Dutcher v. Matheson
Dutcher v. Matheson
Opinion of the Court
MEMORANDUM DECISION AND ORDER ON CAFA JURISDICTION
This matter is before the Court on remand from the Court of Appeals for the
I. BACKGROUND
Plaintiffs are Utah residents whose homes have been subject to foreclosure sales performed by Defendants in Utah. Plaintiffs’ Complaint brings six causes of action based on a central theme — that Defendant ReconTrust did not have authority to conduct a trustee sale in Utah because it was not an authorized trustee under Utah law. Plaintiffs also bring their claims on behalf of all persons subject to the allegedly unlawful foreclosure actions of Defendants. Plaintiffs allege that the proposed class exceeds 10,000 members. Plaintiffs also allege, on information and belief, that more than 75% of the proposed class members are citizens of Utah.
Plaintiffs originally filed suit in Utah state court on June 24, 2011. Defendants subsequently removed the action to this Court and collectively moved to dismiss Plaintiffs’ claims. Plaintiffs moved for a temporary restraining order and preliminary injunction and also sought to remand this matter to state court. In a memorandum decision entered February 8, 2012, the Court denied Plaintiffs’ motions and granted Defendants’ motion to dismiss.
Plaintiffs appealed the Court’s ruling. On appeal, the Tenth Circuit requested supplemental briefing on whether this Court had jurisdiction to hear Plaintiffs’ claims. The Tenth Circuit subsequently held (1) the Court erred in concluding that federal question jurisdiction was proper under the doctrine of federal preemption and (2) that Defendants had not met their burden to prove fraudulent joinder and, therefore, diversity jurisdiction was not established. The Court of Appeals noted that Defendants had also argued that jurisdiction was proper under CAFA but indicated that “we do not believe it appropriate to resolve this thorny question without further factual development in the district court.”
II. DISCUSSION
Congress enacted CAFA to “respond to perceived abusive practices by plaintiffs and their attorneys in litigating major class actions with interstate features in state courts.”
“CAFA jurisdiction exists when the proposed class contains at least one-hundred persons, the amount in controversy exceeds $5,000,000.00, and there is minimal diversity.”
CAFA contains two statutory exceptions that, if met, mandate that a district court decline to exercise jurisdiction. These exceptions are characterized as the “local controversy exception” and the “home state exception.”
The exceptions to CAFA jurisdiction are “intended to be narrow, ‘with all doubts resolved in favor of exercising jurisdiction over the case.’ ”
A. LOCAL CONTROVERSY EXCEPTION
The local controversy exception was created to exempt from CAFA jurisdiction “those cases consisting of primarily local, intrastate matters.”
(I) greater than two-thirds of the members of all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed;
(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; and
*1333 (III) principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and
[IV] during the 3-year period preceding the filing of that class action, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons ....15
The Court will consider each of these elements and the parties’ arguments individually below.
1. CLASS CITIZENSHIP
Plaintiffs argue that the first element is met because it is reasonably likely that a significant percentage of the proposed class are Utah citizens. Defendants contend that Plaintiffs have failed to establish that greater than two-thirds of the class members are Utah citizens because they have not provided any evidence of the proposed class members’ citizenship and Plaintiffs’ Complaint merely alleges a class comprised of individuals who formerly owned property in Utah.
A party seeking to avail itself of the local controversy exception must prove by a preponderance of the evidence that at least two-thirds of the proposed class were citizens of the forum state on the date the case became removable.
Here, Plaintiffs have not presented any evidence to support their assertion that more than two-thirds of the proposed class were citizens of the State of Utah at the time of removal. Logic dictates that a large percentage of the proposed class, as former owners of real property within the forum, were citizens of the State of Utah. However, other courts “have not found inferences as to citizenship based on property ownership to be particularly persuasive, and for obvious reasons&emdash;a person may own property in a particular state without being a citizen of it.”
Plaintiffs request jurisdictional discovery to establish the “numerosity and
2. LOCAL DEFENDANT
Plaintiffs argue that the second element is met because Defendants Stuart T. Matheson and Matheson, Mortenson, Olsen & Jeppson, P.C. (collectively referred to hereinafter as the “Matheson Defendants”) are citizens of Utah, whose conduct forms a significant basis for the claims asserted, and from whom significant relief is sought. Defendants contend that the Matheson Defendants merely acted as Re-conTrust’s agents and therefore are not defendants from whom significant relief is sought or whose conduct forms a significant basis for the claims asserted.
