                                                                       FILED
                             FOR PUBLICATION
                                                                         SEP 6 2018
                   UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


CELENA KING,                                   No. 18-55911

             Plaintiff-Appellee,               D.C. No.
                                               2:17-cv-04510-GW-AS
 v.

GREAT AMERICAN CHICKEN CORP,                   OPINION
INC., DBA Kentucky Fried Chicken,

             Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                     Argued and Submitted August 10, 2018
                             Pasadena, California

Before: Richard R. Clifton and Morgan B. Christen, Circuit Judges, and Cynthia
M. Rufe,* District Judge.

                            Opinion by Judge Clifton

CLIFTON, Circuit Judge:




      *
             The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
      Great American Chicken Corp, Inc. (“GAC”), which does business in

California as Kentucky Fried Chicken, appeals the district court’s remand of

plaintiff Celena King’s putative class action to Los Angeles Superior Court. The

action was originally filed in that court and removed to federal court by GAC

under the Class Action Fairness Act (“CAFA”). It is undisputed that removal

under CAFA was proper here, but King sought remand to state court based on the

local controversy or home-state controversy exception to CAFA jurisdiction. The

question presented in this appeal is whether the district court correctly found that

King met her burden of proving a factual requirement for remand under these

exceptions, specifically that greater than two-thirds of the putative class members

were California citizens at the time the case was removed to federal court.

      After GAC removed the case to federal court, King sought discovery from

GAC relevant to that factual question. GAC resisted King’s discovery requests. In

lieu of providing responses to the requests, GAC proposed a stipulation that at least

two-thirds (sometimes expressed as at least 67 percent) of the putative class

members under the definition proposed by King—current and former GAC

employees—had last-known addresses in California. King declined GAC’s

proposal, but the district court held that the stipulation resolved the discovery

dispute and ordered that it be accepted. Subsequently, based on the stipulation and


                                           2
other inferences, the district court granted King’s motion to remand, finding King

had made the necessary factual showing.

      King had the burden to prove that “greater than two-thirds” of the putative

class members were “citizens” of California. See 28 U.S.C. § 1332(d)(4). The

stipulation left very little cushion, if any, to account for former employees who

were not domiciled in California at the time this case was removed to federal court,

because, for example, they had moved to another state. Similarly, there was little

margin to cover employees who may have had last-known addresses in California

but who did not qualify as citizens of California because they were not citizens of

the United States. There was no evidentiary basis for the district court to find that

subtracting those groups would not reduce the fraction of class members that were

California citizens at the time of removal to a level less than the required “greater

than two-thirds.” Because there was no other evidence before the district court on

that subject, the finding that more than two-thirds of the putative class members

were citizens of California at the time of removal was clearly erroneous. The order

of remand to state court must be vacated, and this case must be remanded to federal

district court for further proceedings. In district court, however, King should be

permitted to conduct jurisdictional discovery in this matter and to renew her

motion to remand.


                                           3
I.    Background

      King filed a putative class action complaint on behalf of all non-exempt

California GAC employees in the Los Angeles Superior Court on January 10,

2017. The complaint alleged various violations of California wage-and-hour laws.

A first amended complaint was filed on February 21, 2017. It defined the putative

class as “all current and former non-exempt employees of DEFENDANTS[1] in the

State of California at any time within the period beginning four (4) years prior to

the filing of this action and ending at the time this action settles or proceeds to final

judgment.” The district court later noted that the putative class may include as

many as 6,000 employees.

      GAC removed the case to the United States District Court for the Central

District of California on June 19, 2017, pursuant to 28 U.S.C. §§ 1332(a), 1332(d),

and 1446(b). As will be explained in greater detail below, CAFA provides that

some class actions removed to federal court may be subject to remand to state court

if plaintiffs can make specified showings that the cases involve local controversies

and are not interstate disputes that qualify for adjudication in federal court. After



      1
        The plural “defendants” may be explained by the fact that the complaints
filed by King in state court named as defendants unidentified “Does,” in addition to
GAC. GAC was the only identified defendant, so we will continue to refer to it by
itself.
                                            4
removal, King sought jurisdictional discovery in the form of names, last-known

addresses, telephone numbers, and email addresses for all putative class members,

as well as information regarding the percentage of the putative class members

whose last-known address was in California.

