Susan Baker v. Dean Meiling

• Court: District Court, D. Nevada
• Decided: October 29, 2020
• Docket: 3:20-cv-00518
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 SUSAN BAKER, et al., Case No. 3:20-cv-00518-MMD-CLB

7 Plaintiffs, ORDER v. 8 DEAN MEILING, et al., 9 Defendants. 10 11 I. SUMMARY 12 Plaintiffs, a putative class of elderly investors in a company formerly known as 13 Metalast, sued Defendants, the people and entities that either bought that company out of 14 receivership, or played a role in the receivership proceedings, in California state court, for 15 a purported fraudulent scheme and conspiracy to take Metalast through receivership so 16 some Defendants could buy it at a discounted price, causing Plaintiffs to lose all the money 17 they invested in Metalast. (ECF No. 1-3.) Certain Defendants removed this case to the 18 Central District of California (ECF No. 1), and then moved to transfer it to this Court (ECF 19 No. 13). Judge Josephine L. Staton of the Central District of California granted Defendants’ 20 motion to transfer, and transferred the case to this Court. (ECF No. 52.) Before the Court 21 is Plaintiffs’ motion to remand this case back to California state court (ECF No. 62 22 (“Remand Motion”)),1 and Plaintiffs’ corresponding motion requesting the Court address 23 24 25 26 1Defendants Chemeon Surface Technology LLC, DSM P GP LLC, DSM Partners, 27 LP, Dean Meiling, Madylon Meiling, Meiling Family Partners, Ltd., Suite B LLC (collectively, the “Chemeon Defendants”) filed a response. (ECF No. 76.) So did 28 Defendants Armstrong Teasdale LLP, Janet Chubb, and Tiffany Schwartz (collectively, the “Attorney Defendants”). (ECF No. 84.) Plaintiffs filed replies. (ECF Nos. 95, 96.) 2 explained below, the Court will deny the Remand Motion because minimal diversity exists, 3 and Defendants have met their preponderance burden to show there are more than 100 4 potential members of the proposed class. 5 II. BACKGROUND 6 As mentioned, Plaintiffs’ core allegation in this case is that Defendants engaged in 7 a “fraudulent scheme” to take Metalast through receivership and buy it at a discount, 8 depriving Plaintiffs of their investments in Metalast in the process. (ECF No. 1-3.) This is 9 the third such case before this Court; Plaintiffs’ counsel is involved in all three. By filing 10 date, the oldest case is Alexander v. Meiling, Case No. 3:16-cv-00572-MMD-CLB (D. Nev. 11 Filed Oct. 3, 2016). More recent is Harris v Meiling, 3:19-cv-00339-MMD-CLB (D. Nev. 12 Filed Jun. 19, 2019). The Court dismissed Alexander in its entirety based on the litigation 13 privilege. See 2020 WL 4193998 (D. Nev. July 21, 2020). Plaintiffs appealed that decision; 14 the appeal is currently pending. See Alexander, Case No. 3:16-cv-00572-MMD-CLB, ECF 15 No. 193. Like this case, Plaintiffs’ counsel originally filed Harris in California state court, 16 but Defendants removed it to the Central District of California, and it was subsequently 17 transferred here by Judge Staton. See Harris, 3:19-cv-00339-MMD-CLB, ECF Nos. 1, 33. 18 The Court dismissed Harris in its entirety on statute of limitations grounds. See 2019 WL 19 5684175 (D. Nev. Oct. 31, 2019). Plaintiffs did not appeal that dismissal. 20 As pertinent to the Remand Motion, the named Plaintiffs in the Complaint are 21 residents of California and Nevada. (ECF No. 1-3 at 5-6.) The Complaint does not specify 22 23 2The Court will address the other currently pending motions in this case in a 24 subsequent order. (ECF Nos. 61, 65, 67.)