The second element requires (1) that at least one defendant is a citizen of the State in which the action was originally filed (2) “from whom significant relief is sought by members of the plaintiff class” and (3) “whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class.”
First, it is undisputed that the Matheson Defendants are citizens of the State of Utah. Second, in Coffey v. Freeport McMoran Copper & Gold, the Tenth Circuit upheld a district court’s finding “that the ‘significant relief element is satisfied ... where the petition claims that every potential plaintiff is entitled to recover from [the local defendant] and the proposed class seeks to collect damages from all defendants jointly and severally.’ ”
The crux of Defendants’ argument centers on the third requirement — that the Matheson Defendants’ alleged conduct forms a significant basis for the claims asserted. The Court begins its analysis with the relevant statutory text.
The Court follows the “general principle of statutory construction that terms used in a statute should be given their plain
This interpretation of the “significant basis” requirement is supported by the legislative purposes of CAFA. In enacting CAFA, “[t]he primary ‘abuses’ Congress identified were misuse of the ‘complete diversity requirement’ and abuse of the ‘amount-in-controversy’ requirement.”
Plaintiffs argue that the Matheson Defendants’ alleged conduct meets the significant basis requirement because the Matheson Defendants “were on the front lines of the serial illegally [sic] taking of homes from Utah homeowners-they exercised the illegal ‘power of sale’ knowing that they had not complied with Utah law to obtain that ‘power;’ they are, indeed, the primary defendants.”
As this Court indicated previously, “[s]uch conclusory language, no matter how strong or how pervasive, will not suffice on its own.”
A thorough review of the factual allegations of Plaintiffs’ Complaint supports Plaintiffs’ characterization of this case in their Proposed Amended Complaint as “a dispute regarding the qualifications of Defendant ReconTrust to act in the capacity as a properly qualified foreclosure trustee” under Utah law. The majority of the factual allegations contained in Plaintiffs’ Complaint pertain to actions taken by Re-conTrust and Bank of America.
The Court finds that the Matheson Defendants are, at most, ancillary defendants. Consequently, the Court finds that Plaintiffs have failed to meet their burden to demonstrate that the Matheson Defendants’ alleged conduct forms a significant basis for the claims asserted by the proposed class.
In an alternative argument, Plaintiffs assert that they should be allowed jurisdictional discovery as to “[t]he actions of [the Matheson Defendants], their role in the underlying scheme alleged in the complaint, and the relationship between Matheson and MMOJ and Recon[T]rust and Bank of America, to establish the significance or their conduct as it relates to the claims Plaintiffs have asserted.”
3. PRINCIPAL INJURIES
Plaintiffs argue that the principal injuries resulting from the Defendants’ alleged conduct incurred in the State of Utah. Though Defendants assert that they do not concede Plaintiffs can prove this point, Defendants do not provide any reasoned argument in support of their assertion. The allegations of Plaintiffs’ Complaint provide that the allegedly unlawful foreclosures occurred within the State of Utah. From this alleged conduct, the Court can infer that the principal injuries suffered by Plaintiffs occurred within the forum. Therefore, Plaintiffs have met their burden on this element.
4. PRIOR CLASS ACTIONS
The final element that must be met for the local controversy exception to apply requires that “no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons” during the three years prior to the filing of suit. The parties disagree as to whether this element is met.
In dispute is Coleman v. ReconTrust Co., N.A.,
A review of the factual allegations contained in the complaint filed in Coleman belies Plaintiffs’ contention. As has been discussed previously, in this case Plaintiffs bring six causes of action based on a central theme — that Defendant ReconTrust did not have authority to conduct trustee sales in Utah because it was not an authorized trustee under Utah law. Plaintiffs’ factual allegations are focused on this theme.
Similarly, the claims in Coleman focus on the authority of ReconTrust to conduct trustee sales in Utah. In paragraph 23 of their complaint, the Coleman plaintiffs stated that “[t]he Plaintiffs within the FDCPA Class and Utah Class have each been foreclosed upon and sometimes dispossessed from their homes by defendants acting through an entity, ReconTrust, which lacks authority to foreclose non judicially because it lacks the power of sale under Utah law_”
Defendant Bank of America, and the other defendants, have regularly employed defendant ReconTrust, a national banking association whose powers are limited to performing as a trust company only, and regularly employ ReconTrust, to foreclose, as trustee with power of sale, trust deeds on Utah Realty.... Such foreclosures are without authority and illegal because § 57-1-21(3), UCA (1953) limits the power of sale to Utah lawyers and title companies, denying it to trust companies.41
A comparison of the Complaint in this case and that in the Coleman case demonstrates that the two cases assert the same or similar factual allegations. As such, the Court finds that Plaintiffs have not met their burden on this point.
