Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 1 of 12 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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1 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 1 of 12 IN RE: CHECKING ACCOUNT OVERDRAFT LITIGA TION, MDL No UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 09-M D JLK THIS DOCUMENT RELATES TO: FIFTH TRANCHE ACTION Stilion, et a1. v. United Bank, Inc. and United Bankshares, Inc., S.D. W. V a. Case N o. 1:10-CV S.D. Fla. Case N o. 1:1 1-CV JLK ORDER DENYING DEFENDANTS' MOTION TO DISM ISS TH IS M ATTER com es before the Court upon Defendants United Bank, Inc. and UnitedBankshares, Inc.'sM otion todismiss (DE #2161), filednovemberz3, Therein, Defendants m ove for dism issal of Plaintiffs' Am ended Complaint currently pending in this M ulti-district Litigation ($MDL') proceeding. The Court is fuly briefed on the matter,l and proceeds w ith the benefit of oral argum ent.z A fter careful consideration and being fully advised by the briefs, m em oranda and oral argum ent of counsel, the Court finds it m ust deny D efendants' M otion to Dism iss. 1 Plaintiffs tiled a Response (DE #2330) on December 22, 20l 1, to which Defendants replied (DE #2373) on January 1 1, The Court heard oral argument on Defendants' M otion to Dism iss in open court on June 12, See Oral Arg. Tr. (DE #2800), filed July 1, 2012.

2 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 2 of BACKGROUND On June 10, 2009, the United States Judicial Panel on M ultidistrict Litigation established this M DL proceeding known as ln re Checking Account Ovéz#rtẓ/i Litigation, M DL No The above-styled action against United Bank, Inc. and United Bankshares, lnc. (iubsi') was subsequentlymadepart of this MDL proceeding, transferred to this Court, and assigned to the Fifth Tranche. (DE # 1366). The First Amended Class Action Complaint (tûcac'), (DE #203 1), filed on October 24, 201 1, is now the operative pleading. In the CA C, Plaintiffs Christopher and H eather Stilion, who reside in W est V irginia and m aintained checking accounts w ith United Bank, alege that they and the m em bers of a similarly situated class suffered injuries $1as a result of United Bank's use of a non-chronological and/or largest-to-sm allest reordering system for the posting of debits to custom er accounts and the Bank's practice of assessing overdraft fees w hen sufficient funds exist in the customer's account.' (CAC!!12-13).Plaintiffs seek to recover the aleged excessive overdraft fees levied as a result of the D efendants'alleged m anipulation and reordering of debit transactions in order to m axim ize the overdraft fees they charged their customers. The CAC invokes jurisdiction under the Class Action Fairness Act of 2005 (t$cafa'), 28 U.S.C. j 1332(d)(4). Defendant U nited Bank, a federally insured bank, is a W est V irginia corporation, D efendant UBSI, also a W est Virginia com oration, is a bank holding com pany consisting of tw o wholly-owned federally insured subsidiaries, both nam ed United Bank, lnc. - one -2-

3 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 3 of 12 organized under the law s of W est V irginia and the other Virginia. B efore the Court now is Defendants' M otion to D ism iss, which seeks dism issal of Plaintiff s entire Com plaint for lack of subject matter jurisdiction. II. DISC USSION CAFA w as enacted in order to Sçencourage the litigation of certain class actions - icases of national im portance'- in federal courts, so as to m inim ize bias against out-of-state defendants and prom ote the fair application of state 1aw to the m ultifarious parties in class actions.' Lowery v. Alabama Power Co., 483 F. 3d 1184, 1197 (11th Cir. 2007) (internal citation omitted). The statute gives federal district courts subject mater jurisdiction over mass actions, provided that four requirem ents can be m et. Pretka v. Kolter Cityplaza IL Inc., 608 F. 3d 744, 751 (11th Cir. 2010). Sû-fhese requirements are: (1) an amount in controversy requirement of an aggregate of $5,000,000 in claims; (2) a diversity requirement of minimal diversity; (3) a num erosity requirem ent that the action involve the m onetary claim s of 100 or m ore plaintiffs; and (4) a comm onality requirement that the plaintiffs' claim s involve com m on questions of 1aw or fact,'' Lowery, 483 F, 3d at D efendants do not dispute that Plaintiffs have fulflled all four of these requirem ents. Rather, D efendants allege that this action should be dism issed because it fals w ithin the exceptions to subjectmatterjurisdictionundercafa. In broad strokes, Defendants argue that jurisdiction under CAFA is both inappropriate and unavailable, because this action is alm ost entirely centered on W est V irginia, as opposed to the type of class actions for w hich - 3-

