Case 3:20-cv-12365-BRM-TJB Document 27 Filed 11/23/20 Page 1 of 32 PageID: 745
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`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
`
`ANIBAL MEJIAS, DENNIS MINTER,
`JERRY FULLER, and JOSE PENA, on
`behalf of themselves and those similarly
`situated,
`
`
`Plaintiffs,
`
`
` v.
`
`GOYA FOODS, INC., ROBERT I.
`UNANUE, FRANCISCO R. UNANUE,
`JOSEPH PEREZ, PETER UNANUE,
`DAVID KINKELA, REBECCA
`RODRIGUEZ, CARLOS G. ORTIZ,
`MIGUEL A LUGO, JR., CONRAD
`COLON, JOHN DOES 1 - 10 (said
`names being fictitious, real names
`unknown), ABC COMPANIES 1 - 10
`(said names being fictitious, real names
`unknown),
`
`
`Defendants.
`
`
`No. 3:20-cv-12365-BRM-TJB
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`DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION TO REMAND
`THIS MATTER TO THE SUPERIOR COURT OF NEW JERSEY
`
`
`Ryan T. Warden
`Kevin P. Hishta (pro hac vice)
`Margaret Santen (pro hac vice)
`OGLETREE, DEAKINS, NASH,
`SMOAK & STEWART, P.C.
`10 Madison Avenue, Suite 400
`Morristown, New Jersey 07960
`Tel: (973) 656-1600
`Fax: (973) 656-1611
`Email: ryan.warden@ogletree.com
`
`Attorneys for Defendants
`
`
`
`

`

`Case 3:20-cv-12365-BRM-TJB Document 27 Filed 11/23/20 Page 2 of 32 PageID: 746
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`
`
`TABLE OF CONTENTS
`
`
`
`INTRODUCTION ........................................................................................1
`
`STATEMENT OF FACTS.............................................................................3
`
`I.
`
`Procedural background ..........................................................................3
`
`II.
`
`The first amended complaint .................................................................4
`
`III. The proposed second amended complaint ...............................................6
`
`IV. The data that Plaintiffs rely on to support remand.....................................7
`
`V. Defendants satisfy the CAFA jurisdictional requirements under both the
`first amended complaint and proposed second amended complaint. ............8
`
`LEGAL STANDARD ...................................................................................9
`
`ARGUMENT ............................................................................................. 11
`
`I.
`
`II.
`
`Plaintiffs improperly rely on the proposed second amended complaint
`and do not even attempt to meet their burden to show that remand is
`proper under the first amended complaint, the operative pleading at the
`time of removal. ................................................................................ 11
`
`Even if the Court considers the proposed second amended complaint,
`Plaintiffs have not met their burden to show that a sufficient percentage
`of putative class members are “citizens” of New Jersey to satisfy either
`of the CAFA exceptions they rely on. ................................................... 17
`
`III. Plaintiffs have not even attempted to satisfy their burden regarding the
`discretionary exception and should not be allowed to rely on it. .............. 23
`
`IV. Regardless of which complaint the Court considers, Defendants satisfy
`the CAFA jurisdictional requirements. .................................................. 26
`
`CONCLUSION .......................................................................................... 27
`
`
`
`
`
`
`
`i
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`