The Court would also note that Coleman and the instant suit are only two in a series of similar actions challenging the authority of ReconTrust to conduct non judicial foreclosure sales under Utah law.
As Defendants properly argue, the elements of the local controversy exception are enumerated in the conjunctive. Plaintiffs’ failure to establish any one of the elements results in the inapplicability of the exception. Plaintiffs have not met their burden to demonstrate three of the four elements. Therefore, the Court finds that the local controversy exception does not apply.
B. HOME STATE EXCEPTION
The home state exception mandates that the Court decline CAFA jurisdiction if “two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.”
For the same reasons provided previously, the Court finds that Plaintiffs have not met their burden to demonstrate that two-thirds or more of the members of the proposed class in aggregate are citizens of Utah.
The second part of the home state exception requires that the primary defendants in this case be citizens of Utah. Plaintiffs argue that this requirement is met here because the Matheson Defendants are citizens of Utah. “Although there is some disagreement regarding the definition of ‘primary,’ most courts have construed the term ‘primary Defendants’ to mean all primary defendants.”
Based on the foregoing, the Court finds that Plaintiffs have failed to meet their burden to establish that the home state exception applies in this case.
C. DISCRETIONARY EXCEPTION
The discretionary interests of justice exception to CAFA jurisdiction is found in 28 U.S.C. § 1332(d)(3). That section provides that
[a] district court may, in the interests of justice and looking at the totality of the circumstances, decline to exercise jurisdiction under paragraph (2) over a class action in which greater than one-third but less than two-thirds of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the State in which the action was originally filed based on consideration of—
(A) whether the claims asserted involve matters of national or interstate interest;
(B) whether the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States;
(C) whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction;
(D) whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants;
*1339 (E) whether the number of citizens of the State in which the action was originally filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States; and
(F) whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims on behalf of the same or other persons have been filed.
After considering these factors, the Court will decline to apply the discretionary exception. In so doing, the Court would note in particular (1) the fact that it is unclear at this point the percentage of the proposed class who are citizens of the State of Utah; (2) the primary defendants in this case are not citizens of Utah; (3) this matter involves claims of national importance, including the application and interpretation of the National Banking Act; (4) this matter will not be entirely governed by the law of the State of Utah — it also involves the application of federal law and potentially implicates the law of other states; (5) this class action was not plead in such a way as to avoid CAFA jurisdiction; and (6) in the 3-year period prior to the filing of this suit, a prior class action was brought bringing similar claims and multiple similar class actions have been brought in this forum since that time.
D. JURISDICTIONAL DISCOVERY
In the event the exceptions to CAFA jurisdiction do not apply, Plaintiffs request that they be allowed brief jurisdictional discovery. This Court is vested with broad discretion in deciding whether to allow jurisdictional discovery.
Here, Plaintiffs request brief jurisdictional discovery as to the actions of the Matheson Defendants and the numerosity and makeup of the proposed putative class. As indicated previously, those elements of the CAFA exceptions that evaluate the conduct of the Matheson Defendants do so only in the context of the allegations of Plaintiffs’ Complaint. Further, even if Plaintiffs were able to establish the percentage of the proposed class that were citizens of the State of Utah at the time of removal, it would be unable to establish the remaining elements required to qualify for the exceptions to CAFA jurisdiction. Because the CAFA exceptions require Plaintiffs to prove all of the elements in the conjunctive, the jurisdictional discovery sought by Plaintiffs would not impact the Court’s decision in this case and would be futile.
Based on the foregoing, the Court finds that Plaintiffs will not be prejudiced if denied the opportunity to conduct jurisdictional discovery. Therefore, the Court will deny Plaintiffs’ request for jurisdictional discovery.
E. COMITY
Plaintiffs argue that “even if it finds that there is a statutory basis for
To the extent Plaintiffs argue that the Court should decline to hear this case because the Utah Supreme Court reached this issue in Federal National Mortgage Ass’n v. Sundquist,
For these reasons, the Court finds that principles of comity do not justify declining the exercise of jurisdiction in this case.
