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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF LOUISIANA
LAFAYETTE OPELOUSAS DIVISION

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607


d/b/a OPLELOUSAS GENERAL HEALTH
SYSTEM, ET AL

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE


C. MICHAEL HILL
CLECO CORPROATION AND CLECO
POWER, LLC,

Defendants

_____________________________________________________________________________

MEMORANDUM IN SUPPORT OF PLAINTIFFS’


MOTION TO REMAND
______________________________________________________________________________
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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF LOUISIANA
LAFAYETTE OPELOUSAS DIVISION

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607


d/b/a OPLELOUSAS GENERAL HEALTH
SYSTEM, ET AL

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE


C. MICHAEL HILL
CLECO CORPORATION AND CLECO
POWER, LLC,

Defendants
____________________________________________________________________________

TABLE OF CONTENTS
______________________________________________________________________________

Table of Contents .......................................................................................................................... ii

Table of Citations and Authorities ................................................................................................ iv

Factual and Procedural Background ................................................................................................2


Summary of the Argument ..............................................................................................................3

CLECO Did Not Meet Its Burden ..................................................................................................4

The Home State and Local Controversy Exceptions Require Remand ..........................................5

A Statistical Survey Commissioned on Behalf of the Plaintiff Class


Confirms More Than Two-Thirds of the Proposed Class Members
Are Louisiana Citizens ..................................................................................................................10

The Discretionary Exception ........................................................................................................16

Plaintiff Should be Allowed to Conduct Remand Discovery .......................................................18

Conclusion ....................................................................................................................................18

Certificate of Service ....................................................................................................................20


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Exhibits:

In Globo Affidavit of Survey Takers .................................................................................Exhibit 1

Affidavit of Dr. Helmut Schneider .....................................................................................Exhibit 2

Affidavit of Dr. Troy Blanchard ........................................................................................Exhibit 3

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF LOUISIANA
LAFAYETTE OPELOUSAS DIVISION

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607


d/b/a OPLELOUSAS GENERAL HEALTH
SYSTEM, ET AL

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE


C. MICHAEL HILL
CLECO CORPORATION AND CLECO
POWER, LLC,

Defendants

______________________________________________________________________________

TABLE OF CITATIONS AND AUTHORITIES


______________________________________________________________________________

Bennet v. Board of Commissioners for East Jefferson Levee District,


2007 Westlaw 2571942 (Eastern District La. Aug. 31, 2007)...........................................10

Butler v. Polk,
592 F.2d 1293, 1296 (5th Cir. 1979) ....................................................................................4

Cohen v. Office Depot,


204 F.3d 1069 (11th Cir. 2000) ............................................................................................4

Combee v. Shell Oil Co.,


615 F.2d 698, 700 (5th Cir. 1980) ......................................................................................12

Coury v. Prot,
85 F.2d 244, 251 9C.A. 5 Tex.) 1996)..............................................................................12

Freeman v. Northwest Acceptance Corp.,


754 F.2d 553, 556 (5th Cir. 1985) .....................................................................................12

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Hendry v. Masonite Corp.


455 F.2d 95, 956 (5th Cir.), cert denied, 409 U.S. 1023,
93 S.Ct. 464, 34 L.Ed. 2d 35 (1972) .................................................................................12

Hertz Corp. v. Friend, 130 S.Ct. 1181 (2010) .................................................................................5

In Re: Sprint Nextel Corporation,


593 F.3d 669 (U.S.C.A. 7th Cir. 2010) ..............................................................................10

Lupo v. Newman Affairs International,


28 F.3d 269, 274 (2nd Cir. 1994) .........................................................................................4

Mississippi Band of Choctaw Indians v. Holyfield,


490 U.S. 30, 48, 109 S.Ct. 1597, 1608, 104 L.Ed. 2d 29 91989) ............................... 11-12

Preston v. Tenet Health System Memorial Medical Center,


485 F.3d 793 (5th Circuit 2007) ................................................................................ 7-9, 12

Redd v. Suntrup Hyundai, Inc.,


2009 Westlaw 2568044 (Eastern District of Missouri) ..................................................8, 9

Shamrock Oil & Gas Corp. v. Sheets,


313 U.S. 100, 108, 61 S.Ct. 868, 872 (1941) ......................................................................4

Tapscott v.MS Dealer Service Corp.,


77 F.3d 1353 (11th Cir. 1996) .............................................................................................4