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`Case 3:20-cv-12365-BRM-TJB Document 27 Filed 11/23/20 Page 3 of 32 PageID: 747
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`
`
`Cases
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Adesanya v. Novartis Pharm. Corp.,
`2017 WL 3584204 (D.N.J. Aug. 18, 2017) ........................................... 25, 26
`
`Broadway Grill, Inc. v. Visa Inc.,
`856 F.3d 1274 (9th Cir. 2017) .................................................. 14, 15, 16, 17
`
`Castro v. Linden Bulk Transportation LLC,
`2020 WL 2573288 (D.N.J. Apr. 20, 2020) ............................................ 14, 15
`
`Coba v. Ford Motor Co.,
`932 F.3d 114 (3d Cir. 2019)..................................................................... 16
`
`Dart Cherokee Basin Operating Co., LLC v. Owens,
`574 U.S. 81 (2014) ............................................................................ 10, 11
`
`Ellithy v. Healthcare Training Inst., Inc.,
`2013 WL 3480206 (D.N.J. June 21, 2013) .......................................... passim
`
`Hall v. Welch Foods, Inc.,
`2017 WL 4422418 (D.N.J. Oct. 5, 2017) ........................................ 12, 13, 14
`
`Jones v. EEG, INC.,
`2016 WL 1572901 (E.D. Pa. Apr. 18, 2016) ......................................... 19, 22
`
`Kaufman v. Allstate New Jersey Insurance Co.,
`561 F.3d 144 (3d Cir. 2009).......................................................... 13, 15, 16
`
`Krasnov v. Dinan,
`465 F.2d 1298 (3d Cir. 1972) .............................................................. 18, 19
`
`McCann v. George W. Newman Irrevocable Trust,
`458 F.3d 281 (3d Cir. 2006)................................................................ 18, 19
`
`Nop v. Am. Water Res., Inc.,
`2016 WL 4890412 (D.N.J. Sept. 14, 2016) ......................................... passim
`
`Padro v. Shakir,
`2018 WL 2172926 (D.N.J. May 9, 2018)................................................... 25
`
`
`
`ii
`
`

`

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`
`
`
`Portillo v. Nat’l Freight, Inc.,
`169 F. Supp. 3d 585 (D.N.J. 2016) ...................................................... 10, 11
`
`Roberts v. Tribeca Auto., Inc.,
`2019 WL 522127 (D.N.J. Feb. 11, 2019) .............................................. 24, 25
`
`Romano v. Northrop Grumman Corp.,
`2017 WL 6459458 (E.D.N.Y. Dec. 15, 2017)............................................. 15
`
`Schwartz v. Comcast Corp.,
`2005 WL 1799414 (E.D. Pa. July 28, 2005) ............................................... 14
`
`Schwartz v. Comcast Corp.,
`2006 WL 487915 (E.D. Pa. Feb. 28, 2006) ................................................ 19
`
`Stephens v. Gentilello,
`853 F. Supp. 2d 462 (D.N.J. 2012) ........................................................... 11
`
`Vodenichar v. Halcon Energy Props., Inc.,
`733 F.3d 497 (3d Cir. 2013)..................................................................... 10
`
`Winkworth v. Spectrum Brands, Inc.,
`2019 WL 5310121 (W.D. Pa. Oct. 21, 2019).............................................. 11
`
`Statutes
`
`28 U.S.C. § 1332(d)(3) ........................................................................... 23, 24
`
`28 U.S.C. §§ 1332(d)(4)(A), (B) .............................................................. 10, 23
`
`28 U.S.C. § 1332(d)(7) ................................................................................ 20
`
`Md. Code Ann., Lab. & Empl. § 3-501 ............................................................ 5
`
`N.J.S.A. 2C:41-1 ...................................................................................... 5, 6
`
`N.J.S.A. 34:11-4.1 .................................................................................... 5, 6
`
`N.J.S.A. 34:11-56a.................................................................................... 5, 6
`
`43 P.S. § 260.1 ............................................................................................. 5
`
`S.C. Code. § 41-10-10 ............................................................................... 5, 6
`
`
`
`iii
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`

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`
`
`Other Authorities
`
`S. Rep. No. 14, 109th Cong. 1st Sess.,
`2005 WL 627977 (Feb. 28, 2005). ....................................................... 15, 16
`
`
`
`
`
`
`iv
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`

