Evans v . Yum Brands, Inc., et a l . CV-04-103-JD 07/14/04 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Wendy Evans, et a l .

v. N o . 04-103-JD Opinio n N o .

Yum Brands, Inc., et a l .

O R D E R

Wendy Evans, the named plaintiff in this proposed class

action lawsuit, has moved to remand the case to state court on

the ground that the defendants have failed to allege in their

notice of removal that the amount in controversy exceeds $75,000.

In response, the defendants have attempted to show that Evans’s

damages would meet the requisite sum if she prevails and have

also moved for leave to amend their notice of removal to correct

the asserted defect noted by Evans. Evans argues that leave

cannot be granted. The defendants have also asked the court to

require Evans to post a $25,000 bond as security for their costs

in litigating the action. Evans opposes any bond requirement.

Finally, the parties are at odds over whether discovery should

proceed immediately or await the court’s decision on the summary

judgment motion which the defendants intend to file. Background

This action arises out of media reports in late February

2004 that an employee of the Taco Bell restaurant in Derry had

been diagnosed with Hepatitis A . New Hampshire public health

officials responded by urging those who had patronized the

restaurant between February 7 , 2004, and February 2 1 , 2004, to

receive immune globulin inoculations. Because Evans, her

husband, and their three minor children allegedly had eaten food

prepared at the Derry Taco Bell on both of those days, they

received the inoculations at a free clinic on February 2 9 , 2004.

Evans claims to have learned that the inoculations “would

potentially be effective” against her family’s second possible

exposure to Hepatitis A at the restaurant, on February 2 1 , but

not against their first possible exposure, on February 7 , because

the inoculation works against only those exposures occurring

within the preceding fourteen-day period, if at all. Evans filed a declaration and petition for class action1 in

Rockingham Superior Court on March 1 1 , 2004, against Yum Brands,

Inc., Taco Bell Corporation, Taco Bell of America, TACALA North,

Inc., and John Doe defendants comprising “any other persons or

entities related t o , employed by, or working for the named

1 To avoid confusion, the court will use the term “complaint” to refer to this document.

2 defendants who may be liable . . . .” 2 Evans alleges that she

resides in Derry while Yum, Taco Bell Corporation, and Tacala are

all incorporated in states other than New Hampshire. The

complaint does not specifically state any defendant’s principal

place of business but lists their addresses, each of which is

located outside of New Hampshire.

Evans alleges a number of different harms which have

befallen her individually as a result of the defendants’ actions.

She claims to have suffered “nausea and persistent bouts of

diarrhea . . . for a period of three to four days” after

consuming the food purchased at the Derry Taco Bell on February

7. Evans also alleges that the inoculation she received “was

physically painful” and that “[s]ince learning of [their]

family’s possible exposure to Hepatitis A and receiving the

inoculation,” she and her husband have suffered from “persistent

nausea and headaches,” while she has experienced an additional

“darkening of her urine.” Her children have also complained of

headaches and nausea and as of March 6, 2004, had developed a

rash for which Evans sought to have them treated but “learned

2 Although the caption of Evans’s complaint also lists among the defendants “Taco Bell Restaurant” with the address of the Derry location, she does not identify or make any allegations concerning this entity in the complaint itself and the other defendants have asserted that “Taco Bell Restaurant” has “no independent legal existence.”

3 that she would need to wait at least a week before blood testing

should be performed to ascertain whether [they] had contracted

Hepatitis A.”

Evans therefore “claims damages for physical pain, physical

symptoms, fear and emotional distress” arising from the “fear

[and] emotional trauma associated with the potential of

contracting the disease” which she and her children were

experiencing at the time she filed the complaint. She states

that Hepatitis A can produce a number of unpleasant symptoms for

a period of two to six months, including fatigue, fever, muscle

soreness, headache, abdominal pain, nausea, loss of weight and

appetite, and yellowing of the skin and the whites of the eyes.