25 3The Court denies this motion as moot because the Court is addressing the Remand Motion before the other pending motions. However, the Court notes that Plaintiffs’ 26 motion violates several local rules. See LR 7-2(a); LR IA 7-2; LR 78-1. The Court is already considering sanctioning Plaintiffs’ counsel, in part for his noncompliance with the local 27 rules (ECF No. 105.) Thus, the Court admonishes Plaintiffs’ counsel and local counsel to review both the local rules and this Court’s standing order, and comply with them going 28 forward. If Plaintiffs’ counsel and local counsel continue to violate the Court’s local rules, the Court will consider additional and escalating sanctions. 2 that Defendant Meiling Family 26 Partners, Ltd. is a Colorado limited partnership. (Id.) The 3 Complaint does not specify the citizenship of Defendants James Proctor, Janet Chubb, 4 and Tiffany Schwartz. (Id. at 7.) Plaintiffs further allege “Defendant Armstrong Teasdale, 5 LLP is a duly formed Missouri limited liability partnership and law firm.” (Id.) The remaining 6 Defendants are Nevada business entities of various types. (Id.) 7 Plaintiffs allege that over 900 people invested in Metalast. (Id. at 13.) The Complaint 8 defines the proposed class as follows: 9 All members, investors, and their successors, in Metalast International, LLC subsequently named MI94, LLC, (“Investment LLC”), the largest proportion 10 of whom are residents of California, together with the elderly Class members who are residents off [sic] Nevada, who owned membership interests and 11 were at least 65 years old at the time of the conduct alleged herein, which has continued to date. Plaintiffs are informed and believe that said Class 12 comprises less than 100 members.

13 Excluded from the Class are all Metalast members and investors, and their successors, who are residents of states other than California and Nevada, 14 as well as Defendants, Defendants' officers, members, owners, directors, affiliates, legal representatives, employees, co-conspirators, successors, 15 subsidiaries, and assigns, and any entity in which any Defendant has a controlling interest, as well as all judicial officers and staff presiding over this 16 matter and counsel of record. Also specifically excluded from the Class is Marc Harris, an individual who resides in Orange County, California, and 17 was representative plaintiff of the class in the action styled Marc Harris, et al. v. Dean Meiling, et al., Case No.: 8:19-cv-00595-JLS-SEM, originally filed 18 in the United States District Court - Central District of California, Southern Division. Also specifically excepted from the Class are any named Plaintiffs 19 in the action styled Jerry Alexander, et al. v. Dean Meiling, et al., Case No.: 3:16-cv00572-MMD-CBC, filed in the United States District Court – District 20 of Nevada. Plaintiffs reserve the right to revise the Class Definition as a result of discovery proceedings and further investigation 21 22 (ECF No. 1-3 at 9-10.) 23 Defendants’ notice of removal added information about the parties’ citizenship and 24 the number of putative class members. (ECF No. 1.) Specifically, as to citizenship, 25 Defendants added that “Janet Chubb is a resident of Nevada and defendant Tiffany 26 Schwartz is a resident of Missouri.” (Id. at 5.) As to the number of putative class members, 27 Defendants pointed to representations Plaintiffs’ counsel made, and evidence he 28 submitted, in Alexander and Harris to support Defendants’ allegation that, despite 2 1-3 at 10), there are well over 100 members in Plaintiffs’ putative class. (ECF No. 1 at 5- 3 7.) Basically, Defendants state in their notice of removal that, in Alexander and Harris, 4 Plaintiff’s counsel and Marc Harris (the lead named Plaintiff in Harris, and a class 5 representative in Alexander) submitted sworn declarations estimating the number of class 6 members as between 143 and over 500. (See id.) 7 Plaintiffs then filed two declarations in support of their Remand Motion, one from 8 Plaintiffs’ counsel, and the other from Mr. Harris, where they swear under penalty of 9 perjury that the proposed class