      GAC failed to provide the information sought by the discovery requests. It

argued, among other things, that the precise requests posed by King would not

satisfy her burden to prove the requirements for remand. As an alternative, GAC

offered to stipulate that at least two-thirds of the putative class members had last-

known addresses in California, though GAC also argued that this would not be

enough for King to meet her burden. King declined GAC’s offer.

      The precise term of the stipulation was not entirely clear. No formal

stipulation was filed with the court. It arose during the court’s resolution of the

discovery dispute. GAC described it to the district court as a stipulation “that at

least two-thirds (at least 67%) of the putative class are shown with addresses in

California.” King characterized it as a stipulation “that two-thirds of the putative

class members had a last-known residential address in California.”

      At a scheduling conference on November 30, 2017, the discovery dispute

was raised with the district court. The court concluded that the stipulation was

sufficient to satisfy King’s requests and declined to order GAC to provide


                                           5
additional discovery. The district court’s minute order following the conference

stated that, “[i]n lieu of the requests for discovery, the Court finds [GAC’s]

stipulation is sufficient in that at least 67% of the last-known addresses are in

California.” (Emphasis in original.)

      King moved to remand the case to state court. GAC argued that the motion

to remand should be denied because King had not established that over two-thirds

of the putative class members were California citizens. After a hearing, the district

court granted the motion to remand on January 30, 2018. In that order, the court

relied upon the stipulation “that at least two-thirds of the putative class members

had last-known addresses in California.”

      GAC petitioned for permission to appeal, and we granted that petition on

July 9, 2018. This appeal followed.

II.   Discussion

      Under CAFA, federal courts have original diversity jurisdiction over class

actions where the aggregate amount in controversy exceeds $5,000,000, where the

putative class size exceeds 100 persons, and where, among other possibilities, “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), (d)(5)(B). In its notice of removal, GAC noted that

this action satisfied these requirements. Regarding the last element, that at least


                                           6
one member of the putative class was a citizen of a state other than California,

GAC specifically identified one class member who was a citizen of Texas at the

time of removal. King has not disputed that these requirements were met in this

case.

        The statute includes a number of exceptions that require a federal district

court to decline jurisdiction even if the above requirements were met. They

include what are commonly referred to as the local controversy exception, see 28

U.S.C. § 1332(d)(4)(A); see also Mondragon v. Capital One Auto Fin., 736 F.3d

880, 881 (9th Cir. 2013), and the home-state controversy exception, see 28 U.S.C.

§ 1332(d)(4)(B); see also Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1019 (9th




                                            7
Cir. 2007).2 These exceptions require the party seeking remand to state court to

prove, among other things, that greater than two-thirds of proposed class members



      2
       In its entirety, the relevant subsection of CAFA, 28 U.S.C. § 1332(d)(4),
provides:
             A district court shall decline to exercise jurisdiction under
             paragraph (2)--
                    (A)(i) over a class action in which--
                            (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 Sate 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; or
                    (B) 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.




                                         8
“are citizens of the State in which the action was originally filed.” 28 U.S.C. §§

1332(d)(4)(A), (B).

      The only issue on appeal is whether King met her burden to establish that

greater than two-thirds of the putative class members were California citizens as of

the date the case became removable. See 28 U.S.C. § 1332(d)(7). CAFA was

intended to strongly favor federal jurisdiction over interstate class actions. See

Brinkley v. Monterey Fin. Servs., Inc., 873 F.3d 1118, 1121 (9th Cir. 2017). The

burden of establishing that a CAFA exception applies is on King, as the party

seeking to remand. Id. The individual factors of a party’s citizenship are

“essentially factual.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986). King must

establish the required facts by a preponderance of evidence. Mondragon, 736 F.3d

at 884.

