Rippee v. Boston Market Corp., No. 05-CV-1359-BTM, 2005 WL 3578784 (S.D. Cal. Oct. 14, 2005).
In this litigation, U. S. Magistrate Judge Jan M. Adler denied the plaintiff’s request to conduct a class survey during expedited discovery to determine the amount in controversy, finding that, under the Class Action Fairness Act of 2005, “Jurisdictional discovery . . . should be ‘sufficiently tailored’ to lead to information concerning the jurisdictional issue.” After the defendant, Boston Market, removed this class action originally filed in state court to the U. S. District Court for the Southern District of California, the District Court ordered the parties to engage in expedited discovery over a 90-day period in order to discern the true amount in controversy. The plaintiff then requested the authority to conduct the class survey and obtain the names and contact information for all of the class members during the expedited discovery period.

Magistrate Judge Adler first noted that the amount in controversy is generally decided from the face of the complaint; however, if the amount is not facially apparent, the court should consider the facts in the removal pleadings as well as evidence submitted by the parties. She then looked to CAFA’s legislative history for additional guidance, noting, “According to the Report of the Senate Committee on the Judiciary on CAFA, the requirement under CAFA that the amount in controversy exceed $5,000,000 in the aggregate may be established ‘either from the viewpoint of the plaintiff or the viewpoint of the defendant, and regardless of the type of relief sought (e.g., damages, injunctive relief, or declaratory relief).’ ” Magistrate Judge Alder concluded that, since the burden of establishing jurisdiction was on the defendant (see Editor’s Note below), Boston Market, and not the plaintiff, had to provide the factual basis supporting its assertion that the amount in controversy exceeded the $5 million minimum under CAFA. Since the burden was on the defendant and not the plaintiff, there was no supporting reason to allow the plaintiff to conduct a class survey or obtain the requested demographic information at this stage of the litigation.
Another factor weighing against allowing the plaintiff to conduct a class survey cited by Magistrate Judge Adler was the clear Congressional intent that there should not be in-depth jurisdictional discovery, again referred to CAFA Senate Report No. 109-14, in which the Senate Judiciary Committee noted, “[a]llowing substantial, burdensome discovery on jurisdiction issues would be contrary to the intent of these provisions to encourage the exercise of federal jurisdiction over class actions.” The court concluded, in denying the plaintiff’s request for a class survey in connection with the expedited discovery on the amount in controversy, “Allowing a class survey during the period of expedited discovery, while the Court’s jurisdiction remains unsettled, would be contrary to the principle of limited discovery as provided under existing case law and in the Senate Judiciary Committee Report on CAFA.”
Editor’s Note: In footnote 2 of her opinion, Magistrate Judge Adler notes that U. S. District Judge Barry Ted Moskowitz, in a previous hearing, concluded that the defendant carried the burden of establishing federal jurisdiction, and declined to lift the burden from its traditional keeper, the party invoking the federal court’s jurisdiction, and place it on the party opposing removal, despite CAFA’s legislative history and other decisions to the contrary.