Class Action Fairness Act of 2005 (CAFA)


28 U.S.C. §1332, 1441, 1446 and 1453 ..........................................................................................2

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UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF LOUISIANA
LAFAYETTE OPELOUSAS DIVISION

OPELOUSAS TRUST AUTHORITY CIVIL ACTION NO. 10-CV-607


d/b/a OPLELOUSAS GENERAL HEALTH
SYSTEM, ET AL

Plaintiffs, JUDGE RICHARD T. HAIK

VERSUS MAGISTRATE JUDGE


C. MICHAEL HILL
CLECO CORPROATION AND CLECO
POWER, LLC,

Defendants

_____________________________________________________________________________

MEMORANDUM IN SUPPORT OF PLAINTIFFS’


MOTION TO REMAND
______________________________________________________________________________

MAY IT PLEASE THE COURT:

Plaintiffs submit this Memorandum in support of their Motion to Remand their case to

the 27th Judicial District Court for the Parish of St. Landry, State of Louisiana, from which the

suit was removed. The primary question posed in this Motion to Remand is whether or not more

than two thirds of utility rate payers within the city limits of Opelousas, Louisiana are Louisiana

citizens. If the Court is satisfied that is the case, remand is mandatory. Even if this Court

believes less than two-thirds (2/3), but more than one-third (1/3) of the class are Louisiana

residents, remand would still be appropriate since the cause of action is based on Louisiana law

and harm was occurred in Louisiana.

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FACTUAL AND PROCEDURAL BACKGROUND

This is a class action brought by three Louisiana Plaintiffs, OPELOUSAS TRUST

AUTHORITY, ALTON BROUSSARD and WAYNE ARDOIN against two Louisiana

corporations, CLECO CORPORATION and CLECO POWER, L.L.C (hereafter collectively

referred to as CLECO). The class action Petition for Damages was filed on March 9, 2010 in

the 27th Judicial District Court for the Parish of St. Landry, State of Louisiana, bearing case

number 10-C-1179.

The lawsuit it brought as a class action on behalf of “


all persons, entities or businesses

who paid utility bills to CLECO for services in Opelousas, Louisiana from 1991 to the present.”

Thus, class members are utility rate payers in Opelousas, Louisiana. Among other things, the

suit claims that CLECO charged Opelousas rate payers a rate which included a distribution

charge, which amounted to a double billing since the City was providing its own distribution

system.

On April 13, 2010 CLECO filed a Notice of Removal and removed the claim from the

27th Judicial District Court to the United States District Court for the Western District of

Louisiana pursuant to the Class Action Fairness Act of 2005 (CAFA) and 28 U.S.C. §§ 1332,

1441, 1446 and 1453, claiming diversity of citizenship.

Subsequent to filing a Petition for Removal, CLECO filed a Motion to Dismiss. The

Motion to Dismiss is based on a claim that original jurisdiction of the claim lies with the

Louisiana Public Service Commission. CLECO filed a Declinatory Exception in State Court

based on the same theory. A hearing on the Motion to Dismiss in Federal Court is set for June

17, 2010.

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SUMMARY OF THE ARGUMENT

1. CLECO relies on diversity jurisdiction to support its removal. The burden of first

showing minimal diversity rests with CLECO. CLECO did not meet that burden. CLECO

admits it is a Louisiana corporation. The proposed class members are CLECO rate payers in the

sa
Opelousas city limits. CLECO’ l
leg
ati
onthat it has knowledge that a putative class member

has diverse citizenship is insufficient. The Petition to remove is defective on its face because

CLECO offered no proof of the diverse citizenship of any putative Class Members.

2. Assuming CLECO did meet its burden in establishing minimal diversity; the case

should be remanded based on the home state and local controversy exception to federal court

jurisdiction under CAFA. The home state and local controversy exception is mandatory and

applicable since two-thirds of the proposed class members are Louisiana citizens. As discussed

in greater detail below, a statistical study commissioned by Plaintiffs and supported by expert

affidavits clearly establishes that more than two-thirds of the Opelousas rate payers during the

period of time in question were Louisiana citizens. The jurisprudence recognizes such a

statistical survey as appropriate to satisfy the requirements of the home state and local

controversy exceptions to CAFA. The Court also has the authority to remand under the

discretionary exception as this is a case where the primary and only Defendant is a Louisiana

citizen and the issues of the case are purely local in nature and governed by Louisiana law.

