                               UNITED STATES DISTRICT COURT
                               FOR THE DISTRICT OF COLUMBIA


 VALERIE MCMULLEN, individually and
 on behalf of others similarly situated,

            Plaintiff,
                   v.                                             Civil Action No. 14-1983
 SYNCHRONY BANK, et al.,

            Defendants.


                                     MEMORANDUM OPINION

        Plaintiff Valerie McMullen has moved to remand this action to the Superior Court of the

District of Columbia or, in the alternative, for limited discovery related to her motion to remand.

Defendant JP Morgan Chase & Co. ("Chase") resists remand and discovery, claiming that this

Court has jurisdiction under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d).1

Upon careful consideration of the motion and the parties' memoranda, 2 the applicable law, and

the record, and for the reasons set forth below, the Court finds that it has jurisdiction under

CAFA, but that the local controversy exception may apply. Accordingly, the Court will deny the

motion to remand with leave to renew and will order limited discovery regarding the citizenship

of the putative class members.

                                      FACTUAL BACKGROUND

        McMullen, a citizen of the District of Columbia, brought this action against Chase,

Synchrony Bank, Wayne Bullen, Karim Steward, One World Fitness, Bullen Wellness,

Washington Chiropractic, and several John Does and John Doe Corporations.                         One World
        1
           Defendant Synchrony Bank has joined Chase's opposition to McMullen's motion to remand. See Not. of
Joinder in Def. Chase's Opp'n to Pl.'s Mot. for Remand [ECF No. 16].
         2
           Pl.'s Mot. to Remand [ECF No. 12] ("Mot."); Def.'s Opp'n [ECF No. 13] ("Opp'n"); Pl.'s Reply [ECF No.
18] ("Reply"); Def.'s Sur-Reply [ECF No. 19]; Pl.'s Opp'n to Sur-Reply [ECF No. 23].

                                                       1
Fitness is a local health club in Washington, D.C. owned by Bullen and Steward. McMullen

alleges that Bullen and Steward, through One World Fitness and two other District of Columbia

companies they owned—Bullen Wellness and Washington Chiropractic—fraudulently took out

lines of credit against customers and billed against these lines of credit without the customers'

knowledge or authorization. Synchrony Bank and Chase provided the lines of credit. McMullen

alleges that she is a One World Fitness customer harmed by the fraudulent scheme.

       McMullen brought this action on September 12, 2014, in the Superior Court of the

District of Columbia for alleged violations of the D.C. Consumer Protection Procedures Act

("CPPA") and for fraud, conspiracy to commit fraud, conversion, and breach of contract. On

October 31, 2014, she filed an amended complaint on behalf of herself and all others similarly

situated under D.C. Code § 28-3905(k) (private right of action under the CPPA) and as a class

action. Chase then filed a Notice of Removal, pursuant to 28 U.S.C. § 1332(d), seeking to

remove the case to the U.S. District Court for the District of Columbia. Shortly thereafter,

McMullen filed a motion to remand to Superior Court or, in the alternative, for limited

discovery. Chase, joined by Synchrony Bank, resists the remand. Chase also opposes discovery.

                                    LEGAL STANDARDS

       CAFA was enacted "to amend the procedures that apply to consideration of interstate

class actions" to make it easier to establish federal diversity jurisdiction. Mississippi ex rel.

Hood, v. AU Optronics Corp., 134 S. Ct. 736, 744 (2014) (internal quotation marks omitted); see

also Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014) ("[N]o

antiremoval presumption attends cases invoking CAFA, which Congress enacted to facilitate

adjudication of certain class actions in federal court."). A qualifying "class action" under CAFA

is "any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State



                                               2
statute or rule of judicial procedure," 28 U.S.C. § 1332(d)(1)(B), in which "the number of

members of all proposed plaintiff classes in the aggregate" is at least 100, id. § 1332(d)(5)(B).