The disease can also cause permanent liver damage. Evans also

“reserves the right” to seek enhanced compensatory damages and

asserts a claim under the New Hampshire Consumer Protection Act.

The complaint demands judgment “within the minimum and maximum jurisdictional limits of this Court, together with . . . where

appropriate under New Hampshire law, multiple damages and/or

attorneys [sic] fees” but does not otherwise quantify Evans’s claimed damages.3

The complaint seeks to certify a class comprised of everyone

3 This approach is consistent with New Hampshire law. See

-c (prohibiting ad damnum clauses).

4 who “patronized and consumed food at” the Derry Taco Bell between

February 7 , 2004, and February 2 1 , 2004, “who were potentially

and/or actually exposed to” Hepatitis A . The defendants have

submitted a newspaper article quoting Evans’s counsel as saying

that at least fifty plaintiffs had joined her potential class

action as of March 1 7 , 2004.

On March 1 9 , 2004, the defendants filed a notice of removal

in this court. The notice stated that “[t]he grounds for removal

are diversity of citizenship,” explaining that each of the

defendants was incorporated and had its principal place of

business outside of New Hampshire and citing

(c). 4 The notice asserted that removal was “therefore,

proper under Section 1441 of Title 28 of the United States Code

because this is a civil action in state court over which the

federal district courts would have had original jurisdiction had

the action been commenced in federal court.” The notice makes no assertion as to the amount in controversy.

On March 3 0 , 2004, Evans responded by filing a motion to

remand her case to Rockingham County Superior Court on the sole

ground that one of the putative John Doe defendants, the manager

of the Derry Taco Bell, resided in New Hampshire and that

4 The defendants concede that they cited the wrong statutory subsection in their notice of removal.

5 complete diversity between the adverse parties therefore did not

exist. After the defendants objected because the citizenship of

those sued under fictitious names is disregarded for purposes of

removal, see

(a), Evans filed a motion seeking to

add the manager as a named defendant.5 Evans also objected to

the defendants’ motion for admission of an attorney pro hac vice

on the theory that he might have been involved in the decision to

remove the case, which Evans characterized as “improper and in

bad faith” because the defendants knew that at least one of the

unnamed John Doe defendants resided in New Hampshire. These

matters were referred to the magistrate together with another

motion Evans had filed seeking relief from her obligation to

submit a discovery plan pending a decision on the remand issue.

The magistrate denied Evans’s motions, noting that the motion for

remand “demonstrate[d] a profound ignorance of basic remand law”

and criticizing the motion practice of her counsel. The magistrate also granted the motion of the defendants’ counsel to

appear pro hac vice, calling Evans’s objection “frivolous.”

In preparation for the preliminary pretrial conference, the

parties filed a joint discovery plan on May 7 , 2004. The

5 In contravention of

(d), Evans made a motion in state court seeking similar relief after the notice of removal had already been filed.

6 defendants have proposed that initial disclosures and other

discovery in the case await a decision on the summary judgment

motion which they intend to file. The plaintiffs, however, seek

to proceed with discovery so that the issue of class

certification can be briefed and heard by the end of September

2004. At the preliminary pretrial conference, counsel for the defendants indicated that he did not object to Evans’s taking the

deposition of anyone submitting an affidavit in support of the

motion for summary judgment but wished to forestall class

certification discovery, arguing that it would require, inter

alia, obtaining the medical records of everyone potentially

exposed to Hepatitis A at the Derry Taco Bell. Evans’s attorney

stated that he would take only limited discovery from the

defendants on the issue of class certification. Following the

conference, the court notified the parties that its decision on how discovery is to proceed would await the resolution of Evans’s

second motion for remand, filed May 1 7 , 2004.

Discussion

I. The Motions for Remand and to Amend the Notice of Removal

As the parties seeking to invoke federal diversity

jurisdiction, the defendants bear the burden of showing that this

case satisfies the amount-in-controversy requirement. Stewart v .

7 Tupperware Corp.,

(1st Cir. 2004); Spielman v .

