TAYLOR MADISON; ANGIE DICKSON, Plaintiffs—Respondents, versus ADT, L.L.C., Defendant—Petitioner.
No. 21-90028
United States Court of Appeals, Fifth Circuit
August 24, 2021
United States Court of Appeals for the Fifth Circuit
No. 21-90028
TAYLOR MADISON; ANGIE DICKSON, Plaintiffs—Respondents,
versus
ADT, L.L.C., Defendant—Petitioner.
Motion for Leave to Appeal Pursuant to
CONSOLIDATED WITH
No. 21-10837
United States Court of Appeals Fifth Circuit FILED August 24, 2021 Lyle W. Cayce Clerk
No. 21-90028 c/w No. 21-10837
TAYLOR MADISON; ANGIE DICKSON, Plaintiffs—Appellees,
versus
ADT, L.L.C., Defendant—Appellant.
Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20-CV-2516
Before JONES, DUNCAN, and ENGELHARDT, Circuit Judges.
Telesforo Aviles was an ADT LLC (“ADT”) employee who installed ADT’s home-security surveillance systems and used his access privileges to spy on customers in their homes. Taylor Madison and Angie Dickson, now also representing a class of plaintiffs, sued Aviles in state court seeking millions in damages.
ADT, which is being sued directly by other plaintiffs in both Texas and Florida for the breach of privacy, intervened in this suit and removed to the Northern District of Texas pursuant to the Class Action Fairness Act (“CAFA”). The plaintiffs moved to remand the suit to state court, and the district court granted the motion, citing the “home state” exception to CAFA. ADT sought this appeal pursuant to
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This court reviews de novo the district court’s order to remand to state court a suit removed pursuant to CAFA. Robertson v. Exxon Mobil Corp., 814 F.3d 236, 239 (5th Cir. 2015). The party objecting to CAFA jurisdiction must prove that a CAFA exception divests the federal court of the ability to retain a class action. Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 (5th Cir. 2011) (citing cases).
“CAFA provides district courts with jurisdiction over ‘class action[s]’ in which the matter in controversy exceeds $5,000,000 and at least one class member is a citizen of a State different from the defendant.
Aviles, who was sued by the plaintiffs, is a “primary defendant,” of course. The issue here is whether ADT, a non-citizen of Texas, is also a “primary defendant” under CAFA. If ADT is not a primary defendant, the district court was right to remand to the state court, but if ADT is a primary defendant, the district court was required to retain jurisdiction.
This court has only addressed this question with minimal reasoning, and there is scant discussion across our sister circuits. The leading case that
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examines the meaning
The Vodenichar panel adopted a blend of these two approaches, holding that courts “should assume liability will be found and determine whether the defendant is the ‘real target’ of the plaintiffs’ accusations.” Id. at 505. This includes “determin[ing] if the plaintiffs seek to hold the defendant responsible for its own actions, as opposed to seeking to have it pay for the actions of others,” and also requires the court to consider whether, “given the claims asserted against the defendant, it has potential exposure to a significant portion of the class and would sustain a substantial loss as compared to other defendants if found liable.” Id. at 505–06. In that case, the circuit court held that three defendants were primary defendants: two had been non-diverse leasing agents of the plaintiff class, while the third was an oil and gas company, a diverse defendant, that allegedly reneged on lease agreements. Accordingly, the court rejected remand based on the home state exception.
This court’s sparse analysis is similar to that in Vodenichar. In Hollinger, the panel merely stated in passing (the issue of primary defendant was not in dispute) that a class of insurance companies were primary
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defendants because “all putative class members . . . have claims against the [non-diverse] County Mutuals, and as the entities that issued the insurance policies, the County Mutuals have a primary role in the alleged discrimination.” 654 F.3d at 572. Several years later, in Watson v. City of Allen, Tx., 821 F.3d 634 (5th Cir. 2016), another panel of this court considered whether three private companies of diverse citizenship, with whom Texas municipalities contracted to operate challenged red light cameras, were primary defendants. The panel began its analysis by observing that the “suit’s primary thrust [wa]s an attempt to declare unconstitutional the Texas red light camera legislative scheme.” Id. at 641. Although the panel noted that the claims against the private companies were “expressly contingent on a threshold finding that the challenged legislative scheme [wa]s unconstitutional,” id., its quest was to identify the “suit’s primary thrust” and thereby to determine the suit’s “primary defendant.” The court concluded that because the companies were not primary parties to the suit, as opposed to the state and the municipalities, the CAFA home state exception applied.
None of these cases is factually apposite to the present litigation, but there is much to commend the Vodenichar emphasis on the “real target” of the litigation and Watson’s description of the controversy’s “primary thrust.” Whether ADT is vicariously or secondarily liable is a relevant factor,1 certainly, but it does not necessarily
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substance.’” Kitchin v. Bridgeton Landfill, LLC, 3 F.4th 1089, 1096 (8th Cir. 2021) (citing Standard Fire Ins. v. Knowles, 568 U.S. 588, 595, 133 S. Ct. 1345, 1350 (2013)). Madison and Dickson claim to represent a class of plaintiffs seeking millions in recovery for the invasion of their privacy, although, as of yet, they have asserted claims against only the offending employee (who is imprisoned). But the thrust of this suit is to gain access to ADT’s deep pockets, and ADT, having properly intervened, must be considered a primary defendant under CAFA.
We GRANT permission to appeal. Further, because the district court erred in remanding, its order is REVERSED.