United States District Court, D. Connecticut
JOHN Q. GALE and JOHN Q. GALE, LLC, Plaintiffs,
CHICAGO TITLE INSURANCE CO., ET AL., Defendants.
RULING AND ORDER
N. CHATIGNY, UNITED STATES DISTRICT JUDGE.
John Gale (“Gale”) and John Q. Gale, LLC
(“Gale Law Firm”) filed this suit in federal
court under the Class Action Fairness Act
(“CAFA”), 28 U.S.C. §§ 1332(d), on
behalf of themselves and others, for damages and equitable
relief against title insurance companies doing business in
Connecticut alleging violations of the Connecticut Unfair
Trade Practices Act (“CUTPA”), Conn. Gen. Stat.
§ 42-110b(a), and the Connecticut Unfair Sales Practices
Act (“CUSPA”), Conn. Gen. Stat. § 24-111.
Plaintiffs have filed a fourth amended complaint
(“4AC”), which deletes the class allegations in
the original complaint. Defendants have moved to dismiss
arguing principally that CAFA jurisdiction no longer exists
as a result of the amendment and there is no other basis for
subject matter jurisdiction. Plaintiffs respond that because
CAFA jurisdiction attached with the filing of the original
complaint, the 4AC does not divest the Court of jurisdiction.
After considering the parties' submissions, I conclude
that the claims in the 4AC should be dismissed without
prejudice to refiling in state court.
with the history of this long-pending litigation is presumed.
In relevant part, the procedural history is as follows. On
March 23, 2011, plaintiffs' motion for class
certification was granted, allowing class treatment pursuant
to Federal Rule of Civil Procedure 23(b)(2). Order 15 (ECF
No. 240). On August 23, 2011, defendants moved to decertify
the class, arguing that the monetary relief plaintiffs sought
was foreclosed by the Supreme Court's ruling in Wal
Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). Mot.
¶¶ 3-4 (ECF No. 255). On March 22, 2012,
defendants' motion to decertify the class was granted
without prejudice to the filing of a new motion for class
certification. Minute Entry (ECF No. 308).
March 2016, plaintiffs reported that in an effort to try to
move the case along they had decided to proceed solely on
their individual claims for declaratory and injunctive
relief. A conference was held to discuss the best way to
proceed. Minute Entry (ECF No. 340). At the conference,
defendants stated that “the first order of
business” should be “for the plaintiffs to move
to amend” their complaint. Tr. 9-10 (ECF No. 346).
Pursuant to the discussion at the conference, plaintiffs
filed the 4AC dropping the class allegations. The 4AC alleges
that jurisdiction is proper under 28 U.S.C. §
1332(d)(2)(A) because this was a class action involving
diverse parties and more than $5, 000, 000 in controversy
when the action was brought. 28 U.S.C. § 1332(d)(2)(A);
Fourth Am. Compl. ¶ 13 (ECF No. 342).Defendants
responded to the 4AC by filing the present motion to dismiss
for lack of subject matter jurisdiction.
Circuits that have considered the question agree that failure
of class certification under CAFA does not prevent a district
court from retaining jurisdiction over individual claims.
See F5 Capital v. Pappas, 856 F.3d 61, 77 (2d Cir.
2017); Louisiana v. Am. Nat'l Prop. & Cas.
Co., 746 F.3d 633, 635 (5th Cir. 2014); Metz v.
Unizan Bank, 649 F.3d 492, 500-01 (6th Cir. 2011);
Buetow v. A.L.S. Enters., Inc., 650 F.3d 1178, 1182
n.2 (8th Cir. 2011); United Steel, Paper & Forestry,
Rubber, Mfg., Energy, Allied Indus. & Serv. Workers
Int'l Union v. Shell Oil Co., 602 F.3d 1087, 1091-92
(9th Cir. 2010); Cunningham Charter Corp. v. Learjet,
Inc., 592 F.3d 805, 806-07 (7th Cir. 2010); Vega v.
T-Mobile USA, Inc., 564 F.3d 1256, 1268 n.12 (11th Cir.