Genzyme Corp.,

, 4 (1st Cir. 2001). The complaint

itself normally suffices to make this showing where the plaintiff

has demanded at least the jurisdictional minimum. Shaw v . Dow

Brands, Inc.,

6 4 , 366 (7th Cir. 1993); Gaus v . Miles,

Inc.,

6 4 , 566 (9th Cir. 1992); 16 James W . Moore et a l . , Moore’s Federal Practice § 107.14[2][g][v], at 107-80 (3d

ed. 1997). But where, as here, the complaint does not put any

number on the plaintiff’s claimed damages, this court has

required the defendant to show by a preponderance of the evidence

that the amount in controversy exceeds the figure necessary for

federal diversity jurisdiction. See, e.g., Tremblay v . Philip

Morris, Inc.,

1 1 , 414 n.2 (D.N.H. 2002);

Kivikovski v . Smart Prof. Photocopying Corp.,

3 ,

, at *3 (D.N.H. Feb. 2 0 , 2001); Kelleher v . Marvin Lumber & Cedar Co.,

3 2 ,

, at *4 (D.N.H. June 1 3 , 2000).

Evans asserts that the defendants’ failure to claim in the

notice of removal that the amount in controversy exceeds $75,000

means that they cannot meet their burden. The court disagrees.

Although the First Circuit has yet to address the issue, three

other federal courts of appeals have held that “[w]hen the

complaint does not claim a specific amount of damages, removal

8 from state court is proper if it is facially apparent from the

complaint that the amount in controversy exceeds the

jurisdictional requirement.” Williams v . Best Buy Co.,

(11th Cir. 2001); see also Singer v . State Farm Mut.

Auto. Ins. Co.,

(9th Cir. 1997); Allen v . R & H

Oil & Gas Co.,

(5th Cir. 1995), overruled on other grounds, H & D Tire & Auto.-Hardware, Inc. v . Pitney Bowes

Inc.,

(5th Cir. 2000); accord Tremblay,

(analyzing plaintiff’s motion to remand for

insufficient amount in controversy on basis of allegations in

complaint despite its lack of quantified demand).

In her reply memorandum, Evans argues that the defendants

cannot “rely upon [her] general damage claims . . . and [their]

conclusory allegations as to the value of those claims,” but must

“provide specific factual details establishing by a preponderance of the evidence” that the amount in controversy exceeds $75,000.

Although a removing defendant’s simple say-so will not suffice to

demonstrate that a case meets the jurisdictional threshold, see,

e.g., Gaus,

6 7 , it does not follow that material

beyond the allegations of the complaint is necessary to show the

requisite amount in controversy. Instead, where the district court is making the “facially apparent” determination, the proper procedure is to look only at the face of the complaint and ask whether

9 the amount in controversy [is] likely to exceed [$75,000]. In situations where the facially apparent test is not met, the district court can then require parties to submit summary-judgment-type evidence, relevant to the amount in controversy at the time of removal. Allen,

. A court need look to the notice of

removal and any other materials submitted by the removing

defendant, then, only if the jurisdictional amount is not

facially apparent from the complaint.6 See Felton v . Greyhound

Lines, Inc.,

7 1 , 773-74 (5th Cir. 2003).

A court determines the amount in controversy in a particular

lawsuit based on the circumstances existing at the time the

complaint was filed. Spielman,

0 ; Coventry Sewage

Assocs. v . Dworkin Realty Co.,

, 4 (1st Cir. 1995).

“Although the value of the matter in controversy for purposes of

federal jurisdiction is generally determined by applying federal

standards, the federal court must examine state law to determine

6 In determining the amount in controversy, the Tenth Circuit has refused to consider facts omitted from the notice of removal but subsequently brought to the court’s attention by way of the defendant’s briefing. Laughlin v . Kmart Corp.,

7 1 , 873 (10th Cir. 1995). The Eleventh Circuit, however, has criticized Laughlin as alone in employing “such a restrictive approach.” Sierminski v . Transouth Fin. Corp.,

(11th Cir. 2000). Moreover, Laughlin’s rule has been rejected by one of this court’s sister districts as inconsistent with the First Circuit’s amount-in-controversy jurisprudence. Heller v . Allied Textile Corp.,

(D. M e . 2003). This court therefore declines to follow Laughlin.

