Tiffany Brinkley v. Monterey Financial Services, 2017 U.S. App. LEXIS 20668

Plaintiff Tiffany Brinkley filed a putative class action in California state court alleging Monterey recorded or monitored phone calls without notice; class defined to include persons who made or received calls with Monterey while "physically located or residing" in California and Washington during the class period.
Monterey removed under CAFA; Brinkley moved to remand under CAFA’s home-state controversy exception, which requires two-thirds of all class members and the primary defendants to be citizens of the forum state.
District court ordered jurisdictional discovery; Monterey produced a list of ~152,000 persons with California or Washington mailing addresses (residents), but did not identify persons who were only "located in" the states when called (nonresidents physically present).
Brinkley’s statistician sampled Monterey’s list and the district court concluded, based on that analysis, that at least two-thirds of class members were California citizens and granted remand.
Ninth Circuit held Brinkley failed to prove two-thirds of all class members were California citizens because she produced no evidence about the size or citizenship of the “located in” (nonresident-while-present) subgroup; vacated remand and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether CAFA’s home-state controversy exception applies	Brinkley argued the remand exception applies because at least two-thirds of class members (per sampling of Monterey’s produced list) are California citizens	Monterey argued Brinkley failed to prove two-thirds of all class members are California citizens because the class includes persons merely “located in” the state and their numbers/citizenship are unknown	Held for Monterey: Brinkley did not meet her burden; absence of evidence about the “located in” subgroup means the size of the entire class is unknown, so two-thirds cannot be shown
Who bears burden and what proof is required to trigger the CAFA exception	Brinkley contended produced mailing/residential-address data sufficiently showed class citizenship	Monterey contended burden is on Brinkley to produce evidence about all class members’ citizenship and class size; defendant need not identify non-California citizens	Held: Burden lies with Brinkley to prove the exception by a preponderance with "some facts in evidence"; plaintiff’s partial evidence was insufficient

Jordan v. Nationstar Mortg. LLC, 781 F.3d 1178 (9th Cir.) (standard of review for remand orders)
Washington v. Chimei Innolux Corp., 659 F.3d 842 (9th Cir.) (CAFA interpretation reviewed de novo)
Bush v. Cheaptickets, Inc., 425 F.3d 683 (9th Cir.) (construction and applicability of CAFA)
Serrano v. 180 Connect, Inc., 478 F.3d 1018 (9th Cir.) (burden on party seeking remand to prove CAFA exception)
Mondragon v. Capital One Auto Fin., 736 F.3d 880 (9th Cir.) (requirement for "some facts in evidence" and preponderance standard for class citizenship findings)
Coleman v. Estes Express Lines, Inc., 631 F.3d 1010 (9th Cir.) (fact-finding on citizenship under jurisdictional statutes)
Arbuckle Mountain Ranch of Tex., Inc. v. Chesapeake Energy Corp., 810 F.3d 335 (5th Cir.) (importance of class definition to application of CAFA exceptions)