broadway Grill, 21 the plaintiff’s original complaint “described the class as ‘all California individuals, 22 businesses and other entities who accepted Visa-branded cards in California since January 23 1, 2004.’” Id. at 1276. The plaintiff sought leave to amend the complaint to change the 24 class definition “to include only ‘California citizens,’ in order to eliminate minimal 25 diversity.” Id. The district court granted leave to amend and ordered the case remanded 26 to state court. Id. On appeal, the Ninth Circuit described the issue as whether “plaintiffs 27 may amend their complaint, after a case has been removed to federal court, to change the 28 definition of the class so as to eliminate minimal diversity and thereby divest the federal 4 22-CV-2038 JLS (DDL) 1 court of jurisdiction.” Id. at 1275. The Ninth Circuit answered this question in the 2 negative, concluding that “amendments that ‘change[ ] the definition of the class itself,’ 3 rather than ‘provide an explanation of the allegations[,]’ are ‘outside the exception 4 recognized in Benko.’” Borgia v. Bird Rides, Inc., No. CV189685DMGFFMX, 2019 WL 5 3814280, at *4 (C.D. Cal. Aug. 13, 2019) (quoting Broadway Grill, Inc., 856 F.3d at 1277– 6 78). 7 Broadway Grill described the exception established in Benko as “very narrow,” 8 explaining that “Benko itself recognized that CAFA ‘favors federal jurisdiction’ and that 9 only certain ‘CAFA-specific issues[]’ . . . that were highly unlikely to be addressed in a 10 state court complaint, justified allowing amendments.” 856 F.3d at 1275, 1278. “Congress 11 specifically noted that, under CAFA, if minimal diversity exists at the time of removal, 12 jurisdiction could not be divested, even if the situation changed as a result of a later event, 13 ‘whether beyond the plaintiff’s control or the result of his volition.’” Id. at 1278–79. 14 “Benko did not . . . strike a new path to permit plaintiffs to amend their class definition, 15 add or remove defendants, or add or remove claims in such a way that would alter the 16 essential jurisdictional analysis.” Id. at 1279. 17 The amendment in Benko was permitted, according to the Ninth Circuit, because it 18 “served only to provide some amplification, for federal jurisdictional purposes, of the 19 nature of plaintiffs’ allegations,” id. at 1277. Specifically, the amendment in Benko 20 provided “‘estimates of the percentage of total claims asserted against [the in-state 21 defendant]’ in order to show that the in-state defendant was ‘significant,’ for purposes of 22 [the “local controversy” exception to CAFA under 28 U.S.C.] § 1332(d)(4).” Broadway 23 Grill, Inc., 856 F.3d at 1277 (quoting Benko, 789 F.3d at 1117). The “local controversy” 24 exception requires federal courts to refuse jurisdiction over a putative class action when 25 “at least 1 defendant is a defendant . . . from whom significant relief is sought by members 26 of the plaintiff class,” among other requirements. 28 U.S.C. § 1332(d)(4)(A)(i)(II)(aa). 27 Accordingly, allowing the plaintiffs in Benko to amend the complaint to elaborate on the 28 nature of the claims against the in-state-defendant did not change the definition of the class 5 22-CV-2038 JLS (DDL) 1 to eliminate minimal diversity; rather, the amendments were intended to clarify 2 CAFA-specific issues. See Broadway Grill, Inc., 856 F.3d at 1277–78. 3 In contrast, the amendment in Broadway Grill “changed the definition of the class 4 itself.” Broadway Grill, Inc., 856 F.3d at 1277. There, “[i]nstead of being composed of 5 all the merchants in the state of California, regardless of citizenship, the class, as defined 6 in the amended complaint, became exclusively composed of California citizens.” Id. Such 7 an amendment “attempted to do what CAFA was intended to prevent: an amendment 8 changing the nature of the class to divest the federal court of jurisdiction.” Id. at 1279. 9 Consequently, the amendment fell outside of Benko’s narrow exception. Id. at 1277–79. 10 II. Discussion 11 Here, Plaintiff’s FAC describes the proposed class as including “[a]ll persons . . . 12 residing in the state of California, or . . . any out of state resident in the state of California[,] 13 . . . who purchased Grimmway goods/products.” FAC ¶ 30. Plaintiff claims that the class 14 definition in the FAC was “intended” to include “any out of state resident of the State of 15 California,” rather than “any out of state resident in the state of California.” Amend Mem. 16 at 8 (emphasis in original). According to Plaintiff, “the definition as currently plead[ed] 17 was a ‘rough draft,’ and [was] never intended to be included in the final FAC.” Id. Plaintiff 18 contends that allowing amendment here would permit her to “clarify” the proposed class 19 definition, not impermissibly change it. Id. at 5. 20 Plaintiff presents the Court with two proposed second amended complaints, 21 requesting that “the Court allow the Amendment” that strips the Court of federal 22 jurisdiction under CAFA. See id. One proposed complaint describes the class as “[a]ll 23 persons who are citizens of the state of California and who purchased Grimmway 24 goods/products,” ECF No. 9-3 ¶ 30 (emphasis added), and another describes the class as 25 “[a]ll persons who are residents of the state of California and who purchased Grimmway 26 goods/products,” ECF No. 9-5 ¶ 30 (emphasis added). The proposed amended complaints 27 also introduce limitations to restrict the class to California citizens. See ECF No. 9-3 ¶ 30; 28 ECF No. 9-5 ¶ 30. 6 22-CV-2038 JLS (DDL) 1 Defendant argues that the edits contained within the FAC were not “accidental or 2 ‘grammatical errors’ as Plaintiff now claims but were, instead, deliberate changes to 3 expand the scope of this litigation.” Amend Opp’n at 5. In Defendant’s view, the FAC’s 4 expanded class definition necessarily includes non-California residents, and, therefore, 5 CAFA’s minimal diversity requirement is met. See Not. of Removal ¶¶ 11–25. Defendant 6 further contends that “Ninth Circuit authority expressly prohibits post-removal amendment 7 that would divest the federal court of jurisdiction.” Amend Opp’n at 5. Finally, Defendant 8 notes that asking the Court to choose between two proposed amended complaints “is akin 9 to improperly asking the Court to provide an advisory opinion.” Id. 10 Here, the Court finds that granting leave to amend the complaint to change the 11 proposed class definition is not appropriate, as Plaintiff’s amendments impermissibly “alter 12 the essential jurisdictional analysis.” See Broadway Grill, 856 F.3d at 1279. Before 13 explaining this conclusion, however, the Court would like to address certain deficiencies 14 with the motion filed by Plaintiff’s counsel. 