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`
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`INTRODUCTION
`
`Defendants removed this case under CAFA based on the damages analysis in
`
`Plaintiffs’ mediation statement and the allegations in Plaintiffs’ first amended
`
`complaint (“FAC”). Now, in an effort to divest the Court of jurisdiction, Plaintiffs
`
`have requested leave to file their proposed second amended complaint (“PSAC”).
`
`The PSAC substantially differs from the FAC. Most importantly, the PSAC alleges
`
`two classes consisting solely of drivers who worked in New Jersey, whereas the FAC
`
`alleges two nationwide classes and a variety of alternate state-specific classes
`
`(including for drivers who worked in New Jersey, Pennsylvania, Maryland, and
`
`South Carolina). Based on the new class definitions in the PSAC, Plaintiffs move to
`
`remand this action to state court.
`
`
`
`According to Plaintiffs, they satisfy both the home-state and local-controversy
`
`CAFA exceptions.1 The party seeking to invoke an exception bears the burden of
`
`proving by a preponderance of the evidence that the exception applies. As such,
`
`Plaintiffs have the burden to show, among other things, that at least two-thirds of the
`
`members of the proposed classes in the aggregate are “citizens” of New Jersey.
`
`
`1 As discussed below, Plaintiffs briefly refer in a footnote to the discretionary
`exception. But Plaintiffs have not even mentioned, much less discussed, the various
`factors that must be considered to determine whether that exception applies. They
`also expressly represent—in several places in their brief—that they are moving
`under only the home-state and local-controversy exceptions.
`
`1
`
`

`

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`
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`Plaintiffs do not come close to meeting their burden, and the Court should deny their
`
`motion and retain jurisdiction for several reasons.
`
`
`
`First, Plaintiffs rely on the wrong complaint. The law is clear: whether remand
`
`is proper must be ascertained on the basis of the pleadings at the time of removal.
`
`Thus, the Court should base its determination on the FAC, not the PSAC. Any other
`
`rule would allow the post-removal manipulation of jurisdiction, which is precisely
`
`what Plaintiffs are attempting to do here.
`
`
`
`Second, even if the Court considers the PSAC, Plaintiffs have still failed to
`
`satisfy their burden because they rely on residency data that Defendants produced in
`
`preparation for the parties’ mediation to satisfy the citizenship requirements under
`
`the home-state and local-controversy exceptions. The problem for Plaintiffs is that
`
`residency is not a proxy for citizenship. As numerous courts have held, citizenship
`
`is synonymous with domicile, which is proven by residency coupled with a finding
`
`of intent to remain indefinitely. Both elements must be satisfied. But Plaintiffs have
`
`presented no evidence of putative class members’ intent to stay in their state of
`
`residence.
`
`What is more, even if residency did establish citizenship, Plaintiffs would still
`
`not satisfy their burden because the evidence they rely on is from the wrong
`
`timeframe. Specifically, the residency records that Plaintiffs cite contain only last-
`
`
`
`2
`
`

`

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`
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`known addresses and there is no current residency information for the significant
`
`number of putative class members who are former drivers.
`
`Finally, though Plaintiffs do not contend otherwise, Defendants satisfy the
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`threshold CAFA jurisdictional requirements under either the FAC or PSAC.
`
`STATEMENT OF FACTS
`
`
`I.
`
`
`Procedural background
`
`On July 18, 2019, Mejias filed this action in state court. (Notice of Removal
`
`(“NOR”) ¶ 1.) The following month, Defendants moved to dismiss. (Id. ¶ 5.) In
`
`October, the court partially granted Defendants’ motion, after which they answered
`
`the complaint. (Id. ¶¶ 7, 8.) Five months later, in March 2020, the court issued an
`
`order referring the case to mediation. (Id. ¶ 17.) On May 11, after requesting leave
`
`to amend, Plaintiffs filed the FAC. (Id. ¶ 9.) Around the same time, the parties
`
`stipulated to stay the case pending mediation. (Id. ¶ 17.) They attended mediation in
`
`August, but did not settle their dispute. (Id. ¶ 19.) On September 3, the stay was
`
`lifted. (Id. ¶ 20.)
`
`The next day, on September 4, Goya Foods, Inc. (“GFI”) removed this action
`
`under CAFA based on the damages analysis that Plaintiffs provided in their
`
`mediation statement and the allegations in the FAC. (Id. ¶¶ 31-39.) On September
`
`25, Defendants answered the FAC. On October 6, Defendants filed a motion for
`
`judgment on the pleadings with regard to most of the causes of action in the FAC.
`
`
`
`3
`
`

