Memorandum To Remand

Case 6:10-cv-00607-RTH -CMH Document 11-1 Filed 05/13/10 Page 1 of 25 PageID #:
305
UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA
LAFAYETTE OPELOUSAS DIVISION
OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607

d/b/a OPLELOUSAS GENERAL HEALTH
SYSTEM, ET AL
Plaintiffs, JUDGE RICHARD T. HAIK
VERSUS MAGISTRATE JUDGE

C. MICHAEL HILL
CLECO CORPROATION AND CLECO
POWER, LLC,
Defendants
_____________________________________________________________________________
MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MOTION TO REMAND
______________________________________________________________________________
306


SYSTEM, ET AL

C. MICHAEL HILL
CLECO CORPORATION AND CLECO
POWER, LLC,
Defendants
____________________________________________________________________________
TABLE OF CONTENTS
______________________________________________________________________________
Table of Contents .......................................................................................................................... ii
Table of Citations and Authorities ................................................................................................ iv
Factual and Procedural Background ................................................................................................2

Summary of the Argument ..............................................................................................................3
CLECO Did Not Meet Its Burden ..................................................................................................4
The Home State and Local Controversy Exceptions Require Remand ..........................................5
A Statistical Survey Commissioned on Behalf of the Plaintiff Class

Confirms More Than Two-Thirds of the Proposed Class Members
Are Louisiana Citizens ..................................................................................................................10
The Discretionary Exception ........................................................................................................16
Plaintiff Should be Allowed to Conduct Remand Discovery .......................................................18
Conclusion ....................................................................................................................................18
Certificate of Service ....................................................................................................................20

ii
307
Exhibits:
In Globo Affidavit of Survey Takers .................................................................................Exhibit 1
Affidavit of Dr. Helmut Schneider .....................................................................................Exhibit 2
Affidavit of Dr. Troy Blanchard ........................................................................................Exhibit 3
iii
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SYSTEM, ET AL

C. MICHAEL HILL
CLECO CORPORATION AND CLECO
POWER, LLC,
Defendants
______________________________________________________________________________
TABLE OF CITATIONS AND AUTHORITIES

______________________________________________________________________________
Bennet v. Board of Commissioners for East Jefferson Levee District,

2007 Westlaw 2571942 (Eastern District La. Aug. 31, 2007)...........................................10
Butler v. Polk,
592 F.2d 1293, 1296 (5th Cir. 1979) ....................................................................................4
Cohen v. Office Depot,

204 F.3d 1069 (11th Cir. 2000) ............................................................................................4
Combee v. Shell Oil Co.,

615 F.2d 698, 700 (5th Cir. 1980) ......................................................................................12
Coury v. Prot,
85 F.2d 244, 251 9C.A. 5 Tex.) 1996)..............................................................................12
Freeman v. Northwest Acceptance Corp.,

754 F.2d 553, 556 (5th Cir. 1985) .....................................................................................12
iv
309
Hendry v. Masonite Corp.

455 F.2d 95, 956 (5th Cir.), cert denied, 409 U.S. 1023,
93 S.Ct. 464, 34 L.Ed. 2d 35 (1972) .................................................................................12
Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010) .................................................................................5
In Re: Sprint Nextel Corporation,

593 F.3d 669 (U.S.C.A. 7th Cir. 2010) ..............................................................................10
Lupo v. Newman Affairs International,

28 F.3d 269, 274 (2nd Cir. 1994) .........................................................................................4
Mississippi Band of Choctaw Indians v. Holyfield,

490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed. 2d 29 91989) ............................... 11-12
Preston v. Tenet Health System Memorial Medical Center,

485 F.3d 793 (5th Circuit 2007) ................................................................................ 7-9, 12
Redd v. Suntrup Hyundai, Inc.,

2009 Westlaw 2568044 (Eastern District of Missouri) ..................................................8, 9
Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100, 108, 61 S.Ct. 868, 872 (1941) ......................................................................4
Tapscott v.MS Dealer Service Corp.,

77 F.3d 1353 (11th Cir. 1996) .............................................................................................4
Class Action Fairness Act of 2005 (CAFA)

28 U.S.C. §1332, 1441, 1446 and 1453 ..........................................................................................2
v
310


