IN RE: MOTOR FUEL TEMPERATURE SALES PRACTICES LITIGATION.
Alon USA, Inc., et al., This Document Relates To: Rushing, et al. D. Kan. Case No. 07-2300-KHV, N.D. Cal. Case No. 06-7621-PJH
ORDER TO SHOW CAUSE
KATHRYN H. VRATIL, District Judge.
Lesley Duke asserts claims under the laws of Florida, Louisiana, Oklahoma, Mississippi, North Carolina, South Carolina, Tennessee, Texas and Virginia against the following defendants: Chevron U.S.A., Inc.; Flying J, Inc.; Petro Stopping Centers, L.P.; Pilot Travel Centers LLC; and TravelCenters of America LLC. See Second Amended Complaint (Doc. #5) in Case No. 07-2300 filed October 30, 2009. Upon reviewing the second amended complaint and the pretrial orders submitted by counsel, it appears that this Court lacks subject matter jurisdiction over plaintiff's claims and that plaintiff has mis-joined his claims against defendants.
I. Subject Matter Jurisdiction
In the second amended complaint, plaintiff asserts subject matter jurisdiction under 28 U.S.C. § 1332(d)(2), i.e., minimal diversity jurisdiction under the Class Action Fairness Act ("CAFA"). See Second Amended Complaint (Doc. #5) ¶¶ 52-54. In the parties' proposed pretrial orders, however, it is unclear whether plaintiff asserts minimal diversity jurisdiction under Section 1332(d)(2), or general diversity jurisdiction under Section 1332(a). In either case, it appears that the Court lacks subject matter jurisdiction.
A. Diversity Jurisdiction Under Section 1332(d)(2)
In cases involving 100 or more putative class members, CAFA simplifies the jurisdictional inquiry by adopting minimal diversity, i.e., allowing diversity jurisdiction so long as any defendant is diverse from any class member and permitting aggregation of the amount in controversy. See 2 McLaughlin on Class Actions § 12:6 (9th ed.). Section 1332(d)(2) provides as follows:
[D]istrict courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5, 000, 000, exclusive of interest and costs, and is a class action in which -
(A) any member of a class of plaintiffs is a citizen of a State different from any defendant; * * *
28 U.S.C. § 1332(d)(2).
Based on allegations in the second amended complaint, it appears that in this case plaintiff can satisfy the requirements of Section 1332(d)(2) with respect to citizenship of parties and the amount in controversy. See Second Amended Complaint (Doc. #5) in Case No. 07-2300 ¶¶ 12, 23, 32, 34, 36, 46. To retain jurisdiction under Section 1332(d)(2), however, plaintiff must obtain class certification of his claims. If it becomes clear that plaintiff cannot obtain class certification, the Court loses jurisdiction. See Clausnitzer v. Fed. Express Corp. , 621 F.Supp.2d 1266, 1270 - 1271 (S.D. Fla. 2008); Falcon v. Philips Elec. N. Am. Corp. , 489 F.Supp.2d 367, 368 (S.D.N.Y. 2007) (court may lose jurisdiction if class certification denied on basis that precludes reasonably foreseeable possibility of subsequent class certification).
In otherwise seeking class certification, plaintiff does not seek class certification of his claims under the law of Louisiana, Mississippi, Oklahoma and Virginia. See Plaintiff's Motion For Class Certification (Doc. #1131) filed June 1, 2009. Thus, it appears that Section 1332(d) does not provide jurisdiction over those claims. Plaintiff does seek class certification of his claims under the law of Florida, North Carolina, South Carolina, Tennessee and Texas. See id. As a practical matter, however, it appears that plaintiff cannot obtain certification of these claims. To obtain class certification, plaintiff must satisfy the prerequisites of Rule 23(a), Fed. R. Civ. P., one of which is adequate representation. Specifically, under Rule 23(a)(4), plaintiff must show that he will fairly and adequately protect the interests of the class. To meet this requirement, plaintiff must be a member of the class which he seeks to represent and show that (1) his interests do not conflict with those of class members, and (2) he will be able to prosecute the action vigorously through qualified counsel. See E. Tex. Motor Freight Sys., Inc., v. Rodriguez , 431 U.S. 395, 403 (1977); Rutter & Wilbanks Corp. v. Shell Oil Co. , 314 F.3d 1180, 1187-88 (10th Cir.2002); Olenhouse v. Commodity Credit Corp. , 136 F.R.D. 672, 680 (D. Kan. 1991).
Here, counsel for plaintiff have filed a motion to withdraw stating, inter alia, that they disagree with plaintiff regarding whether to seek class certification of his claims. Specifically, counsel state as follows:
After the Court's... summary judgment ruling with respect to [the California] claims against Chevron, counsel has advised Mr. Duke that continuing to seek certification of a class of consumers with respect to Mr. Duke's claims would not be in the best interests of the putative class and sought Mr. Duke's consent to withdraw the pending motion for class certification with respect to Mr. Duke's claims. Mr. Duke refused to give his consent. Consistent with their obligations as potential class counsel, counsel advised the Court in recently submitted pretrial orders that counsel does not believe class certification would ...