consists of up to 98 plaintiffs. (ECF Nos. 62-1, 62-1.) Mr. 10 Harris states that he maintains and updates “the ‘Investment LLC’ Member database of 11 over 900 Member interests representing over 1,200 individuals (including spouses, heirs, 12 beneficiaries, and even deceased members) residing in approximately forty-five (45) U.S. 13 states.” (ECF No. 62-1 at 2.) He also states he maintains and updates a related Microsoft 14 Excel spreadsheet. (Id.) Mr. Harris goes on to explain that he now believes up to 98 is the 15 best number of potential plaintiffs, and reconciles his current belief with his previous sworn 16 estimate of 143, and another sworn estimate of 232 Plaintiffs’ counsel made based on 17 information provided by Harris. (Id. at 2-4.) The big difference is that, on Plaintiffs’ 18 counsel’s advice, Mr. Harris has now decided to exclude from the potential class: (1) non- 19 member spouses of members; (2) deceased individuals; (3) people who were not age 65 20 before December 1, 2013; and (4) “beneficiaries of Membership interests that were held 21 in assert [sic] protection vehicles.” (Id. at 2-4.) He also says he gave Plaintiffs’ counsel a 22 copy of the Microsoft Excel document he has been maintaining. (Id. at 3-4.) 23 Plaintiffs’ counsel’s declaration is largely complementary to Mr. Harris’ declaration, 24 essentially proffering the same facts and rationale from Plaintiffs’ counsel’s perspective. 25 (ECF No. 61-2.) Plaintiffs’ counsel explains that the main difference between the up to 98 26 number he and Mr. Harris now proffer and the number of potential plaintiffs they previously 27 offered in Harris is that he decided not to include the four categories of potential plaintiffs 28 referenced above. (Id. at 3; see also id. at 3-5.) Plaintiffs’ counsel goes on to state that Mr. 2 examined and scoured in connection with my determination of the numerosity element in 3 this action[.]” (Id. at 3.) 4 Then, in opposing the Remand Motion, Chemeon Defendants proffered additional 5 evidence of their own. First, the Chemeon Defendants remind the Court Plaintiffs’ counsel 6 either serves as counsel or filed two other cases4 against people and entities involved in 7 Metalast, and that both of these cases included Mr. Harris as a class representative. (ECF 8 No. 76 at 7.) In one of those cases, Mr. Harris stated in discovery responses that he had 9 destroyed any and all information he ever had about Metalast. (Id. at 7-9 (citing ECF Nos. 10 76-2, 76-3).) Further, in his deposition taken in 2016, Mr. Harris testified he had destroyed 11 his Metalast records. (ECF No. 76 at 9 (citing ECF No. 76-4).) Mr. Harris also testified at 12 his deposition that there was a company database listing all of Metalast’s investors, but 13 he never had access to it, and he nonetheless estimated that over 900 people had 14 invested in Metalast, about half of them retirees. (Id.) Second, the Chemeon Defendants 15 point out that in Harris, Plaintiffs’ counsel changed his guess as to the number of potential 16 class members (of a class defined in a nearly identical way to the class in this case) from 17 over 500 to under 100, to 143, to 195, apparently as it suited him. (Id. at 10-11.) Third, as 18 to minimal diversity, the Chemeon Defendants proffer declarations from Ms. Chubb and 19 Ms. Schwartz stating they are citizens of Nevada, and Missouri, respectively. (Id. at 13 20 (citing ECF Nos. 36-2, 36-3).) Fourth, again as to numerosity, the Chemeon Defendants 21 point out “that the receiver, James Proctor, used [a master service list] for service 22 purposes in connection with the 2013 MILLC receivership proceeding, which master list 23 contained a total of at least 990 MILLC members.” (Id. at 17 (citing ECF No. 77-2 at 18- 24 45).) 25 In sum, the parties have presented conflicting evidence as to whether the minimal 26 diversity and numerosity requirements for the Court to exercise CAFA jurisdiction are 27

