UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI

(EASTERN DIVISION)

 

RITA BARRICKS, individually and on )

behalf of a class of similarly-situated )

individuals, )

)

Plaintiff )

)

v. ) Civil Action No. 4:11-cv-01386-CEJ

)

BARNES-JEWISH HOSPITAL, doing )

business as THE SITEMAN CANCER )

CENTER AT BARNES JEWISH )

HOSPITAL, )

)

and )

)

THE WASHINGTON UNIVERSITY, doing )

business as WASHINGTON UNIVERSITY )

IN ST. LOUIS, SCHOOL OF MEDICINE, )

also doing business as THE SITEMAN )

CANCER CENTER AT BARNES JEWISH )

HOSPITAL, )

)

Defendants )

 

MOTION TO REMAND AND SUGGESTIONS OF LAW IN SUPPORT

 

Plaintiff Rita Barricks, by and through her attorney, Neil Smith of The Smith Law Firm, LLC, hereby responds to the Notice of Removal of Action by filing this Motion to Remand pursuant to 28 U.S.C. §§ 1332(d) and 1447.

PROCEDURAL AND FACTUAL BACKGROUND

  1. Ms. Barricks filed this proposed class action in the Circuit Court of the City of St. Louis, Missouri, alleging Negligence, Breach of Implied Contract, Restitution/Unjust Enrichment, violations of the Missouri Merchandising Practices Act, Negligence Per Se, Breach of Fiduciary Duty, and Invasion of Privacy.  The factual allegations are as follows: Plaintiff and class members are current or former gynecological cancer patients who obtained treatment from Defendants.  (Class Action Petition ¶ 58).  Defendants stored class members’ highly personal information, including lab results, social security numbers, and notes from doctor visits, on an unencrypted laptop, which was stolen from their facility.  (Class Action Petition ¶ 22). 
  2. Defendant The Washington University (“Washington University”), with the consent of Defendant Barnes-Jewish Hospital (“Barnes-Jewish”) filed a Notice of Removal on August 12, 2011, pursuant to 28 U.S.C. §§ 1332(d), 1441, 1446, and 1453.  
  3. Both defendants are Missouri corporations having principal places of business in Missouri. (Notice of Removal of Action ¶¶ 10 and 11).  All class members are Missouri residents (Petition ¶ 58).  Defendants’ alleged tortious and wrongful behavior occurred within in the State of Missouri (Petition ¶¶ 2 and 21-34).

GROUNDS FOR REMAND

  1. This Court must remand this cause of action to the Circuit Court of the City of St. Louis because (a) Washington University’s removal under 28 U.S.C. §1332(d)(2)(A) was improper and that subsections’ requirements were not met, (b) the “local controversy exception” requires that the case be remanded, (c) the “home state exception” requires that the case be remanded, and (d) the “discretionary exception” permits the Court to remand the case.

