Norman Walsh v. Defenders IncNorman Walsh v. Defenders Inc
BEFORE: CHAGARES, BIBAS, and GREENBERG, Circuit Judges
(Opinion Filed: July 9, 2018)
Yongmoon Kim
Kim Law Firm
411 Hackensack Avenue
Suite 701
Hackensack, NJ 07601
Henry P. Wolfe
The Wolf Law Firm
1520 U.S. Highway 130
Suite 101
North Brunswick, NJ 08902
Counsel for Appellee
Charles C. Eblen
Gregory Wu
Shook, Hardy & Bacon
2555 Grand Boulevard
Kansas City, MO 64108
Counsel for Appellants
GREENBERG, Circuit Judge.
I. INTRODUCTION
Defendants Defenders, Inc., ADT LLC, and ADT Security Services, Inc. (“ADT SSI-Tyco”)1 (collectively, “defendants”) appeal with leave of this Court from the District Court’s January 25, 2018 Memorandum and Order granting plaintiff Norman Walsh’s motion to remand the case. Walsh filed this action in the Superior Court of New Jersey and sought an order to remand the case to that court after Defenders, Inc. removed the case to the District Court under the Class Action Fairness Act (“CAFA”),
II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW
The issue on this appeal is whether the District Court should have retained jurisdiction or was required to remand the case to the Superior Court. District courts have jurisdiction, where requirements respecting diversity of citizenship and the amount in controversy are met, over class actions removed from state courts under CAFA,
The local controversy exception to CAFA jurisdiction, at issue here, requires a district court to decline to exercise jurisdiction under CAFA over a class action involving a uniquely local controversy.
III. BACKGROUND
In February 2016, Walsh, a New Jersey citizen, filed an amended putative class action complaint against defendants in the New Jersey Superior Court.2 Walsh alleged that starting in December 2009 he and the class members purchased home security equipment and monitoring service from defendants and signed contracts that defendants prepared which contained illegal provisions relating to fees due on cancellation of the contracts. JA 92 (Am. Compl. ¶ 18). Walsh advances two claims based on the allegedly illegal provisions relating to fees due on cancellation of the contracts, one under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”),
After Defenders, Inc., an Indiana corporation with its principal place of business in that state, removed the case invoking CAFA diversity jurisdiction to the District Court, see
The District Court originally denied Walsh’s motion to remand, Walsh v. Defenders, Inc., No. 2:16-cv-753, 2016 WL 6775634 (D.N.J. Nov. 15, 2016) (“Walsh I”), adopting in part a report and recommendation of a magistrate judge, see Walsh v. Defenders, Inc., No. 2:16-cv-753, 2016 WL 6775706 (D.N.J. July 15, 2016), recommending that it do so. Nevertheless, the Court agreed that ADT SSI-Tyco, though a Delaware LLC had New Jersey citizenship and was a local defendant in this New Jersey case.5 In fact, ADT SSI-Tyco has been a New Jersey citizen since 2012, when it converted from a Delaware corporation called ADT SSI, which was a citizen of Delaware and Florida, and consequently ADT SSI-Tyco was a local defendant when Walsh initiated this action. But the Court denied the motion to remand for reasons that we will explain below.
In considering the matter, the District Court adopted the magistrate judge’s report and recommendation observing that after ADT SSI-Tyco changed its corporate form and citizenship in 2012, it made another important change with respect to its business organization. It assigned its assets and liabilities under its residential contracts, including the contracts at issue in this case, to ADT LLC, a citizen of Delaware. But ADT SSI-Tyco remained a viable entity after the assignment as it retained its commercial contracts and continued its operations. The Court found that ADT SSI-Tyco continued to be a local defendant despite the partial transfer of its assets and liabilities because “an assignment does not let an assignor off the hook.” Walsh I, 2016 WL 6775634, at *2. Elsewhere in its opinion, however, the Court suggested that the transfer could lead to a remand.
In reliance on Johnson v. SmithKline Beecham Corp., 724 F.3d 337, 358 (3d Cir. 2013), where we said that “a federal court must disregard nominal or formal parties, and can base its jurisdiction only upon the citizenship of parties with a real interest in the litigation,” the Court stated that “ADTSSI-Tyco appears to have no actual interest in the outcome of this litigation” because “ADTSSI-Tyco has transferred its liabilities to ADT LLC.” Walsh I, 2016 WL 6775634, at *4 n.5. It is understandable that the Court took this view as Walsh
The District Court saw other problems with the motion to remand because it ruled that Walsh did not show that ADT SSI-Tyco’s conduct formed a significant basis for the claims of the proposed class, a requirement of the local controversy exception. The Court stated that Walsh failed to analyze any of the several factors we set out in Kaufman v. Allstate New Jersey Insurance Co., 561 F.3d 144, 157 n.13 (3d Cir. 2009), to guide evaluation of the significant-basis prong of the local controversy exception. Consequently, the Court denied Walsh’s motion to remand, and did not reach the final disputed issue of whether Walsh sought significant relief from ADT SSI-Tyco, another element of the local controversy exception.