SYSTEM, ET AL

C. MICHAEL HILL
CLECO CORPROATION AND CLECO
POWER, LLC,
Defendants
_____________________________________________________________________________
MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MOTION TO REMAND
______________________________________________________________________________
MAY IT PLEASE THE COURT:
Plaintiffs submit this Memorandum in support of their Motion to Remand their case to
the 27th Judicial District Court for the Parish of St. Landry, State of Louisiana, from which the
suit was removed. The primary question posed in this Motion to Remand is whether or not more
than two thirds of utility rate payers within the city limits of Opelousas, Louisiana are Louisiana
citizens. If the Court is satisfied that is the case, remand is mandatory. Even if this Court
believes less than two-thirds (2/3), but more than one-third (1/3) of the class are Louisiana
residents, remand would still be appropriate since the cause of action is based on Louisiana law
and harm was occurred in Louisiana.
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FACTUAL AND PROCEDURAL BACKGROUND
This is a class action brought by three Louisiana Plaintiffs, OPELOUSAS TRUST
AUTHORITY, ALTON BROUSSARD and WAYNE ARDOIN against two Louisiana
corporations, CLECO CORPORATION and CLECO POWER, L.L.C (hereafter collectively
referred to as CLECO). The class action Petition for Damages was filed on March 9, 2010 in
the 27th Judicial District Court for the Parish of St. Landry, State of Louisiana, bearing case
number 10-C-1179.
The lawsuit it brought as a class action on behalf of “

all persons, entities or businesses
who paid utility bills to CLECO for services in Opelousas, Louisiana from 1991 to the present.”
Thus, class members are utility rate payers in Opelousas, Louisiana. Among other things, the
suit claims that CLECO charged Opelousas rate payers a rate which included a distribution
charge, which amounted to a double billing since the City was providing its own distribution
system.
On April 13, 2010 CLECO filed a Notice of Removal and removed the claim from the
27th Judicial District Court to the United States District Court for the Western District of
Louisiana pursuant to the Class Action Fairness Act of 2005 (CAFA) and 28 U.S.C. §§ 1332,
1441, 1446 and 1453, claiming diversity of citizenship.
Subsequent to filing a Petition for Removal, CLECO filed a Motion to Dismiss. The
Motion to Dismiss is based on a claim that original jurisdiction of the claim lies with the
Louisiana Public Service Commission. CLECO filed a Declinatory Exception in State Court
based on the same theory. A hearing on the Motion to Dismiss in Federal Court is set for June
17, 2010.
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SUMMARY OF THE ARGUMENT
1. CLECO relies on diversity jurisdiction to support its removal. The burden of first
showing minimal diversity rests with CLECO. CLECO did not meet that burden. CLECO
admits it is a Louisiana corporation. The proposed class members are CLECO rate payers in the
sa
Opelousas city limits. CLECO’ l
leg
ati
onthat it has knowledge that a putative class member
has diverse citizenship is insufficient. The Petition to remove is defective on its face because
CLECO offered no proof of the diverse citizenship of any putative Class Members.
2. Assuming CLECO did meet its burden in establishing minimal diversity; the case
should be remanded based on the home state and local controversy exception to federal court
jurisdiction under CAFA. The home state and local controversy exception is mandatory and
applicable since two-thirds of the proposed class members are Louisiana citizens. As discussed
in greater detail below, a statistical study commissioned by Plaintiffs and supported by expert
affidavits clearly establishes that more than two-thirds of the Opelousas rate payers during the
period of time in question were Louisiana citizens. The jurisprudence recognizes such a
statistical survey as appropriate to satisfy the requirements of the home state and local
controversy exceptions to CAFA. The Court also has the authority to remand under the
discretionary exception as this is a case where the primary and only Defendant is a Louisiana
citizen and the issues of the case are purely local in nature and governed by Louisiana law.
3. Finally, should the Court find that CLECO did meet its burden in removing the
case and that, for whatever reason, the proof submitted on behalf of the Plaintiffs that more than
two-thirds of the rate payers involved are Louisiana citizens, then the Court should allow the
Plaintiff to conduct discovery on the remand issue before ruling on the Motion to Remand. That
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discovery would include obtaining information currently in the sole possession of CLECO
showing the addresses where all of the Opelousas rate payers during the period of time in
question were billed. In determining citizenship, one of the most important factors is where a
person resides. We expect such discovery would help confirm the obvious—the vast majority of
rate payers from the City of Opelousas are also Louisiana citizens.
CLECO DID NOT MEET ITS BURDEN
CLECO’
s Petition for Removal relies on the Class Action Fairness Act. 28 U.S.C.A.
§1332. CAFA expanded federal court jurisdiction for class actions by creating jurisdiction for
classes with more than one hundred class members if any class member is diverse from at least
one Defendant and if there is more than $5,000,000 in controversy, exclusive of interest and
costs.
Title 28 U.S.C. §1447(c) provides: “