Because CAFA expanded diversity jurisdiction over CAFA class actions by replacing complete

diversity with "minimal diversity," AU Optronics, 134 S. Ct. at 740, federal courts may exercise

jurisdiction over a class action where "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). And in lieu of diversity jurisdiction's

general requirement that each plaintiff's claim exceed the sum or value of $75,000, "CAFA

grants federal jurisdiction over class . . . actions in which the aggregate amount in controversy

exceeds $5 million." AU Optronics, 134 S. Ct. at 740 (citing §§ 1332(d)(2), (d)(6), (d)(11)(A)).

In sum, "CAFA gives federal courts jurisdiction over certain class actions, . . . if the class has

more than 100 members, the parties are minimally diverse, and the amount in controversy

exceeds $5 million." Dart Cherokee, 135 S. Ct. at 552. The party supporting removal bears the

burden of establishing the Court's jurisdiction. Breakman v. AOL LLC, 545 F. Supp. 2d 96, 100

(D.D.C. 2008).

       Even if a court otherwise has jurisdiction under CAFA, however, the statute provides

mandatory abstention provisions for actions that involve matters of principally local or state

concern. See 28 U.S.C. §§ 1332(d)(4). These provisions, known as the local controversy

exception and the home state exception, are "designed to draw a delicate balance between

making a federal forum available to genuinely national litigation and allowing the state courts to

retain cases when the controversy is strongly linked to that state." Hart v. FedEx Ground Package

Sys. Inc., 457 F.3d 675, 682 (7th Cir. 2006). Once a party establishes that CAFA's basic

jurisdictional requirements are satisfied, the burden shifts to the party seeking remand to




                                                3
establish that a CAFA exception applies. Westerfeld v. Indep. Processing, LLC, 621 F.3d 819,

822–23 (8th Cir. 2010).

                                             ANALYSIS

         It is undisputed that McMullen has alleged a class action and that the parties are

minimally diverse. 3 Before the Court, then, are only three issues: (1) whether Chase has shown

that the putative class has at least 100 members; (2) whether Chase has shown that the amount in

controversy exceeds $5 million; and (3) if those two showings have been made by Chase,

whether McMullen has shown that CAFA's local controversy exception applies.

    I.       CLASS SIZE

         In order for an action to be removable under CAFA, the proposed plaintiff class must

consist of 100 or more people. 28 U.S.C. § 1332(d)(5)(B). CAFA defines "class members" as

"the persons (named or unnamed) who fall within the definition of the proposed or certified

class." Id. § 1332(d)(1)(D).

         Here, the amended complaint defines the class as former One World Fitness members

who received financing from defendant banks and asserts that "[o]n information and belief, there

are approximately one hundred One World Fitness customers who received [such] financing."

Am. Compl. ¶¶ 37–38. Nevertheless, McMullen argues that this action should be remanded

because Chase may not rely on her estimate alone and has therefore "failed to identify the size of

the class with any certainty." Mot. at 4. Indeed, this District Court has held that a defendant's

reliance on a plaintiff's estimate of class size alone fails to meet the defendant's burden of

establishing jurisdiction on plaintiff's motion to remand. See Wexler v. United Air Lines, Inc.,

496 F. Supp. 2d 150, 155 (D.D.C. 2007). But Chase does not merely rely on McMullen's


         3
           Plaintiff McMullen is a resident of the District of Columbia and defendant Chase is a Delaware
corporation with its principal place of business in New York.

                                                   4
estimated class size. Instead, Chase provides a declaration stating that its business records

indicate that Chase "financed 367 separate accounts for Bullen Wellness, the entity that allegedly

received the funds from Defendant Banks." Opp'n at 5 (citing Decl. of Kristina L. Ash [ECF No.

13-2] ¶ 3). Chase explains, moreover, that "[t]his number, while sufficient to support CAFA

jurisdiction, understates Plaintiff's proposed class, which also includes customers financed

through Defendant Synchrony Bank."          Id. at 6.   Faced with Chase's evidence, McMullen

concedes that it "satisf[ies] the CAFA numerosity requirement." Reply at 5. This Court agrees:

Chase has met its burden to show that the class size in this case meets CAFA requirements.