But the District Court did not settle the remand issue with its first order for Walsh moved for reconsideration and, in its consideration of this motion, the Court reversed its course. Walsh v. Defenders, Inc., No. 2:16-cv-753, 2018 WL 555690 (D.N.J. Jan. 25, 2018) (“Walsh II”). The Court found that Walsh satisfied the significant-basis element of the local controversy exception because of “new evidence [Walsh] obtained during class discovery.” Id. at *2. The new evidence showed that ADT SSI-Tyco entered into the allegedly unlawful contracts with 35.3% of the putative class, and created the standardized contract provisions that form the basis of the entire class’s claims. Id. The Court found that the evidence satisfied several of the factors that we set forth in Kaufman and concluded that ADT SSI-Tyco’s conduct formed a significant basis for the claims asserted on behalf of the putative class. Id.
The District Court in Walsh II then reached Walsh’s final argument that he sought significant relief from ADT SSI-Tyco. Id. at *3. The Court agreed with Walsh that he had done so, finding that the relief Walsh sought against ADT SSI-Tyco—money damages, statutory damages under TCCWNA, treble damages under the NJCFA, declaratory and injunctive relief, attorneys’ fees and costs, and pre- and post-judgment interest—was significant enough to satisfy the local controversy exception to its jurisdiction. It thus appeared that all of the elements of the local controversy exception were present. The Court accordingly granted Walsh’s motion by order of January 25, 2018, to reconsider its original ruling in which it had denied the remand motion and it remanded the case to the New Jersey Superior Court. Defendants then filed a timely petition for interlocutory review of the remand order that we have granted. We now consider the remand order on the merits.6
IV. DISCUSSION
The local controversy exception to a district court’s CAFA class action jurisdiction
A. ADT SSI-Tyco is a local defendant.
Defendants first challenge the conclusion that ADT SSI-Tyco is a local defendant. They recognize that Walsh filed this case in a New Jersey state court against ADT SSI-Tyco, and they do not deny that, as the District Court recognized, see Walsh II, 2018 WL 555690, at *2, ADT SSI-Tyco is a New Jersey citizen. But they claim that ADT SSI-Tyco is merely a “nominal party” without “a real interest in the litigation.” Appellants’ br. at 15 (quoting SmithKline Beecham, 724 F.3d at 358). Accordingly, they contend that the Court should have ignored ADT SSI-Tyco’s citizenship in its jurisdictional analysis. If it had done so then it could not have said that there was a defendant who was a citizen of the state in which Walsh originally filed the action. We, however, disagree with defendants’ contention that ADT SSI-Tyco is a nominal party. To the contrary, ADT SSI-Tyco has an interest in this litigation, and the Court correctly considered it in making its decision.
In determining whether there is diversity jurisdiction, a district court must consider the citizenship of defendants who are “real and substantial parties to the controversy.” Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 460, 100 S.Ct. 1779, 1781-82 (1980). “Thus, a federal court must disregard nominal or formal parties,” id. at 461, 100 S.Ct. at 1782, “and can base its jurisdiction only upon the citizenship of parties with ‘a real interest in the litigation,’” SmithKline Beecham, 724 F.3d at 358 (quoting Bumberger v. Ins. Co. of N. Am., 952 F.2d 764, 767 (3d Cir. 1991)).
Based on the evidence submitted on the motion to remand we believe that the key events on the jurisdictional issue were: (1) ADT SSI, a Delaware corporation, owned and drafted the residential contracts at issue here; (2) ADT SSI converted to ADT SSI-Tyco, a Delaware limited liability company with New Jersey citizenship; and (3) though ADT SSI-Tyco transferred the residential contracts and related liabilities to co-defendant ADT LLC it retained and continued to service the commercial contracts.
When Walsh brought this suit four years after the above events, ADT SSI-Tyco was a real and substantial party because it allegedly participated in the wrongful conduct in which Walsh charges defendants
We agree with Walsh’s contention because his claim comports with rules that accompany common-law assignments of liability and defendants provide no reason why we should treat the assignment involved here differently. See Am. Flint Glass Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir. 1999) (“A party subject to a contractually created obligation ordinarily cannot divest itself of liability by substituting another in its place without the consent of the party owed the duty.”) (internal citation omitted); accord 29 R. Lord, Williston on Contracts § 74:27 (4th ed. 2012) (“No one can assign his liabilities under a contract without the consent of the party to whom he is liable.”).7 Thus, consumers like Walsh who signed the residential contracts still can sue ADT SSI-Tyco even though it transferred some of its contracts to ADT LLC. Inasmuch as the purchaser of its equipment and services can sue ADT SSI-Tyco for the alleged wrongs arising from the residential contracts for which it is allegedly responsible, it is a “real and substantial part[y] to the controversy.” Navarro, 446 U.S. at 460, 100 S.Ct. at 1781-82.