If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.” When the
propriety of removal jurisdiction is challenged, the removing party bears the burden of proving
the existence of federal jurisdiction. Tapscott v. Miss. Dealer Service Corp., 77 F.3d 1353, 1356
(11th Cir. 1996), overruled on other grounds by Cohen v. Office Depot, 204 F.3d 1069 (11th Cir.
2000). It is well established that removal statutes are to be strictly construed against removal.
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941). Further, any doubt as to proper
subject matter jurisdiction should be resolved against removal. Butler v. Polk, 592 F.2d 1293,
1296 (5th Cir. 1979). A removing party must present facts establishing its right to remove.
Tapscott, supra. When the defendant fails to do so, remand is favored. Lupo v. Newman Affairs
International, 28 F.3d 269, 274 (2nd Cir. 1994).
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In order to avail itself of CAFA’

s new jurisdictional rules, CLECO bears the burden of
proof of showing, among other things, minimal diversity, that is, that at least one class member is
a citizen of a state different from any defendant. Evidently aware of this requirement in its
Petition for Removal, CLECO acknowledges that CLECO CORPORATION and CLECO
POWER, L.L.C. are citizens of the State of Louisiana and then goes on to suggest that there are
members of the putative class who are not citizens of the State of Louisiana.
CLECO fails to meet its burden. CLECO fails to offer any proof of its assertion that
there is one rate payer that is a Delaware Corporation with its principal place of business in
Arkansas. Of course, "principal place of business" is a factually charged inquiry. Hertz Corp. v.
Friend, 130 S.Ct. 1181 (2010). CLECO failed to support its claim of a diverse corporation,
failing to even name the business or provide evidence of its principal place of business. CLECO
further suggests that former rate payers who fall within the definition of the putative class are
citizens of states other than Louisiana when the Petition was filed; again, CLECO offers no proof
of that allegation. There is no Affidavit of any rate payer professing to have a different
citizenship than CLECO. The only indications before the Court of potential diversity are
CLECO's bare assertions. Such bare bones allegations do not suffice as proof.
THE HOME STATE AND LOCAL CONTROVERSY

EXCEPTIONS REQUIRE REMAND
Assuming arguendo that CLECO has met its burden of proof in establishing minimal
diversity and the other requirements necessary to remove the case under CAFA, remand is
nonetheless appropriate because this case fits squarely within the local controversy and home
state exception. Should the Court find that the requirements of these exceptions are met, it is
mandatory that the Court remand the case to state court. We address both of these exceptions
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together because the requirements are similar and the jurisprudence regarding the applicable
proof is basically the same for both exceptions. The requirements for the local controversy
exception are found at 28 U.S.C. §1332(d)(4)(A). The requirements for the home state exception
to CAFA jurisdiction are found in 28 U.S.C. §1332(d)(4)(B).
Under the home state controversy exception, a District Court shall decline jurisdiction
where two thirds or more of the members of the proposed Plaintiff Class in the aggregate, and
the primary Defendants, are citizens of the State in which the action was originally filed. Under
the local controversy exception, the Court shall decline jurisdiction where two thirds of the
members of the class are citizens of the state in which the action was originally filed and at least
one defendant is a defendant who is a citizen of the state in which the action was originally filed
and the principal injuries resulting from the alleged conduct were incurred in the state in which
the action was originally filed. These exceptions are consistent with the purpose of CAFA,
which is to relax the requirement of complete diversity so a class action involving incomplete
diversity can be litigated in federal court. CAFA was never intended to deny state courts the
right to try predominantly state court class actions which involve matters of state law and parties
of similar citizenship when most of the class members reside in the state where the action arose.
CLECO is the only - and therefore - primary Defendant and the injuries complained of
occurred in Opelousas, Louisiana, the place where the petition was originally filed. The only
question for the Court to decide under both exceptions is whether two-thirds or more of the
Plaintiffs are Louisiana citizens.
The proposed Class includes utility rate payers in the City of Opelousas who have paid
utility bills to CLECO since 1991. Opelousas is a rural town in St. Landry Parish comprised of
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mostly low income families. The answer to the question of whether more than two-thirds of
Opelousas rate payers during the period of time in question are Louisiana citizens is obvious to
the Court and all of the parties involved. Of course, most of the rate payers are Louisiana
citizens. We doubt even CLECO would argue otherwise, as such an argument would strain their
credibility.
What we do expect CLECO to argue is that, although intuitively everyone knows
virtually all of the members of the class are Louisiana citizens, the burden of proof lies with the
Plaintiffs and reliance on intuition does not satisfy that burden. Most of the jurisprudence
surrounding the Home State and Local Controversy exceptions has focused on which party has
the burden to prove citizenship of the class and what constitutes acceptable proof. The United
States Fifth Circuit Court of Appeals addressed the issues of burden of proof and evidentiary
standard in Preston v. Tenet Health System Memorial Medical Center, 485 F.3d 793 (5th Circuit
2007). (Preston II)
Preston II involved a post-Katrina Class Action brought on behalf of class members
against various healthcare facilities for injuries and deaths related to the failure to provide
adequate transportation away from the premises after Hurricane Katrina made landfall. The
defendants removed the case to federal court and the Plaintiffs sought to remand under the Local
Controversy exception to CAFA. The Fifth Circuit held that the parties moving to remand a
class action to state court bear the burden of proof that any CAFA exception to federal
jurisdiction applies. The court further held that the party moving for remand must prove the
statutory citizenship requirement by a preponderance of the evidence.
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In Preston II, the Plaintiffs attempted to meet the burden of showing that greater than
two-thirds of the putative class members were citizens of Louisiana by submitting medical
records establishing that the class members had identified Louisiana addresses as their primary
billing address and residence. Much of the Preston II decision focused on whether this was
adequate proof and there was considerable discussion about the fact that the putative class in
Preston II involved a number of people who were displaced by Hurricane Katrina and living in
other states. Under those very unique circumstances, the Court found that the pre-Katrina
addresses in the medical records failed to satisfy the burden of establishing citizenship.
The Preston II court did not declare exactly what evidence would be necessary to satisfy
the local controversy exception requirement establishing that two-thirds of the class as Louisiana
citizens. In describing the Plaintiff’