10 the nature and the extent of the damages to be awarded.” 16

Moore, supra, § 107.14[2][g][iii], at 107-77; see also Stewart,

(quoting Horton v . Liberty Mut. Ins. Co.,

4 8 , 352-53 (1961)). Provided a plaintiff’s claims are

“colorable,” the court’s inquiry does not focus on their probable

success but rather on “whether to anyone familiar with the

applicable law [the] claim could objectively have been viewed as

worth” the jurisdictional minimum. Jimenez Puig v . Avis Rent-A-

Car Sys.,

7 , 40 (1st Cir. 1978); see also Coventry

Sewage Assocs.,

(cautioning that “‘the fact that the

complaint discloses the existence of a valid defense to the

claim’” does not affect the amount-in-controversy analysis)

(quoting S t . Paul Mercury Indem. C o . v . Red Cab Co.,

(1938)).

One of Evans’s potential theories of recovery at the time

she filed suit was that the defendants caused her to contract Hepatitis A . According to the complaint, the disease can produce

up to six months’ worth of headaches, nausea, and abdominal pain,

as well as permanent damage to the liver. The defendants argue

that damages for these symptoms alone would more likely than not

exceed $75,000. See Duchesne v . Am. Airlines, Inc.,

7 ,

28-30 (1st Cir. 1985) (holding that ten months of dizziness and

headaches supported claim in excess of $10,000 in 1984 dollars

11 despite “negligible” medical expenses). Evans also seeks

compensation for the “fear and emotional trauma associated with

the potential of contracting Hepatitis A,” as manifested by her

“persistent nausea and headaches and a darkening of her urine”

since learning of her possible exposure. New Hampshire law

provides for the recovery of such damages, i.e., emotional distress manifested by physical symptoms. See Thorpe v . Dep’t of

Corrs.,

(1990).

Evans further alleges facts suggesting that the defendants

caused her husband and children to contract Hepatitis A as well.

Evans can recover for her alleged resulting emotional distress if

she can prove that “the manner in which [she] became aware of the

injury was reasonably foreseeable to cause [her] harm.” Corso v .

Merrill,

4 7 , 657 (1979). Her husband’s alleged

symptoms, which included “persistent nausea and headaches” at the time the complaint was filed, also give rise to a possible loss

of consortium claim. See Bennett v . Lembo,

(2000) (upholding $25,000 verdict for wife where defendant’s

negligence rendered husband less “physically active”).

Objectively viewed, Evans’s claims for her own alleged

Hepatitis A and the loss of consortium and emotional distress

resulting from her family’s allegedly coming down with the

disease could be valued at $75,000 or more. See Stewart, 356

12 F.3d at 340 (concluding that married couple’s claims for slight “permanent impairment to their total bodily functions” in addition to mental anguish and loss of consortium not worth less than $75,000 per plaintiff); c f . Ortega v . Star-Kist Foods, Inc.,

2 4 ,

, at *10-*16 (1st Cir. June 5 , 2004) (holding that claim for emotional distress arising out of daughter’s “relatively minor” injuries did not exceed $50,000 for purposes of amount in controversy).

Evans also seeks multiple damages under the state Consumer Protection Act, which, as she notes, provides for an award of between two and three times a plaintiff’s actual damages in the event of a “willful or knowing” violation.