15 First, “Plaintiff is informed that the court does not issue advisory opinions or provide 16 legal advice.” King v. Ashley, No. 2:14-CV-1306 KJN P, 2014 WL 3689582, at *4 (E.D. 17 Cal. July 23, 2014). Accordingly, the Court will not choose for Plaintiff which of the 18 proposed second amended complaints achieves her desired result. See Chi. & S. Air Lines 19 v. Waterman S. S. Corp., 333 U.S. 103, 113–14 (1948) (“This Court early and wisely 20 determined that it would not give advisory opinions even when asked by the Chief 21 Executive. It has also been the firm and unvarying practice of Constitutional Courts to 22 render no judgments not binding and conclusive on the parties and none that are subject to 23 later review or alteration by administrative action.” (citing Hayburn’s Case, 2 Dall. 409 24 (1792); United States v. Ferreira, 13 How. 40 (1852); Gordon v. United States, 117 U.S 25 697 (1864); In re Sanborn, 148 U.S. 222 (1893); Interstate Commerce Comm’n v. Brimson, 26 154 U.S. 447 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899); 27 Muskrat v. United States, 219 U.S. 346 (1911); United States v. Jefferson Electric Mfg. 28 Co., 291 U.S. 386 (1934))). 7 22-CV-2038 JLS (DDL) 1 Second, Plaintiff’s argument that the expanded class definition resulted from a 2 grammatical error is not credible. The “intended” class definition—“[a]ll persons . . . 3 residing in the state of California, or . . . any out of state resident of the state of 4 California[,] . . . who purchased Grimmway goods/products,” Amend Mem. at 8 (emphasis 5 in original)—would, under Plaintiff’s interpretation, be indistinct from the original class 6 definition of “[a]ll persons residing in the State of California who purchased Grimmway 7 goods/products,” ECF No. 1-3 ¶ 30. Both definitions consist entirely of California 8 residents who purchased Grimmway products, making the “intended” definition redundant 9 and, therefore, unnecessary. Further undermining Plaintiff’s claim of grammatical error is 10 the fact that neither of Plaintiff’s proposed second amended complaints include the 11 allegedly “intended” class definition. See ECF No. 9-3 ¶ 30, ECF No. 9-5 ¶ 30. Clearly, 12 the proper interpretation of Plaintiff’s FAC is that the expanded definition of “any out of 13 state resident in the state of California” was purposefully designed to encompass non- 14 California residents who purchased Defendant’s products in California. Regardless of the 15 veracity of Plaintiff’s counsel’s claims, “[t]he Court cannot credit Plaintiff’s subjective 16 intent over the objective disclosures” in the FAC. Stern v. RMG Sunset, Inc., No. 17-CV- 17 1646 JLS (NLS), 2018 WL 2296787, at *7 (S.D. Cal. May 21, 2018). 18 Third, Plaintiff’s counsel’s contention that the “law regarding the propriety of 19 ‘resident’ to ‘citizen’ is currently ‘in flux,’” Amend Mem. at 5, is simply incorrect. CAFA 20 unambiguously permits removal where “any member of a class of plaintiffs is a citizen of 21 a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A) (emphasis added). 22 Moreover, there is ample case law discussing the difference between a “resident” and a 23 “citizen” for purposes of diversity of citizenship in federal cases. As the Ninth Circuit has 24 explained: 25 26 27 28 To be a citizen of a state, a natural person must first be a citizen of the United States. The natural person’s state citizenship is then determined by her state of domicile, not her state of residence. A person’s domicile is her permanent home, where she resides with the intention to remain or to which she intends 8 22-CV-2038 JLS (DDL) 1 to return. A person residing in a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that state. 2 3 Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (internal citations 4 omitted)). In fact, Plaintiff’s counsel cites one of this Court’s decisions discussing this 5 very issue. Amend Mem. at 5, 11, 14–15. In Weight v. Active Network, Inc., 29 F. Supp. 6 3d 1289, 1293 (S.D. Cal. 2014), this Court explained that “under federal law, ‘resident of’ 7 is not equivalent to ‘domiciled in’—and, therefore, also not equivalent to ‘citizen of.’” 8 How Plaintiff’s counsel arrived at the conclusion that the difference between “resident” 9 and “citizen” for purposes of diversity of citizenship is “in flux” (a phrase not present in 10 any of the cases cited by Plaintiff’s counsel) upon reviewing the cited cases is unclear to 11 the Court. 12 These discrepancies aside, allowing Plaintiff to amend the complaint with the 13 express purpose of revising the proposed class definition to eliminate federal jurisdiction, 14 see Amend Mem. at 9 (“[A]t all times[, ]Plaintiff had intended for this action to remain in 15 California State Court.”), would sanction conduct expressly prohibited in Broadway Grill, 16 see Dada v. CyberCoders, Inc., No. SACV1801023JVSJDEX, 2018 WL 6133673, at *3 17 (C.D. Cal. July 16, 2018) (“The Ninth Circuit explicitly rejected this tactic stating that 18 plaintiffs may not make changes to class definitions, add or remove defendants, or add or 19 remove claims in an attempt to eliminate diversity.”). 20 “Under CAFA there is sufficient diversity to establish federal diversity jurisdiction 21 so long as one class member has citizenship diverse from that of one defendant.” Broadway 22 Grill, Inc., 856 F.3d at 1276 (citing 28 U.S.C. § 1332(d)(2)(A)). Here, the class description 23 in Plaintiff’s FAC contains no limiting provision as to the citizenship of the class members. 24 See FAC ¶ 30. Consequently, minimal diversity exists between the proposed class, which 25 necessarily encompasses citizens of any state, and Defendant, who is a citizen of Delaware 26 and California. See Broadway Grill, 856 F.3d at 1278 (noting that the original class in 27 Hargett v. RevClaims, LLC, 854 F.3d 962, 966 (8th Cir. 2017), of Arkansas “residents” 28 included non-citizens and therefore satisfied minimal diversity); Stern, 2018 WL 2296787, 9 22-CV-2038 JLS (DDL) 1 at *7 (“Plaintiff’s motion clearly meets the minimal diversity standard because it contains 2 no limiting provision as to citizenship in the class.”). Plaintiff’s proposed amendments, on 3 the other hand, explicitly exclude any non-California citizens. See ECF No. 9-3 ¶ 30; ECF 4 No. 9-5 ¶ 30. Such an amendment would obviously change the jurisdictional analysis, as 5 it would eliminate minimal diversity. Moreover, Plaintiff makes no argument that the 6 proposed amendment is a clarification of CAFA-specific issues, such that it would fall 7 under the exception recognized in Benko and Broadway Grill. See generally Amend Mem. 8 Consequently, this Court, pursuant to Broadway Grill, cannot allow Plaintiff to amend the 9 proposed class definition. 10 In support of her argument, Plaintiff cites various cases that were issued before the 11 Ninth Circuit’s decision in Broadway Grill. For example, Plaintiff cites this Court’s 12 decision in Weight v. Active Network, Inc., 29 F. Supp. 3d 1289, 1293 (S.D. Cal. 2014). 13 There, this Court permitted the plaintiff to narrow the original class of California 14 “residents” to California “citizens.” Id. This Court concluded that the amended complaint 15 “merely clarifie[d] that [the plaintiff’s] original intent was to litigate on behalf of California 16 citizens only.” Id. While this Court’s decision in Weight was arguably in accord with 17 Ninth Circuit precedent at the time it was issued, the Ninth Circuit’s decision in Broadway 18 Grill “directly rejects the result this Court reached . . . , effectively overruling . . . Weight.” 19 Richards v. Now, LLC, No. 218CV10152SVWMRW, 2019 WL 2026895, at *3 (C.D. Cal. 20 May 8, 2019). All other pre-Broadway Grill cases cited by Plaintiff are unpersuasive for 21 similar reasons. 