McMorris v. Tjx Companies, Inc.

• Decision Date: 26 June 2007
• Docket Number: No. CIV.A.07-10162-WGY.,CIV.A.07-10162-WGY.
• Citation: 493 F.Supp.2d 158
• Parties: Leah MCMORRIS and Wendy L. Pignone, individually and as representatives of a proposed class, Plaintiffs, v. THE TJX COMPANIES, INC., and The TJX Operating Companies, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

493 F.Supp.2d 158

Leah MCMORRIS and Wendy L. Pignone, individually and as representatives of a proposed class, Plaintiffs, v. THE TJX COMPANIES, INC., and The TJX Operating Companies, Inc., Defendants.

No. CIV.A.07-10162-WGY.

United States District Court, D. Massachusetts.

June 26, 2007.

John Michael Barclay, Richard P. Rouco, Whatley Drake & Kallas LLC, Birmingham, AL, Gregory Louis Davis Greg Davis, LLC, Montgomery, AL, F. Inge Johnstone, Archie C. Lamb, Jr., Law Offices of Archie Lamb LLC, Birmingham, AL, Louis Cooper Rutland, Jr., Rutland Law Firm, LLC, Union Springs, AL, Patrick J. Sheehan, Whatley, Drake & Kallas, Boston, MA, Joe R.Whatley, Jr., Whatley, Drake & Kallas, New York City, for Amerifirst Bank, Consolidated Plaintiff.

James R. Byrne, William H. Champlin, III, Tyler, Cooper & Alcorn LLP, Hartford, CT, Michael. G. Caldwell, Tyler Cooper & Alcorn LLP, New Haven, CT, for Collinsville Savings Society, Connecticut Bankers Association, Eagle Bank, Maine Association of Community Banks, Massachusetts Bankers Association, Saugusbank, Consolidated Plaintiffs.

Danielle Disporto, Lester L. Levy, Wolf Popper LLP, New York, NY, Robert E. Ditzion, Thomas G. Shapiro, Shapiro, Haber & Urmy, LLP, Boston, MA, for Jitka Parment, Julie Buckley, Kimberly Myck-Rawson, Rachel Rosenfeld, Consolidated Plaintiffs.

Michael T. Fantini, Jon J. Lambiras, Sherrie R. Savett, Berger & Montague, P.C., Philadelphia, PA, Jonathan Shapiro, Stern, Shapiro, Weissberg & Garin, Boston, MA, for Paula G. Mace, Plaintiff.

Kristen Marquis Fritz, Robert T. Naumes, Thornton & Naumes, LLP, Boston, MA, for Leah McMorris, Wendy L. Pignone, Consolidated Plaintiffs.

Richard D. Batchelder, Jr., Brian R. Blais, Ropes & Gray LLP, Boston, MA, Seth C. Harrington, Ropes & Gray LLP (BOS), Boston, MA, Douglas H. Meal, Mark Szpak,' Harvey J. Wolkoff, Ropes '& Gray LLP, Boston, MA, for TJX Companies, Inc., Defendant.

Michele F. Raphael, Wolf Popper LLP, New York, NY, for Acohen Marketing & Public Relations, LLC; Amerifirst Bank, Collinsville Savings Society, Connecticut Bankers Association, Eagle Bank, Maine Association of Community Banks, Massachusetts Bankers Association, Saugusbank, TJ Maxx, Anne Cohen, Christy Mascolo-Brown, Gary Fuller, Jitka Parment, Julie Buckley, Kimberly Myck-Rawson, Laura Lerner, Leah McMorris, Mark Parrish, Marylin Crew, Michelle Peavy, Rachel Rosenfeld, Robert Ahearn, Robert Mann, Sandra Fuller, Thomas J. Gaydos, Traci Arians, Vicky Grisham, Wendy L. Pignone, Wendy Rivas, Consolidated Plaintiffs.

Thomas G. Shapiro, Shapiro Haber & Urmy LLP, Boston, for Jitka Parment, Julie Buckley, Kimberly Myck-Rawson, Rachel Rosenfeld, Robert Ahearn, Wendy Rivas, Acohen Marketing & Public Relations, LLC, Anne Cohen, Laura Lerner, Robert Mann, Consolidated Plaintiffs.

Thomas M. Sobol, Hagens Berman Sobol Shapiro LLP, Cambridge, MA, for Traci Arians, Vicky Grisham, Christy Mascolo-Brown, Marylin Crew, Michelie Peavy, Consolidated Plaintiffs.

William S. Fish, Jr., Tyler Cooper & Alcorn LLP, Hartford, CT, Benjamin A. Solnit, Tyler Cooper & Alcorn, LLP, New Haven, CT, for Collinsville Savings Society, Connecticut Bankers Association, Eagle Bank, Maine Association of Community Banks, Massachusetts Bankers Association, Saugusbank, Consolidated Plaintiffs.

James R. Carroll, Nicholas I. Leitzes, Skadden Arps Slate Meagher & Flom LLP, Boston, MA, Robert N. Webner, Vorys Sater Seymour and Pease LLP, Columbus, OH, William Breck Weigel, Vorys, Sater, Seymour and Pease, LLP, Cincinnati, OH, for Fifth Third Bancorp, Fifth Third Bank, Consolidated Defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

On May 17, 2007, this Court took under advisement the Plaintiffs' motion to remand this action to the Massachusetts Superior Court in order to analyze in more detail the issue of the burden of proof for removal of actions under the Class Action Fairness Act of 2005 ("CAFA") § 4, Pub.L. No. 109-2, 119 Stat. 14 (2005) (codified as amended in 28 U.S.C. § 1332(d)(2)), an issue of first impression in the First Circuit.