Defendants argue, however, that we should regard ADT SSI-Tyco merely as a nominal party in light of SmithKline Beecham, 724 F.3d 337, which was not a CAFA case. Indeed, at one point the District Court made the same suggestion. See Walsh I, 2016 WL 6775634, at *4 n.5. But SmithKline Beecham is distinguishable. In that case SmithKline Beecham, a Pennsylvania corporation, was sued, along with several related entities over allegations that it manufactured an injurious defective pharmaceutical drug. But before the case was filed, it had dissolved as a Pennsylvania corporation, domesticated as a Delaware corporation, and converted to a limited liability company called GSK LLC. When the plaintiffs, one of whom was a Pennsylvania citizen, subsequently brought the action in state court and defendants removed it to the district court, the plaintiffs claimed that the case should be remanded because SmithKline Beecham and
We accepted the principle that dissolved companies can be interested parties where statutes like Pennsylvania’s render the companies “sufficiently alive to sue . . .” SmithKline Beecham, 724 F.3d at 358 (quoting Stentor Elec. Mfg. Co. v. Klaxon Co., 115 F.2d 268, 271 (3d Cir. 1940), rev’d on other grounds, 313 U.S. 487, 495-97, 61 S.Ct. 1020, 1021-22 (1941)), but we emphasized that SmithKline Beecham did not merely dissolve. Rather, it domesticated as a new entity in Delaware which has “has stepped into SmithKline Beecham’s shoes” because “under Delaware law, all of SmithKline Beecham’s debts, liabilities and duties now lie with GSK LLC.” Id. at 359 (internal citations and quotation marks omitted). In these circumstances, we concluded that SmithKline Beecham had become a nominal party and we disregarded its citizenship for purposes of diversity jurisdiction.
Defendants claim that we should treat ADT SSI-Tyco like SmithKline Beecham, and, by extension, treat ADT LLC, which is not a New Jersey citizen, like GSK LLC. Appellants’ br. at 17. But the entities are in different positions. Unlike SmithKline Beecham, which dissolved completely and passed all of its liability to GSK LLC, ADT SSI-Tyco is an active entity that has not dissolved. It did not pass all of its liabilities to ADT LLC, to the end that ADT LLC “has stepped into [its] shoes”; rather, ADT SSI-Tyco is subject to liability in this case, depending on its outcome,8 and can defend the claims against it. Accordingly, SmithKline Beecham does not preclude us from holding that ADT SSI-Tyco is a real party in interest in this case.
In sum, we agree with the District Court’s ultimate conclusion that ADT SSI-Tyco is a local defendant under CAFA. ADT SSI-Tyco has an interest in the litigation and the Court correctly took into account its citizenship for the purposes of determining subject matter jurisdiction.
B. Other elements of the local controversy exception are satisfied.
We now consider the two remaining disputed prongs of the local controversy exception: First, whether the proposed class seeks “significant relief” from ADT SSI-Tyco and second, whether ADT SSI-Tyco’s conduct “forms a significant basis for the claims asserted by the proposed plaintiff class.”
We have no difficulty in concluding that Walsh’s amended complaint seeks significant relief from ADT SSI-Tyco. In evaluating whether the amended complaint seeks significant relief from a given defendant, we look to the complaint rather than extrinsic materials such as those on which
Walsh’s amended complaint seeks the following relief with respect to ADT SSI-Tyco: monetary relief for the class pursuant to
Finally, we consider whether ADT SSI-Tyco’s conduct provides a significant basis for the claims that Walsh asserts. As we observed in Kaufman, a court must analyze the significance of a defendant’s conduct in relation to that of the other defendants in light of the plain meaning of the word “significant.” See Kaufman, 561 F.3d at 144, 157 (defining “significant” as “important, notable”) (quoting Oxford English Dictionary (2d ed. 1989)). Walsh argues that ADT SSI-Tyco’s conduct forms a significant basis for the proposed class’s claims because ADT SSI-Tyco used the allegedly illegal contract provisions at issue and because ADT SSI-Tyco entered into allegedly unlawful alarm-service contracts with 35.3% of class members.
While we have observed that the significant basis prong “does not establish an absolute quantitative requirement” for the number of class members asserting claims based on a local defendant’s conduct, the number of claims involving the local defendant can be a helpful consideration in the analysis. Kaufman, 561 F.3d at 155-56. We agree with the District Court that Walsh’s evidence satisfies the required showing for the significant basis prong of the local controversy exception.11 Walsh II, 2018 WL 555690, at *3. Though a greater number of class members entered into alarm-services contracts with ADT LLC than with ADT SSI-Tyco, the local controversy exception does not require that the local defendant’s conduct be the most significant conduct or that it predominates over claims against other defendants. Because of ADT SSI-Tyco’s role with respect to the use of allegedly illegal
V. CONCLUSION
For the above-stated reasons, we conclude that the District Court did not err in remanding this action to the state court based on CAFA’s local controversy exception to the exercise of its jurisdiction. Because ADT SSI-Tyco is a local defendant and the elements of the exception are otherwise satisfied, we will affirm the remand order of January 25, 2018, under consideration.
Notes
(II) at least 1 defendant is a defendant—
(aa) from whom significant relief is sought by members of the plaintiff class;
(bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and
(cc) who is a citizen of the State in which the action was originally filed. . . .