22 “Indeed, following the Ninth Circuit’s decision in Broadway Grill, district courts are 23 in accord that a plaintiff may not amend a complaint to clarify that the class definition was 24 intended to apply to citizens of a state, not residents.” Id. at *4; see also Kosieradzki v. 25 Eversource Serv. Energy Co., No. 3:20-CV-01338 (VLB), 2021 WL 1227571, at *8 (D. 26 Conn. Apr. 1, 2021) (denying motion to amend under Broadway Grill where plaintiffs’ 27 amendment would limit the class description to “citizens of Connecticut instead of 28 residents of Connecticut” (internal quotations omitted)); Dada, 2018 WL 6133673, at *4 10 22-CV-2038 JLS (DDL) 1 (denying motion to remand where, post-removal, plaintiffs’ second amended complaint 2 “introduced a citizenship limitation” and removed diverse parties from the action). In fact, 3 in Stern v. RMG Sunset, Inc., this Court rejected the plaintiff’s post-removal attempt to 4 limit the proposed class definition to “California citizens” instead of “[a]ll persons.” 2018 5 WL 2296787, at *7. This Court found that “[t]his sort of post-removal amendment to 6 remove CAFA jurisdiction is exactly the behavior prohibited under Broadway Grill.” Id. 7 Notably, the Ninth Circuit in Broadway Grill discussed two decisions from other 8 circuit courts concluding that post-removal amendment may not affect the existence of 9 federal jurisdiction. First, the Ninth Circuit “agree[d]” with the Eighth Circuit’s decision 10 in Hargett v. RevClaims, LLC, 854 F.3d 962 (8th Cir. 2017), to “refuse[] to consider a post- 11 removal amendment that would have narrowed the original class of Arkansas ‘residents’ 12 to Arkansas ‘citizens.’” The Eighth Circuit noted that “CAFA’s language demands that 13 class citizenship ‘must be determined as of the date of the pleading giving federal 14 jurisdiction,’” meaning the “the class included non-citizens and hence minimal diversity 15 was satisfied.” Broadway Grill, Inc., 856 F.3d at 1278 (quoting Hargett, 854 F.3d at 967). 16 Second, the Ninth Circuit approved of the Tenth Circuit’s conclusion in Reece v. AES 17 Corp., 638 F. App’x 755, 775 (10th Cir. 2016), that CAFA precluded the plaintiffs’ ability 18 to amend the class to “cover only Oklahoma citizens” instead of “Oklahoma residents.” 19 Id. 20 Plaintiff cites to two post-Broadway Grill decisions that allowed post-removal 21 amendment, but both cases fail to persuade the Court that amendment is proper here. In 22 Borgia v. Bird Rides, Inc., No. CV189685DMGFFMX, 2019 WL 3814280, at *3 (C.D. 23 Cal. Aug. 13, 2019), the court allowed a post-removal amendment limiting the proposed 24 class to “California citizens,” instead of “[a]ll individuals.” 25 amendment was not intended to eliminate minimal diversity, as minimal diversity would 26 have existed regardless of the proposed amendment as one of the defendants was not a 27 citizen of California. Id. Instead, the plaintiffs’ proposed amendment was intended to 28 “explain that their proposed classes’ definitions include only California citizens, such that There, however, the 11 22-CV-2038 JLS (DDL) 1 the Court can determine how to apply the local controversy exception despite the 2 undisputed existence of minimal diversity.” Id. Here, in contrast, Plaintiff’s proposed 3 amendment is designed to eliminate the existence of minimal diversity, not to provide more 4 information to the Court pertaining to CAFA-specific issues, like the local controversy 5 exception. 6 Second, Soto v. Future Motion, Inc., No. 20-CV-06982-SVK, 2021 WL 1222623 7 (N.D. Cal. Mar. 31, 2021), is a non-binding opinion that relies on pre-Broadway Grill 8 authority in support of its decision to permit a post-removal amendment that narrowed the 9 proposed class from “all persons” to persons “currently domiciled in California.” Id. at *4 10 (citing Labrado v. Method Prod., PBC, No. 16-CV-05905-LB, 2016 WL 6947337 (N.D. 11 Cal. Nov. 28, 2016)). That decision also permitted amendment because the original 12 complaint “d[id] not contain facts from which it c[ould] be determined whether exceptions 13 to CAFA jurisdiction applies.” Id. This conclusion suffers from a misinterpretation of the 14 Benko exception. Broadway Grill held that Benko permitted post-removal amendment 15 where the amendment did not change the class definition, but merely amplified allegations 16 pertaining to CAFA-specific issues. Supra pp. 3–5. Contrary to the court’s implication in 17 Soto, Benko does not stand for the proposition that diversity-destroying, post-removal 18 amendments to class definitions are permitted where the original complaint lacks CAFA- 19 specific information. After all, the same was true for the complaint in Broadway Grill. See 20 Broadway Grill, Inc., 856 F.3d at 1275–76 (noting district court denied motion to remand 21 because original class definition, “on its face,” did not establish that two-thirds of the class 22 members were California citizens for purposes of the local controversy exception). For 23 these reasons, this Court finds Soto unpersuasive. 24 In sum, Plaintiff’s proposed amendments are intended to eliminate minimal 25 diversity, thereby stripping this Court of federal jurisdiction. Such an amendment is 26 explicitly prohibited by Ninth Circuit precedent. 27 /// 28 /// 12 22-CV-2038 JLS (DDL) 1 III. 2 3 Conclusion For the foregoing reasons, the Court DENIES Plaintiff’s Motion to Amend the Operative Complaint (ECF No. 9). 4 5 PLAINTIFF’S MOTION TO REMAND TO STATE COURT I. CAFA’s Jurisdictional Requirements 6 A. 7 CAFA “provides federal district courts with original jurisdiction over class actions 8 involving at least 100 class members, minimal diversity, and at least $5 million in 9 controversy.” Richards, No. 218CV10152SVWMRW, 2019 WL 2026895, at *1 (citing 10 28 U.S.C. § 1332(d)(2), (5)(B)). When a plaintiff seeks to remand a class action to state 11 court, the defendant “bears the evidentiary burden of establishing federal jurisdiction under 12 CAFA by a preponderance of the evidence.” Id.; see also Rodriguez v. AT & T Mobility 13 Servs. LLC, 728 F.3d 975, 978 (9th Cir. 2013) (“The party seeking the federal forum [in 14 CAFA cases] bears the burden of establishing that the statutory requirements of federal 15 jurisdiction have been met.”). While courts generally “strictly construe the removal statute 16 against removal jurisdiction,” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992), “no 17 antiremoval presumption attends cases invoking CAFA,” Dart Cherokee Basin Operating 18 Co., 574 U.S. at 89. Legal Standard 19 B. 20 Plaintiff argues that Defendant has failed to meet its burden of showing that removal 21 of this case was proper. Specifically, Plaintiff argues that Defendant “has failed to establish 22 (1) minimal diversity (due to the grammatical errors [in the FAC]), and (2) that the amount 23 in controversy exceeds $5 million.” Plaintiff’s Memorandum of Points and Authorities in 24 Support of the Motion to Remand to State Court (“Remand Mem.,” ECF No. 7-1) at 15 25 (emphasis in original). Defendant counters that “the amount in controversy . . . readily 26 exceeds $5 million and Plaintiff’s proposed class, as described in the [FAC], expressly 27 includes individuals who are not citizens of California.” Remand Opp’n at 8. 