28 4There are actually even more cases than that. See, e.g., Harris, 2019 WL 5684175, at *1. 2 does the Court). Finally, the Court notes that Judge Staton transferred this case to this 3 Court in part because she determined Plaintiffs’ counsel was engaged in “blatant forum 4 shopping,” and was seeking to avoid the Court’s unfavorable rulings in Alexander and 5 Harris in filing yet another similar class action in California state court, opposing transfer 6 to this Court, and seeking to have this case remanded back to state court. (ECF No. 52 at 7 8.) 8 III. LEGAL STANDARD 9 Federal courts are courts of limited jurisdiction, having subject matter jurisdiction 10 only over matters authorized by the Constitution and Congress. See U.S. Const. art. III, § 11 2, cl. 1; see also, e.g., Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 12 (1994). A suit filed in state court may be removed to federal court if the federal court would 13 have had original jurisdiction over the suit. See 28 U.S.C. § 1441(a). Here, Defendants 14 removed under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d), which, in 15 pertinent part, vests federal district courts with “original jurisdiction to hear a class action 16 if the class has more than 100 members, the parties are minimally diverse, and the matter 17 in controversy exceeds the sum or value of $5,000,000.” Standard Fire Ins. Co. v. 18 Knowles, 568 U.S. 588, 592 (2013) (citing 28 U.S.C. § 1332(d)(2), (d)(5)(B)) (internal 19 quotation marks omitted). 20 “[N]o antiremoval presumption attends cases invoking CAFA, which Congress 21 enacted to facilitate adjudication of certain class actions in federal court.” Dart Cherokee 22 Basin Operating Co., LLC v. Owens, 574 U.S. 81, 89 (2014) (citing Standard Fire, 568 23 U.S. at 595). “CAFA’s provisions should be read broadly, with a strong preference that 24 interstate class actions should be heard in a federal court if properly removed by any 25 defendant.” Id. (citations and internal quotation marks omitted). 26 “[A] defendant seeking to remove a case to a federal court must file in the federal 27 forum a notice of removal containing a short and plain statement of the grounds for 28 removal.” Id. at 87. (internal quotation marks and citations omitted). Where, as here (ECF 2 removal, “both sides submit proof and the court decides, by a preponderance of the 3 evidence” whether CAFA’s jurisdictional requirements are satisfied. Id. at 88. Generally 4 speaking, the party opposing the factual attack—here, Defendants—must support their 5 “jurisdictional allegations with competent proof, under the same evidentiary standard that 6 governs in the summary judgment context.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th 7 Cir. 2014) (internal quotation marks and citations omitted); see also id. at 1122. 8 IV. DISCUSSION 9 Plaintiffs make two main arguments in their Remand Motion. Neither is persuasive. 10 The Court will first briefly address Plaintiffs’ argument that Defendants insufficiently 11 alleged minimal diversity when they removed this case, and then address Plaintiffs’ 12 attempt to cap the number of members of the proposed class at 98, to which the parties’ 13 devote much of their argument. 14 A. Minimal Diversity 15 Plaintiffs argue the Court should remand this case for lack of minimal diversity 16 because Defendants did not specify the citizenships of all Defendants in their notice of 17 removal, and while Defendants did state that Defendants Chubb and Schwartz are 18 residents of Nevada and Missouri, respectively, Defendants’ notice of removal is 19 nonetheless fatally defective because it did not specify Chubb and Schwartz are citizens 20 of those states. (ECF No. 62 at 20-22.) The Chemeon Defendants respond that the 21 citizenships of all parties to this case are immaterial because Plaintiffs themselves 22 establish minimal diversity by alleging they are residents of California and Nevada 23 (depending on the person), Chubb and Schwartz are both residents and citizens of 24 Nevada and Missouri, and Defendants’ notice of removal is either not fatally defective 25 because it used ‘resident’ instead of ‘citizen,’ or the Court could grant them leave to amend 26 their notice to clarify Chubb and Schwartz are citizens of those states. (ECF No. 76 at 23- 27 25.) Attorney Defendants make a similar argument. (ECF No. 84 at 12-14.) The Court 28 agrees with Defendants. 