WASHINGTON UNIVERSITY’S REMOVAL UNDER 28 U.S.C. §1332(d)(2)(A) WAS IMPROPER BECAUSE ITS REQUIREMENTS WERE NOT MET

  1. This Court must remand this cause of action to the Circuit Court of the City of St. Louis because removal was improper under Section 1332(d)(2)(A).  In order to remove a class action to Federal Court from State Court, that subsection requires that at least one class member be diverse from at least one defendant.  However, in this case, Washington University concedes that both defendants are Missouri citizens for diversity purposes and fails to rebut the presumption that all putative class members are Missouri citizens. 
  2. Both defendants are Missouri corporations with their primary places of business in Missouri.  (Notice of Removal of Action ¶¶ 10 and 11).  Accordingly, pursuant to 28 U.S.C. §1332(c)(1), both defendants are citizens of Missouri for purposes of determining diversity.  All parties agree on this contention.
  3. Plaintiff Rita Barricks is a resident of Missouri (Petition ¶ 7), and all parties agree on this contention.  
  4. With relation to the citizenship of the putative class members, the petition alleges that all putative class members are Missouri residents.  (Petition ¶ 58).  Washington University contends in its Notice of Removal that there is a possibility that one member of the proposed class other than Ms. Barricks is a citizen of a state other than Missouri.  Washington University correctly points out that it is theoretically possible for an individual to be a resident of a state in which that individual is not a citizen.  (Notice of Removal ¶ 13-15).  However, in this case, and as more fully described below, there is a presumption that all class members are Missouri citizens.  
  5. It is a well-settled principle in every Federal Circuit that residence is prima facie evidence of citizenship.  Cooper v. Newell, 15 S.Ct. 355, 356 (1895).
  6.     The allegation that an individual is a resident of a particular state creates a presumption of continuing residence in that state and puts the burden of coming forward with contrary evidence on the party seeking to prove otherwise.  State Farm Mut. Auto. Ins. Co. v. Dyer, 19 F.3d 514, 519 (10th Cir. 1994).
  7.   Here, Washington University fails to submit evidence, or even an allegation, that at least one putative class member is both a Missouri resident and non-Missouri citizen.  Washington University simply alleges that there is a “reasonable probability that at least one member of the class is a citizen of a state other than Missouri.”  (Notice of Removal ¶ 12).  Aside from the statement in paragraph 12 of the Notice of Removal, Washington University presents no evidence or other allegation that any class member is a citizen of a State other than Missouri. 
  8. This Court has previously held that where the only available evidence of citizenship is the last-known address of the putative class members, a last known address is sufficient to establish citizenship.  Randall v. Evamor, Inc., 2010 WL 1727977, 8 (E.D. Mo. Apr 29, 2010).  In Randall, the Defendant raised an argument nearly identical to the argument raised here by Washington University, namely that the Plaintiffs have failed to meet their burden because residency is not equivalent to citizenship.  Here, Washington University ignores Randall and relies entirely on a Massachusetts District Court case to argue that Barricks has not met her burden.  That case, McMorris v. TJX Cos., 493 F. Supp. 2d 158 (D.Mass. 2007), is distinguishable from this case.  In McMorris, the plaintiff was attempting to remand to state court in order to avoid multi-district litigation that was already pending in the District Court.  Here, there is no pending litigation in any district court relating to the data breach alleged in Ms. Barricks petition.  As such, removal of this case in no way promotes the judicial economy outlined in McMorris.  Also, in McMorris, there is no indication that the Defendant filed with the court an affidavit setting forth the state of last known address of any putative class members.  Here, Washington University filed an affidavit declaring that more than 300 putative class members “had Missouri addresses.”  (Notice of Removal, Exhibit C).  Nowhere in said affidavit or the Notice of Removal does Washington University set forth the number (or approximate number) of putative class members having non-Missouri addresses.  This tends to draw curiosity for two reasons.  First, the number of patients with non-Missouri addresses is a fact that is as easily ascertainable as the number of class members with Missouri addresses.  Also, disclosing the number of class members with non-Missouri addresses, if greater than one-third of the total, would weigh in favor of Washington University’s argument supporting removal.  
  9. Washington University, after having an opportunity to do so, has failed to rebut the presumption that all putative class members are Missouri citizens.  In failing to rebut that presumption, Washington University has failed to meet its burden in establishing that at least one putative class member is diverse from at least one Defendant.  As such, removal under 28 U.S.C. §1332(d)(2)(A) was improper.

LOCAL CONTROVERSY EXCEPTION - 28 U.S.C. §1332(d)(4)(A) REQUIRES THAT CASE BE REMANDED

  1. Even if this Court finds that Washington University has met its burden of proof in establishing that at least one class member is a citizen of a State other than Missouri, the case must still be remanded because the elements of Section 1332(d)(4)(A) are satisfied.
  2. Section 1332(d)(4)(A), also known as the “local controversy exception,” states that a district court “shall decline to exercise jurisdiction” if the following conditions are met: (1) greater than two-thirds of the members of the class are citizens of the State where the action was brought, (2) at least one significant defendant is a resident of the State where the action was brought, (3) either the injuries or any related conduct of the defendants occurred in the State where the action was brought, and (4) no other class action was filed during the preceding 3-year period alleging similar factual allegations against any of the defendants.
  3. As previously stated, both defendants are Missouri corporations with their primary places of business in Missouri.  (Notice of Removal of Action ¶¶ 10 and 11).  Accordingly, pursuant to 28 U.S.C. §1332(c)(1), both defendants are citizens of Missouri for purposes of determining diversity.  Consequently, the second element has been met.  
  4. The injuries or related conduct of the defendants also occurred in Missouri.  See Class Action Petition ¶¶ 2, 21 (laptop was unencrypted and stolen at The Siteman Cancer Center, located in Missouri).  Consequently, the third element was met.
  5. Because Plaintiff has never filed a previous lawsuit against either defendant, and is unaware of any other similar proceedings in the preceding three-year period, the fourth element is also satisfied.  Plaintiff’s counsel has reviewed Missouri Case.net and PACER, and has not located any other litigation relating to any similar proceeding.  In addition, Washington University does not allege in its Notice of Removal that any other litigation is pending or was pending during the preceding three-year period.  
  6. Finally, Ms. Barricks has satisfied the first element of the local controversy exception by limiting the class to Missouri residents.  As previously stated, Ms. Barricks’ allegation relating to residency creates a rebuttable presumption that every Missouri resident is also a Missouri citizen.  State Farm Mut. Auto. Ins. Co. at 519, and Randall at 8.  Defendants have not elected to present any testimony or other evidence that any putative class member is a Missouri resident and not a Missouri citizen.  Defendants only allegation relating to the issue is Washington University’s unsupported allegation that “there is a reasonable probability” that at least one class member is simultaneously a resident of Missouri and non-citizen of Missouri.  (Notice of Removal ¶ 12).  In any event, neither Defendant has even alleged that at least one-third of the class members are simultaneously Missouri residents and non-citizens of Missouri.  And unless Defendants can rebut the presumption that at least two-thirds of the proposed class are Missouri citizens, this Court is required to remand to the Circuit Court of the City of St. Louis pursuant to the local controversy exception contained in 28 U.S.C. §1332(d)(4)(A).  
  7. Because all requirements of 28 U.S.C. §1332(d)(4)(A) are satisfied, this Court must remand the case to the Circuit Court of the City of St. Louis.   