3. Finally, should the Court find that CLECO did meet its burden in removing the

case and that, for whatever reason, the proof submitted on behalf of the Plaintiffs that more than

two-thirds of the rate payers involved are Louisiana citizens, then the Court should allow the

Plaintiff to conduct discovery on the remand issue before ruling on the Motion to Remand. That

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discovery would include obtaining information currently in the sole possession of CLECO

showing the addresses where all of the Opelousas rate payers during the period of time in

question were billed. In determining citizenship, one of the most important factors is where a

person resides. We expect such discovery would help confirm the obvious—the vast majority of

rate payers from the City of Opelousas are also Louisiana citizens.

CLECO DID NOT MEET ITS BURDEN

CLECO’
s Petition for Removal relies on the Class Action Fairness Act. 28 U.S.C.A.

§1332. CAFA expanded federal court jurisdiction for class actions by creating jurisdiction for

classes with more than one hundred class members if any class member is diverse from at least

one Defendant and if there is more than $5,000,000 in controversy, exclusive of interest and

costs.

Title 28 U.S.C. §1447(c) provides: “


If at any time before final judgment it appears that

the district court lacks subject matter jurisdiction, the case shall be remanded.” When the

propriety of removal jurisdiction is challenged, the removing party bears the burden of proving

the existence of federal jurisdiction. Tapscott v. Miss. Dealer Service Corp., 77 F.3d 1353, 1356

(11th Cir. 1996), overruled on other grounds by Cohen v. Office Depot, 204 F.3d 1069 (11th Cir.

2000). It is well established that removal statutes are to be strictly construed against removal.

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941). Further, any doubt as to proper

subject matter jurisdiction should be resolved against removal. Butler v. Polk, 592 F.2d 1293,

1296 (5th Cir. 1979). A removing party must present facts establishing its right to remove.

Tapscott, supra. When the defendant fails to do so, remand is favored. Lupo v. Newman Affairs

International, 28 F.3d 269, 274 (2nd Cir. 1994).

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In order to avail itself of CAFA’


s new jurisdictional rules, CLECO bears the burden of

proof of showing, among other things, minimal diversity, that is, that at least one class member is

a citizen of a state different from any defendant. Evidently aware of this requirement in its

Petition for Removal, CLECO acknowledges that CLECO CORPORATION and CLECO

POWER, L.L.C. are citizens of the State of Louisiana and then goes on to suggest that there are

members of the putative class who are not citizens of the State of Louisiana.

CLECO fails to meet its burden. CLECO fails to offer any proof of its assertion that

there is one rate payer that is a Delaware Corporation with its principal place of business in

Arkansas. Of course, "principal place of business" is a factually charged inquiry. Hertz Corp. v.

Friend, 130 S.Ct. 1181 (2010). CLECO failed to support its claim of a diverse corporation,

failing to even name the business or provide evidence of its principal place of business. CLECO

further suggests that former rate payers who fall within the definition of the putative class are

citizens of states other than Louisiana when the Petition was filed; again, CLECO offers no proof

of that allegation. There is no Affidavit of any rate payer professing to have a different

citizenship than CLECO. The only indications before the Court of potential diversity are

CLECO's bare assertions. Such bare bones allegations do not suffice as proof.

THE HOME STATE AND LOCAL CONTROVERSY


EXCEPTIONS REQUIRE REMAND
Assuming arguendo that CLECO has met its burden of proof in establishing minimal

diversity and the other requirements necessary to remove the case under CAFA, remand is

nonetheless appropriate because this case fits squarely within the local controversy and home

state exception. Should the Court find that the requirements of these exceptions are met, it is

mandatory that the Court remand the case to state court. We address both of these exceptions

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together because the requirements are similar and the jurisprudence regarding the applicable

proof is basically the same for both exceptions. The requirements for the local controversy

exception are found at 28 U.S.C. §1332(d)(4)(A). The requirements for the home state exception

to CAFA jurisdiction are found in 28 U.S.C. §1332(d)(4)(B).