s burden in this regard, the Court did say that Movant must
make some minimal showing of the citizenship of the proposed class as of the time that suit was
filed. In addressing this issue, the Preston II court held:
“Under CAFA’ s limited exception, the quality and quantity of evidence available
to the Movant will necessarily vary from case to case based on the class definition
and underlying facts. Nonetheless, it is clear that the Movant must make some
minimal showing of the citizenship of the proposed class at the time that suit
was filed.”(Emphasis added)
A number of cases since Preston II have limited that case to its facts, since the Preston II
Court was dealing with one of the most unique situations involving out migration in our nation’
s
history. Literally thousands of people from New Orleans were displaced by Hurricane Katrina
and there was a legitimate question as to how many of those people would return.
The class in this case is easily distinguishable from Preston II. The class before this
court involves ratepayers in the City of Opelousas. There is no evidence that the population of
the City of Opelousas was displaced for any reason during the class period. Indeed as will be
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discussed in more detail below, there is evidence to the contrary. There has been little out
migration from the City of Opelousas over the period of time in question.
In Redd v. Suntrup Hyundai, Inc., 2009 WL 2568044 (E.D Mo.) the District Court
distinguished Preston II and limited it to its facts. The Redd case involved a class action brought
by residents of the State of Missouri against Hyundai alleging that the class members were
improperly charged fees in violation of the Missouri Merchandising Practices Act. The
defendant in Redd removed the matter to federal court pursuant to CAFA. The plaintiff filed a
Motion to Remand, claiming that the diversity requirements of CAFA were not met, claiming
that it was likely that at the time the suit was filed, at least two-thirds of the class were citizens of
the State of Missouri. In support of its Motion to Remand, Plaintiff submitted the Affidavit of
Donald Suntrup, President of Suntrup Hyundai, which acknowledged that Defendant's records
reflected that the last known address for 72.7% of Defendants customers who are potential class
member is Missouri.
In support of its position that Plaintiff did not meet its burden to establish citizenship of
potential class members, the Defendant claimed that residency is different from citizenship and
that remand should be denied based on the analysis by the Fifth Circuit in Preston II.
The District Court distinguished Preston II by noting that the 5th Circuit made it very
clear that Preston II presented a unique set of circumstances because of the evacuation of New
Orleans and that Preston II held, absent such circumstances, it is presumed that potential class
members are citizens of the state of residency. The Motion to Remand in Redd was granted
based upon records establishing the residency of the Class.
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A STATISTICAL SURVEY COMMISSIONED ON BEHALF OF