`

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`
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`On October 27, over seven weeks after removal, Plaintiffs moved for leave to file
`
`the PSAC and to remand this action to state court based on the allegations in that
`
`complaint.
`
`II. The first amended complaint
`
`The FAC includes four named Plaintiffs: it alleges that Mejias resides in
`
`Pennsylvania and formerly contracted with GFI to deliver its food products in South
`
`Carolina; Dennis Minter resides in New Jersey and formerly contracted with GFI to
`
`deliver its food products in that state; Jerry Fuller resides in New Jersey and formerly
`
`contracted with GFI to deliver its food products in that state, Pennsylvania,
`
`Maryland, and Delaware; and Jose Pena resides in New Jersey and formerly
`
`contracted with GFI to deliver its food products in that state, Maryland, and
`
`Delaware. (Id. ¶¶ 10, 11.)
`
`Plaintiffs bring their claims against GFI, which has its principal place of
`
`business in New Jersey, and nine individual officer Defendants. (Id. ¶ 12.)
`
`Plaintiffs assert two putative nationwide classes: (i) a wage deduction class
`
`that includes independent-contractor drivers across the U.S. between July 18, 2013,
`
`and the present; and (ii) an overtime class that includes independent-contractor
`
`drivers across the U.S. between July 18, 2017, and the present. (Id. ¶ 14.)
`
`In the alternative, Plaintiffs allege several putative state-specific classes:
`
`
`
`4
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`

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`
` a New Jersey wage deduction class that includes independent-contractor
`drivers who performed work in that state between July 18, 2013, and the
`present;
` a New Jersey overtime class that includes independent-contractor drivers
`who performed work in that state between July 18, 2017, and the present;
` a Pennsylvania wage deduction class that includes independent-contractor
`drivers who performed work in that state between July 18, 2016, and the
`present;
` a Maryland wage deduction class that includes independent-contractor
`drivers who performed work in that state between July 18, 2016, and the
`present; and
` a South Carolina wage deduction class that includes independent-
`contractor drivers who performed work in that state between July 18, 2016,
`and the present.
`
`
`(Id. ¶ 15.)
`
`Plaintiffs assert the following causes of action:
`
` violation of the New Jersey Wage Payment Law (“NJWPL”), N.J.S.A.
`34:11-4.1, et seq. (on behalf of the nationwide and the alternate New Jersey
`wage deduction classes);
` breach of contract (on behalf of all classes);
` violation of New Jersey’s RICO Act (“NJRICO”), N.J.S.A. 2C:41-1, et
`seq. (on behalf of the nationwide wage deduction class);
` violation of the New Jersey Wage and Hour Law (“NJWHL”), N.J.S.A.
`34:11-56a, et seq. (on behalf of the nationwide and the alternate New
`Jersey overtime classes);
` violation of the Pennsylvania Wage Payment and Collection Law, 43 P.S.
`§ 260.1, et seq. (on behalf of the alternate Pennsylvania wage deduction
`class);
` violation of the Maryland Wage Payment and Collection Law, Md. Code
`Ann., Lab. & Empl. § 3-501, et seq. (on behalf of the alternate Maryland
`wage deduction class); and
` violation of the South Carolina Payment of Wages Act, S.C. Code. § 41-
`10-10, et seq. (“SCPWA”) (on behalf of the alternate South Carolina wage
`deduction class).
`
`
`(Id. ¶ 16.)
`
`
`
`5
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`