28 /// Discussion 13 22-CV-2038 JLS (DDL) 1 As the Court has already concluded that Plaintiff’s claims of grammatical error in 2 the FAC are not credible and denied Plaintiff’s Motion to Amend the Operative Complaint, 3 the Court DENIES Plaintiff’s Motion to Remand to the extent it is based on such 4 arguments. In accordance with Ninth Circuit precedent, the Court treats the FAC as the 5 operative complaint and will analyze Plaintiff’s Motion to Remand on the basis of the 6 allegations contained in the FAC, the Parties’ briefing, and the evidence submitted in 7 support of the Parties’ arguments. See Broadway Grill, Inc., 856 F.3d 1274; Richards, 8 2019 WL 2026895, at *3 (“Because the [Second Amended Consolidated Complaint] 9 merely changes the definition of the class and fails to provide additional CAFA-specific 10 information, the motion to remand must be assessed based on the allegations as set forth in 11 the [First Amended Consolidated Complaint], the operative complaint at the time of 12 Defendants’ removal to federal court.”). 13 There is no dispute between the Parties that the putative class includes more than 14 100 members. See Remand Mem.; Remand Opp’n. Accordingly, the Court will turn to 15 the two remaining requirements for federal jurisdiction under CAFA: minimal diversity 16 and at least $5 million in controversy. 17 1. Minimal Diversity 18 Minimal diversity exists in CAFA cases where “any member of a class of plaintiffs 19 is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). “A class 20 member’s state of citizenship is determined by domicile, which requires more than simply 21 maintaining a residential address in a given state.” Richards, 2019 WL 2026895, at *2. 22 The Court finds that Defendant has met its burden of showing that there is minimal 23 diversity between the Parties. As discussed above, the FAC’s class description includes 24 “[a]ll persons . . . residing in the state of California, or . . . any out of state resident in the 25 state of California[,] . . . who purchased Grimmway goods/products.” FAC ¶ 30. Because 26 the proposed class contains no limiting provision as to the class members’ citizenship, the 27 class, on its face, necessarily includes any non-California, non-Delaware citizen who 28 purchased Defendant’s products and resided in California during the relevant period. See 14 22-CV-2038 JLS (DDL) 1 Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001) (“A person residing in 2 a given state is not necessarily domiciled there, and thus is not necessarily a citizen of that 3 state.”); Broadway Grill, 856 F.3d at 1278; Stern, 2018 WL 2296787, at *7; McMorris v. 4 TJX Companies, Inc., 493 F. Supp. 2d 158, 163 (D. Mass. 2007) (“[T]his putative class 5 that is composed entirely of residents of Massachusetts, does not, by definition, foreclose 6 the inclusion of non-citizens as well. This suffices to support the assertion of federal 7 jurisdiction in this [CAFA] case.”). The Court also notes that a literal reading of the FAC’s 8 class description would include California residents who purchased Grimmway products 9 in any state, not just California, during the relevant period, making it considerably more 10 likely that minimal diversity is satisfied here. 11 Further, Defendant has produced evidence indicating a reasonable probability that 12 the proposed class, which Plaintiff “believes . . . exceeds Twenty-Five Thousand” 13 residents of California alone, FAC ¶ 32(a), includes at least one non-California, non- 14 Delaware citizen who purchased Grimmway products during the relevant timeframe. 15 Defendant claims to be “the world’s largest producer of carrots, which it sells 16 internationally and in each of the 50 states.” Not. of Removal ¶ 23. Defendant’s products 17 are “carried in major retailers including Whole Foods, Smart & Final, Safeway, Ralph’s, 18 and Albertsons,” and its products “can be found at retailers located near the California state 19 lines at stores frequented by non-residents.” Id. Defendant has presented evidence that it 20 sold more than $200 million of goods in California during the relevant four-year period. 21 See Declaration of Katie Diesl in Support of Defendant Grimmway Enterprises, Inc.’s 22 Opposition to Plaintiff’s Motion to Remand (“Diesl Decl. Remand,” ECF No. 16-1) ¶ 3.4 23 24 25 26 27 28 4 Plaintiff objects to the cited portion of Ms. Diesl’s declaration on the basis of lack of foundation, improper opinion, and the best evidence rule. See Plaintiff’s Objection to the Declaration of Katie Diesl in Support of Defendant Grimmway Enterprises, Inc.’s Opposition to Plaintiff’s Motion to Remand (ECF No. 19-2). The Court OVERRULES Plaintiff’s objections, as they are entirely meritless. “Personal knowledge may be inferred from declarations that concern areas within the declarant’s job responsibilities.” Silva v. AvalonBay Communities, Inc., No. LACV1504157JAKPLAX, 2015 WL 11422302, at *4 n.1 (C.D. Cal. Oct. 8, 2015). Ms. Diesl is Defendant’s Chief Information Officer, and 15 22-CV-2038 JLS (DDL) 1 The contention that not one of those products was purchased by a non-California, non- 2 Delaware citizen is simply beyond belief. King v. Safeway, Inc., No. C-08-0999 MMC, 3 2008 WL 1808545, at *1 (N.D. Cal. Apr. 22, 2008) (concluding defendant met burden of 4 showing minimal diversity where class consisted of “[a]ll persons in the State of California 5 who purchased organic milk or milk products from [defendant],” and defendant “ha[d] 6 many stores in California which are close to, or encroach upon, the borders of other states” 7 (internal quotations omitted)); McMorris, 493 F. Supp. 2d at 164 (finding “reasonable 8 probability” that class of “residents of Massachusetts” included at least one member 9 “domiciled in a state other than Massachusetts or Delaware, the two states in which 10 [defendant was] domiciled”); Larsen v. Pioneer Hi-Bred Int’l, Inc., No. 4:06-CV-0077- 11 JAJ, 2007 WL 3341698, at *5 (S.D. Iowa Nov. 9, 2007) (finding it was “almost certain” 12 /// 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “part of [her] job responsibilities includes querying information, including sales and shipment information.” Diesl Decl. Remand ¶ 2. Ms. Diesl avers that she “queried and reviewed sales and shipment information, including information relating to sales and shipments in California on numerous occasions as part of [her] job, and . . . queried and reviewed information relating to Grimmway’s sales in California specifically” in preparation of her declaration. Id. Such a showing is sufficient for the Court to infer that Ms. Diesl possesses relevant personal knowledge of Defendant’s sales figures. Concerning the “best evidence rule,” Federal Rule of Evidence 1002 provides that: “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.” “[T]he best evidence rule ‘requires not, as its common name implies, the best evidence in every case but rather the production of an original document instead of a copy.’” United States v. Diaz-Lopez, 625 F.3d 1198, 1201 (9th Cir. 2010) (quoting Seiler v. Lucasfilm, Ltd., 808 F.2d 1316, 1318 (9th Cir. 1986)). This rule is irrelevant to Ms. Diesl’s declaration. Moreover, affidavits and declarations are appropriate forms of evidence for defendants to meet their burden of showing a federal court’s jurisdiction under CAFA. See Ibarra v. Manheim Invs., Inc., 775 F.3d 1193, 1197 (9th Cir. 2015). Finally, Federal Rule of Evidence 701 limits non-expert witnesses to opinion testimony that (1) is based on their own perception, (2) is helpful to understanding the witness’s testimony or determining a fact in issue, and (3) is not based on scientific or specialized knowledge. Ms. Diesl’s declarations regarding Defendant’s sales in California over the relevant period are factual in nature, not opinions. Consequently, this rule is irrelevant to Ms. Diesl’s declaration. To the extent the Court does not rely on evidence to which an evidentiary objection was raised, the Court OVERRULES the objections as moot. 16 22-CV-2038 JLS (DDL) 1 that class of “all persons and entities in the state of Iowa” who purchased defendant’s 2 products included at least one out-of-state citizen). 