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DePaul Motion to Remand

DePaul Motion to Remand

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Published by Ed Clinton
This is a motion to remand a class action case. It discusses issues under the Class Action Fairness Act.
This is a motion to remand a class action case. It discusses issues under the Class Action Fairness Act.

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Published by: Ed Clinton on Apr 07, 2012
Copyright:Attribution Non-commercial


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JONATHAN PHILLIPS, :BRIAN LOKER, ADAM :SMESTAD, XAVIER HAILEY, :BRENT DAVIDSON, SHELLYE :TAYLOR, ALLISON LEARY, :on behalf of themselves :and all others similarly situated, ::
No. 1:12-cv-01791
 Plaintiffs, ::v. :: Hon. Milton Shadur DE PAUL UNIVERSITY COLLEGE :OF LAW, and DOES 1-20, ::Defendants. ::
Jonathan Phillips, Brian Loker, Adam Smestad, Xavier Hailey, Brent Davidson, ShellyeTaylor, and Allison Leary (“Plaintiffs”), on behalf of themselves and all others similarly situated,hereby request the entry of an order remanding this case to the Circuit Court of Cook County andstate the following in support thereof:
This Court is without subject matter jurisdiction to preside over this action. DefendantDe Paul University (“De Paul” or “Defendant”) removed this action pursuant to the provisions of the Class Action Fairness Act of 2005 (“CAFA”), which creates federal subject matter  jurisdiction over nationwide class actions where,
inter alia,
there is minimal diversity and anaggregated amount in controversy of more than $5 million. 28 U.S.C. § 1332(d)(2). The burdenof proving CAFA's jurisdictional prerequisites falls on the removing defendant.
No. 1:12-cv-01791
De Paul has not provided any evidence to satisfy its burden that minimal diversity exists,thus remand is required. By relying solely on allegations of residency, DePaul has not properlyalleged the citizenship of the named Plaintiffs. De Paul has failed to establish that the amount incontroversy exceeds $5 million as required under CAFA. De Paul has relied entirely andimproperly upon speculation and assumptions concerning the Plaintiffs’ citizenship and theamount in controversy. Most importantly, De Paul made no attempt to verify or substantiate theallegations in the Removal Petition.Even if De Paul established federal subject matter jurisdiction under CAFA, which it hasnot, the Court should still remand this case pursuant to CAFA's mandatory “local controversy” or “home state” exceptions, or pursuant to the “discretionary jurisdiction” exception. For thereasons set forth below, this Court should enter an order of remand.
1. On February 1, 2012, the Plaintiffs filed the Complaint in the Circuit Court of Cook County.2. The Plaintiffs based their causes of action upon the fraudulent conduct of theDefendants, primarily De Paul, a law school operating solely in Chicago, Illinois.3. Plaintiffs allege that DePaul reported false placement rates for the members of its2005, 2006 and 2007 classes and falsely reported that approximately 90% of its graduates had jobs for which a law degree was required or preferred.4. The Plaintiffs have further alleged that De Paul reported inflated salaryinformation to prospective and current students to induce them to enroll in their program andincur heavy debt; debt which they have been unable to repay due to their inability to obtaingainful employment as attorneys. (Complaint ¶ 3-10,
attached as Ex. 1 to the Removal Petition
No. 1:12-cv-01791
5. The causes of action alleged in the Complaint include violations of the IllinoisConsumer Fraud Act
fraud and negligent misrepresentation, claims based entirely on state law.6. The Plaintiffs have defined the proposed class (the “Class”) as “All persons whoare either presently enrolled or graduated from the De Paul Law School within the statutory period.” (Compl. ¶ 85).7. Although not presently ascertained numerically, the size of the Class may be atleast 1,000 people, since more than 250 students graduate from De Paul each year. (Comp. ¶ 87).8. The relief sought by the Plaintiffs includes: a) damages and equitable relief on behalf of the Class which includes reimbursement of tuition costs; b) enjoinment of De Paulfrom disseminating false information regarding the employment and salaries of its graduates; andc) requiring De Paul to retain a third party to independently audit all employment and salarydata, costs and expenses, together with attorney fees and experts’ fees. (Compl. ¶ 12,
.9. The Defendants’ Notice of Removal (ECF 1)(“Notice”), filed on March 12, 2012,is predicated upon CAFA, which provides that “[t]he district court shall have original jurisdictionof any civil action in which the matter in controversy exceeds the sum or value of $5,000,000,exclusive of interest and costs, and is a class action in which ... any member of a class of  plaintiffs is a citizen of a State different from any defendant....” 28 U.S.C. §1332(d)(2). The proposed class must additionally contain 100 or more individuals. 28 U.S.C. § 1332(d)(5)(B). 10. De Paul has alleged minimal diversity based on its assumption that at least onePlaintiff (or class member) is a citizen of a state other than Illinois, De Paul’s state of citizenship.11. De Paul has further alleged that the amount in controversy exceeds $5,000,000,exclusive of costs, based upon the typical amount of tuition, and that the numerosity requirementis met since the number of persons in the proposed Class will likely exceed 100 individuals.

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