-A:10. When a plaintiff makes a claim under a statute including a damage multiplier, a court must apply that factor in evaluating the amount in controversy. See, e.g., Chabner v . United of Omaha Life Ins. Co.,

(9th Cir. 2000); Rosen v . Chrysler Corp.,

1 8 , 922 (6th Cir. 2000); Miera v . Dairyland Ins. Co.,

(10th Cir. 1998). Thus, as the defendants argue, Evans’s claims cross the jurisdictional threshold even if her asserted compensatory damages barely exceed $25,000.7

7 Evans argues that the defendants “fail to specify which portion of [her] damage claims, if any, are subject to statutory

13 Based on the foregoing analysis, it is facially apparent from Evans’s own complaint that the value of her claims exceeds $75,000. The defendants have therefore carried their burden to show the amount in controversy by a preponderance of the evidence. Evans cannot rely on King v . Wal-Mart Stores, Inc.,

(S.D. Ind. 1996), to urge the opposite conclusion on this court. Although King rejected the removing defendant’s attempt to show the requisite amount in controversy “solely through its reliance upon the general allegations in [the] complaint,” it did so in large part because the plaintiff had disputed the value of those allegations by stipulating that her damages did not meet the jurisdictional threshold.8

at

enhancement” under section 358-A. Her complaint states, however, that the defendants violated the statute through “the acts and omissions” she alleges, without limitation. The statute, meanwhile, provides for “recovery . . . in the amount of actual damages or $1,000, whichever is greater,” subject to multiplication in appropriate circumstances, to “[a]ny person injured” by a violation.

-A:10. Because Evans herself claims that the defendants’ complained-of actions in toto violated the Consumer Protection Act, and alleges a variety of harm flowing from those actions, all of her damages are subject to statutory enhancement for purposes of determining the amount-in-controversy. See Tremblay,

.

8 The court in King also stated that the defendant could not rely upon the complaint “as evidence of the jurisdictional amount because it is not ‘competent proof.’”

-17 (quoting Reason v . Gen. Motors Corp.,

(S.D. Ind. 1995)). To the extent this statement requires a removing

14 216-17. Evans, in contrast, has not provided any information on the value of her claims beyond the allegations of her complaint or even made any argument that those allegations on their face do not support recovery in excess of $75,000.9 The court is mindful that the burden to demonstrate the requisite amount in controversy rests with the removing

defendant. Nevertheless, a plaintiff cannot ensure remand simply through repeated assertions, unaccompanied by any analysis, that the defendant has failed to show that the value of the plaintiff’s claims exceeds $75,000, as Evans attempts to do here.10 The arguments set forth in the defendants’ objection to

defendant to introduce “summary-judgment-type evidence” that the amount in controversy exceeds $75,000 regardless of whether that proposition is facially apparent from the complaint, this court declines to follow King as inconsistent with Allen. 9 Evans does argue that the amount of the claims of each class member cannot be aggregated, that the possible award of attorneys’ fees under

-A cannot be considered for purposes of determining the amount in controversy, and that the court cannot rely on reported jury verdicts from other states to assess the value of Evans’s claims. The court, however, need not reach these arguments. 10 In her objection to the defendants’ motion to amend their notice of removal, Evans argues that if they are allowed to do so she “will at that point have the opportunity to challenge [their] allegations with respect to the amount in controversy.” Evans has already had that opportunity in both the primary and reply briefs she filed in support of her motion for remand, but has failed, or refused, to do s o .

15 the motion for remand establish by a preponderance of the

evidence that the amount in controversy exceeds $75,000. The

defendants’ reliance upon Evans’s own allegations in doing so

follows the approach contemplated by the case law and, from a

practical standpoint, is the only avenue available to them given

the early stage of the litigation. Accordingly, the court need not rely on the defendants’

notice of removal to establish the amount in controversy. See

Heller,

(D. M e . 2003) (looking beyond

notice of removal, which erroneously invoked bankruptcy

jurisdiction, to complaint itself, which showed diversity

jurisdiction). The fact that the notice fails to state the

amount constitutes a mere “defect other than lack of subject

matter jurisdiction” within the meaning of

(c).