2 and Nevada, and have not subsequently offered any contradictory argument or evidence. 3 (ECF No. 1-3 at 5-6.) Defendants proffered declarations from Chubb and Schwartz stating 4 they are citizens of Nevada and Missouri (ECF Nos. 36-2, 36-3), which aligns with, and 5 builds upon, the statements in the notice of removal that they are residents of those states 6 (ECF No. 1 at 5). This is enough information for the Court to conclude CAFA’s minimal 7 diversity requirement is satisfied. See 28 U.S.C § 1332(d)(2)(A) (defining minimal diversity 8 as where “any member of a class of plaintiffs is a citizen of a State different from any 9 defendant”). Relatedly, Plaintiffs’ argument that the parties have not provided full 10 citizenship information for each and every Plaintiff and Defendant is beside the point. (ECF 11 No. 62 at 21-22.) See also Mondragon v. Capital One Auto Fin., 736 F.3d 880, 882 (9th 12 Cir. 2013) (“Through CAFA, Congress broadened federal diversity jurisdiction over class 13 actions by, among other things, replacing the typical requirement of complete diversity 14 with one of only minimal diversity[.]”). In sum, the Court rejects Plaintiffs’ arguments as to 15 minimal diversity. 16 B. Numerosity 17 Plaintiffs primarily argue removal was improper because they allege in their 18 Complaint that they “are informed and believe that said Class comprises less than 100 19 members.” (ECF No. 62 at 15-16 (citing in pertinent part ECF No. 1-3 at 10).) Because 20 CAFA jurisdiction requires more than 100 putative class members, and Plaintiffs are the 21 ‘masters of their Complaint,’ Plaintiffs argue the Court must remand this case. (ECF No. 22 62 at 14-16.) Plaintiffs then offer an explanation supported by declarations as to why 23 Plaintiffs’ counsel and Mr. Harris’ prior estimates putting the basically identical classes at 24 issue in Alexander and Harris well over 100 were inaccurate, and why their current 25 estimate of up to 98 members is. (Id. at 16-18.) Defendants generally counter that: (1) the 26 Court should err in favor of exercising jurisdiction here, especially because Plaintiffs are 27 blatantly forum shopping; (2) the preponderance of the evidence shows that the putative 28 class size is more than 100; (3) the declarations submitted by Plaintiffs’ counsel and Harris 2 unreliable; and (4) even as defined by Plaintiffs, the putative class numbers more than 3 100. (ECF No. 76 at 15-23, 84 at 7-12.) The Court fully agrees with Defendants. 4 To start, Plaintiffs’ numerosity argument rests on several incorrect legal premises. 5 Specifically, Plaintiffs urge the Court to apply a presumption against removal here. (ECF 6 No. 62 at 12-13.) However, no such presumption applies. See Dart Cherokee, 574 U.S. at 7 89 (“no antiremoval presumption attends cases invoking CAFA, which Congress enacted 8 to facilitate adjudication of certain class actions in federal court.”). Plaintiffs also argue 9 they are the masters of their Complaint, but that principle is subject to a few important 10 limitations Plaintiffs neglect to mention. In pertinent part, Plaintiffs rely on several CAFA 11 mass action cases to support that proposition, which the Ninth Circuit has instructed must 12 be treated differently than this CAFA class action. (ECF Nos. 1-3 (making class action 13 allegations), 62 at 15 (making the argument, primarily relying on Corber v. Xanodyne 14 Pharm., Inc., 771 F.3d 1218 (9th Cir. 2014) (en banc) and Dunson v. Cordis Corp., 854 15 F.3d 551 (9th Cir. 2017)).) But see Tanoh v. Dow Chem. Co., 561 F.3d 945, 953-56 (9th 16 Cir. 2009) (finding that the plaintiffs’ counsel could structure proposed mass actions to 17 avoid federal jurisdiction, but drawing a contrast between mass actions and class actions, 18 indicating that mass action precedents do not govern class actions brought under CAFA, 19 and that class actions cannot necessarily be arbitrarily structured to avoid federal court 20 jurisdiction). Thus, Corber and Dunson do not apply here. See id. 21 Moreover, and as the Attorney Defendants argue (ECF