THE PLAINTIFF CLASS CONFIRMS MORE THAN TWO-THIRDS
OF THE PROPOSED CLASS MEMBERS ARE LOUISIANA CITIZENS
Case law, at least in the United States Fifth Circuit, is clear that the Plaintiff has the
burden of proving the two-thirds requirement set forth in the home state and local controversy
exceptions. The jurisprudence is not as clear, however, as to what proof is necessary to satisfy
that burden. In Preston II the Court held that addresses from medical records were not
sufficient, at least when those medical records involved a post-Katrina population. In the Redd
case, an Affidavit establishing that 72.7% of the Class had a last known address in Missouri was
sufficient to prove citizenship. In a recent Louisiana Eastern District case, the District Court
held that a reasonable inference can be drawn that two-thirds of all class members were citizens
of a State where the class was open to residents, domicilaries, business owners, property owners
r
and other persons and entities residing in a certain parish. Bennet v. Board of Comm’sfor East
Jefferson Levee Dist., 2007 WL 2571942 (E.D. La.)
In In Re: Sprint Nextel Corp., 593 F.3d 669 (7th Cir. 2010), the Court of Appeals
considered a case that had been removed under CAFA and then remanded by the District Court.
The Sprint Nextel case involved text messaging and the class was limited to those who had a
Kansas cell phone number, received their cell phone at a Kansas mailing address and paid a
Kansas fee. The plaintiffs argued that these three factors showed that all the class members were
Kansas citizens. The district judge agreed and remanded the case. The Court of Appeals vacated
the remand and ordered the District Court to give the Plaintiffs another opportunity to prove that
the proposed class satisfied the requirements of the home state exception.
In discussing the evidence that would satisfy the requirements for remand, the Seventh
Circuit held that had the Plaintiffs conducted a survey or statistical study showing that more
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likely than not two-thirds of the putative class members were Kansas citizens, such a survey
would have satisfied their burden. The Court went on to hold that:
“Given those results and the size of the sample and the estimated size of the
proposed class, the District Court could then have used statistical principles to
reach a conclusion as to the likelihood that two-thirds or more of the proposed
class members are citizens of Kansas. Statisticians and scientists usually want
at least ninety five percent certainty, but any number greater than fifty
percent would have allowed the District Court to conclude that the Plaintiffs
had established citizenship requirement by a preponderance of the evidence.”
(Emphasis added)1
In establishing that more than two-thirds of the rate payers in Opelousas are Louisiana
citizens, we took the suggestion of the Sprint Nextel court a step further. We not only conducted
surveys as Sprint Nextel recommended but also retained Dr. Helmut Schneider, a statistician, to
design the survey and Dr. Troy Blanchard a demographer, to render opinions as to the
significance of the results of the survey. Language in the Sprint Nextel case suggests that the
Court might draw conclusions from the survey.2 That is unnecessary in this case since we have
attached Affidavits from experts so there can be no question.
The question then becomes whether those surveys and opinions establish, by a
preponderance of the evidence, that more than two-thirds of utility rate payers in Opelousas are
Louisiana citizens. Domicile has a well developed meaning in the common law, as the United
States Supreme Court has recognized: “

‘Domicile’is, of course, a concept widely used in both
federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is
generally uncontroverted.”Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
To establish domicile, one must show: (1) physical presence within the United States; and (2)
1 In re Sprint Nextel Corp. 593 F.3d at 675-676.

t“
2 Drs. Schneider and Blanchard Curriculum Vita are attached as Exhibi A”to Exhibits 2 and 3, respectively.
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intent to remain in the United States indefinitely. “

For adults, domicile is established by physical
presence in a place in connection with a certain state of mind concerning one’

s intent to remain
there.”Id. Thus physical presence and intent to remand there is the touchstone of the citizenship
determination.
“
For purposes of diversity jurisdiction, the domicile of the parties, as opposed to their
residence, is the key.”Combee v. Shell Oil Co., 615 F.2d 698, 700 (5th Cir. 1980). “
Citizenship
requires residency and the intent to return or remain in the state. Preston v. Tenet Healthsystem
Mem. Med. Ctr. Inc., 485 F.3d 793, 797-98 (5th Cir. 2007) referencing Stine v. Moore, 213 F.2d
446, 448 (5th Cir. 1954); Miss Board of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).
The United States Fifth Circuit Court of Appeals has set out additional certain factors a court can
consider in determining a litigant’

s state of domicile for jurisdictional purposes. No single factor
is determinative and the court should look to all evidence shedding light on the litigant’
s
intention to establish domicile. The relevant factors include the places where the individual (1)
exercises civil and political rights; (2) pays taxes; (3) owns real and personal property; (4) has
driver’
s and other licenses; (5) maintains bank accounts; (6) belongs to clubs and churches; (7)
has places of business or employment; and (8) maintains a home for his family. Coury v. Prot,
85 F.3d 244, 251 (5th Cir.1996). A litigant’

s statement of intent is relevant to the determination
of domicile, but it is entitled to little weight if it conflicts with the objective facts. Freeman v.
Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir. 1985) referencing Hendry v. Masonite
Corp. 455 F.2d 95, 956 (5th Cir. 1972). Despite the numeration of these factors, courts have
recognized that, “
The [district] court has wide, but not unfettered, discretion to determine what
evidence to use in making its determination of jurisdiction.”Coury, 85 F.3d at 249 (citing Ray
v. Bird & Son & Asset Realization Co., 519 F.2d 1081 (5th Cir. 1975)).
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In a random sample developed by Dr. Helmut Schneider, residents of Opelousas were
interviewed by telephone.3 50 interviews were completed.4 The respondents to the survey were
asked the following questions developed from the case law cited above:
Is the address for your home [the same as in the phone book]?
Are your current plans to continue to live in Louisiana?
Do you own property in Louisiana, like a car, truck, boat or home?
Do you have a Louisiana driver’