`

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`III. The proposed second amended complaint
`
`
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`The PSAC is brought on behalf of the same four named Plaintiffs. (PSAC
`
`¶¶ 4-7.) The only difference is that it alleges that Mejias resides in New Jersey. (Id.
`
`¶ 4.) Plaintiffs also drop the individual Defendants and bring their claims against
`
`only GFI. (Id. ¶ 10.)
`
`
`
`Plaintiffs allege two state-specific putative classes, with Minter, Fuller, and
`
`Pena serving as class representatives: (i) a New Jersey wage deduction class that
`
`includes independent-contractor drivers who performed work in that state between
`
`July 18, 2013, and the present; and (ii) a New Jersey overtime class that includes
`
`independent-contractor drivers who performed work in that state between July 18,
`
`2017, and the present. (Id. ¶¶ 14, 15.)
`
`
`
`Plaintiffs assert two class claims: (i) violation of the NJWPL (on behalf of the
`
`New Jersey wage deduction class); and (ii) violation of the NJWHL (on behalf of
`
`the New Jersey overtime class). (Id. ¶¶ 72-89.) Mejias alleges the same two claims
`
`on an individual basis. (Id. ¶¶ 90-109.) In the alternative, Mejias alleges an
`
`individual claim under the SCPWA. (Id. ¶¶ 110-119.2)
`
`
`
`
`
`
`
`2 In the PSAC, Plaintiffs dropped the other claims asserted in the FAC, including
`breach of contract, NJRICO, and those alleged on behalf of the alternative state law
`subclasses.
`
`
`
`6
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`

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`
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`IV. The data that Plaintiffs rely on to support remand
`
`
`
`In preparation for mediation, GFI produced the location by state of the
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`warehouses that putative members of the nationwide wage deduction class in the
`
`FAC utilized and the location by city and state of where they resided. (Declaration
`
`of Marie Reed ¶¶ 3, 4.) The residence information produced contained last-known
`
`(not current) addresses. (Id. ¶ 5.) For example, if a putative class member delivered
`
`products for GFI from 2013 to 2015, the address on file at GFI would be where that
`
`driver lived in 2015. (Id.) GFI’s records do not reflect where former drivers currently
`
`reside, which is important because the nationwide wage deduction class in the FAC
`
`includes 119 former drivers and the New Jersey wage deduction class in the PSAC
`
`includes 62 former drivers. (Id. ¶¶ 6, 7.)
`
`GFI’s records also do not reflect whether drivers intend to remain indefinitely
`
`in their state of residence or otherwise identify their citizenship. (Id. ¶¶ 8, 9.) What
`
`is more, GFI’s records do not reflect whether drivers have residences in multiple
`
`states, where they pay taxes, where they register their automobiles, where they
`
`register to vote, where they have bank accounts, or where they own real and personal
`
`property. (Id. ¶ 10.)
`
`
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`
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`
`
`
`
`7
`
`

`

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`V. Defendants satisfy the CAFA jurisdictional requirements under both the
`first amended complaint and proposed second amended complaint.
`
`CAFA requires that the parties are minimally diverse, the proposed classes
`
`collectively have at least 100 members, and the matter in controversy exceeds $5
`
`million.
`
`As detailed in the NOR, based on Plaintiffs’ damages analysis and the
`
`allegations in the FAC, GFI satisfied the CAFA jurisdictional requirements by
`
`showing that (i) Mejias is not a citizen of New Jersey (Plaintiffs allege no connection
`
`between Mejias and New Jersey and instead assert that he lives in Pennsylvania and
`
`delivered products in South Carolina3), whereas GFI is a citizen of New Jersey; (ii)
`
`the putative nationwide wage deduction class consists of 276 members; and (iii) the
`
`amount in aggregate damages sought exceeds $5 million. (NOR ¶¶ 21-33.)
`
`
`
`Defendants also satisfy the CAFA jurisdictional requirements under the
`
`PSAC. In the PSAC, Plaintiffs now allege that Mejias resides in New Jersey. (PSAC
`
`¶ 4.) It is unclear when Mejias moved to New Jersey or whether he is a citizen of
`
`that state. Regardless, there are numerous putative class members who are not
`
`citizens of New Jersey. For example, Hector Montijo currently delivers products for
`
`GFI and has utilized GFI’s Jersey City, New Jersey warehouse for the past 19 years.
`
`
`3 Based on the allegations in the FAC, it is impossible to discern Mejias’ state of
`citizenship, only that it is likely he is not a citizen of New Jersey. Regardless,
`Plaintiffs have not challenged this assertion.
`
`
`
`8
`
`