Under the home state controversy exception, a District Court shall decline jurisdiction

where two thirds or more of the members of the proposed Plaintiff Class in the aggregate, and

the primary Defendants, are citizens of the State in which the action was originally filed. Under

the local controversy exception, the Court shall decline jurisdiction where two thirds of the

members of the class are citizens of the state in which the action was originally filed and at least

one defendant is a defendant who is a citizen of the state in which the action was originally filed

and the principal injuries resulting from the alleged conduct were incurred in the state in which

the action was originally filed. These exceptions are consistent with the purpose of CAFA,

which is to relax the requirement of complete diversity so a class action involving incomplete

diversity can be litigated in federal court. CAFA was never intended to deny state courts the

right to try predominantly state court class actions which involve matters of state law and parties

of similar citizenship when most of the class members reside in the state where the action arose.

CLECO is the only - and therefore - primary Defendant and the injuries complained of

occurred in Opelousas, Louisiana, the place where the petition was originally filed. The only

question for the Court to decide under both exceptions is whether two-thirds or more of the

Plaintiffs are Louisiana citizens.

The proposed Class includes utility rate payers in the City of Opelousas who have paid

utility bills to CLECO since 1991. Opelousas is a rural town in St. Landry Parish comprised of

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mostly low income families. The answer to the question of whether more than two-thirds of

Opelousas rate payers during the period of time in question are Louisiana citizens is obvious to

the Court and all of the parties involved. Of course, most of the rate payers are Louisiana

citizens. We doubt even CLECO would argue otherwise, as such an argument would strain their

credibility.

What we do expect CLECO to argue is that, although intuitively everyone knows

virtually all of the members of the class are Louisiana citizens, the burden of proof lies with the

Plaintiffs and reliance on intuition does not satisfy that burden. Most of the jurisprudence

surrounding the Home State and Local Controversy exceptions has focused on which party has

the burden to prove citizenship of the class and what constitutes acceptable proof. The United

States Fifth Circuit Court of Appeals addressed the issues of burden of proof and evidentiary

standard in Preston v. Tenet Health System Memorial Medical Center, 485 F.3d 793 (5th Circuit

2007). (Preston II)

Preston II involved a post-Katrina Class Action brought on behalf of class members

against various healthcare facilities for injuries and deaths related to the failure to provide

adequate transportation away from the premises after Hurricane Katrina made landfall. The

defendants removed the case to federal court and the Plaintiffs sought to remand under the Local

Controversy exception to CAFA. The Fifth Circuit held that the parties moving to remand a

class action to state court bear the burden of proof that any CAFA exception to federal

jurisdiction applies. The court further held that the party moving for remand must prove the

statutory citizenship requirement by a preponderance of the evidence.

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In Preston II, the Plaintiffs attempted to meet the burden of showing that greater than

two-thirds of the putative class members were citizens of Louisiana by submitting medical

records establishing that the class members had identified Louisiana addresses as their primary

billing address and residence. Much of the Preston II decision focused on whether this was

adequate proof and there was considerable discussion about the fact that the putative class in

Preston II involved a number of people who were displaced by Hurricane Katrina and living in

other states. Under those very unique circumstances, the Court found that the pre-Katrina

addresses in the medical records failed to satisfy the burden of establishing citizenship.

The Preston II court did not declare exactly what evidence would be necessary to satisfy

the local controversy exception requirement establishing that two-thirds of the class as Louisiana

citizens. In describing the Plaintiff’


s burden in this regard, the Court did say that Movant must

make some minimal showing of the citizenship of the proposed class as of the time that suit was

filed. In addressing this issue, the Preston II court held:

“Under CAFA’ s limited exception, the quality and quantity of evidence available
to the Movant will necessarily vary from case to case based on the class definition
and underlying facts. Nonetheless, it is clear that the Movant must make some
minimal showing of the citizenship of the proposed class at the time that suit
was filed.”(Emphasis added)

A number of cases since Preston II have limited that case to its facts, since the Preston II

Court was dealing with one of the most unique situations involving out migration in our nation’
s

history. Literally thousands of people from New Orleans were displaced by Hurricane Katrina

and there was a legitimate question as to how many of those people would return.

The class in this case is easily distinguishable from Preston II. The class before this

court involves ratepayers in the City of Opelousas. There is no evidence that the population of

the City of Opelousas was displaced for any reason during the class period. Indeed as will be
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discussed in more detail below, there is evidence to the contrary. There has been little out

migration from the City of Opelousas over the period of time in question.