HOME STATE EXCEPTION - 28 U.S.C. §1332(d)(4)(B) REQUIRES THAT CASE BE REMANDED

 

  1. This court must remand the case based on the “home state exception” to removal contained in 28 U.S.C. §1332(d)(4)(B).  That subsection provides in pertinent part that a district court shall decline to exercise jurisdiction over a class action in which “two-thirds or more of the members of all proposed plaintiff classes in aggregate, and the primary defendants, are citizens of the State in which the action was originally filed.”  
  2. Here, there is no issue relating to the citizenship of the defendants.  Washington University concedes that both Defendants are citizens of Missouri.  (Notice of Removal of Action ¶¶ 10 and 11).  The only question in determining whether the home state exception requires remand in this case is whether two-thirds or more of the proposed class of plaintiffs are Missouri citizens.  
  3. As more fully described above, this Court has previously held that where the only available evidence of citizenship is the last-known address of the putative class members, a last known address is sufficient to establish citizenship.  Randall v. Evamor, Inc., 2010 WL 1727977, 8 (E.D. Mo. Apr 29, 2010).  In Randall, the Defendant raised an argument nearly identical to the argument raised here by Washington University, namely that the Plaintiffs have failed to meet their burden because residency is not equivalent to citizenship.  Here, Washington University relies entirely on McMorris v. TJX Cos., 493 F. Supp. 2d 158 (D.Mass. 2007), to contend that Ms. Barricks has not met her burden.  As previously set forth and described herein, the facts in McMorris are notably different from the facts in this case.  In McMorris, the plaintiff was attempting to remand to state court in order to avoid multi-district litigation that was already pending in the district court.  Here, there is no pending litigation in any district court relating to the data breach alleged in Ms. Barricks petition.  As such, removal of this case in no way promotes the judicial economy outlined in McMorris.  
  4. Also, in McMorris, there is no indication that the Defendant filed with the court an affidavit setting forth the state of last known address of any putative class members.  Here, Washington University filed an affidavit declaring that more than 300 putative class members “had Missouri addresses.”  (Notice of Removal, Exhibit C).  Nowhere in said affidavit or the Notice of Removal does Washington University set forth the number (or approximate number) of putative class members having non-Missouri addresses.    
  5. Finally, McMorris case is less persuasive than Randall because McMorris was decided in the District of Massachusetts; whereas Randall was decided in the Eastern District of Missouri.
  6. For the foregoing reasons, the home state exception requires that his case be remanded.

DISCRETIONARY EXCEPTION - 28 U.S.C. §1332(d)(3) GIVES THIS COURT DISCRETION TO REMAND EVEN IN ABSENCE OF ANY REQUIREMENT THAT IT REMAND

 