   II.      AMOUNT IN CONTROVERSY

         For CAFA to apply, the amount in controversy must exceed the sum or value of $5

million. 28 U.S.C. § 1332(d)(2). "[W]hen a defendant seeks federal-court adjudication, the

defendant's amount-in-controversy allegation should be accepted when not contested by the

plaintiff or questioned by the court." Dart Cherokee, 135 S. Ct. at 553. If a plaintiff contests

defendant's allegations, however, "§ 1446(c)(2)(B) instructs: '[R]emoval . . . is proper on the

basis of an amount in controversy asserted' by the defendant 'if the district court finds, by the

preponderance of the evidence, that the amount in controversy exceeds' the jurisdictional

threshold." Id. at 553–54. "'[T]o determine whether the matter in controversy exceeds the sum

or value of $5,000,000,' the 'claims of the individual class members shall be aggregated.'"

Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345, 1347 (2013) (quoting 28 U.S.C. §

1332(d)(6); see also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 571 (2005)

("CAFA confers federal diversity jurisdiction over class actions where the aggregate amount in

controversy exceeds $5 million. It abrogates the rule against aggregating claims . . . .").




                                                 5
         McMullen argues that Chase has identified only $10,710.00 in damages, exclusive of

costs and interest, for her. Mot. at 4. She also explains that, under the CPPA, she is entitled to

recover treble damages or $1,500 per violation, whichever is greater. Id. Trebling increases her

damages claim to $32,130.00. Id. Alternatively, the twenty-four CPPA violations alleged by

McMullen multiplied by $1,500 results in statutory damages of $36,000.00. 4 Id. Although

McMullen alleges that "the fraud perpetuated against [her] is typical, and representative, of the

fraud perpetuated against [the class]," and that she "is similarly situated with, and has suffered

similar injuries as, the members of the class she seeks to represent," Am. Compl. ¶¶ 40–41, she

argues that the damages suffered by the other class members are currently unknown, so no

additional math can be done to determine the amount in controversy without discovery, Reply at

5. 5

         In response, Chase argues that McMullen's alleged damages should be applied to each of

the purported class members and then aggregated to find the amount in controversy. Opp'n at 6.

Chase therefore multiplied $32,130.00 by the number of putative class members having Chase

accounts (367) to arrive at an amount in controversy of $11,791,710.00, which plainly meets the

requirements of CAFA. Id.

         Chase's calculations are supported by McMullen's statement that she "is seeking relief in

the amount of approximately $32,130.00 for each member of the putative class for damages

arising from the [l]ocal [d]efendants' conduct." Mot. at 9. Indeed, McMullen cannot argue that

the amount in controversy is indeterminable while at the same time conceding that there are at

least 367 class members and stating that she is seeking $32,130.00 for each class member. If

         4
            These damage amounts do not include the compensatory damages sought on behalf of the putative class
for the other alleged violations of D.C. law. See Am. Compl. ¶¶ 70, 79, 86, 95.
          5
            McMullen requests discovery from Chase and Synchrony Bank in the form of the "application for the
line(s) of credit," "promissory note," "sales authorization(s), and/or "purchase authorization(s)," "September 2014
billing statement," and "any document referring to the last known address" for each potential plaintiff. Reply at 7–8.

                                                          6
McMullen is seeking that amount for each member of the putative class, then the amount in

controversy is at least $11,791,710.00—well over $5 million. See, e.g., Cannon v. Wells Fargo

Bank, N.A., 908 F. Supp. 2d 110, 113–14 (D.D.C. 2012) (explaining that "[t]en violations of the

[CPPA] with [statutory] damages of $1,500 per violation for each of the 738 members of the

class amounts to a total of $11,070,000—more than double the amount in controversy

necessary"); Manson v. GMAC Mortg., LLC, 602 F. Supp. 2d 289, 294 (D. Mass. 2009)

(multiplying the class size by named plaintiff's estimated damages to calculate amount in

controversy); Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150, 155 (D.D.C. 2007)

(explaining that to determine the CAFA amount in controversy, "the average class member's

claim is multiplied by the number of class members"). McMullen has presented no evidence to

the contrary.     Based on Chase's evidence of the number of putative class members and

McMullen's statement about the amount of money she seeks for each member of the class, it

appears that the amount in controversy exceeds $5 million.