F. MOTION TO TRANSFER
Defendant ReconTrust seeks to transfer a related case — Allred v. Recon-Trust Co. N.A., Case No. 2.T3-CV-1124 BJ — to this Court. DUCiv R 83-2(g) provides for the transfer of a later filed related case to be heard by a district court judge hearing a related earlier filed case. The rule provides a number of factors that the Court may consider in evaluating whether to transfer a related case.
A majority of the judges of this Court have now heard cases bringing claims similar to those brought in the instant suit. This includes the Honorable District Court Judge Bruce Jenkins, who is now assigned to hear the Allred case. Thus, there is no efficiency to be gained by having this matter heard by this Court. Furthermore, a transfer of the Allred matter will not prevent inconsistent outcomes, as inconsistent outcomes have already been reached. Rather, ReconTrust’s Motion appears to be an example of judge shopping — a maneuver that this Court will not condone.
The Court will deny ReconTrust’s Motion to Transfer.
Based on the foregoing, the Court hereby
FINDS that it has jurisdiction over this case pursuant to the Class Action Fairness Act. It is further
ORDERED that Defendant Recon-Trust’s Motion to Transfer (Docket No. 97) is DENIED. The Clerk of Court is instructed to close this case forthwith.
. Docket No. 97.
. See Docket No. 48.
. Docket No. 79, at 17.
. Id.
. Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1243 (10th Cir. 2009).
. Johnson v. Advance Am., 549 F.3d 932, 938 (4th Cir. 2008) (internal quotation marks and citation omitted).
. Valdez v. Metro. Prop. & Cas. Ins. Co., 867 F.Supp.2d 1143, 1163 (D.N.M. 2012) (citing 28 U.S.C. § 1332(d)(2), (5)).
. See Docket Nos. 85, 88.
. See Coffey, 581 F.3d at 1243.
. See 28 U.S.C. § 1332(d)(3).
. Opelousas Gen. Hosp. Auth. v. Fairpay Solutions, Inc., 655 F.3d 358, 360 (5th Cir. 2011) (quoting Evans v. Walter Indus. Inc., 449 F.3d 1159, 1163 (11th Cir. 2006)); see also Westerfeld v. Indep. Processing, LLC, 621 F.3d 819, 822 (8th Cir. 2010) (holding that "CAFA grants broad federal jurisdiction over class actions and establishes narrow exceptions to such jurisdiction").
. Lafalier v. Cinnabar Serv. Co., Inc., No. 10-CV-0005 CVE, 2010 WL 1486900, at *5 (N.D.Olda. April 13, 2010) (citing Evans, 449 F.3d at 1164; Cox v. Allstate Ins. Co., 2008 WL 2167027 (W.D.Okla. May 22, 2008)).
. Coffey, 581 F.3d at 1243 (citing S.Rep. No. 109-14, at 39 (2005)).
. S.Rep. No. 109-14, at 39.
. 28 U.S.C. § 1332(d)(4)(A)(i)-(ii).
. See In re Sprint Nextel Corp., 593 F.3d 669, 673 (7th Cir. 2010); Preston v. Tenet Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804, 813-14 (5th Cir. 2007).
. Lafalier, 2010 WL 1486900, at *5 (citing Dunham v. Coffeyville Res., LLC, 2007 WL 3283774 (D.Kan. Nov. 6, 2007); Mattera v. Clear Channel Commc'ns, Inc., 239 F.R.D. 70, 80 (S.D.N.Y. 2006)).
. Id.; see also Gerstenecker v. Terminix Int’l, Inc., 2007 WL 2746847, at *2 (S.D.Ill. Sept. 19, 2007) (reasoning that while the real property at issue was located in Illinois, to conclude that two-thirds of the property owners are Illinois residents "requires a leap of faith this Court cannot make”).
. Lafalier, 2010 WL 1486900, at *5.
. Reece v. AES Corp., 2013 WL 1342379, at *4 (E.D.Okla. April 2, 2013) (citing Gersten-ecker, 2007 WL 2746847).
. Docket No. 88, at 19.
. 28 U.S.C. § 1332(d)(4)(A)(i)(II).
. Coffey, 581 F.3d at 1244 (quoting Coffey v. Freeport-McMoRan Copper & Gold Inc., 623 F.Supp.2d 1257, 1267 (W.D.Okla. 2009)).
. Parson v. Johnson & Johnson, 749 F.3d 879, 887-88, 2014 WL 1399750, at *3 (10th Cir. April 11, 2014) (citing Scimone v. Carnival Corp., 720 F.3d 876, 884 (11th Cir. 2013)).