s license or other licenses (e.g., hunting, fishing,
occupational) or identification card issued by the State of Louisiana?
Do you attend church or belong to any clubs or organizations (Knights of Columbus,
Masonic Lodge, etc.) in Louisiana?
Do you vote in Louisiana?
Do you maintain any bank accounts in Louisiana?
Do you consider yourself a citizen of Louisiana?5
To determine citizenship, the three most important questions are Number 1 (the address
in Opelousas, Louisiana of the respondents’personal home evidences residency in Louisiana).
Number 2 (an affirmative answer evidences intent to remain in Louisiana) and Number 8 (the
respondent considers herself a citizen of Louisiana). Amazingly, 100% of all 50 respondents to
the survey answered affirmatively to all three of these critical questions.6 Based on the test set
out by the United States Supreme Court in Miss. Band of Choctaw Indians, all 50 of these
respondents are Louisiana citizens since they reside in Louisiana and intend to remain here.
3
See Exhibit 1, Affidavit of Survey Takers and Exhibit 2, Affidavit of Dr. Helmut Schneider
4
See Paragraph 6 of Affidavit of Dr. Helmut Schneider
5
See Paragraph 7of Affidavit of Dr. Helmut Schneider
6
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35 out of the 50 respondents affirmatively answered all 8 questions.7 There can be no
question that these 35 respondents are Louisiana citizens. 6 respondents answered 7 of the 8
questions affirmatively. (Those respondents either did not own property in Louisiana, did not go
to church or did not have a bank account.)8 3 respondents answered 6 of the 8 questions
affirmatively. (Those 3 respondents did not go to church in Louisiana or own property.)9
Unquestionably, these 44 residents are Louisiana citizens as well since they all live in Louisiana,
intend to stay here, have Louisiana drivers’licenses, vote in Louisiana and consider themselves
Louisiana citizens.
As testified to by Dr. Helmut Schneider in his affidavit, one can extrapolate the results of
this survey to the population of Opelousas, Louisiana as a whole.10 Using the 35 respondents as
the most conservative measure, and assuming that they would be considered Louisiana citizens,11
Dr. Schneider opines, more likely than not, that more than 66% of Opelousas residents would,
likewise, be Louisiana citizens.12 Extrapolating from the 44 respondents, and making the same
assumption, Dr. Schneider opines that 88% of Opelousas residents would, likewise, be citizens
of Louisiana.13 Dr. Schneider has a confidence rate of 99.96% that more than 66% of Opelousas
residents would be Louisiana citizens. Using the 50 affirmative responses, Dr. Schneider
believes that 100% of Opelousas residents would be Louisiana citizens and has a confidence rate
of 99.999% that more than 66% of the residents are Louisiana citizens.14
These opinions are consistent with those of Dr. Troy Blanchard. Dr. Blanchard testifies
7
8
9
10
11
Since citizenship is a legal question, Dr. Schneider does not offer an opinion on that issue.
12
13
14
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15
that the population in Opelousas, Louisiana is “
exceptionally static.” Importantly, no
significant out migration has occurred in the last several decades from the St. Landry Parish area
so there is no reasonable basis to believe that a large percentage of the class is not currently
Louisiana residents.16 Throughout the class period, Dr. Blanchard opines that - at a minimum -
96% of the residents of Opelousas lived in Louisiana.17
Dr. Blanchard has reviewed reliable data to reach these opinions. The 1990 census asked
Opelousas residents whether they lived in Louisiana five years prior, in 1985. 97.3% answered
affirmatively. (The national average of people living in the same state five years earlier was
88.4%)18 The 2000 census asked Opelousas residents whether they lived in Louisiana five years
prior, for 1995. 96.5% answered affirmatively. (The national average was 88.7%)19 A similar
survey was taken from 2006 to 2008. That survey asked respondents in Opelousas if they lived
in Louisiana the previous year. 99.6% answered affirmatively.20
Based on the survey conducted and the data considered by Dr. Schneider and Dr.
Blanchard, there really can be little doubt that over 66% of the class members are Louisiana
citizens and remand is thus appropriate under the local controversy exception of CAFA.
CLECO may suggest that the class definition is those who receive utility service within
the city limits of Opelousas from CLECO and that there are some within the Opelousas city
limits who do not receive utility service from CLECO. As a result, there very well may have
been some respondents in the surveys who are Opelousas residents (and Louisiana citizens) but
who do not receive their utility service from CLECO and, thus, are not class members. But that
15
See Exhibit 3, Paragraph 3 of Affidavit of Troy Blanchard
16
See Paragraph 4 of Affidavit of Troy Blanchard
17
18
19
20
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is of no moment. The cited surveys and opinions by Drs. Schneider and Blanchard show that
ALL residents of Opelousas, Louisiana (or at least a vast majority of them) are Louisiana
citizens. It cannot be legitimately argued that CLECO’