3 4 5 In sum, the Court finds that Defendant has met its burden of showing that minimal diversity exists between the parties. 2. Amount in Controversy 6 As noted above, “federal jurisdiction under CAFA exists for class actions in which 7 the amount in controversy exceeds $5,000,000, assessed by reviewing the claims of all 8 individual class members in the aggregate.” Richards, 2019 WL 2026895, at *5. “[A] 9 removing defendant’s notice of removal ‘need not contain evidentiary submissions’ but 10 only plausible allegations of the jurisdictional elements.” Arias v. Residence Inn by 11 Marriott, 936 F.3d 920, 922 (9th Cir. 2019) (quoting Ibarra v. Manheim Invs., Inc., 775 12 F.3d 1193, 1197 (9th Cir. 2015)). 13 “To determine the amount in controversy, we ‘first look to the complaint.’” Greene 14 v. Harley-Davidson, Inc., 965 F.3d 767, 771 (9th Cir. 2020) (quoting Ibarra, 775 F.3d at 15 1197). When a plaintiff contests the amount in controversy allegation, and the complaint 16 is silent as to damages, “‘both sides submit proof and the court decides, by a preponderance 17 of the evidence, whether the amount-in-controversy requirement has been satisfied.’” 18 Jauregui v. Roadrunner Transportation Servs., Inc., 28 F.4th 989, 992 (9th Cir. 2022) 19 (quoting Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 88 (2014)); see 20 also Ibarra, 775 F.3d at 1197 (“The parties may submit evidence outside the complaint, 21 including affidavits or declarations, or other ‘summary-judgment-type evidence relevant 22 to the amount in controversy at the time of removal.’” (quoting Singer v. State Farm Mut. 23 Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997)). 24 “The preponderance of the evidence standard, in practical terms, requires the 25 defendant to provide persuasive evidence that ‘the potential damages could exceed the 26 jurisdictional amount,’ as opposed to requiring ‘a prospective assessment of defendant’s 27 liability’ to any degree of certainty.” Richards, 2019 WL 2026895, at *5 (internal citations 28 omitted) (quoting Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 397 (9th Cir. 2010) 17 22-CV-2038 JLS (DDL) 1 (emphasis added)). 2 consideration of real evidence and the reality of what is at stake in the litigation, using 3 reasonable assumptions underlying the defendant’s theory of damages exposure.” Ibarra, 4 775 F.3d at 1198. In short, “[t]o meet CAFA’s amount-in-controversy requirement, a 5 defendant needs to plausibly show that it is reasonably possible that the potential liability 6 exceeds $5 million.” Greene, 965 F.3d at 772. “Under this system, CAFA’s requirements are to be tested by 7 Plaintiff argues that “[Defendant] fails to cite any evidence (including declaration 8 testimony) to establish” that $5 million is in controversy in this case. Remand Mem. at 19 9 (emphasis in original). As discussed above, however, Defendant’s evidentiary burden only 10 arose upon Plaintiff’s challenge to the amount-in-controversy requirement. See Jauregui, 11 28 F.4th at 992. The FAC is silent as to the amount in controversy, see FAC, and 12 Defendant’s notice of removal provided plausible allegations that more than $5 million 13 was at stake in this litigation, see Not. of Removal ¶¶ 16–19. 14 Following the challenge raised in Plaintiff’s Motion to Remand, Defendant 15 submitted a declaration from Ms. Diesl, whose responsibilities include querying and 16 reviewing sales figures for Defendant, stating that “the sales of Grimmway products in the 17 State of California over the alleged 4-year class period . . . exceed the $5 million 18 jurisdictional minimum by factor of ten or more each year of the four-year period.” Diesl 19 Decl. Remand ¶ 3. In other words, Defendant has submitted credible evidence that 20 Defendant sold more than $200 million of goods in California during the relevant 21 timeframe. Consequently, if Plaintiff’s claims involve only 2.5 percent of Defendant’s 22 sales in California alone over the relevant timeframe, then CAFA’s amount-in-controversy 23 requirement will have been met. There is good reason to believe that is the case here. 24 Plaintiff’s putative class includes all California residents who purchased 25 Defendant’s products, as well as all out of state residents who purchased Defendant’s 26 products in California, over a four-year period. See FAC ¶ 30. Without further belaboring 27 the point, this class definition captures a nationwide class of customers who purchased 28 Defendant’s products across the country. Supra pp. 15–17. Plaintiff claims the class 18 22-CV-2038 JLS (DDL) 1 contains at least 25,000 California-based members (which does not account for the non- 2 California citizen members) and that “thousands to hundreds of thousands of units 3 of . . . Grimmway Products have been sold in the state of California” during the relevant 4 period. FAC ¶¶ 30–31. Plaintiff requests “disgorgement of all profits and/or restoration 5 of monies wrongfully obtained through the Defendants’ pattern of unfair and deceptive 6 business practices.” Id. ¶ 28. The wrongful acts alleged here include false advertising and 7 unfair business practices that are “continuing in nature and . . . widespread.” Id. ¶¶ 43–69. 8 The Court cannot presently quantify the share of Defendant’s sales affected by its 9 advertising efforts or its ESG report. Assuming, however, that the allegedly misleading 10 messages are as “widespread” as Plaintiff claims, the Court is confident that the share of 11 affected sales is significantly higher than 2.5 percent of Defendant’s total sales. 12 Consequently, it is reasonably possible that the amount in controversy exceeds $5 million. 