[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 12, 2009
THOMAS K. KAHN
No. 09-11143 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 08-00068-CV-CDL-3
ROSA L. THOMAS, Individually and
as Class representative for all
other similarly situated,
Plaintiff-Appellee,
versus
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.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 12, 2009)
Before TJOFLAT, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
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.
2
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
1
Thomas sought class certification under O.C.G.A. § 9-11-23(b)(2) which provides that
An action may be maintained as a class action if the prerequisites of [numerosity,
commonality, typicality, and representativeness] are satisfied, and, in addition . . .
[t]he party opposing the class has acted or refused to act on grounds generally
applicable to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole.
2
O.C.G.A. § 9-11-23(b)(3) provides that an action may be maintained as a class action if
the four prerequisites of class certification are met and a court finds that common issues of law or
fact predominate over individual questions and a class action is superior to other available
methods.
3
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
(codified in scattered sections of 28 U.S.C.). 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
3
The declaration was made by Robert Morris, Senior Operations Project Manager of
Bank of America.
4
argued that because Thomas sought treble damages under the RICO statute and
attorneys’ fees, the amount in controversy clearly exceeded $5,000,000.
Thomas moved the district court to remand the case to the state court on the
ground that Bank of America had not shown by a preponderance of the evidence
that the amount in controversy exceeded $5,000,000; thus, Thomas argues
jurisdiction under CAFA was lacking. See 28 U.S.C. § 1332(d).4 The district
court agreed and granted Thomas’s motion. The district court found that the $4.8
million figure did not accurately identify the amount in controversy because
Thomas’s complaint did not allege that all of the Georgia Credit Protection Plus
customers were entitled to relief for the entire amount of their Credit Production
Plus fees. The court thus concluded that there was “great uncertainty regarding
the amount in controversy and the class size.”
A case does not become removable as a CAFA case until a document is
“received by the defendant from the plaintiff—be it the initial complaint or a later
received paper . . . [that] unambiguously establish[es] federal jurisdiction.”
Lowery, 483 F.3d at 1213. Once such a document is received, the defendant has
thirty days to file the notice of removal. 28 U.S.C. § 1446(b). In other words, a
4
Bank of America, as the party removing the case to the district court, bore the burden of
establishing federal subject matter jurisdiction. Evans v. Walter Indus., Inc., 449 F.3d 1159,
1164 (11th Cir. 2006).
5
defendant may not simply file a notice of removal thirty days after the filing of the
complaint unless that document shows that the CAFA’s jurisdictional
requirements for an action to be deemed a mass action are met. A defendant will
generally establish proof of the amount in controversy based on documents
received from the plaintiff because a “removing defendant generally will have no
direct knowledge of the value of the plaintiff’s claims.” Id. at 1213 n.63.
Here, the complaint provided no information indicating the amount in
controversy or the number of individuals in the alternative classes. Thus, because
defendant has not shown the amount in controversy and the sizes of the alternative
classes by a preponderance of the evidence, the judgment of the district court is
AFFIRMED.
6