s customers in Opelousas, Louisiana are
somehow different - or, particularly, of different citizenship - from those randomly selected
Opelousas residents surveyed or that CLECO customers would answer census and survey data
relied upon by Dr. Blanchard any differently. The surveys, data, and opinions are provided to
support everyone's innate knowledge of the makeup of Opelousas—it is a community in which
no significant out migration occurs and the vast majority of residents are likely citizens of
Louisiana. In making the citizenship determination, the Court cannot divorce itself from its
knowledge of this and its people.
THE DISCRETIONARY EXCEPTION
The home state and local controversy exceptions to CAFA are mandatory. Should the
Court determine that the Plaintiffs have satisfied their burden of proof, as we contend they have,
in establishing that more probably than not two-thirds of the proposed class are Louisiana
citizens, then the court must remand the case. This assumes that the Court also has found that
CLECO properly removed the case in the first place by meeting their burden of establishing
minimal diversity, which we contend they did not.
The discretionary exception to CAFA is not mandatory and extends only to those actions
“
in which greater than one-third but less than two-thirds of the members of all proposed classes,
and the primary defendants are citizens of the state in which the action was originally filed.”28
U.S.C. §1332 (d)(3). The only Defendant in this case, CLECO, is a Louisiana citizen. The
primary Defendant requirement of the Discretionary exception is therefore met. The
Discretionary exception would therefore apply in a situation where more than one-third but less
Page 16
326
than two-thirds of the proposed Class are Louisiana citizens. In that case the Court would then
balance certain factors to determine if the case should be remanded in the Court’
s discretion.
Key among those factors is whether the action was brought in a forum with a distinct
nexus with the class members, the alleged harm, or the Defendants. Clearly that is the case here.
This is an action by Opelousas rate payers against CLECO. It is purely a local matter.
CAFA was passed to give Defendants greater protection when they were sued in state
court and greater rights to have the case heard in Federal Court. CAFA was never designed to
take a purely in-state controversy away from the state courts.
Based upon the statistical survey and study presented, we submit in this case that the
Plaintiffs have easily met their burden of proof, establishing that more than two-thirds of the rate
payers from Opelousas during the period of time in question are also Louisiana citizens. Dr.
Schneider has a 99.9999% confidence rate that more than 66% of Opelousas residents are
Louisiana citizens. If, for whatever reason, the Court should find somehow that the number of
Louisiana citizens falls between one-third and two-thirds, then Court should remand the case
using the discretionary exception.
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surveys allow him to conclude on a more probable than not basis, more than two thirds of
Opelousas residents are Louisiana citizens. Depending upon the sample he uses, his confidence
level ranges between 66.8% and 99.9% certainty. The burden of proof in a civil case is more
probable than not, and as the Fifth Circuit noted in Sprint Nextel, any statistical number greater
than fifty percent would have allowed the District Court to conclude that the Plaintiffs had
established the citizenship requirement by a preponderance of the evidence.
Page 17
327
The discretionary exception allows the Court to remand in those situations where less
than two-thirds but more than one third of the putative class members are citizens of the same
state. To be clear, we do not think application of the discretionary exception by the Court is
necessary since it is clear more than two thirds of the population in question are Louisiana
citizens. Out of an abundance of caution, and so there would be evidence in the record in the
unlikely event the Court would be required to consider the discretionary exception, we asked Dr.
Schneider to opine based on any of the sample numbers what certainty level he had that more
than 33.33% of Opelousas residents are Louisiana citizens. His conclusions in that regard
confirm the obvious; that he is 99.999% certain that more than one third of Opelousas residents
are Louisiana citizens.
PLAINTIFFS SHOULD BE ALLOWED TO CONDUCT REMAND DISCOVERY
Should the Court find that CLECO removed the case properly and that none of the three
CAFA exceptions have been proven by the data provided, then Plaintiffs ask that the Court allow
a period of time for the Plaintiffs to conduct remand discovery. This would include discovery
directed to CLECO to determine the billing addresses of Opelousas rate payers during the period
of time in question. Depending upon the proof the Court would require, there may be additional
appropriate discovery.
CONCLUSION
In conclusion, for the above-stated reasons, Plaintiffs' Motion to Remand should be
granted and the case returned to State District Court. The case was not properly removed by
CLECO in that CLECO failed to offer proof of minimal diversity.
Even if the case was properly removed, more than two-thirds of the proposed class are
Louisiana citizens as is the defendant, CLECO. The Home State and Local Controversy
Page 18
328
exceptions apply. Should the Court find the statistical study insufficient for any reason, then the
Court can still remand under the Discretionary exception.
It is, at the end of the day, a matter of jumping through whatever jurisdictional hoops the
Courts have set up to prove citizenship in a CAFA removed case. As in all cases, the bottom line
is that the Court should use whatever power it has to achieve a fair and just decision.
Everyone instinctively understands in this case that Opelousas rate payers are most likely
Louisiana citizens. This is not the type of case CAFA meant to be in federal court. The Courts
have set up certain hoops we had to jump through to get back to State Court and we have jumped
through the hoops. If there is another hoop to pass through, then we should be allowed remand
discovery to prove what is intuitively known.
Respectfully submitted:
MORROW, MORROW, RYAN & BASSETT
By:__/s/ Jeffrey M. Bassett _____________