          Because the class has more than 100 members, the amount in controversy exceeds $5

million, and the parties in this class action are minimally diverse, this Court has jurisdiction over

this action pursuant to CAFA. See, e.g., Dart Cherokee, 135 S. Ct. at 552.

   III.      LOCAL CONTROVERSY EXCEPTION

          Of course, "the law is not complete without its exceptions." Hollinger v. Home State

Mut. Ins. Co., 654 F.3d 564, 569 (5th Cir. 2011). "CAFA requires federal courts to decline

jurisdiction over a proposed class action if either of the following narrow exceptions is proven by

a preponderance of the evidence: (1) the local controversy exception, 28 U.S.C. § 1332(d)(4)(A);

or (2) the home state exception, 28 U.S.C. § 1332(d)(4)(B)." Id. at 569–70. Relevant here,




                                                 7
CAFA's local controversy exception 6 "'is intended to respond to concerns that class actions with

a truly local focus should not be moved to federal court under this legislation because state courts

have a strong interest in adjudicating such disputes.'" Coffey v. Freeport McMoran Copper &

Gold, 581 F.3d 1240, 1243 (10th Cir. 2009) (quoting S. Rep. No. 109-14, at 39 (2005)).

Nevertheless, "CAFA's legislative history . . . indicates [that] Congress intended the local

controversy exception to be 'narrow,' with all doubts resolved 'in favor of exercising jurisdiction

over the case.'" Woods v. Standard Ins. Co., 771 F.3d 1257, 1265–66 (10th Cir. 2014) (quoting

S. Rep. No. 109-14, at 39, 42 (2005)). Accordingly, where a court has found that the removing

party has satisfied CAFA's basic jurisdictional requirements, the party seeking to remand bears

the burden of establishing that CAFA's local controversy exception applies.                                  See, e.g.,

Westerfeld, 621 F.3d at 823.

        There are four requirements of the local controversy exception to federal CAFA

jurisdiction:

        [i](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
        (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 . . .
        [ii] 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 . . . .

28 U.S.C. § 1332(d)(4)(A). "These elements ensure that the exception is invoked when the class

is primarily local, the lawsuit is against 'at least one real in-state defendant whose alleged

conduct is central to the class claims and from whom the class seeks significant relief,' the
        6
            CAFA's local controversy exception appears to be a matter of first impression in this Circuit.

                                                           8
injuries the defendant allegedly caused occurred within the forum, and no other similar class

actions have been filed against any of the defendants." Vodenichar v. Halcon Energy Props.,

Inc., 733 F.3d 497, 507 (3d Cir. 2013) (quoting 151 Cong. Rec. S999-02, 2005 WL 283380

(daily ed. Feb. 7, 2005) (statement of Sen. Arlen Specter)).

       Here, the parties agree that the third and fourth elements of the local controversy

exception have been satisfied: the "principal injuries" occurred in the District of Columbia where

the action was originally filed, and "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-year period prior to the filing of this complaint. 28 U.S.C. §§ 1332(d)(4)(A)(i)–

(ii). For the exception to apply, then, McMullen bears the burden of establishing that the other

two elements are also satisfied: that there is at least one local defendant who qualifies under the

CAFA local controversy exception, and that at least two-thirds of the members of the proposed

plaintiff class are citizens of the District of Columbia.

   A. Status of Defendants

       The local controversy exception requires that there be at least one local defendant from

whom "significant relief is sought," and whose "alleged conduct forms a significant basis for the

claims asserted." Id. § 1332(d)(4)(A)(i)(II). It is undisputed that, for the purposes of CAFA,

Bullen is a citizen of Maryland and Synchrony Bank and Chase are also out-of-state citizens.