13 Any remaining doubts regarding the $5 million requirement are resolved by 14 Plaintiff’s additional requests for punitive damages and attorneys’ fees in this case. See 15 FAC at Prayer for Relief(f), (j). First, “a defendant that relies on potential punitive damages 16 to satisfy the amount in controversy under CAFA meets that requirement if it shows that 17 the proffered punitive/compensatory damages ratio is reasonably possible.” Greene, 965 18 F.3d at 773. “[O]ne way to establish that possibility is to cite a case involving the same or 19 a similar statute in which punitive damages were awarded based on the same or higher 20 ratio.” Id. Here, Defendant cites Hawkins v. Kroger Co., 337 F.R.D. 518, 530 (S.D. Cal. 21 2020), for the proposition that “courts ‘generally apply a 1 to 1 ratio for punitive damages 22 in calculating the amount in controversy in consumer class actions.’” Remand Opp’n at 23 10. Hawkins, in turn, supported this proposition by collecting several CAFA cases where 24 a 1:1 ratio was used, including at least one case involving causes of action identical to 25 Plaintiff’s. See Hawkins, 337 F.R.D. at 530 (citing Sloan v. 1st Am. Auto. Sales Training, 26 Case No. 2:16-cv-05341-ODW (SK), 2017 WL 1395479, at *3 (C.D. Cal. Apr. 17, 2017) 27 (alleging violation of California’s False Advertising Law, Unfair Competition Law, and 28 the Consumer Legal Remedies Act)). Hawkins itself involved causes of action identical to 19 22-CV-2038 JLS (DDL) 1 Plaintiff’s and ultimately concluded that “an award of punitive damages equal to or greater 2 than” the restitution damages sought by the plaintiff “should be included in the amount in 3 controversy.” Id. at 532. Accordingly, the Court finds that Defendant has demonstrated a 4 reasonable probability of a 1:1 award of punitive damages, such that punitive damages 5 should be included in the amount-in-controversy calculation. 6 Second, in CAFA cases, “a court must include future attorneys’ fees recoverable by 7 statute . . . when assessing whether the amount-in-controversy requirement is met.” 8 Fritsch v. Swift Transportation Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 2018). 9 “The [Consumer Legal Remedies Act] authorizes an award of attorneys’ fees to a 10 prevailing plaintiff.” Hawkins, 337 F.R.D. at 532 (citing Cal. Civ. Code § 1780(e)). 11 “[C]ourts have used a 25% multiplier to calculate attorneys’ fees.” Id. Accordingly, the 12 Court also accounts for a 25 percent multiplier for attorneys’ fees in calculating the 13 amount-in-controversy. 14 Even if the Court assumes an extremely conservative damages award of 1 percent of 15 Defendant’s California sales over the relevant period, CAFA’s amount-in-controversy 16 requirement is satisfied. According to Ms. Diesl’s declaration, Defendant’s sales in 17 California exceeded $200 million over the relevant period. The Court will assume total 18 California sales equated $200,000,001.00. 19 $2,000,000.01. Assuming a 1:1 ratio of punitive damages to compensatory damages, 20 $4,000,000.02 would be at stake. Adding 25 percent for attorneys’ fees brings the total to 21 $5,000,000.03. See Lopez v. First Student, Inc., 427 F. Supp. 3d 1230, 1238 (C.D. Cal. 22 2019) (concluding attorneys’ fees of 25 percent of “aggregate damages” was appropriately 23 included in amount-in-controversy calculation); see also Hawkins, 337 F.R.D. at 532 24 (calculating attorneys’ fees based on total damages award, including restitution and 25 punitive damages). One percent of $200,000,001.00 is 26 Plaintiff has not submitted any contrary evidence regarding the amount in 27 controversy. See Mot. to Remand. Accordingly, the Court is satisfied that Defendant has 28 /// 20 22-CV-2038 JLS (DDL) 1 met its burden of showing by a preponderance of the evidence that more than $5 million is 2 at stake in this case. 3 II. Exceptions to CAFA Jurisdiction 4 A. 5 There are two exceptions to the district court’s ability to exercise federal jurisdiction 6 over cases meeting CAFA’s removal requirements: (1) the “home-state controversy,” and 7 (2) “local controversy” exceptions. If the requirements for either of these exceptions are 8 met, a “district court shall decline to exercise jurisdiction” over the class action. 28 U.S.C. 9 § 1332 (d)(4). Legal Standard 10 The “home-state controversy” exception applies where “two-thirds or more of the 11 members of all proposed plaintiff classes in the aggregate, and the primary defendants, are 12 citizens of the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(B). 13 Additionally, under the “discretionary home-state exception,” a district court has discretion 14 to remand a case to state court when “more than one-third of the putative class, and the 15 primary defendants, are citizens of the state where the action was originally filed.” Adams 16 v. W. Marine Prod., Inc., 958 F.3d 1216, 1220 (9th Cir. 2020) (citing 28 U.S.C. 17 § 1332(d)(3)) (emphasis in original). “CAFA enunciates six factors for a district court to 18 consider in deciding whether to decline jurisdiction under this discretionary home state 19 exception.” Id. (citing 28 U.S.C. § 1332(d)(3)(A)–(F)). 20 The “local controversy” exception applies when: 21 22 23 24 25 26 27 (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 28 21 22-CV-2038 JLS (DDL) 1 (cc) who is a citizen of the State in which the action was originally filed; and 2 (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 . . . . 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 28 U.S.C. § 1332(d)(4)(A)(i). “[T]he party seeking remand bears the burden to prove an exception to CAFA’s jurisdiction.” Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1021–22 (9th Cir. 2007). “To meet this burden, the moving party must provide ‘some facts in evidence from which the district court may make findings regarding class members’ citizenship.’” Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118, 1121 (9th Cir. 2017) (quoting Mondragon v. Cap. One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013)). “A district court makes factual findings regarding jurisdiction under a preponderance of the evidence standard.” Mondragon, 736 F.3d at 884. “Although such a finding must be based on more than mere ‘guesswork,’ [the Ninth Circuit has] repeatedly cautioned that the burden of proof on a plaintiff ‘should not be exceptionally difficult to bear.’” Adams, 958 F.3d at 1221 (internal citations omitted) (quoting Mondragon, 736 F.3d at 884, 886)). B. Discussion Plaintiff argues that the home-state and local controversy exceptions apply here, as more than two-thirds of the putative class members are citizens of California. Remand Mem. at 23–26. In support of this argument, Plaintiff presents a declaration from Shelley Lapkoff (“Lapkoff Decl.,” ECF No. 7-2). Ms. Lapkoff is a demographer with 30 years of demographic research experience. Lapkoff Decl. at 2. Ms. Lapkoff attests that she was “asked by plaintiff attorneys in this case to render expert opinions concerning whether more than two-thirds of California residents are considered California citizens” and that her declaration is “based on [her] personal knowledge.” Lapkoff Decl. at 2. Her “opinions” rely “primarily on the 2020 decennial Census and the Census Bureau’s American Community Survey.” Id. at 4–5. Ultimately, Ms. Lapkoff concludes that it is “extremely 22 22-CV-2038 JLS (DDL) 1 likely that far more than two-thirds of California residents are California citizens.” Id. at 2 6. 3 While the Court has no reason to doubt the accuracy Ms. Lapkoff’s findings, they 4 are irrelevant to the present case. Plaintiff’s class definition includes California residents 5 and out-of-state residents. Accordingly, Ms. Lapkoff’s findings do not account for the 6 citizenship of a large portion of putative class members. Nor are Ms. Lapkoff’s findings 7 limited to purchasers of Defendant’s products; rather, the survey data on which she relies 8 pertains to all California residents. See id. Finally, Ms. Lapkoff’s estimates account for 9 “unauthorized immigrants” living in California. See id. at 5. As non-U.S. citizens cannot 10 be a citizen of any state, their inclusion in Ms. Lapkoff’s analysis irreparably skews her 11 results. See Kanter, 265 F.3d at 857 (“To be a citizen of a state, a natural person must first 12 be a citizen of the United States.”). 