United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm, United States District Judge.
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 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.
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. 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.
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
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.
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)).
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
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, 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).
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
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