4 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 4 of 12 CAFA was enacted. (M otion, at 8). Because CA FA is designed to comprise çsclass actions w ith interstate im plications,' it contains three statutory exceptions Ssdesigned to keep purely local m atters and issues of particular state concern in the state courts.' Lowery, 483 F.3d at Tw o exceptions compel dismissal where their elements are proven: the (sl-lome State' and çtocal Controversy' exceptions.3 See 28 U.S.C. j 1332(d)(4)(A) and (B). The third exception, however, is discretionary, allowing a court to decline to exercisejurisdiction where ûçgreater than one third but less than two-thirds of the m em bers of a1l proposed plaintiff classes in the aggregate and the prim ary defendants are citizens of the State in w hich the action w as originally filed.' See 28 U.S.C. j 1332(d)(3). As the party seeking to deny CAFA jurisdiction, Defendants bear the burden of proving that the exceptions apply. Fuller v. HomeDepotservices, LL C, CaseNo. 07-CV-1268,2007 W L , at *4(N.D. Ga. Aug. 14, 2007) (finding Clthe party seeking to invoke an exception to CAFA has an affirmative 3som e courts have referred to two separate m andatory exceptions: a Silsocal Controversy' exception, found at section 1332(d)(4)(A), and a 4tl-lome State' exception, found at section 1332(d)(4)(B). See e.g., Hart v. FedEx Groundpackage Sys., Inc., 457 F.3d 675, (7th Cir. 2006). çi-l-hat is, the exception to thejurisdictional rule under CAFA fotmd in section 1332(d)(4) has been analyzed in terms of two separate exceptions pursuant to the two subsections in that one section.' Fuller v. Home Depot Servs., LL C, Case N o. 07-CV- 1268, 2007 W L , *3 (N.D. Ga. Aug. 14, 2007). However, the Eleventh Circuit has declined to evaluate these exceptions separately, referring instead to a single tslocal controversy' exception to CAFA, which Iican be satisfied in either of two ways, as provided for respectively in 28 U.S.C. j 1332(d)(4)(A) or (B).' Evans v. Walter Inds., lnc., 449 F.3d 1 159, n.2 (1 1th Cir. 2006). However, as D efendants have structtred their M otion around two separate mandatory exceptions, the dtl-lome State' and St ocal Controversy' exceptions, the Court wil address the exceptions separately for pup oses of clarity. -4-

5 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 5 of 12 duty to prove the elements of that exception.'); see also April 1, 2011 Order on M otion to Dismiss, at 5-6 (DE #1323) (denying similar motion of defendant bank). D efendants argue that both of CAFA'S m andatory exceptions are applicable and require dismissal because: (1) both defendants are W est Virginia citizens', (2) more than two-thirds of the class members are W estvirginia citizens; (3) the actionwas originally filed in W est Virginia; and (4) no similar actions were tsled against the defendants in the three years preceding this action. (M otion, at 5.) ln the alternative, Defendants argue thatthe Court should findthatcafa'sperm issive discretionary exception independently requires dism issal given that both defendants and m ore than one-third of the class m em bers are W est Virginia citizens. (1d. at 9,) The Court will address each of Defendants' arguments in turn. A. CAFA'S M andatory Exceptions The ûsl-lome State' exception mandates that a district court shal decline jurisdiction over a class action in w hich Sstwo-thirds or m ore of the m em bers of al1 proposed plaintiff classes in the aggregate.. are citizens of the State in w hich the action w as originally filed.' 28 U.S.C. j 1332(d)(4)(B). Under the çt ocal Controversy'' exception, district courts must decline jurisdiction where four circumstances are met: (1) more than two-thirds of the members of the proposedplaintiff class are citizens of the original filing state; (2) at least one defendant is adefendant from whom m em bers of the proposedplaintiff class seek significant relief, w hose aleged conduct form s a significant basis of the asserted claim s, and who is a citizen of the original filing state; (3) the principal injuries were incurred in the original filing -5-

6 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 6 of 12 state; and (4) no other class action asserting the same or similar factual allegations has been filed against any of the defendants w ithin the three years preceding the filing of the case. 28 U.S.C. j 1332(d)(4)(A).Therefore, both mandatory exceptions of CAFA would require D efendants to establish that m ore than tw o-thirds of proposed class m em bers are citizens of W est Virginia, an elem ent that is disputed by the parties. A discussion of this point wil be dispositive to the issue of whether a m andatory exception to CAFA applies in this case. Both parties discussed the issues surrounding citizenship at length in oral argum ent and in their briefs. D efendants contend that their proffered evidence show s that m ore than 90 percent of the putative class m em bers are residents of W est Virginia and intend to rem ain in W est Virginia. (M otion at 12.) Plaintiffs counter that Defendants have failed to meet their burden of proving w ith reliable evidence that two-thirds of the putative class m em bers are indeed W est Virginia citizens. (Resp. at 16.) The Court must assess the citizenship of the proposed class m em bers in determ ining whether the m andatory exceptions to CAFA apply, rather than sim ply the residence of the proposed class m em bers. GûResidence alone is not the equivalent of citizenship, although the place of residence is prim a facie the dom icile; and citizenship is not necessarily lost by protected absence from hom e, where the intention to return remains.' Stine v. Moore, 2 13 F.2d 446, 448 (5th Cir. 1954).4 Defendants rely solely upon two declarations they subm itted and upon data from the 4Decisions of the Fifth Circuit Court of Appeal that existed on Septem ber 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City ofprichar4 Ala., 661 F.2d 1206 (1 1th Cir.1981).