Patrick C. Morrow, # 9748
Jeffrey M. Bassett, # 2840
Post Office Drawer 1787
Opelousas, LA 70571-1787
Phone: 337-948-4483
NEBLETT, BEARD & ARSENAULT

Richard J. Arsenault, #2563
J. R. Whaley, #25930
Post Office Box 1190
Alexandria, LA 71309-1190
Phone: 318-487-9874
LAW OFFICE OF ROBERT L. BECK, JR. LLC

Robert L. Beck, Jr. # 02886
5208 Jackson Street Extension, Ste. A
P. O. Drawer 12850
Alexandria, LA 71315-2850
Phone: 318-445-6581
Page 19
329
THE DORAN LAW FIRM

Pride J. Doran, # 25035
Quincy L. Cawthorne #29791
2410 Jake Drive, Ste. 1
Opelousas, LA 70570
337-948-8008
ATTORNEYS FOR PLAINTIFFS
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 13, 2010, a copy of the foregoing pleading was filed
electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be
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electronic filing system. I also certify that I have mailed this filing by United States Postal
Service to all counsel of record who are not registered to receive electronic service by operation
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/s/ Jeffrey M. Bassett___________________
Page 20

Memorandum To Remand

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Case 6:10-cv-00607-RTH -CMH Document 11-1 Filed 05/13/10 Page 1 of 25 PageID #:

UNITED STATES DISTRICT COURT

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE

MEMORANDUM IN SUPPORT OF PLAINTIFFS’

UNITED STATES DISTRICT COURT

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE

Table of Contents .......................................................................................................................... ii

Table of Citations and Authorities ................................................................................................ iv

Factual and Procedural Background ................................................................................................2

CLECO Did Not Meet Its Burden ..................................................................................................4

A Statistical Survey Commissioned on Behalf of the Plaintiff Class

The Discretionary Exception ........................................................................................................16

Plaintiff Should be Allowed to Conduct Remand Discovery .......................................................18

Certificate of Service ....................................................................................................................20

In Globo Affidavit of Survey Takers .................................................................................Exhibit 1

Affidavit of Dr. Helmut Schneider .....................................................................................Exhibit 2

Affidavit of Dr. Troy Blanchard ........................................................................................Exhibit 3

UNITED STATES DISTRICT COURT

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE

TABLE OF CITATIONS AND AUTHORITIES

Bennet v. Board of Commissioners for East Jefferson Levee District,

Cohen v. Office Depot,

Combee v. Shell Oil Co.,

Freeman v. Northwest Acceptance Corp.,

Hendry v. Masonite Corp.

Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010) .................................................................................5

In Re: Sprint Nextel Corporation,

Lupo v. Newman Affairs International,

Mississippi Band of Choctaw Indians v. Holyfield,

Preston v. Tenet Health System Memorial Medical Center,

Redd v. Suntrup Hyundai, Inc.,

Shamrock Oil & Gas Corp. v. Sheets,

Tapscott v.MS Dealer Service Corp.,

Class Action Fairness Act of 2005 (CAFA)

UNITED STATES DISTRICT COURT

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE

MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MAY IT PLEASE THE COURT:

and harm was occurred in Louisiana.

FACTUAL AND PROCEDURAL BACKGROUND

This is a class action brought by three Louisiana Plaintiffs, OPELOUSAS TRUST

AUTHORITY, ALTON BROUSSARD and WAYNE ARDOIN against two Louisiana

corporations, CLECO CORPORATION and CLECO POWER, L.L.C (hereafter collectively

The lawsuit it brought as a class action on behalf of “

1441, 1446 and 1453, claiming diversity of citizenship.

SUMMARY OF THE ARGUMENT

CLECO DID NOT MEET ITS BURDEN

Title 28 U.S.C. §1447(c) provides: “

International, 28 F.3d 269, 274 (2nd Cir. 1994).

In order to avail itself of CAFA’

THE HOME STATE AND LOCAL CONTROVERSY

to CAFA jurisdiction are found in 28 U.S.C. §1332(d)(4)(B).

Plaintiffs are Louisiana citizens.

What we do expect CLECO to argue is that, although intuitively everyone knows

By:/s/ Jeffrey M. Bassett ___________