In Redd v. Suntrup Hyundai, Inc., 2009 WL 2568044 (E.D Mo.) the District Court

distinguished Preston II and limited it to its facts. The Redd case involved a class action brought

by residents of the State of Missouri against Hyundai alleging that the class members were

improperly charged fees in violation of the Missouri Merchandising Practices Act. The

defendant in Redd removed the matter to federal court pursuant to CAFA. The plaintiff filed a

Motion to Remand, claiming that the diversity requirements of CAFA were not met, claiming

that it was likely that at the time the suit was filed, at least two-thirds of the class were citizens of

the State of Missouri. In support of its Motion to Remand, Plaintiff submitted the Affidavit of

Donald Suntrup, President of Suntrup Hyundai, which acknowledged that Defendant's records

reflected that the last known address for 72.7% of Defendants customers who are potential class

member is Missouri.

In support of its position that Plaintiff did not meet its burden to establish citizenship of

potential class members, the Defendant claimed that residency is different from citizenship and

that remand should be denied based on the analysis by the Fifth Circuit in Preston II.

The District Court distinguished Preston II by noting that the 5th Circuit made it very

clear that Preston II presented a unique set of circumstances because of the evacuation of New

Orleans and that Preston II held, absent such circumstances, it is presumed that potential class

members are citizens of the state of residency. The Motion to Remand in Redd was granted

based upon records establishing the residency of the Class.

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A STATISTICAL SURVEY COMMISSIONED ON BEHALF OF


THE PLAINTIFF CLASS CONFIRMS MORE THAN TWO-THIRDS
OF THE PROPOSED CLASS MEMBERS ARE LOUISIANA CITIZENS

Case law, at least in the United States Fifth Circuit, is clear that the Plaintiff has the

burden of proving the two-thirds requirement set forth in the home state and local controversy

exceptions. The jurisprudence is not as clear, however, as to what proof is necessary to satisfy

that burden. In Preston II the Court held that addresses from medical records were not

sufficient, at least when those medical records involved a post-Katrina population. In the Redd

case, an Affidavit establishing that 72.7% of the Class had a last known address in Missouri was

sufficient to prove citizenship. In a recent Louisiana Eastern District case, the District Court

held that a reasonable inference can be drawn that two-thirds of all class members were citizens

of a State where the class was open to residents, domicilaries, business owners, property owners

r
and other persons and entities residing in a certain parish. Bennet v. Board of Comm’sfor East

Jefferson Levee Dist., 2007 WL 2571942 (E.D. La.)

In In Re: Sprint Nextel Corp., 593 F.3d 669 (7th Cir. 2010), the Court of Appeals

considered a case that had been removed under CAFA and then remanded by the District Court.

The Sprint Nextel case involved text messaging and the class was limited to those who had a

Kansas cell phone number, received their cell phone at a Kansas mailing address and paid a

Kansas fee. The plaintiffs argued that these three factors showed that all the class members were

Kansas citizens. The district judge agreed and remanded the case. The Court of Appeals vacated

the remand and ordered the District Court to give the Plaintiffs another opportunity to prove that

the proposed class satisfied the requirements of the home state exception.

In discussing the evidence that would satisfy the requirements for remand, the Seventh

Circuit held that had the Plaintiffs conducted a survey or statistical study showing that more
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likely than not two-thirds of the putative class members were Kansas citizens, such a survey

would have satisfied their burden. The Court went on to hold that:

“Given those results and the size of the sample and the estimated size of the
proposed class, the District Court could then have used statistical principles to
reach a conclusion as to the likelihood that two-thirds or more of the proposed
class members are citizens of Kansas. Statisticians and scientists usually want
at least ninety five percent certainty, but any number greater than fifty
percent would have allowed the District Court to conclude that the Plaintiffs
had established citizenship requirement by a preponderance of the evidence.”
(Emphasis added)1

In establishing that more than two-thirds of the rate payers in Opelousas are Louisiana

citizens, we took the suggestion of the Sprint Nextel court a step further. We not only conducted

surveys as Sprint Nextel recommended but also retained Dr. Helmut Schneider, a statistician, to

design the survey and Dr. Troy Blanchard a demographer, to render opinions as to the

significance of the results of the survey. Language in the Sprint Nextel case suggests that the

Court might draw conclusions from the survey.2 That is unnecessary in this case since we have

attached Affidavits from experts so there can be no question.

The question then becomes whether those surveys and opinions establish, by a

preponderance of the evidence, that more than two-thirds of utility rate payers in Opelousas are

Louisiana citizens. Domicile has a well developed meaning in the common law, as the United

States Supreme Court has recognized: “


‘Domicile’is, of course, a concept widely used in both

federal and state courts for jurisdiction and conflict-of-laws purposes, and its meaning is

generally uncontroverted.”Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).