No. 82 at 12 n.6), Corber 22 does not support the broad reading Plaintiffs advance here even if it did apply because 23 there the Ninth Circuit said it would “hold plaintiffs responsible for what they have said and 24 done[,]” and nonetheless concluded that case should not have been remanded. Corber, 25 771 F.3d at 1223. Here, Attorney Defendants reasonably argue that means the Court 26 should hold Plaintiffs’ counsel to the prior statements he made in Alexander and Harris 27 about the size of the putative class. (ECF No. 82 at 12 n.6.) Finally, while Plaintiffs 28 generally claim they can arbitrarily cap the size of their punitive class (ECF No. 62 at 14- 2 clear direction that plaintiffs cannot arbitrarily cap the amount of damages they seek to 3 prevent a federal court from exercising CAFA jurisdiction in a class action. See Standard 4 Fire, 568 U.S. 588 (holding that plaintiffs’ counsel cannot stipulate to a damages amount 5 less than $5 million to avoid CAFA jurisdiction). Thus, Plaintiffs’ numerosity arguments 6 rest on shaky legal foundations. 7 Indeed, instead of simply accepting Plaintiffs’ arbitrary cap of 98 class members, 8 the Court’s task here is to evaluate the evidence proffered by both parties and determine 9 whether the preponderance of the evidence shows the putative class likely includes more 10 than 100 members. See Dart Cherokee, 574 U.S. at 87-89; Leite, 749 F.3d at 1121-23. 11 Having considered the evidence proffered by the parties, it is more likely than not the 12 putative class exceeds 100 members. 13 On the one hand, the Court finds the evidence submitted or referred to by 14 Defendants meets their preponderance burden to show the putative class exceeds 100 15 members. Plaintiffs allege that over 900 people invested in Metalast. (ECF No. 1-3 at 13.) 16 Mr. Harris states as much in his declaration filed with the Remand Motion, where he claims 17 he maintains a database of “900 Member interests representing over 1,200 individuals.” 18 (ECF No. 62-1 at 2.) This also roughly aligns with the Chemeon Defendants’ proffered 19 service list from the 2013 MILLC receivership proceeding, reflecting that the receiver, Mr. 20 Proctor, mailed out notice of the receivership proceeding to 990 MILLC members. (ECF 21 No. 76 at 17 (citing ECF No. 77-2 at 18-45).) Taken together, this evidence shows the 22 potential putative class here would be drawn from a larger group of over 900. 23 Of course, the proposed putative class only reflects investors from California or 24 Nevada who were over 65 at the pertinent time, so the number of class members is 25 logically fewer than 900. (ECF No. 1-3 at 9-10.) But statements by Plaintiffs’ counsel and 26 Mr. Harris in prior, related litigation suggest the number of class members is well over 100. 27 In a prior deposition, Mr. Harris testified that probably about half of all people who invested 28 in Metalast were retired. (ECF No. 76-4.) More tellingly, both Plaintiffs’ counsel and Mr. 2 class members (of a class defined in a nearly identical way to the class in this case) was 3 much higher than they now assert—from over 500, to under 100 (to support a motion to 4 remand later abandoned), to 143, to 195. (ECF No. 76 at 10-11.) All of this leads the Court 5 to find it is more likely than not the putative class exceeds 100 members. 6 On the other hand, Plaintiffs’ declarations proffered with their Remand Motion offer 7 inadmissible evidence and are otherwise unpersuasive. Both Plaintiffs’ counsel and Mr. 8 Harris are testifying to the content of an Excel spreadsheet, but do not proffer the Excel 9 spreadsheet itself. (ECF Nos. 62-1, 62-2.) Neither declaration explains why they do not 10 proffer the Excel spreadsheet itself, though both declarations allude to attorney-client 11 privilege. (ECF Nos. 62-1 at 4, 62-2 at 5.) These declarations thus violate the best 12 evidence rule. See United States v. Bennett, 363 F.3d 947, 952-54 (9th Cir. 2004) (finding 13 that a proponent’s testimony about a GPS system’s data violated the best evidence rule 14 and explaining that the best evidence rule requires a proponent to either produce the 15 original or explain its absence if the proponent is testifying to the content of an electronic 16 document but not providing either the original or a copy). Moreover, both declarations are 17 largely hearsay, because they primarily offer the purported contents of the Excel 18 spreadsheet for the truth of the matter asserted—that the putative class could not exceed 19 98 people. (ECF Nos. 62-1, 62-2.) See also Fed. R. Evid. 801(c) (defining hearsay in 20 pertinent part as an out-of-court statement offered for the truth of the matter asserted); 21 Fed. R. Evid. 802 (providing that hearsay is inadmissible). 