David Ehrman v. Cox Communications, Inc.
932 F.3d 1223
9th Cir.2019Background
- Plaintiff David Ehrman filed a putative California class action against Cox alleging unlawful practices in advertising/sale of residential internet services on behalf of California subscribers.
- Cox removed under the Class Action Fairness Act (CAFA), alleging more than 100 class members, amount in controversy over $5,000,000, and minimal diversity because Cox is a citizen of Delaware and Georgia while Ehrman and putative class members are citizens of California (alleged on information and belief).
- Ehrman moved to remand, arguing Cox’s notice relied improperly on residency and allegations "on information and belief," and so failed to plead minimal diversity.
- The district court granted remand, finding Cox’s citizenship allegations insufficient and requiring evidentiary support.
- Cox appealed; the Ninth Circuit reviewed de novo whether the notice of removal satisfied CAFA pleading standards and whether evidence was required when the plaintiff’s challenge was facial only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of CAFA minimal-diversity pleading | Cox’s notice is inadequate because it relies on residency and "information and belief" rather than proof of domicile | A short and plain statement alleging citizenship "on information and belief" satisfies §1446(a) pleading requirements | Removing defendant’s allegation of citizenship based on information and belief is sufficient absent a factual challenge |
| Need for evidence when remand challenged facially | Ehrman: defendant must support jurisdictional allegations with evidence even on a facial attack | Cox: evidence not required where plaintiff does not contest truth of allegations | If the plaintiff brings a facial challenge (accepting allegations as true), defendant need not produce evidence; district court erred in requiring it |
| Role of residency allegations in proving domicile | Residency allegations alone do not equal domicile; residency is not prima facie proof of citizenship | Cox: it alleged citizenship (domicile) expressly, not merely residency | Court did not decide whether residency is prima facie evidence of domicile because Cox alleged citizenship directly and plaintiff did not contest it |
| Scope of district court authority to sua sponte question jurisdiction under CAFA | Plaintiff: court may scrutinize and require proof of removability | Cox: courts should not sua sponte demand evidence when allegations unchallenged; CAFA disfavors antiremoval presumption | Court: reluctant to sua sponte challenge jurisdictional facts in CAFA cases; no antiremoval presumption; accepting unchallenged allegations is proper |
Key Cases Cited
- Lively v. Wild Oats Mkts., Inc., 456 F.3d 933 (9th Cir.) (review of remand decisions de novo)
- Abrego Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir.) (removing party bears burden of pleading minimal diversity)
- Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547 (Sup. Ct.) (notice of removal need only contain a short and plain statement; amount-in-controversy allegations accepted if unchallenged)
- Carolina Cas. Ins. Co. v. Team Equip., Inc., 741 F.3d 1082 (9th Cir.) (allegations of citizenship may be made on information and belief)
- Kanter v. Warner-Lambert Co., 265 F.3d 853 (9th Cir.) (natural-person citizenship determined by domicile, not mere residence)
- NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606 (9th Cir.) (jurisdictional allegations need not be proven at pleading stage unless challenged)
- Bush v. Cheaptickets, Inc., 425 F.3d 683 (9th Cir.) (CAFA requires only minimal diversity)
- Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743 (Sup. Ct.) (discussing CAFA’s aim to provide a neutral federal forum for interstate class actions)