Thomas v. Bank of America Corp.
| Decision Date | 12 June 2009 |
| Docket Number | No. 09-11143.,09-11143. |
| Citation | 570 F.3d 1280 |
| Parties | Rosa L. THOMAS, Individually and as Class representative for all other similarly situated, Plaintiff-Appellee, v. BANK OF AMERICA CORPORATION, Unknown Parties A, B, C, and D, Whose real and proper identities are unknown at present, FIA Card Services, N.A., d.b.a. FIA Card Services, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Dwight J. Davis, Justin Clay Jeffries, Phyllias B. Sumner, King & Spalding, Atlanta, GA, for Defendants-Appellants.
Sidney L. Moore, Jr., Montezuma, GA, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
On June 2, 2008, Rosa L. Thomas filed a class action against Bank of America and FIA Card Services, a wholly-owned subsidiary of Bank of America, (jointly referred to as "Bank of America") in the Superior Court of Clarke County, Georgia. Thomas's complaint alleged that Bank of America committed insurance fraud in violation of O.C.G.A. § 33-31-7, committed unfair and deceptive acts in violation of O.C.G.A. § 33-6-4, acted in bad faith, and violated Georgia's Racketeer Influenced and Corrupt Organizations Act ("RICO"), O.C.G.A. § 16-14-4, by selling a bundled insurance product, known as Credit Protection Plus, to ineligible individuals.
The Credit Protection Plan provides differing benefits under the following separate contingencies: credit life insurance, credit accident and sickness insurance, involuntary unemployment insurance, hospitalization, and unpaid family leave of absence. Thomas's complaint alleged that the payment of benefits for most of the Credit Protection Plus components was contingent on the customer being employed for at least 30 hours per week and Bank of America sold the product to individuals, including herself, who worked less than 30 hours per week. The complaint sought the recovery of "all premiums collected by [Bank of America] from Plaintiff and the class members ... for various insurance products for which Plaintiff and the class members were ineligible to receive benefits thereunder," and, under RICO, sought treble damages and attorneys' fees.
The complaint defined Thomas's putative class alternatively, as "[a]ll Georgia residents who have (or had within the applicable statute of limitations) a credit account with Defendants and have enrolled in, and paid premiums for Defendants' `Credit Protection Plus' products,"1 or as:
All Georgia residents who have (or had within the applicable statute of limitations) a credit account with Defendants and have enrolled in, and paid premiums for Defendants' "Credit Protection Plus" products who were ineligible for any of the bundled benefits at the time of purchase of Defendants' "Credit Protection Plus" products, or became ineligible for any of the bundled benefits within the time period in which said Georgia residents paid premiums to Defendants for coverage under the "Credit Protection Plus" products.2
The complaint did not indicate the number of individuals in either of the proposed classes or the monetary amount of the recovery they were seeking.
On July 30, 2008, Bank of America filed a Notice of Removal to the United States District Court for the Middle District of Georgia, contending that jurisdiction was appropriate because the action qualified as a "mass action" under the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. No. 109-2, 119 Stat. 4 (). Under CAFA, to remove a mass action to federal court, a defendant must show: (1) an amount in controversy of an aggregate of $5,000,000 in claims: (2) minimal diversity; (3) numerosity involving monetary claims of 100 or more plaintiffs; and (4) commonality showing that the plaintiffs' claims involve common questions of law or fact. Lowery v. Alabama Power Co., 483 F.3d 1184, 1202-03 (11th Cir.2007). Because Thomas provided no information relating to the amount in controversy or the number of plaintiffs in each class, Bank of America supplemented its Notice of Removal with a declaration that stated that "[f]rom October 23, 2006 through June 30, 2008, Defendant enrolled 77,787 customers and collected a total of $4,825,809 in fees from customers in Georgia for the Credit Protection Plus plan."3 Bank of America argued that because Thomas...
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