13 Ms. Lapkoff’s “opinions” based on survey data constitute the type of “guesswork” 14 on which courts may not rely in determining whether a CAFA exception applies. See 15 Adams, 958 F.3d at 1221; see also Carlos v. Easter Seals S. California Inc., No. 16 SACV1401685JVSRNBX, 2014 WL 12966422, at *6 (C.D. Cal. Dec. 23, 2014) 17 (concluding U.S. Census statistics were “not nearly specific enough to demonstrate that at 18 least two-thirds of the putative class members . . . [were] California citizens” where class 19 was not limited to California citizens). The Court acknowledges that there is a reasonable 20 probability that some of Defendant’s products were purchased by California citizens, just 21 as there is a reasonable probability that some of Defendant’s products were purchased by 22 non-California, non-Delaware citizens. There is, however, “simply no evidence in the 23 record to support a finding that the group of citizens outnumbers the group of non-citizens 24 by more than two to one.” Mondragon, 736 F.3d at 884. 25 While the burden on Plaintiff is not “exceptionally difficult to bear,” id. at 886, 26 Plaintiff has failed to provide addresses, business records, tax documents, mail, or any other 27 evidence of citizenship for a single putative class member. Consequently, Plaintiff has 28 failed to demonstrate by a preponderance of the evidence that either the home-state 23 22-CV-2038 JLS (DDL) 1 controversy or local controversy exceptions are applicable here. Plaintiff has additionally 2 failed to show that even one-third of the putative class members are California citizens; 3 therefore, the discretionary home-state controversy exception is similarly inapplicable 4 here. 5 III. Conclusion 6 Defendant has met its burden of showing by a preponderance of the evidence that 7 CAFA’s requirements for federal jurisdiction are satisfied. Plaintiff, on the other hand, has 8 offered no credible evidence that any of the exceptions to federal jurisdiction under CAFA 9 are applicable here. Therefore, the Court DENIES Plaintiff’s Motion to Remand to State 10 Court (ECF No. 7). 11 12 PLAINTIFF’S MOTION FOR JURISDICTIONAL DISCOVERY I. Legal Standard 13 A district court has “broad discretion to permit or deny [jurisdictional] 14 discovery, . . . and its decision will not be reversed except ‘upon the clearest showing that 15 denial of discovery results in actual and substantial prejudice to the complaining litigant.’” 16 Butcher’s Union Loc. No. 498, United Food & Com. Workers v. SDC Inv., Inc., 788 F.2d 17 535, 540 (9th Cir. 1986) (quoting Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557 F.2d 1280, 18 1285 n.1 (9th Cir. 1977)). “Prejudice is established if there is a reasonable probability that 19 the outcome would have been different had discovery been allowed.” Laub v. U.S. Dep’t 20 of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). 21 “Discovery should ordinarily be granted where ‘pertinent facts bearing on the 22 question of jurisdiction are controverted or where a more satisfactory showing of the facts 23 is necessary.’” Butcher’s Union Loc. No. 498, United Food & Com. Workers, 788 F.2d at 24 540 (quoting Data Disc, Inc., 557 F.2d at 1285 n.1). “[A] refusal to grant discovery to 25 establish jurisdiction is not an abuse of discretion when ‘it is clear that further discovery 26 would not demonstrate facts sufficient to constitute a basis for jurisdiction.’” Laub, 342 27 F.3d at 1093 (9th Cir. 2003) (citing Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d 28 406, 430 (9th Cir. 1977)). 24 22-CV-2038 JLS (DDL) 1 “The Senate Committee on the Judiciary made clear that jurisdictional discovery 2 under CAFA is to be limited in scope.” Rippee v. Bos. Mkt. Corp., 408 F. Supp. 2d 982, 3 985 (S.D. Cal. 2005). The Committee noted: 4 [I]n assessing the various criteria established in [CAFA’s] new jurisdictional provisions, a federal court may have to engage in some fact-finding, not unlike what is necessitated by the existing jurisdictional statutes. The Committee further understands that in some instances, limited discovery may be necessary to make these determinations. However, the Committee cautions that these jurisdictional determinations should be made largely on the basis of readily available information. Allowing substantial, burdensome discovery on jurisdictional issues would be contrary to the intent of these provisions to encourage the exercise of federal jurisdiction over class actions. 5 6 7 8 9 10 11 12 S. REP. NO. 109-14, at 44 (2005). Likewise, “jurisdictional discovery may not be allowed 13 if the request amounts to a ‘fishing expedition.’” Martindale v. MegaStar Fin. Corp., No. 14 220CV01983MCEDMC, 2022 WL 1129223, at *3 (E.D. Cal. Apr. 15, 2022); see also 15 Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008) (“The denial of [plaintiff- 16 appellant’s] request for discovery, which was based on little more than a hunch that it might 17 yield jurisdictionally relevant facts, was not an abuse of discretion.”); Angulo v. Providence 18 Health & Servs. Wash., No. C22-0915JLR, 2023 WL 2573240, at *6 (W.D. Wash. Mar. 19 17, 2023) (“Jurisdictional discovery is not permitted . . . where it would amount to a mere 20 ‘fishing expedition.’”); Van Heel v. GCA Educ. Servs., Inc., No. 2:20-CV-01505-AB-JEM, 21 2020 WL 6541989, at *4 (C.D. Cal. Sept. 30, 2020) (“[T]he Court reminds Plaintiff that 22 he cannot use discovery as a fishing expedition to find facts that may give credence to an 23 unartfully pled complaint.”). 24 II. Discussion 25 Plaintiff “seeks limited discovery to prove that the Home State Exception applies, 26 and to investigate Defendant’s unsupported assertion that the amount in controversy is 27 met.” See Discovery Mot. at 2. Specifically, Plaintiff moves for discovery to determine 28 “residency / citizenship” via “GE’s own records including, inter alia, purchase receipts, 25 22-CV-2038 JLS (DDL) 1 customer contact and address lists, and vendor records.” Id. Plaintiff notes that Defendant 2 “has already suggested it can provide certain sales information for review” in order to 3 determine the amount in controversy. Id. 4 Defendant contends that it does not regularly collect the information sought by 5 Plaintiff. Defendant argues that it “is a large, commercial farming operation that grows, 6 harvests, and sells carrots and other produce to distributors, wholesalers, and retailers,” and 7 that, with “very limited exceptions,” it generally “does not know the specific identify of 8 end consumers who have purchased its products.” Discovery Opp’n at 2. “Plaintiff’s 9 present request for jurisdictional discovery is a fishing expedition of the highest order and 10 should be summarily denied,” in Defendant’s view. Id. 11 The Court finds that Defendant has met its burden of showing that CAFA’s minimal 12 diversity and amount-in-controversy requirements for federal jurisdiction are satisfied. A 13 more satisfactory showing on these issues is not necessary. See Butcher’s Union Loc. No. 14 498, United Food & Com. Workers, 788 F.2d at 540. Accordingly, the only remaining 15 question is whether this Court should allow jurisdictional discovery to determine whether 16 an exception applies to this Court’s jurisdiction under CAFA. 17 Here, the Court finds that jurisdictional discovery related to CAFA’s exceptions to 18 federal jurisdiction is inappropriate. First, granting jurisdictional discovery here would 19 almost certainly be futile. Defendant is a produce wholesaler and generally does not collect 20 information about end consumers. Defendant has submitted evidence that, with some 21 exceptions, it lacks the type of “customer lists” or “purchase receipts” sought by Plaintiff. 