       McMullen asserts that One World Fitness, Bullen Wellness, and Washington

Chiropractic are citizens of the District of Columbia because they "were limited liability

companies formed under the laws of the District of Columbia with their principal place of

business located in the District of Columbia." Mot. at 8 (citing Am. Compl. ¶¶ 10–12). In

support of her argument, McMullen cites CAFA's definition of a corporation's citizenship, which



                                                  9
provides that "a corporation shall be deemed to be a citizen of every State and foreign state by

which it has been incorporated and of the State or foreign state where it has its principal place of

business." 28 U.S.C. § 1332(c)(1). In response, Chase does not dispute McMullen's factual

allegations about where these companies were formed or where their primary place of business is

located, but rather argues that One World Fitness, Bullen Wellness, and Washington

Chiropractic are limited liability companies—not corporations—and therefore CAFA's definition

of a corporation's citizenship does not apply. Opp'n at 13. Instead, Chase contends, these

companies "carry the citizenship of their members for diversity purposes," and McMullen failed

to produce any evidence identifying the companies' members or their members' citizenship. Id.

at 13–14.

       What Chase and McMullen have apparently failed to notice is that CAFA specifically

provides that "an unincorporated association shall be deemed to be a citizen of the State where it

has its principal place of business and the State under whose laws it is organized." 28 U.S.C. §

1332(d)(10). Here, it is not contested that One World Fitness, Bullen Wellness, and Washington

Chiropractic each had their principal place of business in the District of Columbia and were

organized under the laws of the District of Columbia. Accordingly, these businesses are citizens

of the District of Columbia under CAFA. See, e.g., Cedar Lodge Plantation, LLC v. CSHV

Fairway View I, LLC, 768 F.3d 425, 426 (5th Cir. 2014) (explaining that, pursuant to 28 U.S.C.

§ 1332(d)(10), defendant limited liability companies are citizens of Delaware and Illinois, and

noting that the district court incorrectly applied a non-CAFA standard).

       As for Steward, McMullen asserts that he "provided a sworn verification in a separate

matter pending before this [district court] in which he states that he is a citizen of the District of

Columbia." Mot. at 8 (citing Ex. 1 to Mot., Compl. in Case No. 14-cv-1868 [ECF No. 12-12]).



                                                 10
This pleading is dated October 8, 2014, which was prior to the filing of McMullen's amended

complaint on October 31, 2014. In response, Chase puts forward various documents in an

attempt to show that Steward is a citizen of Maryland, 7 but these documents—all of which place

Steward in Maryland prior to October 2014—fail to outweigh a sworn statement from Steward

himself.

          Chase also argues that Steward's citizenship cannot be considered by the Court because

he was not served within the 120-day time limit under Federal Rule of Civil Procedure 4(m),

which Chase contends expired on January 12, 2015. Opp'n at 9–10; Def.'s Sur-Reply at 3. But

the Federal Rules of Civil Procedure do not apply to a civil action until it is in federal court. See

Fed. R. Civ. P. 81(c). Hence, "service must be completed within 120 days of the date of

removal, not the original filing in state court." Henok v. Chase Home Fin., LLC, 890 F. Supp.

2d 65, 71 n.4 (D.D.C. 2012). This case was not removed until November 24, 2014, so the 120-

day deadline has not yet run. Accordingly, the fact that Steward had not yet been served when

McMullen filed her motion to remand is inconsequential to this analysis. 8

          Having determined that there are local defendants, the Court must now resolve whether

"significant relief is sought" from these local defendants and whether the "alleged conduct" of

these local defendants "forms a significant basis for the claims asserted by the proposed plaintiff

class."       28 U.S.C. § 1332(d)(4)(A)(i)(II)(aa)–(bb).           Both questions entail analysis of the

complaint because "[t]he word 'sought' focuses attention on the plaintiff's claim for relief—that

is, on what is 'sought' in the complaint—rather than on what may or may not be proved by

          7
           Chase's exhibits include Steward's Maryland voting registration from 1991; a copy of a traffic violation
entry on the website for the District Court for Prince George's County (MD) dated September 29, 2014, listing
Steward's address in Maryland; and a copy of a list of violations on the website for the Circuit Court for Anne
Arundel County (MD) dated August 2013 through June 2014, listing Steward at a different address in Maryland and
noting that, as of April 8, 2014, the court received a "return notice—unable to forward" from Steward's mailing
address.
         8
           Steward was subsequently served on January 27, 2015, at a District of Columbia address. See Return of
Service/Aff. [ECF No. 22].

