Carrie DENNISON, on behalf of herself and all others similarly situated, Plaintiff-Appellee, v. CAROLINA PAYDAY LOANS, INCORPORATED, Defendant-Appellant.
No. 08-2187.
United States Court of Appeals, Fourth Circuit.
Argued: Oct. 29, 2008. Decided: Dec. 12, 2008.
549 F.3d 941
Before NIEMEYER, TRAXLER, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge TRAXLER joined. Judge AGEE wrote a separate opinion concurring in part, dissenting in part, and concurring in the judgment.
Carrie Dennison, a citizen of South Carolina, filed an action on behalf of herself and all other “citizens of South Carolina,” who were similarly situated, against Carolina Payday Loans, Inc., alleging that Carolina Payday, in making “payday loans” to Dennison, violated
On Dennison‘s motion to remand, the district court found that Carolina Payday failed to establish minimal diversity under
The facts and issues raised in this case are substantively identical to those raised in Johnson v. Advance America, Cash Advance Centers of South Carolina, Inc., 549 F.3d 932 (4th Cir.2008). Carolina Payday is a citizen of South Carolina, albeit also a claimed-to-be citizen of another State, and the class is defined to include only citizens of South Carolina, thus excluding persons who may have moved from South Carolina and established citizenship elsewhere at the time the action was commenced. For the reasons given in Advance America, therefore, we conclude that Carolina Payday cannot carry its burden of demonstrating that any member of the plaintiff‘s class is a citizen of a State “different from” Carolina Payday, as required by
At oral argument, which took place on the same day that Advance America was argued, Carolina Payday emphasized facts that might distinguish this case from Advance America in several respects. First, Carolina Payday argues that the class definition in this case can be read to include persons who were citizens of South Carolina at the time of transactions with Carolina Payday but who have since become citizens of other States. It points to the class definition here, which includes “all citizens of South Carolina” and is unlike the definition of the class for injunctive relief in Advance America, which purportedly limited the class to include only “citizens of South Carolina who are domiciled in South Carolina.” Advance America, 549 F.3d at 934 (emphasis added).1 This distinction in language, however, is
Like in Advance America, if one of Carolina Payday‘s customers had in fact established a domicile outside of South Carolina before the action was commenced, the customer would not be a “citizen of South Carolina” and therefore not a member of the proposed class. Likewise, if the customer moved from South Carolina after the action was commenced, that fact would not alter federal jurisdiction, which is fixed at the time the complaint or notice of removal is filed. See Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824); see also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004);
Carolina Payday also argues that unlike the affidavits in Advance America, its proffered affidavit stated that “one or more customers of Carolina Payday entered into loan agreements with Carolina Payday while citizens of South Carolina but are now citizens of other States.” Its affidavit, however, does not support the argument that a class member can be someone other than a citizen of South Carolina at the time the complaint was filed. See
Finally, Carolina Payday argues in its brief that this case is distinguishable from Advance America because in Advance America, the class members, as citizens of South Carolina, were not diverse from the defendant that had its principal place of business in South Carolina. Carolina Payday points out that in this case, the class members, also citizens of South Carolina, are in fact diverse from Carolina Payday because it has its principal place of business, as it claims, in Georgia.2 It argues that even though Carolina Payday is incorporated in South Carolina, the minimal diversity analysis under
Like the defendant in Advance America, Carolina Payday cannot sustain its burden of establishing, as required by
Because Carolina Payday Loans has not established the existence of minimal diversity, we do not reach whether the home-state exception of
On the reasoning of Advance America, we affirm the order of the district court in this case, remanding the case to state court for lack of diversity jurisdiction under CAFA.
AFFIRMED
AGEE, Circuit Judge, concurring in part, dissenting in part, and concurring in the judgment:
I agree with the majority opinion that Carolina Payday fails to satisfy the requirements of
The Complaint sets out three classes of plaintiffs as follows:
Injunctive Relief Class: All citizens of South Carolina who borrowed money from Defendant in the three years preceding the filing of the complaint or who will borrow money from Defendant in the future.
Damages Subclass One: All citizens of South Carolina who borrowed money from Defendant in the three years preceding the filing of this complaint whose monthly obligations exceeded 55% of their gross monthly income.
Damages Subclass Two: All citizens of South Carolina who renewed a loan with
Defendant by repaying only the interest and received a new loan.
(J.A. 12-13).
Carolina Payday contends that these class definitions “may reasonably be read as including, in addition to current South Carolina residents, any individual who was a South Carolina citizen at the time he or she borrowed money ... but who at the time of removal was a citizen of a different state.” (Br. Appellant 20.) As in Advance America, the majority finds this argument unpersuasive based on its reading of the classes as defined in the Complaint. The majority opinion reasons that “if one of Carolina Payday‘s customers had in fact established a domicile outside of South Carolina before the action was commenced, the customer would not be a ‘citizen of South Carolina’ and therefore not a member of the proposed class.” Supra at 942-43. For the reasons stated in my separate opinion in Advance America, I disagree.
As with the definitions of Damages Subclass One and Damages Subclass Two in Advance America, membership in the proposed classes of plaintiffs in this case is not defined in the present tense but in the past tense. The definitions of the proposed classes in the Complaint do not limit their members to those persons who are citizens of South Carolina at the time the complaint was filed. Instead, members of the respective classes are those persons who either “borrowed money from the Defendant” or “renewed” a loan while South Carolina citizens. Thus, to be a member of the classes, a person need only have borrowed from Carolina Payday over the last three years, or renewed a loan, while a South Carolina citizen. The failure of the Complaint to place a certain temporal requirement on class membership leaves open the potential membership to persons who were not South Carolina citizens when the Complaint was filed, even though they were South Carolina citizens when their transactions with Carolina Payday took place. If such persons with other than South Carolina citizenship do exist in fact, then the minimal diversity requirements enunciated in CAFA would be met and jurisdiction in the district court would be established.
Nevertheless, I concur with the judgment in this case because Carolina Payday has failed in its burden of proof. See Strawn v. AT & T Mobility LLC, 530 F.3d 293, 298 (4th Cir.2008) (“[T]he party seeking to invoke federal jurisdiction must ... demonstrate the basis for federal jurisdiction.“). Carolina Payday‘s “evidence” to meet its burden of proof for removal is simply the naked statement in an affidavit that “One or more customers of Carolina Payday entered into loan agreements with Carolina Payday while citizens of South Carolina but are now citizens of other states.” (J.A. 34) (emphasis added). Such an allegation proves nothing as Carolina Payday failed to show any of its customers who are potential class members under the Complaint did anything other than change residence. “[S]tate citizenship for purposes of diversity jurisdic-
Thus, Carolina Payday fails as a matter of law to meet its burden of proof to show any potential plaintiff was a citizen of any state other than South Carolina. Accordingly, even though I disagree with the majority‘s conclusion that the Complaint‘s definition of the classes limits their membership to citizens of South Carolina at the time the Complaint was filed, Carolina Payday has failed to show any non South Carolina citizen actually exists. I thus concur in the judgment of the majority because Carolina Payday has failed to demonstrate the existence of federal jurisdiction under