To establish domicile, one must show: (1) physical presence within the United States; and (2)

1 In re Sprint Nextel Corp. 593 F.3d at 675-676.


t“
2 Drs. Schneider and Blanchard Curriculum Vita are attached as Exhibi A”to Exhibits 2 and 3, respectively.
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intent to remain in the United States indefinitely. “


For adults, domicile is established by physical

presence in a place in connection with a certain state of mind concerning one’


s intent to remain

there.”Id. Thus physical presence and intent to remand there is the touchstone of the citizenship

determination.


For purposes of diversity jurisdiction, the domicile of the parties, as opposed to their

residence, is the key.”Combee v. Shell Oil Co., 615 F.2d 698, 700 (5th Cir. 1980). “
Citizenship

requires residency and the intent to return or remain in the state. Preston v. Tenet Healthsystem

Mem. Med. Ctr. Inc., 485 F.3d 793, 797-98 (5th Cir. 2007) referencing Stine v. Moore, 213 F.2d

446, 448 (5th Cir. 1954); Miss Board of Choctaw Indians v. Holyfield, 490 U.S. 30, 48 (1989).

The United States Fifth Circuit Court of Appeals has set out additional certain factors a court can

consider in determining a litigant’


s state of domicile for jurisdictional purposes. No single factor

is determinative and the court should look to all evidence shedding light on the litigant’
s

intention to establish domicile. The relevant factors include the places where the individual (1)

exercises civil and political rights; (2) pays taxes; (3) owns real and personal property; (4) has

driver’
s and other licenses; (5) maintains bank accounts; (6) belongs to clubs and churches; (7)

has places of business or employment; and (8) maintains a home for his family. Coury v. Prot,

85 F.3d 244, 251 (5th Cir.1996). A litigant’


s statement of intent is relevant to the determination

of domicile, but it is entitled to little weight if it conflicts with the objective facts. Freeman v.

Northwest Acceptance Corp., 754 F.2d 553, 556 (5th Cir. 1985) referencing Hendry v. Masonite

Corp. 455 F.2d 95, 956 (5th Cir. 1972). Despite the numeration of these factors, courts have

recognized that, “
The [district] court has wide, but not unfettered, discretion to determine what

evidence to use in making its determination of jurisdiction.”Coury, 85 F.3d at 249 (citing Ray

v. Bird & Son & Asset Realization Co., 519 F.2d 1081 (5th Cir. 1975)).
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In a random sample developed by Dr. Helmut Schneider, residents of Opelousas were

interviewed by telephone.3 50 interviews were completed.4 The respondents to the survey were

asked the following questions developed from the case law cited above:

Is the address for your home [the same as in the phone book]?

Are your current plans to continue to live in Louisiana?

Do you own property in Louisiana, like a car, truck, boat or home?

Do you have a Louisiana driver’


s license or other licenses (e.g., hunting, fishing,

occupational) or identification card issued by the State of Louisiana?

Do you attend church or belong to any clubs or organizations (Knights of Columbus,

Masonic Lodge, etc.) in Louisiana?

Do you vote in Louisiana?

Do you maintain any bank accounts in Louisiana?

Do you consider yourself a citizen of Louisiana?5

To determine citizenship, the three most important questions are Number 1 (the address

in Opelousas, Louisiana of the respondents’personal home evidences residency in Louisiana).

Number 2 (an affirmative answer evidences intent to remain in Louisiana) and Number 8 (the

respondent considers herself a citizen of Louisiana). Amazingly, 100% of all 50 respondents to

the survey answered affirmatively to all three of these critical questions.6 Based on the test set

out by the United States Supreme Court in Miss. Band of Choctaw Indians, all 50 of these

respondents are Louisiana citizens since they reside in Louisiana and intend to remain here.