                                                        11
evidence," and likewise "the word 'alleged' . . . is based on what is alleged in the complaint rather

than on what may or may not be proved by evidence." Coleman v. Estes Exp. Lines, Inc., 631

F.3d 1010, 1015 (9th Cir. 2011).

       The Court begins with the "significant basis" requirement. The Third Circuit has stated

that "[w]hether the [local] defendant's alleged conduct is significant cannot be decided without

comparing it to the alleged conduct of all the Defendants . . . . The local defendant's alleged

conduct must be an important ground for the asserted claims in view of the alleged conduct of all

the Defendants." Kaufman v. Allstate New Jersey Ins. Co., 561 F.3d 144, 157 (3d Cir. 2009).

       Here, Chase does not dispute that the local defendants form a significant basis for the

claims asserted by the proposed plaintiff class.      Indeed, the local defendants are allegedly

responsible for setting in motion the actions that subsequently harmed McMullen and the rest of

the putative class. McMullen alleges that Steward "is the principal owner of Bullen Wellness

and One World Fitness," and that these companies were instrumentalities used to further

Steward's fraudulent scheme to defraud One World Fitness customers. Am. Compl. ¶ 9. Once

unauthorized lines of credit had been obtained by Steward and the local businesses, Steward

would then bill against the line of credit without the customer's knowledge. Id.; see also id.

¶¶ 18–19, 29. The banks—non-local defendants—then "aggressively pursued repayment of the

invalid debt . . . [and] failed to provide any documentation [related to the alleged indebtedness]."

Id. ¶ 1. As presented in the amended complaint, then, the local defendants' conduct is an integral

part of the putative class's claims, and therefore forms "a significant basis for the claims asserted

by the putative class." See Williams v. Homeland Ins. Co. of NY, 657 F.3d 287, 291 (5th Cir.

2011) (finding that local defendant's conduct formed a significant basis for the claims asserted




                                                 12
where "[local defendant's] alleged conduct forms the basis of all claims against itself, but also

forms a significant basis of the claims against the other defendants").

       Regarding the "significant relief" requirement, McMullen argues that she "is seeking

relief in the amount of approximately $32,130.00 for each member of the putative class for

damages arising from the [l]ocal [d]efendants' conduct." Id. at 9. Chase's only response is that

the putative class is unlikely to recover from the local defendants. But Chase does not explain

how it squares its interpretation requiring plaintiff to show a "likelihood of recovery" with the

language of the statute, which requires that the Court consider only relief sought, not relief likely

to be obtained. See, e.g., Coffey, 581 F.3d at 1245 (noting that "[t]he statutory language is

unambiguous" and a "'defendant from whom significant relief is sought' does not mean a

'defendant from whom significant relief may be obtained' . . . [;] nothing in the language of the

statute . . . indicates Congress intended district courts to wade into the factual swamp of

assessing the financial viability of a defendant as part of this preliminary consideration"). The

amended complaint seeks damages from all defendants, and nothing in it suggests that the local

defendants are nominal or that the putative class is not seeking significant monetary relief from

them. See Am. Compl. ¶¶ 52, 59, 70, 79, 86, 95, 99, & Prayer for Relief.

       Accordingly, McMullen has shown that there is at least one local defendant in this action

from whom significant relief is sought by members of the plaintiff class, and whose alleged

conduct forms a significant basis for the claims asserted by the proposed plaintiff class.

   B. Citizenship of Proposed Plaintiff Class

       The final element that McMullen must establish for the local controversy exception to

apply is that "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"—here, the District of



                                                 13
Columbia. 28 U.S.C. § 1332(d)(4)(A)(i)(I). When the Court analyzes the citizenship of the

proposed plaintiff class, "there must ordinarily be at least some facts in evidence from which the

district court may make findings regarding class members' citizenship for purposes of CAFA's

local controversy exception." Mondragon v. Capitol One Auto Finance, 736 F.3d 880, 884 (9th

Cir. 2013); see also In re Sprint Nextel Corp., 593 F.3d 669, 673–76 (7th Cir. 2010); Preston v.

