McMorris vs. The TJX Companies, Inc., et al, 2007 WL 1885137 (D.Mass. 2007).

Boy, do we hate that song. But we’re betting that we don’t hate it half as bad as the plaintiff in this CAFA minimal diversity boondoggle.

The case started off plainly enough when McMorris filed a class action complaint in the Massachusetts Superior Court, Middlesex County naming TJX Companies, Inc.—TJ Maxx’s corporate parent—as a defendant.  In her complaint, the plaintiff sought damages for alleged identity theft at TJ Maxx stores located across Massachusetts. The putative class was defined as “[r]esidents of Massachusetts who made purchases and paid by credit or debit card or check who made a return at one or more Marshalls, T.J. Maxx, HomeGoods, or A.J. Wright Stores… ” TJX, a corporate citizen of Massachusetts, quickly removed the case under CAFA’s minimal diversity provision.

McMorris sought to remand the suit to state court, arguing that minimal diversity was not present. According to McMorris, the putative class members were all “residents” of Massachusetts, which McMorris argued was just as good as “citizens” of Massachusetts.   Therefore, per the plaintiff—because TJX, the class representative, and the putative class were all citizens of Massachusetts, there was no diversity whatsoever.

The District of Massachusetts disagreed.  The plaintiff’s gaffe in defining the class as “residents” caused McMorris’s attempt at remand back to Massachusetts state court to run off the road faster than the Senator from Massachusetts after a cocktail party.   Relying on Preston v. Tenet Healthsystem Memorial Medical Center, Inc., 485 F.3d 793 (5th Cir. 2007) and Schwartz v. Comcast Corp, 2006 WL 487915 (E.D.Pa. 2006) the District of Massachusetts denied remand, holding that “residency” is not the same as “citizenship” for purposes of determining diversity. Thus, per the court, the fact that the putative class was composed entirely of residents of Massachusetts did not, by definition, foreclose the presence of non-citizens in the class. As a result, the motion to remand was denied. (Editors’ Note:  see the CAFA Law Blog analysis of Preston posted on June 5, 2007 and the CAFA Law Blog analysis of Schwartz posted on March 30, 2006).

As if the remand denial didn’t sting enough for McMorris’ counsel, the McMorris class action was not the first one filed against TJ Maxx and its affiliates alleging identity theft at Massachusetts stores. In fact, several other putative classes had already been filed and were pending before the District of Massachusetts. The real kicker for the McMorris’s counsel was that the Court had already established the plaintiff steering committees (i.e. the big-time money spots), causing the McMorris’s counsel to go from master of his own domain all the way to the back of the breadline. All because of a little semantics over resident vs. citizen. Somewhere, Bill Buckner is laughing at this unforced error.