Schwartz v. Comcast Corp., No. Civ.A. 05-2340, 2005 WL 1799414 (E.D. Penn. July 28, 2005)
A federal district judge in Pennsylvania has declared that a plaintiff seeking remand of his class action may pursue discovery against the defendant in order to determine whether the class satisfies the requirements of diversity jurisdiction. Adam Schwartz sued Comcast in Pennsylvania state court in a class action filed on April 18, 2005, two months after the Class Action Fairness Act of 2005 was enacted. Schwartz claimed that Comcast Corporation had violated certain terms of his contract with the company, including the company’s promise to provide service “24 hours a day, 7 days per week, 365 days per year.”

Comcast removed the action to federal court, and Schwartz sought remand of the lawsuit. The underlying jurisdictional dispute concerned whether Schwartz’s complaint satisfied CAFA’s minimal diversity standards. Schwartz’s original complaint identified the plaintiff class as “all persons and entities residing or doing business in the Commonwealth of Pennsylvania who subscribed to Comcast’s high-speed internet service” during the time frame at issue in the case. Comcast argued that Schwartz’s definition of the class could easily embrace customers living outside of Pennsylvania while simply doing business inside the state. Schwartz then amended his complaint to address this issue, but the district court found declared that the CAFA analysis turned on an analysis of the original complaint, rather than the post removal amendments.
U. S. District Judge Thomas N. O’Neill, the author of the opinion, stands apart from at least one other federal court in his handling of the burden of proof in removal-remand battles. The party removing the case to federal court, rather than party opposing the remand, bears the burden of proof, Judge O’Neill concluded, recognizing the clash with Judge Stotler’s holding in Berry v. Am. Express Publ’g Corp., No. 05-0302 (June 16, 2005 C.D. Calif.). “I respectfully disagree with Judge Stotler,” Judge O’Neill said, pointing to the statute’s silence on the matter and the “longstanding rule” imposing this burden on removing defendants. “Had Congress intended to make a change in the law with respect to the burden of proof, it would done so expressly in the statute,” Judge O’Neill concluded.
The court also said that Schwartz could probe Comcast for information about composition of the plaintiff class, information that might shed light on whether there is diversity under CAFA. “Comcast has control over the information that would establish the citizenship of the various members of Schwartz’s proposed class. I will, therefore, allow Schwartz to engage in limited discovery with respect to this jurisdictional question.”