Tenet Healthsystem Memorial Med. Ctr., Inc., 485 F.3d 793, 798–802 (5th Cir. 2007).

       McMullen contends that it is clear that "greater than two-third of all class members are

citizens of the District of Columbia" based solely on the allegations in the amended complaint.

Mot. at 7. She points to paragraph 37, which states that "[t]he class shall be defined as former

One World Fitness customers in the District of Columbia who received health care financing

from GE Capital or Chase Health Advance." Am. Compl. ¶ 37 (emphasis added). Notably,

however, defining the class as "customers in the District of Columbia" does not directly translate

to "customers who are citizens of the District of Columbia." Customers in the District of

Columbia may have once been citizens of the District but are no more, or they could even be

individuals who have never been citizens of the District. Some health clubs may have many

members who work in the District but who live in Maryland or Virginia. And it is not clear that

McMullen intends the putative class to be only citizens of the District of Columbia: she argues in

her reply simply that "[g]iven the nature of health clubs whose customers typically live in the

vicinity of the health club, it is reasonable to infer that two-thirds of the members of the proposed

class are citizens of the District of Columbia." Reply at 9. Moreover, Chase points out that other

sentences in the complaint use broader language, such as "One World fitness customers who

received financing from Defendant Banks." Opp'n at 8 (citing Am. Compl. ¶ 36).




                                                 14
       In sum, McMullen has not clearly limited the class to District of Columbia citizens and

has failed to provide any evidence concerning the citizenship of the putative class members. So

although it may be likely that many putative class members are citizens of the District of

Columbia, "[t]here is simply no evidence in the record to support a finding that the group of

citizens outnumbers the group of non-citizens by more than two to one." Mondragon, 736 F.3d

at 884; see also Sprint, 593 F.3d at 671–76 (vacating remand where the class as defined included

only people who had a Kansas cell phone number, a Kansas billing address, and paid a Kansas

fee, but plaintiff had not submitted any evidence of the class members' Kansas citizenship).

       McMullen, anticipating that more is needed to meet her burden, requests an order for

expedited discovery. Reply at 10. She asserts that the information pertaining to the class

members' citizenship is in the possession of the defendants, specifically Chase and Synchrony

Bank. Chase's sur-reply, which the Court will grant leave to file, argues simply that discovery is

not merited because there are no local defendants. But the Court has rejected that argument.

       Hence, the Court finds that expedited discovery on the issue of class citizenship is

appropriate and required here.     See Richins v. Hofstra Univ., 908 F. Supp. 2d 358, 360

(E.D.N.Y. 2012) (permitting limited, expedited discovery on the issue of the citizenship of

members of the plaintiff class); see also Abdale v. North Shore-Long Island Jewish Health

System, Inc., No. 13-CV-1238, 2014 WL 2945741, at *10 (E.D.N.Y. Jun. 30, 2014) (ordering

discovery before ruling on applicability of local controversy exception); Barricks v. Barnes-

Jewish Hosp., No. 11–CV–1386, 2012 WL 1230750, at *2 (E.D. Mo. Apr. 12, 2012) (same).

Accordingly, the Court will grant limited discovery tailored to resolving whether more than two-

thirds of the putative class are citizens of the District of Columbia. The parties will therefore be

ordered to confer and submit a joint proposed discovery plan within thirty days of this



                                                15
Memorandum Opinion and Order. The discovery plan shall not exceed ninety days and shall

specify the types of discovery to be conducted.

                                        CONCLUSION

       For the reasons set forth above, the Court will deny (with leave to renew) the motion to

remand and will order limited discovery regarding the citizenship of the putative plaintiff class.

A separate Order has been issued on this date.




                                                                   /s/
                                                            JOHN D. BATES
                                                       United States District Judge


Dated: February 13, 2015




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