`

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`(Declaration of Hector Montijo ¶ 2.) But he attests that he is a citizen of New York.
`
`(Id. ¶ 3.) He owns an apartment in The Bronx. (Id. ¶ 4.) He has lived in New York
`
`since 1979; it is his permanent home and he intends to remain there indefinitely. (Id.
`
`¶ 5.) He is registered to vote in New York, has a New York driver’s license, pays
`
`taxes in New York, registers three vehicles in New York, has a bank account in New
`
`York, and owns real and personal property in New York. (Id. ¶ 6.) He does not do
`
`any of these things in any other state. (Id. See also Declaration of Ulysses Rios,
`
`which contains similar testimony).)
`
`
`
`In addition, there are at least 137 putative class members under the revised
`
`definitions in the PSAC. (NOR ¶ 24.)
`
`Finally, even considering the revised claims and class definitions in the PSAC,
`
`the damages sought still far exceed $5 million based on the analysis in Plaintiffs’
`
`mediation statement. (Declaration of Margaret Santen (“Santen Decl.”) ¶¶ 3-5.4)
`
`
`
`LEGAL STANDARD
`
`“As the parties removing the case, Defendants have the burden to prove that
`
`federal court jurisdiction is proper at all stages of litigation.” Nop v. Am. Water Res.,
`
`Inc., 2016 WL 4890412, at *2 (D.N.J. Sept. 14, 2016). To satisfy their burden under
`
`CAFA, Defendants must show that “the proposed class has at least 100 members,
`
`
`4 If necessary, Defendants will provide Plaintiffs’ mediation statement, including
`their damages analysis, to the Court for in-camera review.
`
`
`
`9
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`

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`
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`the parties are minimally diverse, and the matter in controversy exceeds the sum or
`
`value of $5 million.” Id. (quotation marks omitted).
`
`On the other hand, “[t]he party seeking to invoke an exception bears the
`
`burden of proving by a preponderance of the evidence that the exception applies.”
`
`Id. (quoting Vodenichar v. Halcon Energy Props., Inc., 733 F.3d 497, 503 (3d Cir.
`
`2013)). See also Ellithy v. Healthcare Training Inst., Inc., 2013 WL 3480206, at *3
`
`(D.N.J. June 21, 2013) (“Importantly, the party seeking to remand the suit back to
`
`state court bears the burden of meeting the . . . exception requirements.”).
`
`Plaintiffs rely on the home-state and local-controversy CAFA exceptions. (Pl.
`
`Br. 14-18.) “The home-state exception requires a district court to decline jurisdiction
`
`where ‘two-thirds or more of the members of the proposed plaintiff classes in the
`
`aggregate, and the primary defendants, are citizens of the State in which the action
`
`was originally filed.’” Nop, 2016 WL 4890412, at *2 (quoting 28 U.S.C.
`
`§ 1332(d)(4)(B)) (emphasis added). The local-controversy exception requires a
`
`district court to remand a class action if, among other things, “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[.]” Id. (quoting 28 U.S.C.
`
`§ 1332(d)(4)(A)) (emphasis added).
`
`“[T]he language of CAFA favors federal jurisdiction over class actions,” and
`
`“[f]or that reason (and unlike non-CAFA removal situations), ‘no antiremoval
`
`
`
`10
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`