See Harmon v . OKI Sys.,

(S.D. Ind. 1995), aff’d,

(7th Cir. 1997); Tate v . Werner Co.,

, at *4 (S.D. Ind. June 2 6 , 2002); accord In re Allstate

Ins. Co.,

(5th Cir. 1993) (holding that failure

to allege plaintiff’s citizenship in notice of removal amounted

to “defect in removal procedure” under former version of

(c)). Under the statute, a motion to remand the

case on the basis of such a defect “must be made within 30 days

after the filing of the notice of removal . . . .”

1447(c). Evans did not bring the instant motion to remand until

May 1 7 , 2004, even though the defendants filed their notice of

removal on March 1 9 , 2004. To the extent Evans seeks remand on

the ground that the notice fails to state that the amount in

controversy exceeds $75,000 as required by

, her

motion comes too late. She has waived any such defect in the removal procedure. See McMahon v . Bunn-O-Matic Corp.,

(7th Cir. 1998); 16 Moore, supra, § 107.41[1][c][ii][C],

at 107-190.

For the foregoing reasons, Evans’s motion to remand the case

to the Rockingham County Superior Court is denied. Because Evans

has waived any omission of the amount in controversy from the

notice of removal, the defendants’ motion to amend it to make

explicit that more than $75,000 is at stake is denied as moot.

Cf. Heller,

(allowing amendment of notice of removal to assert diversity jurisdiction where clear

from face of complaint but plaintiff made timely motion to remand

based on absence of jurisdictional basis from notice).

17 II. The Motion for Bond

The defendants seek to require Evans to post a bond as

security for their costs in defending this action.11 As

authority for this relief, they invoke Local Rule 67.1, which

states that [e]xcept as otherwise provided by statute or court rule, parties, resident and nonresident, shall not be required as a matter of course to give security for costs in this court. In any civil proceeding, the court, either on its own initiative or on the motion of a party, may order any party except the United States to file an original bond for costs or additional security for costs in such an amount and so conditioned as it may designate. The motion of a party shall state in sufficient detail the circumstances warranting the requested security for costs. The court may at any time modify or rescind such an order or direct that additional or other security be furnished.

L.R. 67.1(a). This court has not had occasion to consider the

rule in any order published or otherwise posted on its website.

In recognizing the validity of local rules dealing with the

imposition of security for costs, the First Circuit has held that

a district court “is vested with a large measure of discretion in

applying such rules as it does promulgate.” Hawes v . Club

11 In their reply to Evans’s objection, the defendants accuse her of “presum[ing] that [they] propose that the representative plaintiff post the bond sought in their motion.” That is precisely what the defendants requested in their motion, however. Moreover, the defendants fail to provide any argument or authority for the suggestion that the responsibility to post bond for the defendant’s costs in a putative class action should be distributed across all likely members of the class.

18 Ecuestre El Comandante,

4 0 , 143-144 (1st Cir. 1976).

Nevertheless, the circuit has cautioned that “[w]hile it is

neither unjust nor unreasonable to expect a suitor to put his

money where his mouth i s , toll-booths cannot be placed across the

courthouse doors in a haphazard fashion.” Aggarwal v . Ponce Sch.

of Med.,

(1st Cir. 1984) (internal citation and quotation marks omitted); see also Murphy v . Ginorio,

(1st Cir. 1993); Donato v . McCarthy,

,

, at *4-*5 (D.N.H. Oct. 9, 2001)

(considering whether to require appeal bond).

Beyond generally marking the limits of the court’s

discretion to require a bond for costs, however, the First

Circuit’s decisions in this area provide limited guidance in

applying Local Rule 67.1, because they considered a different

local rule concerning security for costs, Rule 304 of the United States District Court for the District of Puerto Rico. While the

Puerto Rico rule mandates security for costs in the case of a

foreign plaintiff absent a showing of good cause, see, e.g.,

Murphy,

6 8 , this court’s rule provides that

“parties, resident and nonresident, shall not be required to give

security for costs as a matter of course.” L.R. 67.1

Furthermore, a party seeking to impose a bond requirement on its

adversary in this court must show “the circumstances warranting

19 the requested security for costs.”