      A.     Our opinion in Mondragon

      In Mondragon we vacated an order of remand based on the local controversy

exception in a putative class action because the plaintiff “submitted no evidence

regarding the disputed issue, the citizenship of prospective class members.” Id. at

881. We concluded that the plaintiff, Jose Mondragon, “did not present any

evidence of the citizenship of the putative class members” in his motion to remand,

but “[i]nstead, he sought to rely entirely on his proposed class definitions, arguing


                                           9
that the court should infer from those definitions that more than two-thirds of the

class members were citizens of California.” Id. at 882. Mondragon, like the

plaintiff here, had the burden to “establish that greater than two-thirds of

prospective class members were citizens of California as of the date the case

became removable.” Id. at 883. Our court joined the Fifth, Seventh, and Eleventh

Circuits in concluding that a district court must base its findings about class

members’ citizenship on “at least some facts in evidence” for the local controversy

exception to apply. Id. at 884. Mondragon failed “to produce any evidence

regarding citizenship in the face of [the defendant’s] challenge to his jurisdictional

allegations” and therefore did not meet his burden. Id.

      We were careful to point out that “the burden of proof placed upon a

plaintiff should not be exceptionally difficult to bear.” Id. at 886. Instead, a

district “court should consider ‘the entire record’ to determine whether evidence of

residency can properly establish citizenship.” Id. (quoting Preston v. Tenet

Healthsystem Mem’l Med. Ctr., Inc., 485 F.3d 793, 800 (5th Cir. 2007)). We

noted, moreover, that “[a]s a general proposition, district courts are permitted to

make reasonable inferences from facts in evidence, and that is true in applying the

local controversy exception under CAFA, as well.” Id.

      B.     Evidence of citizenship in this case


                                           10
      In the current case, the district court relied in its order of remand upon the

stipulation that “at least two-thirds of the putative class members had last-known

addresses in California.” Elsewhere, as previously noted, the district court

described the stipulation as being that “at least 67% of the last known addresses [of

the putative class members] are in California.” Those two fractions are not exactly

the same, of course, because two-thirds actually translates into 66 & 2/3 percent,

not 67 percent.

      To qualify for remand under the local controversy exception in CAFA, King

had to establish that “greater than two-thirds” of the class members were citizens

of California. On its face, a stipulation that spoke to “at least two-thirds” of the

class members would be insufficient, because “at least” is not the same as

“greater.”

      The alternative understanding of the stipulation, “at least 67 percent,” would

produce a figure “greater than two-thirds,” but by an extremely narrow margin. If

we assume for the moment that the class included 6,000 members, as the district

court estimated it might, two-thirds would be 4,000, while 67 percent would be

4,020. “Greater than two-thirds” would mean at least 4,001, so “at least 67

percent,” or 4,020, would leave a cushion of only 19 class members.




                                           11
      While King’s burden of proof should not be “exceptionally difficult to bear,”

Mondragon, 736 F.3d at 886, she did not meet it here. In addition to the former

employee identified by GAC in its notice of removal who had become a citizen of

Texas, GAC provided evidence that at least one other employee permanently

moved to Arizona. It seems likely that at least some others in the group would

have moved out of California as well. Given the class definition, many of the

addresses were at least four years old, and there was evidence that GAC’s records

included last-known addresses that were even older. Moreover, it is not

implausible that at least a few GAC employees were citizens of other states even if

they temporarily had a residential address in California, such as an out-of-state

student working while attending college in California. A person’s state of

citizenship is established by domicile, not simply residence, and a residential

address in California does not guarantee that the person’s legal domicile was in

California. See Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001).

      In addition, it is very likely that some putative class members were not

United States citizens. CAFA expresses the requirement for remand that at least

two-thirds of the proposed class members be “citizens of the State,” in this case

California. “To be a citizen of a state, a natural person must first be a citizen of the

United States.” Kanter, 265 F.3d at 857. It cannot be assumed that all residents of


                                           12
California are citizens of the United States. There is no evidence in the record

regarding what proportion of California residents are not citizens, let alone what

proportion of GAC employees, but it is not obvious that the number would be

fewer than one-third of 1 percent, or fewer than 19 out of 6,000.