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`presumption attends cases invoking CAFA, which Congress enacted to facilitate
`
`adjudication of certain class actions in federal court.’” Portillo v. Nat’l Freight, Inc.,
`
`169 F. Supp. 3d 585, 592 n.9 (D.N.J. 2016) (quoting Dart Cherokee Basin Operating
`
`Co., LLC v. Owens, 574 U.S. 81, 89 (2014)).5
`
`ARGUMENT
`
`
`I.
`
`
`
`
`Plaintiffs improperly rely on the proposed second amended complaint
`and do not even attempt to meet their burden to show that remand is
`proper under the first amended complaint, the operative pleading at the
`time of removal.
`
`The PSAC differs from the FAC in several material respects. Most
`
`significantly, the PSAC asserts two state-specific classes consisting solely of drivers
`
`who performed work in New Jersey, whereas the FAC alleges two nationwide
`
`classes and a variety of alternate state-specific classes (including for drivers who
`
`worked in New Jersey, Pennsylvania, Maryland, and South Carolina). Under the
`
`home-state and local-controversy CAFA exceptions, Plaintiffs “bear[] the burden of
`
`supplying evidence that two-thirds [or more] of the putative class members are New
`
`
`5 This directly contradicts Plaintiffs’ assertion based on Stephens v. Gentilello, 853
`F. Supp. 2d 462, 464, 465 (D.N.J. 2012), a case removed under the SLUSA (not
`CAFA), that all doubts should be resolved in favor of remand. (Pl. Br. 16.) See also
`Winkworth v. Spectrum Brands, Inc., 2019 WL 5310121, at *2 (W.D. Pa. Oct. 21,
`2019) (“Removal statutes are to be strictly construed, with all doubts to be resolved
`in favor of remand. However, ‘no antiremoval presumption attends cases
`invoking CAFA[.]’”) (quoting Dart Cherokee, 574 U.S. at 89) (other quotation
`marks and citations omitted).
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`Jersey citizens in order for remand to be mandatory.” Nop, 2016 WL 4890412, at *3
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`(quotation marks omitted). They improperly attempt to meet that burden under the
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`class definitions in the PSAC rather than the FAC, which was the operative
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`complaint at the time of removal (and is still the operative complaint until the Court
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`grants Plaintiffs leave to amend).
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`
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`For example, in Hall v. Welch Foods, Inc., defendants removed the case under
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`CAFA. 2017 WL 4422418, at *2 (D.N.J. Oct. 5, 2017). Plaintiff then filed an
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`amended complaint. Id. “In an effort to divest th[e] [c]ourt of jurisdiction under
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`CAFA, the amended complaint altered the definition of the putative class from ‘all
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`persons in New Jersey who purchased [d]efendants’ [p]roducts during the [c]lass
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`[p]eriod’ to ‘all citizens of New Jersey who purchased [d]efendants’ [p]roducts in
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`New Jersey during the [c]lass [p]eriod.’” Id. After amending, plaintiff moved for
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`remand. Id.
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`
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`In evaluating plaintiff’s motion, the court noted that “[t]h[e] question of who
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`is in the class must be answered before conducting the substantive inquiry—what is
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`their citizenship—required by the mandatory home[-]state exception.” Id. at *4.
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`“Plaintiff argue[d] the class members’ citizenship should be based on her [a]mended
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`[c]omplaint, filed post-removal, which altered the makeup of the class from ‘persons
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`in New Jersey’ to ‘citizens of New Jersey.’” Id.6 “Defendants counter[ed] that a
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`complaint amended after removal which changes the nature or scope of the class
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`should have no bearing on the jurisdictional question.” Id. Instead, “the operative
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`complaint at the time of removal (the original [c]omplaint) and [d]efendants’ moving
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`papers govern.” Id.
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`
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`After surveying the law, including that “[c]ourts in the Third Circuit agree”
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`with “[o]ther circuits [that] increasingly trend toward [applying] the traditional time-
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`of-filing rule in the CAFA context[,]” the court sided with defendant. Id.
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`“Accordingly, the [c]ourt [did] not consider the [a]mended [c]omplaint’s proposed
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`class definition” and held that “[t]he operative complaint at the time of removal