7 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 7 of 12 United States Census Bureau.s The D eclaration of W illiam Salvatori stated that alm ost 92 percent of the putative class members have mailing addresses in W est Virginia. See (Oral Arg. Tr., at77:20-22); see also Salvatori Dec., (DE# ) lnhis Declaration, Joe W ilson, an executive vice president of both Defendants, gave inform ation aboutthe organization and activities of Defendants, See W ilson Dec., (DE # ) Additionally, Defendants offered data from the United States Census Bureau to show that the majority of W est Virginia residents intend to remain in W est Virginia indefinitely. (M otion, at ) ln sum, Defendants argued, Sdwhen you put the tw o declarations.. together w ith the census data, it paints a picture that is uncontradicted that more than two thirds of the punitive (sicq class are residents of W est Virginia....(Tlhere is a presumption that residence is the same as citizenship unless there is evidence to the contrary.'(oral Arg. Tr., at 78:5-1 1.) Plaintiffs counter that the Court m ay consider m any factors in determ ining a party's citizenship forthe purpose of diversityjurisdiction, including'. where the party resides, where thepartyworks, where the party votes, where theparty seeks m edicaltreatm ent, what address the party self-reports on form s such as taxes, and from w hich state the party has received a driver's license. (Resp., at 12),* see also Stine, 213 F. 2d at 448; Altimore v. Mount Mercy College, 420 F. 3d 763, 767 (8th Cir. 2005). Plaintiffs note that Defendants have introduced no evidence as to where the custom ers w ho comprise this class vote, w ork, seek m edical sd efendants subm itted a third declaration: the D eclaration of Floyd Boone, an atom ey for Defendants. Boone Dec., (DE #2161-3). This declaration, however, was not addressed in briefing or oral argument. The Court finds it is inapplicable to the issues in this Order.

8 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 8 of 12 treatment, self-identify on forms, or pay taxes. (Resp., at 14.) Plaintiffs contend, SûBecause Defendants' unsupported anduntested conclusions retlect onlythe residency address of som e class m em bers, there appears to be no consideration given to the num ber of transient workers, college students, and others that reside in W est Virginia on a temporary basis.' (1d., at 16.) Plaintiffs also atack the validity and relevancy of the Salvatori D eclaration. First, the Salvatori Declaration exam ined the residences of only a fraction of the class m em bers and excludes those serviced by the branches located in Virginia, W ashington, D.C., and M aryland.6 (1d., at 12.) The Salvatori Declaration also does not indicate or produce the data M r. Salvatori relied upon in m aking this determ ination, but states only that he based his opinion 'son (hisj review of records regularly and routinely created and maintained by United Bank, lnc. in the regular course of its business.' See Salvatori Decl.,! 4; (DE #2330, at 13). Finaly, Plaintiffs argue that the Salvatori Declaration is conjecture, Sibecause it does not address the question of the citizenship of the people who are account holders, just the addresses of people.'' (Ora1 Arg. Tr., at 89:22-24.) The Court agrees that there is not enough evidence at this stage to determ ine the percentage of class m em bers who both rem ained in and intended to rem ain in W est Virginia dplaintifs argue, dçthe Salvatori Declaration ignores the al-im portant fact that Plaintiffs have not only sued on behalf of the customers of the subsidiary known as United Bnnk - W V, they have sued on behalf of a1l United Bank custom ers nationaly and specificaly nam ed the parent company, UBSI, in their Amended Complaint.' (Resp., at 12); see also (CAC :!15-16). Only 47% of United Bank's fu l service offices are located in W est Virginia, while 53% of its offices lie in Virginia, W ashington, D.C., M aryland, and Ohio. (Resp., at 12). - 8-

