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Simon v. Marriott International, Inc.

United States District Court, D. Maryland, Southern Division

September 23, 2019

ARYEH SIMON, et al., Plaintiffs,
v.
MARRIOTT INTERNATIONAL, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm, United States District Judge.

         Plaintiffs Aryeh and Sassya Simon, on behalf of themselves and others similarly situated, filed suit in state court in Connecticut seeking permanent injunctive relief and monetary damages from Defendants[1] for claims arising out of the data breach incident that is the subject of the Multidistrict Litigation against Marriott (“Marriott MDL”) pending before me, In re Marriott, No. PWG-19-2879. See Compl., ECF No. 1-1. Marriott removed the action to federal court in Connecticut; the case was transferred to this Court as part of the Marriott MDL, and the Simons filed a Motion to Remand to Connecticut state court for lack of subject matter jurisdiction. See Pls.’ Mot., ECF No. 28; Pls.’ Mem. 1, ECF No. 29. Because this Court has jurisdiction over class action claims that subsume the Simons’ claims, this Court has jurisdiction over the Simons’ claims, and the Motion to Remand is denied.

         Factual Background

         To provide context, I begin with an action that another litigant, Melissa Frank, filed against Marriott. Frank filed suit in Connecticut state court against Marriott on behalf of “American citizens who live abroad and whose Personal Information was accessed, compromised, or stolen in the [Marriott] Data Breach.” Frank Compl. ¶ 59, ECF No. 1-6 (emphasis added); see Frank v. Marriott Int’l Inc., No. 19-cv-326 (D. Conn.). Marriott removed the case to the United States District Court for the District of Connecticut pursuant to 28 U.S.C. § 1332(d). Frank Notice of Removal, ECF No. 1-7. Marriott argued the court had diversity jurisdiction under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1711, because there was likely one person in Frank’s action domiciled in the United States in a state other than Delaware or Maryland, where Marriott is a citizen, and therefore CAFA’s requirement of minimal diversity was met.[2] Id. The next day, plaintiff’s counsel voluntarily dismissed Frank. Frank Notice of Voluntary Dismissal, ECF No. 1-8. The same counsel then filed this action on behalf of the Simons, again in Connecticut state court. Compl. 1.[3]

         The Simons seek to represent “[a]ll U.S. citizens who are domiciled abroad and whose Personal Information was compromised, accessed, or stolen in the [Marriott] Data Breach.” Compl. ¶ 66 (emphasis added). Marriott removed the suit to the United States District Court for the District of Connecticut pursuant to 28 U.S.C. § 1332(d), based on diversity jurisdiction under CAFA, and sought its inclusion into the Marriott MDL. See Defs.’ Notice of Removal, ECF No. 1. The Judicial Panel on Multidistrict Litigation transferred it to this Court for inclusion in the MDL, despite the Simons’ efforts to keep the action in state court. J.P.M.L. Transfer Order, ECF No. 19.

         The Simons have filed a Motion to Remand, arguing that this Court does not have subject matter jurisdiction over this action because CAFA’s minimal diversity requirement is not met. See Pls.’ Mot. & Mem. The parties have fully briefed the motion. ECF Nos. 29, 36, 38. A hearing is not necessary. See Loc. R. 105.6.

         Standard of Review

         If a federal court determines that it does not have jurisdiction over a case that has been removed from state court, the federal court must remand the case back to state court. See 28 U.S.C. § 1447(c). In considering a motion to remand, the court must “strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court.” Richardson v. Phillip Morris Inc., 950 F.Supp. 700, 702 (D. Md. 1997) (quoting Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 507 (E.D. Va. 1992)).

         The burden of establishing jurisdiction rests with the party seeking removal, here Marriott. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004). The party asserting subject matter jurisdiction must prove by a preponderance of the evidence the facts necessary to establish jurisdiction. Vest v. RSC Lexington, LLC, No. 16-3018-CMC, 2016 WL 6646419, at *7 (D.S.C. Nov. 10, 2016). I can consider facts outside the pleadings and am not limited by the allegations in a plaintiff’s complaint when evaluating a motion to remand. See United States v. Smith, 395 F.3d 516, 519 (4th Cir. 2005) (considering the entire record in evaluating a motion to remand); Linnin v. Michielsens, 372 F.Supp.2d 811, 819 (E.D. Va. 2005) (holding that the court has “authority to look beyond the pleadings and consider summary-judgment-type evidence, such as the affidavits and the depositions accompanying either a notice of removal or a motion to remand”).

         Discussion

         The Simons do not challenge Defendants’ assertions in their notice of removal that CAFA’s requirements for numerosity (100 plaintiffs), 28 U.S.C. § 1332(d)(5)(B), and amount-in-controversy (five million dollars), 28 U.S.C. § 1332(d)(2) are both met. See Pls.’ Mot. & Mem.; Defs.’ Notice of Removal. Therefore, the only issue here is whether minimal diversity exists under CAFA.

         Under CAFA, minimal diversity exists if “any member of a class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A). It is not disputed that the class the Simons seek to represent does not support minimal diversity jurisdiction if only the allegations within the four corners of the Complaint are considered. The Simons seek to represent “[a]ll U.S. citizens who are domiciled abroad and whose Personal Information was compromised, accessed, or stolen in the [Marriott] Data Breach.” Compl. ¶ 66. Because U.S. citizens who are domiciled abroad are “stateless” (and therefore not a citizen of any State), they cannot be diverse from any defendant. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828 (1989) (holding that, for diversity jurisdiction purposes, one must be a citizen of the United States and domiciled in a State); see also Herrick Co., Inc. v. SCA Commc’ns, 251 F.3d 315, 322 (2d Cir. 2001) (holding that a U.S. citizen that is domiciled abroad cannot be diverse from a U.S. citizen that is also domiciled in a State).

         Marriott argues that this Court has jurisdiction nonetheless because federal jurisdiction already attached to two CAFA class actions in this MDL before the Simons filed their suit, that broadly defined their classes as: “[a]ll persons [whose personal identifying information] was accessed, compromised, or stolen from Marriott” because of the data breach. See Compl. ¶ 59, ECF No. 1 in Mendez v. Marriott Int’l, Inc., No. PWG-19-520 (D. Md.) (filed Dec. 17, 2018); Compl. ¶ 46, ECF No. 1 in Trager v. Marriott Int’l, Inc., No. PWG-18-3745 (D. Md.) (filed Dec. 5, 2018). In Marriott’s view, the Mendez and Trager classes are broad enough to include within them the Simons’ claims and those of all the putative class members that they purport to represent. Defs.’ Opp’n 6. And because the Simons’ complaint was filed after both Mendez and Trager and the opening of the Marriott MDL, this Court already had jurisdiction over the Simons’ claims through the Marriott MDL. Id. at 7. Marriott also argues that, because there is evidence that the Simons’ complaint is an attempt to skirt federal jurisdiction and CAFA’s efficiency goals, and because the Simons are, in essence, trying to divest this court of jurisdiction over class members whose claims properly are before it, this Court has authority to deny the Simons’ motion to remand in order to maintain its existing jurisdiction. Id. at 4. I agree.

         In reaching this result, I must acknowledge that this issue appears to be one of first impression. My research has not yielded any case from the Fourth Circuit, this Court, or another jurisdiction, that has dealt with the narrow issue before me: Can a class action plaintiff pursue a lawsuit in state court consisting of claims that already are included in a CAFA suit within an existing MDL by manipulating the allegations in their complaint to skirt the minimal diversity requirement of CAFA? However, case law addressing the federal ...


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