For the court to require

Evans to post security for the defendants’ costs, then, they must show circumstances that differentiate this action from those brought in this court “as a matter of course.” The defendants argue that their substantial likelihood of success on the merits, significant anticipated discovery costs, and Evans’s “groundless motion practice” so far constitute such circumstances. The First Circuit has interpreted Puerto Rico Rule 304 to call for an assessment of the plaintiff’s likelihood of success on the merits. See Hawes,

. It is not clear, however, that Local Rule 67.1 contemplates such an analysis, except insofar as the plaintiff’s victory appears so improbable as to render the case much weaker than those the court ordinarily sees. Indeed, the court has reservations about trying to handicap the lawsuit at this stage, where little more than the initial pleadings have been submitted.12 Based on the parties’

12 In endorsing the plaintiff’s likelihood of success on the merits as a factor to consider in imposing a bond for costs under Rule 3 0 4 , Hawes cited Farmer v . Arabian Am. Oil Co.,

(2d Cir. 1960), noting that it reversed an order for $6,000 in security for the defendant’s costs “where plaintiff had made a strong prima facie case.”

n.5. The court in Farmer had already made that determination as part of a prior decision reversing the district judge’s dismissal of the case following a jury verdict for the plaintiff.

. The defendant had also waited until more than four years after commencement of the lawsuit to ask for a bond.

. In most cases, however, a defendant will request security for costs

20 present submissions, the court concludes that neither side has

demonstrated a clear likelihood of success on the merits. See

Donato,

, at * 3 .

The defendants also argue that they expect to incur

significant costs in litigating this action. Specifically, they

assert that “they will be required to depose a minimum of fifty

persons,” given the reported number of plaintiffs who had joined

the potential class as of March 1 7 , 2004, and that the

depositions will cost them at least $25,000. According to the

defendants, the bond they have requested is reasonable in light

of these anticipated costs. See Murphy,

.

It is true that the majority of lawsuits in this court, as a

matter of course, do not entail so many depositions.

Nevertheless, requiring Evans to post security sufficient to pay

for the depositions of all those who have identified themselves

as candidates for the class would be to employ Rule 67.1 as a

at the outset of the litigation, generally before the court can make any accurate assessment of the strength of the plaintiff’s claims. C f . Murphy,

(noting that district judge imposed bond under Rule 304 where defendants had raised res judicata defense which plaintiff did not dispute). In this court’s view, the plaintiff’s likelihood of success on the merits therefore carries little weight in determining whether to require security for costs under Local Rule 67.1 in the ordinary case where, as here, many of the essential facts and much of the applicable law remain either unclear or in dispute at the outset.

21 bludgeon, rather than as a scalpel. See Aggarwal,

. The defendants must bear some responsibility for weighing

their need for each deposition against the risk that its cost may

ultimately prove uncollectible.13 This court is disinclined to

relieve the defendants of their burden to litigate their case in

a sensible fashion by imposing a financial burden on Evans.

Finally, the defendants explain that Evans’s motion practice

to date has caused them concern that they may “incur costs

responding to groundless pleadings” in the future. Although the

First Circuit has endorsed “the conduct of the litigants” as a

factor to consider in deciding whether to require a bond, Hawes,

4 4 , Evans’s tactics have not yet reached the level

sufficient to warrant security for costs.14 C f . Leighton v .

Paramount Pictures Corp.,

(2d Cir. 1965)

(upholding security for expenses given plaintiff’s status as “an

habitual pro se litigant whose claims were often conclusory and lacking in legal merit”), cited in Hawes,

n.8.

13 Indeed, nearly every litigant faces this decision to some degree because the prospect of securing a favorable judgment and concomitant entitlement to costs is rarely assured, particularly before the close of discovery. 14 This conclusion is not intended to call into question any of the magistrate’s prior admonitions to Evans’s attorneys about their motion practice. Appropriate sanctions are available and will be employed by the court should Evans engage in similar motion practice in the future.