      In sum, given the narrow cushion provided by the stipulation, the likelihood

that some putative class members were legally domiciled in or subsequently

relocated to another state, and the probability that some class members were not

United States citizens, we cannot conclude that there was sufficient evidence to

support a finding that greater than two-thirds of the putative class members were

California citizens. The order of remand to Los Angeles Superior Court must be

vacated.

      We appreciate why the district court drew the inference that it did, and why

it hoped to avoid discovery that could be burdensome and contentious. The

impression that this case would qualify for the local or home-state controversy

exception is easy to understand. It seems unlikely that allowing this case to

proceed in state court would defeat “CAFA’s primary objective: ensuring Federal

court consideration of interstate cases of national importance.” Standard Fire Ins.

Co. v. Knowles, 568 U.S. 588, 595 (2013) (internal quotation marks omitted).

GAC has affirmatively acknowledged that it is incorporated in the state of


                                         13
California and, in its own words, has its “principal (indeed, exclusive) place of

business” there. King’s claim is based entirely on California law. Although the

stipulation GAC offered and that the district court adopted spoke to only “at least

two-thirds” of the employees having California addresses, it is hard to imagine that

the proportion would not be substantially larger than that. King speculated that it

would exceed 90 percent. The geography of California, notably the substantial

distances between California’s major population centers and other states, make it

unlikely that many of GAC’s employees traveled from residences outside of

California. Jobs at fast food restaurants are not likely to attract employees

commuting great distances. Though some employees might have maintained legal

domiciles in other states, that number was probably not great.

      The problem is that this impression rests on guesswork. See Mondragon,

736 F.3d at 884 (“A jurisdictional finding of fact should be based on more than

guesswork.”). There was no evidence to support a factual finding that the

proportion of California citizens was greater than two-thirds. With the likelihood

that some number of the employees were not legally domiciled in California, that

others may later have moved out of state, and that some were not citizens, the

stipulation was insufficient, and there was no other evidence to fill the gap.




                                          14
      In Mondragon we suspected that the plaintiff in that case could, if he

decided to expend the effort, come up with sufficient evidence to establish that

two-thirds of prospective class members were citizens of California. Id. at 885.

The same is true in this case.

      The ultimate outcome here does not mean that a stipulation could never

establish state citizenship for purposes of the local or home-state controversy

exceptions to CAFA jurisdiction. Nor does it mean that a similar stipulation would

be insufficient if it provided a more substantial cushion and was bolstered by

evidence that the number of class members who were not domiciled in California

or might not qualify as citizens are likely covered by the cushion. We have

previously noted that “[w]e do not think . . . that evidence of residency can never

establish citizenship.” Id. at 886. There simply needs to be sufficient evidence to

support a factual finding by a preponderance of evidence that greater than two-

thirds were California citizens at the time of removal.

      Though we have concluded that King did not prove by a preponderance of

the evidence that greater than two-thirds of the putative class members were

California citizens, it is clear from the record that King did not have a full

opportunity to do so. GAC resisted King’s requests for jurisdictional discovery.

The district court accepted GAC’s stipulation instead of permitting King to pursue


                                           15
that discovery. In its order, the district court expressed support for allowing King

additional jurisdictional discovery, if necessary. In Mondragon, we vacated the

district court’s order and remanded “with instructions to allow Mondragon an

opportunity, if he so chooses, to renew his motion to remand and to gather

evidence to prove that more than two-thirds of putative class members are citizens

of California.” Id. We do the same here. If GAC complains that the burden

placed on it is too onerous, it is free to propose a stipulation that would better

address King’s burden.

III.   Conclusion

       The district court’s finding that King proved by a preponderance of the

evidence that greater than two-thirds of the putative class members were California

citizens was not supported by sufficient evidence. The order of remand must be

vacated. On remand to the district court, however, King should be given an

opportunity to seek additional jurisdictional discovery and to renew her motion to

remand.

       VACATED and REMANDED for further proceedings.




                                           16