22 And beyond those two issues, neither declaration is particularly reliable because 23 they both contradict declarations offered on the same issue, by the same people, in very 24 similar cases. (ECF No. 76 at 18-20.) In particular, Mr. Harris’ declaration is hard to 25 reconcile with his statements in discovery responses and depositions in other related 26 cases—proffered by Defendants here (id. at 20)—that he had destroyed all records he 27 had about Metalast, which would seem to include the very Excel spreadsheet he and 28 Plaintiffs’ counsel attempt to rely on through their declarations supporting the Remand 2 keep putative class membership below 100 to avoid this Court, casting doubt on the 3 credibility of his declaration. This incentive is evidenced both by his attempt to impose an 4 arbitrary cap in the Complaint and this very Remand Motion—not to mention Judge 5 Staton’s reasonable observation that Plaintiffs’ counsel appears to be engaged in forum 6 shopping to avoid the Court’s unfavorable rulings in Alexander and Harris. (ECF No. 52 at 7 8.) Thus, the Court assigns little weight to Plaintiffs’ proffered declarations. 8 Even if the Court were to assign some weight to Plaintiffs’ proffered declarations, 9 they are unpersuasive on their own terms. For example, Plaintiffs’ counsel and Mr. Harris 10 attribute part of the reduction getting them down to ‘up to 98’ plaintiffs from their prior 11 declarations in related cases to excluding non-member spouses and deceased persons. 12 (ECF Nos. 62-1 at 2, 62-2 at 4.) But Plaintiffs also try to define their proposed class as 13 including “[a]ll members, investors, and their successors, in Metalast[,]” which could 14 logically include both spouses and the successors of deceased people. (ECF No. 1-3 at 15 9.) And it certainly includes ‘investors,’ which sweeps more broadly than Mr. Harris and 16 Plaintiffs’ counsel’s approach in their declarations of limiting the putative class to exclude 17 “non-member spouses of members who did not hold legal title to any membership 18 interests[.]” (Compare ECF No. 1-3 at 9-10 with ECF Nos. 62-1 at 2, 62-2 at 2.) Under 19 CAFA, “the term ‘class members’ means the persons (named or unnamed) who fall within 20 the definition of the proposed or certified class in a class action.” 28 U.S.C. § 21 1332(d)(1)(D). Thus, the rationale for excluding certain potential plaintiffs offered in 22 Plaintiffs’ declarations offered does not follow, and indeed conflicts with how potential 23 plaintiffs must be counted under CAFA. 24 In sum, Plaintiffs’ proffered evidence is easily outweighed by Defendants’, which 25 establishes by a preponderance of the evidence that the putative class exceeds 100 26 members. The Court therefore finds that, contrary to Plaintiffs’ arguments, both the 27 minimal diversity and numerosity requirements for the Court to exercise CAFA jurisdiction 28 are satisfied here. The Remand Motion is denied. 2 The Court notes that the parties made several arguments and cited to several cases 3 not discussed above. The Court has reviewed these arguments and cases and determines 4 that they do not warrant discussion as they do not affect the outcome of the Remand 5 Motion. 6 It is therefore ordered that Plaintiffs’ motion to remand (ECF No. 62) is denied. 7 It is further ordered that Plainitffs’ ex parte motion regarding the motion to remand 8 (ECF No. 72) is denied as moot. 9 DATED THIS 29th Day of October 2020.

11 MIRANDA M. DU 12 CHIEF UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28