. 28 U.S.C. § 1332(d)(4)(A)(i)(II)(bb) (emphasis added).
. Parson, 749 F.3d at 887, 2014 WL 1399750, at *3 (citing Miss. ex rel. Hood v. AU Optronics Corp.,-U.S.-, 134 S.Ct. 736, 744, 187 L.Ed.2d 654 (2014)).
. Angus Stevenson & Christine Lindberg, New Oxford Am. Dictionary 1626 (3d ed. 2010).
. Id. at 137.
. Parson, 749 F.3d at 889-90, 2014 WL 1399750, at *5 (citing S.Rep. No. 109-14, at 46 (2005)).
. Docket No. 88, at 8.
. Docket No. 33, at 3-4.
. Docket No. 48, at 6.
. Docket No. 2 Ex. 1, at 10-11.
. Plaintiffs sought leave to file their Proposed Amended Complaint in conjunction with seeking reconsideration of this Court’s prior dismissal of their claims. The Court summarily denied leave to amend on the basis of futility after considering Plaintiffs' arguments for reconsideration.
. Docket No. 58, at 2.
. Docket No. 88, at 19.
. 28 U.S.C. § 1332(d)(4)(A)(i)(II)(bb).
. See Kaufman v. Allstate N.J. Ins. Co., 561 F.3d 144, 157 (3d Cir. 2009) (holding that the district court erred by not focusing its analysis on the alleged conduct and comparing it to the alleged conduct of all of the defendants).
.No. 2-.10-CV-1099 DB (D. Utah filed Nov. 5. 2010).
. Complaint at 6-7, Coleman v. ReconTrust Co., N.A., No. 2:10-CV-1099 DB (D.Utah Nov. 5, 2010).
. Id. at 8-9.
. See Baker v. BAC Home Loans Servicing LP, No. 2:11-CV-720 CW, 2012 WL 464024 (D.Utah Feb. 13, 2012); Bell v. Countrywide Bank, N.A., 860 F.Supp.2d 1290 (D.Utah 2012); Garrett v. ReconTrust Co., N.A., No. 2:11-CV-763 DS, 2011 WL 7657381 (D.Utah Dec. 21, 2011); Loomis v. Meridias Capital, Inc., No. 2:11-CV-363 PMW, 2011 WL 5844304 (D.Utah Nov. 18, 2011); Cox v. ReconTrust Co., N.A., No. 2:10-CV-492 CW, 2011 WL 835893 (D.Utah Mar. 3, 2011).
. Coleman, 2;10-CV-1099 DB (D.Utah Aug. 28, 2010), ECF 136, at 2.
. Coffey, 581 F.3d at 1243 (citing S.Rep. No. 109-14, at 39 (2005)).
. 28U.S.C. § 1332(d)(4)(B).
. Reece, 2013 WL 1342379, at *5 (comparing Villalpando v. Exel Direct Inc., 2012 WL 5464620, at *8 (N.D.Cal. Nov. 8, 2012) with Nicholson v. Prime Tanning Corp., 2009 WL 2900042, at *2 n. 5 (W.D.Mo. Sept. 3, 2009)).
. Budde v. Ling-Temco-Vought, Inc., 511 F.2d 1033, 1035 (10th Cir. 1975).
. Grynberg v. Ivanhoe Energy, Inc., 490 Fed.Appx. 86, 103 (10th Ciir. 2012) (unpublished) (quoting Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002)).
. Docket No. 88, at 18.
. 560 U.S. 413, 130 S.Ct. 2323, 176 L.Ed.2d 1131 (2010).
. See Docket No. 88, at 17.
. 311 P.3d 1004, 1012-14 (Utah 2013).
. Wilder v. Turner, 490 F.3d 810, 814 (10th Cir. 2007) (quoting Grantham v. Avondale Indus., Inc., 964 F.2d 471, 473 (5th Cir. 1992)).
. 546 Fed.Appx. 736 (10th Cir. 2013) (unpublished).
. See DUCivR 83-2(g)(i)-(vii).
Reference
- Full Case Name
- Richard DUTCHER and Gwen Dutcher, Ruchard Ferguson and Michelle Ferguson and Catherine Richards Ahlers, on their own behalf and on behalf of a class of similarly situated persons v. Stuart T. MATHESON Matheson Mortenson, Olsen & Jeppson, P.C. Recon-Trust Company N.A. BAC Home Loans Servicing LP and Bank of America, N.A.
- Cited By
- 2 cases
- Status
- Published