2009). In none of those cases, however, were the class
allegations dropped from an amended complaint. Ordinarily,
when a plaintiff voluntarily amends a complaint filed in
federal court, the court must look to the amended complaint
to determine subject matter jurisdiction. Rockwell
Int'l Corp. v. United States, 549 U.S. 457, 473-74
(2007). Defendants contend that this rule requires dismissal
of the 4AC.
contend that Rockwell applies only to federal
question jurisdiction and thus does not apply to a case under
CAFA, which is anchored in diversity jurisdiction. Pl.'s
Mem. Opp'n 11-12 (ECF No. 354). Defendants' reply
brief cites diversity cases in which Rockwell has
been applied. Defs.' Reply Mem. 2-3 (ECF No. 358). In any
event, it is not clear that this case should be treated like
a diversity case that satisfied the requirements of 28 U.S.C.
§ 1332(a) at the time it was filed.
enacted CAFA to deal with the specific problem of class
action litigation of “national importance” being
brought in state courts due to forum shopping.
Mississippi ex rel. Hood v. AU Optronics Corp., 134
S.Ct. 736, 739 (2014). When a case originally brought in
federal court pursuant to CAFA can no longer be considered a
class action, CAFA's purposes do not justify maintaining
federal jurisdiction. Nor is continued CAFA jurisdiction in
such a case justified by concerns about forum shopping, the
reason often given for continuing jurisdiction in removed
cases. See In Touch Concepts, Inc. v. Cellco
P'ship, 788 F.3d 98, 101 (2d Cir. 2015); In re
Burlington N. Santa Fe Ry. Co., 606 F.3d 379, 381 (7th
Cir. 2010) (citing Rockwell, 549 U.S. at 473-74
& n.6; United Steel, 602 F.3d at 1091-92; and
Cunningham, 592 F.3d at 807).
a plaintiff who brings a CAFA case in federal court can plead
away jurisdiction under Rockwell by filing an
amended complaint that drops the class allegations appears
not to have been decided by any Court of Appeals. However, in
a CAFA case that was removed to federal court, the Second
Circuit quoted from Rockwell then stated in dictum
that, “if this case had been filed originally in
federal court, the district court would have had to dismiss
it as soon as [the plaintiff] filed the First Amended
Complaint, which dropped all class-action allegations and
thereby destroyed the only basis for federal
jurisdiction.” In Touch Concepts, Inc. v. Cellco
P'ship, 788 F.3d at 101. The Court's statement
strongly suggests that Rockwell applies in this
oral argument on the present motion, plaintiffs' counsel
stated that the Second Circuit's statement should be
interpreted as an indication of what would happen if a
plaintiff filed a CAFA complaint in federal court then
abandoned the class allegations without first making an
effort to have the class certified. Tr. 16 (ECF No. 360-1).
That reading is possible because the plaintiff in In
Touch seems to have dropped the class allegations before
seeking class certification. See 788 F.3d at 100. It
is far from clear, however, that CAFA jurisdiction continues,
notwithstanding Rockwell, unless the plaintiff has
engaged in what appears to be forum manipulation. It may well
be that Rockwell requires dismissal for lack of
jurisdiction whenever a complaint filed in federal court is
voluntarily amended to delete the basis for jurisdiction, as
contend that their amendment was not voluntary within the
meaning of Rockwell. They explain that their
decision to withdraw the class allegations was motivated by a
desire to advance this long-delayed case to a resolution.
They also explain that they subsequently filed the 4AC only
because the defendants requested that they do so. Defendants
respond that plaintiffs were not forced to drop their class
claim but instead made a strategic decision to do so, which
they communicated to the Court orally and in writing before
the defendants requested that they file an amended complaint
in accordance with Rule 15.
sympathetic to the plaintiffs' position and regret that
the lengthy delays they experienced in this litigation may
have contributed to their decision to forego all class
claims. However, it is far from clear that their decision to
drop the class allegations was not voluntary within the
meaning of Rockwell. What makes an amendment
voluntary or involuntary is not well-defined. After fully
considering the parties' arguments, I think it would be
difficult for me to find that plaintiffs' decision to
drop the class allegations, a decision they made
independently and announced before the telephone conference,
was other than voluntary under Rockwell.
Court of Appeals recently noted that when a district court
finds that a CAFA case cannot proceed as a class action,
jurisdiction over the individual claims continues to exist
but the court has discretion to dismiss the individual claims
without prejudice to refiling in state court. See F5
Capital, 856 F.3d at n.14. This suggests that in
deciding the present motion, the Court may be guided by the
factors relevant to a determination whether to exercise
supplemental jurisdiction, as at least one court has done in
dismissing a CAFA case originally brought in ...