22 See Declaration of Katie Diesl in Support of Defendant Grimmway Enterprises, Inc.’s 23 Opposition to Plaintiff’s Motion for Jurisdictional Discovery (“Diesl Decl. Discovery,” 24 ECF No. 17-1) ¶¶ 3–7. 5 Plaintiff’s assumption that Defendant possesses jurisdictionally 25 26 27 28 5 Plaintiff also objects to the cited portion of Ms. Diesl’s Declaration in Support of Defendant Grimmway Enterprises, Inc.’s Opposition to Plaintiff’s Motion for Jurisdictional Discovery. See ECF 21-2. The objections are made on the basis of lack of foundation, hearsay, improper opinion, and the best evidence rule. Id. The best evidence rule is simply inapplicable, as the declaration is not a copy of an original document. United States v. Diaz-Lopez, 625 F.3d 1198, 1201 (9th Cir. 2010). Moreover, the hearsay 26 22-CV-2038 JLS (DDL) 1 relevant facts, on the other hand, is “based on little more than a hunch.” Boschetto, 539 2 F.3d at 1020. Moreover, Plaintiff’s proposed discovery requests largely focus on contact 3 information for “California purchasers.” See Discovery Mot. at 5. As has been established, 4 however, Plaintiff’s putative class definition captures consumers nationwide. Supra pp. 5 15–17. Limiting discovery requests to “California purchasers” would necessarily exclude 6 information pertaining to a significant portion of the proposed class. 7 Even if Defendant regularly collected such information, Plaintiff has not explained 8 how consumer contact information—such as addresses and phone numbers—could 9 establish the citizenship of putative class members. Citizenship is established by a person’s 10 domicile, and “[a] person’s domicile is her permanent home, where she resides with the 11 intention to remain or to which she intends to return.” Kanter v. Warner-Lambert Co., 265 12 F.3d 853, 857 (9th Cir. 2001). A residential address, therefore, is generally insufficient to 13 show domicile, as it usually is not evidence of a person’s intention to remain or return. 14 King v. Great Am. Chicken Corp, Inc., 903 F.3d 875, 879 (9th Cir. 2018) (“A person’s state 15 of citizenship is established by domicile, not simply residence, and a residential address in 16 California does not guarantee that the person’s legal domicile was in California.”). And in 17 this era of mobile phones, the area code of a person’s cellular telephone number, unlike a 18 landline, need not, and often does not, match the area code of their residence—which, 19 again, is a distinct inquiry from domicile, anyway. 20 Defendant has obtained selections of consumer contact information through inquiries and 21 product feedback, but such information does not necessarily imply that the communicant 22 purchased Defendant’s products, nor would it offer sufficient evidence to establish The Court acknowledges that 23 24 25 26 27 28 objection is meritless, as no out-of-court statements are being admitted for their truth. See Fed. R. Evid. 802. Next, the improper opinion objection is similarly inapposite, as Ms. Diesl is not providing an opinion in her declaration; she is attesting to factual matters. See Fed. R. Evid. 701. Finally, the Court has already inferred on the basis of Ms. Diesl’s job title that she possesses personal knowledge of the facts to which she has attested. Supra p. 16 n.5. Accordingly, Plaintiff’s objections to this portion of Ms. Diesl’s declaration are OVERRULED. To the extent the Court does not rely on evidence to which an evidentiary objection was raised, the Court OVERRULES the objections as moot. 27 22-CV-2038 JLS (DDL) 1 citizenship. Likewise, Plaintiff’s request for the “contact information of all entrants to the 2 ‘Grimmway Farms Social Giveaway’” likely could not establish citizenship or that the 3 entrant purchased Defendant’s products within the relevant timeframe. Defendant notes 4 that in 2021 it managed a third-party call center that collected consumer contact 5 information in relation to a product recall. See Diesl Decl. Discovery ¶ 4. The call center, 6 however, collected less than 800 responses. Id. Even if the Court were to assume that the 7 contact information collected by the call center constituted sufficient proof to establish 8 citizenship (which it does not), such a minute sampling would be weak evidence of the 9 composition of a nationwide class of tens of thousands of putative members who purchased 10 Defendant’s products over a period of four years. 11 Second, the discovery sought by Plaintiff appears to be exactly the type of 12 jurisdictional discovery that Congress hoped to avoid with CAFA. The Senate Committee 13 on the Judiciary explicitly stated that “it would in most cases be improper for the named 14 plaintiffs to request that the defendant produce a list of all class members . . . , in many 15 instances a massive, burdensome undertaking that will not be necessary unless a proposed 16 class is certified.” S. REP. NO. 109-14, at 44 (2005). The Committee also “caution[ed] 17 that . . . jurisdictional determinations should be made largely on the basis of readily 18 available information.” Id. Plaintiff has failed to convince the Court that this case presents 19 unique circumstances such that the Court should disregard Congress’s stated intent to 20 encourage federal jurisdiction under CAFA and spare defendants the burden of producing 21 information for large groups of putative class members. 22 Finally, Plaintiff has failed to establish that a denial of jurisdictional discovery will 23 result in prejudice. Plaintiff does not argue, nor does she provide any evidence, that there 24 is a reasonable probability that jurisdictional discovery would result in the production of 25 facts establishing that two-thirds of the putative class are California citizens. Here, 26 granting jurisdictional discovery would likely have no effect on this Court’s exercise of 27 jurisdiction, as it would produce few, if any, jurisdictionally relevant facts. 28 /// 28 22-CV-2038 JLS (DDL) 1 III. Conclusion 2 Plaintiff’s proposed discovery would not yield jurisdictionally relevant information 3 and would conflict with congressional intent. Consequently, the Court DENIES Plaintiff’s 4 Motion for Jurisdictional Discovery (ECF No. 8-1). 5 CONCLUSION 6 In light of the foregoing, the Court DENIES Plaintiff’s Motion for Leave to Amend 7 the Operative Complaint (ECF No. 9), DENIES Plaintiff’s Motion to Remand to State 8 Court (ECF No. 7), and DENIES Plaintiff’s Motion for Jurisdictional Discovery (ECF No. 9 8-1). 10 11 IT IS SO ORDERED. Dated: May 9, 2023 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 22-CV-2038 JLS (DDL)

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