On February 5, 2007, Leah McMorris filed the original complaint in this putative class action (the "McMorris class") in the Massachusetts Superior Court sitting in and for the County of Middlesex. Notice of Removal [07-cv-10682, Doc. No. 1], Decl. of Brian R. Blais, Ex. A ("Original Compl."). The complaint defined the proposed class as:

Residents of Massachusetts who made purchases and paid by credit or debit card or check or who made a return at one or more Marshalls, T.J. Maxx, HomeGoods, or A.J. Wright stores in the United States in 2003 or from May to December 2006.

Original Compl. ¶ 14. In the complaint, the McMorris class also identified the defendant, The TJX Companies, Inc. ("TJX") as "a Delaware Corporation with its principal place of business in Framingham, Massachusetts." Id. ¶ 4.

The McMorris class did not proceed with service of a summons and complaint at that time. Rather, on April 4, 2007, the McMorris class filed a "Notice of Filing First Amended Complaint" in the Superior Court, along with a First Amended Complaint. Notice of Removal [07-cv-10682, Doc. No. 1], Decl. of Brian R. Blais, Ex. B ("Am.Compl."). The First Amended Complaint added a named representative plaintiff, Wendy L. Pignone, and modified the class definition in certain respects, but continued to state that the action was asserted on behalf of "[r]esidents" of Massachusetts. See id. ¶ 20. Specifically, the First Amended Complaint — which was the complaint in effect at the time of removal on April 13, 2007 — defined the proposed class as:

Residents of Massachusetts who made purchases and paid by credit or debit card or check or who made a return at one or more Marshalls, T.J. Maxx, HomeGoods, or A.J. Wright stores in the United States from 2002 to the end of 2006.

Id. The First Amended Complaint continued to identify TJX as "a Delaware Corporation with its principal place of business in Framingham, Massachusetts." Id. ¶ 10.

On April 13, 2007, TJX filed a Notice of Removal in this matter then pending in the Middlesex Superior Court, thus removing this case from the state court to this session of the United States District Court. The McMorris class action was not the only putative class action seeking redress from TJX.

In fact, by the time the notice of removal was filed, this Court had significantly progressed on similar cases and claims. On January 29, 2007, AmeriFirst Bank ("AmeriFirst") filed, a class action complaint against TJX Companies, Inc., T.J. Maxx, Fifth Third Bancorp, and Fifth Third Bank. [07-cv-10169, Doc. No. 1].

On April 4, 2007, this Court entered a Case Management Order consolidating six related actions then pending in this district and appointing Berger & Montague, P.C. and Wolf Popper, LLP as Co-Lead Counsel over all consolidated actions. Case Management Order [Doc. No. 11] ¶¶ 1, 13. This Order also appointed Shapiro Haber & Urmy LLP and Stern Shapiro Weissberg & Garin, LLP to serve as Plaintiffs' Co-Liaison Counsel. Id. ¶ 14.

On April 9, 2007, AmeriFirst moved the Court to amend the Case Management Order of April 4, 2007, moving for the creation of two separate tracks — a Consumer Track and a Financial Institution Track — and the appointment of Amerifirst counsel as Lead Counsel of the Financial Institution Track. Mot. to Amend [Doc. No. 14] at 1.

On April 10, 2007, the Massachusetts Bankers Association filed a Motion to Defer Appointment of Lead Class Counsel Representing Financial Institutions. [Doc. No. 16].

On April 11, 2007, this Court had already held a Scheduling Conference pursuant to Local Rule 16.1 concerning these six consolidated cases. At this conference, the Court, among other things, ordered that the consolidated actions would proceed as one case under the title In re TJX Companies Retail Security Breach Litigation, and placed the consolidated case on the running trial list for May 2008 (later amended to June 2008). In addition, the Court appointed AmeriFirst's Counsel interim class counsel for the financial institutions and gave the Massachusetts Bankers Association and other banks until April 25, 2007 to file a complaint and any motion to appoint their counsel as lead counsel for the financial institutions.

Thus the consolidated case — the putative classes of which entirely encompass the McMorris class — had already commenced its march to trial in this session when this case arrived. Almost immediately, the McMorris class wanted out, filing a Motion to Remand on April, 27, 2007. It is this motion that this Court heard on May 17, 2007, and it is this motion that this memorandum addresses.

II. DISCUSSION

A. Minimal Diversity

For class actions covered by CAFA,¹ Congress abandoned the "complete" diversity requirement of 28 U.S.C. § 1332(a). Instead, CAFA now requires only "minimal" diversity between adverse parties, as set out in 28 U.S.C. § 1332(d)(2). Therefore, under CAFA, diversity jurisdiction exists in class actions so long as "any member of a class of plaintiffs is a citizen of a State different from any defendant," or "any member of a class of plaintiffs is ... a citizen or subject of a foreign state and any defendant is a citizen of a State." 28 U.S.C. § 1332(d)(2)(A) — (B); see Natale v. Pfizer Inc., 379 F.Supp.2d 161, 167 (D.Mass.2005), aff'd, 424 F.3d 43 (1st Cir. 2005) (holding that one of CAFA's primary mechanisms for expanding jurisdiction is to replace the strict complete diversity requirement with a lenient rule now granting jurisdiction if any diversity exists between plaintiffs and defendants).

This Court has jurisdiction because the putative class satisfies the requirements of minimal diversity.

1. Residence Does Not Equal Citizenship

The First Amended Complaint proposes a class of "[r]esidents of Massachusetts" who engaged in transactions at TJX during a specified time. Am. Compl. ¶ 20. Accordingly, by definition, the class may include foreign citizens who...