22 The defendants have therefore failed to show the

circumstances which distinguish this case from those brought in

this court as a matter of course.15 Their motion to require

Evans to post a bond to secure their costs is denied.

III. The Dispute Over the Discovery Schedule

The defendants propose that initial disclosures and other

discovery await the court’s decision on the summary judgment

motion they intend to file. The plaintiffs, however, seek to

proceed with class certification discovery so that the issue can

be briefed and argued in September 2004.

In potential class actions, like in other kinds of

litigation, “[c]ourts generally frown on motions to stay

discovery and deny them in the absence of compelling reasons.”

3 Alba Conte & Herbert B . Newberg, Newberg on Class Actions §

15 Because the court has determined that no bond requirement is justified, it need not proceed to consider Evans’s ability to post security for costs. C f . Murphy,

. The court notes, however, that any meaningful assessment of this factor requires some information about the plaintiff’s financial wherewithal. See Aggarwal,

(noting that plaintiff submitted affidavit explaining employment status and assets). Here, in contrast, Evans asks this court to find her unable to put up the requested bond based solely on the statement in her objection that she is “a person of limited financial resources.” Counsel are reminded that they have an obligation to provide a sufficient factual basis for any argument urged upon this court.

23 9:43, at 404 (4th ed. 2002); see also Medimatch, Inc. v . Lucent

Techs., Inc.,

4 2 , 862 n.20 (N.D. Cal. 2000); In

re Lotus Dev. Corp. Sec. Litig.,

8 , 51 (D. Mass.

1995); In re Proxima Corp. Sec. Litig.,

, at *43-*44 (S.D. Cal. 1994); Dickson v . Chicago Allied

Warehouses, Inc.,

, at *34-*35 (N.D. Ill. Sept. 1 5 , 1993). A defendant’s confidence that it will

prevail on a dispositive motion does not in and of itself justify

holding discovery in abeyance. See Gray v . First Winthrop Corp.,

9 , 40 (N.D. Cal. 1990); accord Miller Brewing C o . v .

Silver Bros. Co., N o . 88-229-SD (D.N.H. Sept. 2 9 , 1992),

available at http://www.nhd.uscourts.gov (rejecting pendency of

motions as reason to stay discovery).

Beyond their stated intention to move for summary judgment,

the only reason the defendants have provided for delaying discovery is that they face significant expense in obtaining

information from everyone potentially exposed to Hepatitis A at

the Derry Taco Bell. Again, however, it is up to the defendants

to decide whether taking such extensive discovery is worth the

price in this case. Evans has represented that she will seek

only three depositions and “other limited discovery” on the issue

of class certification. Accordingly, the defendants will not be

put in the potentially unfair position of having to respond to

24 onerous discovery requests from Evans despite their strong

conviction that they will prevail as a matter of law.

The defendants’ request that discovery await a decision on

their planned summary judgment motion is therefore denied. The

parties are ordered to confer for purposes of preparing an

amended discovery plan pursuant to Fed. R. Civ. P. 26(f) and to file the plan with the court by July 23, 2004. To the extent any

disagreements over the scope or scheduling of discovery remain,

the court will take them up at that time.

Conclusion

For the foregoing reasons, Evans’s motion to remand for lack

of subject matter jurisdiction (document n o . 28) is DENIED. The

defendants’ motion for leave to amend their notice of removal

(document n o . 31) is DENIED as moot. The defendants’ motion to

require Evans to file a bond for costs (document n o . 27) is also

DENIED. The parties shall file an amended joint discovery plan

in accordance with Fed. R. Civ. P. 26(f) by July 23, 2004.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge July 1 4 , 2004 c c : Peter E . Hutchins, Esquire Andrew W . Serell, Esquire Bruce G. Tucker, Esquire

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