9 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 9 of 12 at the tim e the Complaint w as filed, a vital aspect of proving citizenship. See Stine, l 13 F.2d at448. By subm iting only census data about W estv irginia andtw o declarations, D efendants have failed to m eet their burden of proving that over two-thirds of the proposed class are citizens of W est Virginia. As the Court held in another case in this MDL, additional inform ation can be and m ayw ell be developed during discovery regarding the citizenship of class m em bers, but the Court cannot conclude at this tim e that D efendants' proffered evidence is sufficient. See April 1, Order on M otion to D ism iss, at 5-6. Therefore, CAFA'S m andatory exceptions do not apply. B. CA FA'S D iscretionary Exception Another exception to CAFA jurisdiction is penuissive and holds that a court may iûin the interests of justice and looking at the totality of the circumstances,' choose to decline jurisdiction. 28 U.S.C. j 1332(d)(3). The Court may decline to exercise jurisdiction over a class action in w hich Stgreater than one third but less than tw o-thirds of the m em bers of a1 proposed plaintiff classes in the aggregate and the prim ary defendants are citizens of the State in which the action was originally filed.' 28 U.S.C. j 1332(d)(3). Assuming the requisite percentage exists and the prim ary defendants are citizens of W est V irginia, the Court is to consider the follow ing six factors: (A) whether the claim s asserted involve m atters of national or interstate interest; (B) whether the claims asserted wil be governed by laws of the State in which the action w as originaly sled or by the law s of other States; - 9-

10 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 10 of 12 (C) whether the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction; (D) whether the action was brought in a forum with a distinct nexus with the class m em bers, the aleged harm, or the defendants; (E) whether the number of citizens in the State in which the action was originally filed in a1l proposed plaintiff classes in the aggregate is substantially larger than the num ber of citizens from any other State, and the citizenship of the other m em bers of the proposed class is dispersed am ong a substantial num ber of States; and (F) whether, during the 3-year period preceding the filing of that class action, 1 or m ore other class actions asserting the sam e or sim ilar claim s on behalf of the sam e or other persons have been filed.' 28 U.S.C. j 1332(d)(3). A s discussed above, Defendants have not persuaded the Court of the percentage of class members who are citizens of West Virginia.Federal courts may not engage in guessw ork in order to decide w hether the requisite elem ents of CAFA exceptions have been met. See ln Re Sprint Nextel Corp., 593 F. 3d 669, (7th Cir. 2010) (rejecting even ûlsensible guesswork' in evaluating the citizenship of putative class m em bers and ultim ately Sûagreelingj with the majority of district courts that a court may not draw conclusions about the citizenship of class members based on things like their phone numbers and mailing addresses'); Gavron v. WeathershieldMfg., Inc., Case No. 10-cv-22088, 2010 W L at #3, (S.D. Fla. Sept. 29, 2010) (declining to SEintuit class citizenship from property ownership, given the Eleventh Circuit's clear statem ents regarding a plaintifps burden of proof'); Philips v. Severn TrentEnv. Servs., Inc., Case No , 2007 W L , at -10-

11 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 11 of 12 *3(E.D. La. Sept. 19, 2007) (tw lthough there is some intuitive appeal to the claim that most of the gputative class members) were citizens of Louisianawhen the complaintwas filed, the (moving partyj has offered no evidence in support of such an inference. By not offering additional indicia of Louisiana citizenship of the putative class m em bers apart from their mere residency... the (moving partyl has not met his burden of proof.'). The Eleventh Circuit has held that any doubts regarding the applicability of a CA FA exception are to be resolved in favor of exercising federal jurisdiction over the action. See Evans, 449 F. 3d at 1 163; Gavron, W L at #2. As the Court found previously in this MDL, it would be inappropriate at this juncture to resolve a serious factual dispute about the percentage of class m em bers w ho are citizens of the state in w hich the action was filed. See A pril 1, 2011 Order on M otion to Dism iss, at 5. As stated in open court, the tim e that the Court w ill know w ith complete clarity and defnition the m akeup of theputative class wil be when the Court deals with class certification. (Ora1 Arg. Tr., at 95:20-23,) Additional inform ation can be developed during discovery that wil supplem ent D efendants' tw o declarations in such a manner that this issue may be revisited at either the (a) detennination of class action status; or (b) summary judgment. See April 1, Order on M otion to Dism iss, at 5-6. Therefore, the Court finds that the discretionary exception to CAFA does not apply CONCLUSION In drafting CAFA,Congress contemplated broad federal court jurisdiction and

12 Case 1:09-md JLK Document 2853 Entered on FLSD Docket 07/25/2012 Page 12 of 12 intended only narrow exceptions to apply. Defendants have failed to dem onstrate that any exception to CAFA jurisdiction applies at this stage. Therefore, it is OR DERED, AD JU DG ED, and DECR EED thatd efendants U nited Bank, lnc. and United Bankshares, Inc.'s M otion to Dismiss (DE #2161) be, and the same is hereby DENlED-Defendants shal answer Plaintiffs' Amended Complaint within twenty (20) days of the date of this O rder. DONE AND ORDERED in chambers at the James Lawrence King Federal Justice Building and United States Courthouse, M iam i, Florida, this 25th day of July, JAMES LAWRENCE KIN UNITED STATES DIST C JUDGE SOUTHERN DISTRICT OF LORIDA C cc: A 1 Counsel of Record