  1. Even if this Court does not agree that there is a presumption that at least two-thirds of the class members are citizens of Missouri, it is within the Court’s discretion to remand based on the so-called “discretionary exception” contained in 28 U.S.C. §1332(d)(3).  In order to remand based on the discretionary exception, the court must find that one-third of the proposed class are Missouri citizens, and determine that declining to exercise jurisdiction is in the interests of justice.  28 U.S.C. §1332(d)(3).  The statute identifies six considerations.
  2. The first consideration is whether the claims asserted involve matters of national or interstate interest.  28 U.S.C. §1332(d)(3)(A).  While all class actions may involve some level of national or interstate interest, the nature of this particular case is truly local in nature and importance.  Both defendants are Missouri corporations.  (Notice of Removal ¶ 10-11).  All proposed class members are Missouri residents, all class members were treated at the Defendants’ facility in Missouri.  (Class Action Petition ¶ 58).  The alleged data breach occurred in Missouri (Class Action Petition ¶ 2). 
  3. The second consideration is whether the claims asserted will be governed by laws of the State in which the action was originally filed or by the laws of other States 28 U.S.C. §1332(d)(3)(B).  In this case, every count is based on Missouri state substantive law.  Some of the causes of action are Missouri common law claims (e.g., negligence), and others are statutory (e.g., violation of the Missouri Merchandising Practices Act.)  However, all claims are state law claims.
  4. The third consideration is whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction. 28 U.S.C. §1332(d)(3)(C).  Here, Ms. Barricks has not attempted to intentionally avoid Federal jurisdiction.  There is no evidence that any individual or entity, other than those named, is responsible for any damages to the class.  Barricks also has not attempted to limit the size of the class or the estimation of damages in order to defeat Federal jurisdiction.
  5. The fourth consideration is whether the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants.  28 U.S.C. §1332(d)(3)(D).  In this case, the cause of action was brought in the state and county where defendants are doing business.  It is also the state and county where the data breach occurred.  If criminal charges were in fact filed relating to the data breach, the criminal charges would have been filed in the same state and county where this cause of action originated.
  6. The fifth consideration is whether the number of citizens of the State in which the action was originally filed in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State, and the citizenship of the other members of the proposed class is dispersed among a substantial number of States.  28 U.S.C. §1332(d)(3)(E).  Here, there is a presumption that a larger number of citizens are located in Missouri than any other state.  As previously state, there is a presumption that all class members are Missouri residents.  Also, as previously stated, there is no evidence that any class member is a citizen of a state other than Missouri.
  7. The sixth consideration is whether, during the 3-year period preceding the filing of that class action, 1 or more other class actions asserting the same or similar claims or behalf of the same or other persons have been filed.  28 U.S.C. §1332(d)(3)(F).  As previously stated, Plaintiff and her undersigned counsel are unaware of any other filed or pending class actions that raise the same or similar claims raised in this cause of action.
  8. Because all of the considerations outlined in the discretionary exception weigh in favor of remand, this Court should elect to remand the case to the Circuit Court of the City of St. Louis.  Even if the required grounds for remand are not satisfied, this Court may still remand based on the discretionary exception.

DEFENDANT WASHINGTON UNIVERSITY SHOULD PAY PLAINTIFF’S ATTORNEY FEES AND COSTS

 

  1. Plaintiff has incurred reasonable fees and costs associated with Washington University’s removal of this cause of action.
  2. 28 U.S.C. §1447(c) provides that “an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. 
  3. This Court should award Ms. Barricks the reasonable value of her attorney fees and costs actually incurred.  In removing the cause of action, Washington University has elected to disregard legal precedent from this District Court, has failed to present any evidence that even one putative class member is a citizen of a state other than Missouri.  In addition, an order remanding this case to the Circuit Court of the City of St. Louis is allowed and required under four separate provisions of 28 U.S.C. §1332. 

 

Respectfully submitted,

THE SMITH LAW FIRM, LLC

 

 

___________________________

Neil Smith, #56789MO

 

225 S. Meramec Ave., Suite 532

Clayton, MO 63105

Phone: (314) 725-4400

Fax: (800) 805-4563

neil@neilsmithlaw.com

 

 

CERTIFICATE OF SERVICE

 

The undersigned hereby certifies that a true and correct copy of the foregoing document was served via email and first-class US Mail, postage prepaid, on this 12th day of September, 2011, upon:

 

Winthrop B. Reed, III

Joseph E. Martineau

R. Bradley Ziegler

Lewis, Rice & Fingersh, L.C.

600 Washington Avenue, Suite 2500

St. Louis, MO 63101

wreed@lewisrice.com

jmartineau@lewisrice.com

bziegler@lewisrice.com

Attorneys for Defendant The Washington University

 

Jonathan H. Garside

Erika N. Reynolds

Fox Galvin, LLC

One South Memorial Drive, 12th Floor

St. Louis, MO 63102

jgarside@foxgalvin.com

ereynolds@foxgalvin.com

Attorneys for Defendant Barnes-Jewish Hospital

 

 

___________________________