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`6 Plaintiff relied on Kaufman v. Allstate New Jersey Insurance Co., 561 F.3d 144 (3d
`Cir. 2009), to support her argument. In that case, plaintiffs filed a class action in state
`court, defendants removed under CAFA, and plaintiffs then voluntarily dismissed
`three New Jersey defendants, leaving Allstate NJ, GEICO, and Liberty in the action.
`Id. at 150. Only Allstate NJ was a citizen of New Jersey. Id. Plaintiffs moved to
`remand, and the district court granted their motion under the local-controversy
`exception. Id. at 152. In its analysis, the district court considered the three dismissed
`defendants. Id. On appeal, the Third Circuit held that the district court erred in that
`regard because the local-controversy exception requires consideration of the
`defendants remaining in the action. Id. at 152, 153. This is a very limited exception
`to the “long-standing rule” that “federal diversity jurisdiction is generally
`determined based on the circumstances prevailing at the time the suit was filed.” Id.
`at 152. The court in Hall rejected plaintiff’s attempted invocation of this exception
`because “Kaufman does not speak directly to the issue before the [c]ourt: whether a
`district court may consider a complaint amended post-removal which alters the
`definition or makeup of the class itself.” 2017 WL 4422418, at *4.
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`defined the class as ‘persons in New Jersey,’ and that definition govern[ed] the
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`applicability of the home[-]state exception.” Id.
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`
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`Similarly, plaintiff in Schwartz v. Comcast Corp. amended his complaint after
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`removal “to allege that [he] and all class members are citizens of Pennsylvania[.]”
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`2005 WL 1799414, at *1 (E.D. Pa. July 28, 2005). He then “argue[d] in his motion
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`to remand that CAFA excludes federal jurisdiction over th[e] case because the class
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`definition in his amended complaint falls within both the ‘home[-]state[-]
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`controversy’ and the ‘local[-]controversy’ exceptions.” Id. at *2. Defendant
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`“argue[d] that [plaintiff] cannot rest upon the allegations of an amended complaint
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`after [defendant] has filed its notice of removal.” Id. at *3. The court “agree[d]” with
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`defendant:
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`Generally speaking, the nature of plaintiff’s claim must be evaluated,
`and the propriety of remand decided, on the basis of the record as it
`stands at the time the petition for removal is filed. I will therefore base
`my determination about subject matter jurisdiction after removal on the
`plaintiff’s complaint as it existed at the time that the defendant filed the
`removal petition. In other words, I will determine whether federal
`subject matter jurisdiction exists in this case according to the
`allegations set forth in [plaintiff’s] original complaint.
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`Id. (quotation marks and citations omitted).
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`
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`Hall and Schwartz are par for the course.7 Indeed, “the circuits have
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`unanimously and repeatedly held that whether remand is proper must be ascertained
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`7 In Castro v. Linden Bulk Transportation LLC, cited by Plaintiffs (Pl. Br. 16), the
`court consulted an amended complaint filed after the case was removed when
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`on the basis of the pleadings at the time of removal[,]” which “seems firmly to
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`establish that [P]laintiffs’ attempts to amend [their] complaint after removal to
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`eliminate federal jurisdiction are doomed to failure.” Broadway Grill, Inc. v. Visa
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`Inc., 856 F.3d 1274, 1277 (9th Cir. 2017) (emphasis added). See also id. at 1278
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`(noting that “[w]e have not found any other circuit decisions permitting post-
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`removal amendment of the complaint to affect the existence of federal jurisdiction
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`and certainly none permitting alteration of the makeup of the class”) (citing decisions
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`from the Second, Seventh, Eighth, and Tenth Circuits); Romano v. Northrop
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`Grumman Corp., 2017 WL 6459458, at *4 (E.D.N.Y. Dec. 15, 2017) (“[T]he vast
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`majority of courts who have addressed the issue have held that if removal was
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`proper, post-removal amendments do not destroy subject matter jurisdiction under
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`CAFA.”) (citing decisions from the Second, Fifth, Seventh, Eighth, an