3
See Exhibit 1, Affidavit of Survey Takers and Exhibit 2, Affidavit of Dr. Helmut Schneider
4
See Paragraph 6 of Affidavit of Dr. Helmut Schneider
5
See Paragraph 7of Affidavit of Dr. Helmut Schneider
6
See Paragraph 12 of Affidavit of Dr. Helmut Schneider
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35 out of the 50 respondents affirmatively answered all 8 questions.7 There can be no

question that these 35 respondents are Louisiana citizens. 6 respondents answered 7 of the 8

questions affirmatively. (Those respondents either did not own property in Louisiana, did not go

to church or did not have a bank account.)8 3 respondents answered 6 of the 8 questions

affirmatively. (Those 3 respondents did not go to church in Louisiana or own property.)9

Unquestionably, these 44 residents are Louisiana citizens as well since they all live in Louisiana,

intend to stay here, have Louisiana drivers’licenses, vote in Louisiana and consider themselves

Louisiana citizens.

As testified to by Dr. Helmut Schneider in his affidavit, one can extrapolate the results of

this survey to the population of Opelousas, Louisiana as a whole.10 Using the 35 respondents as

the most conservative measure, and assuming that they would be considered Louisiana citizens,11

Dr. Schneider opines, more likely than not, that more than 66% of Opelousas residents would,

likewise, be Louisiana citizens.12 Extrapolating from the 44 respondents, and making the same

assumption, Dr. Schneider opines that 88% of Opelousas residents would, likewise, be citizens

of Louisiana.13 Dr. Schneider has a confidence rate of 99.96% that more than 66% of Opelousas

residents would be Louisiana citizens. Using the 50 affirmative responses, Dr. Schneider

believes that 100% of Opelousas residents would be Louisiana citizens and has a confidence rate

of 99.999% that more than 66% of the residents are Louisiana citizens.14

These opinions are consistent with those of Dr. Troy Blanchard. Dr. Blanchard testifies

7
See Paragraph 8 of Affidavit of Dr. Helmut Schneider
8
See Paragraph 9 of Affidavit of Dr. Helmut Schneider
9
See Paragraph 10 of Affidavit of Dr. Helmut Schneider
10
See Paragraph 12 of Affidavit of Dr. Helmut Schneider
11
Since citizenship is a legal question, Dr. Schneider does not offer an opinion on that issue.
12
See Paragraph 12 of Affidavit of Dr. Helmut Schneider
13
See Paragraph 12 of Affidavit of Dr. Helmut Schneider
14
See Paragraph 12 of Affidavit of Dr. Helmut Schneider
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15
that the population in Opelousas, Louisiana is “
exceptionally static.” Importantly, no

significant out migration has occurred in the last several decades from the St. Landry Parish area

so there is no reasonable basis to believe that a large percentage of the class is not currently

Louisiana residents.16 Throughout the class period, Dr. Blanchard opines that - at a minimum -

96% of the residents of Opelousas lived in Louisiana.17

Dr. Blanchard has reviewed reliable data to reach these opinions. The 1990 census asked

Opelousas residents whether they lived in Louisiana five years prior, in 1985. 97.3% answered

affirmatively. (The national average of people living in the same state five years earlier was

88.4%)18 The 2000 census asked Opelousas residents whether they lived in Louisiana five years

prior, for 1995. 96.5% answered affirmatively. (The national average was 88.7%)19 A similar

survey was taken from 2006 to 2008. That survey asked respondents in Opelousas if they lived

in Louisiana the previous year. 99.6% answered affirmatively.20

Based on the survey conducted and the data considered by Dr. Schneider and Dr.

Blanchard, there really can be little doubt that over 66% of the class members are Louisiana

citizens and remand is thus appropriate under the local controversy exception of CAFA.

CLECO may suggest that the class definition is those who receive utility service within

the city limits of Opelousas from CLECO and that there are some within the Opelousas city

limits who do not receive utility service from CLECO. As a result, there very well may have

been some respondents in the surveys who are Opelousas residents (and Louisiana citizens) but

who do not receive their utility service from CLECO and, thus, are not class members. But that

15
See Exhibit 3, Paragraph 3 of Affidavit of Troy Blanchard
16
See Paragraph 4 of Affidavit of Troy Blanchard
17
See Paragraph 5 of Affidavit of Troy Blanchard
18
See Paragraph 6 of Affidavit of Troy Blanchard
19
See Paragraph 6 of Affidavit of Troy Blanchard
20
See Paragraph 6 of Affidavit of Troy Blanchard
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is of no moment. The cited surveys and opinions by Drs. Schneider and Blanchard show that

ALL residents of Opelousas, Louisiana (or at least a vast majority of them) are Louisiana

citizens. It cannot be legitimately argued that CLECO’


s customers in Opelousas, Louisiana are

somehow different - or, particularly, of different citizenship - from those randomly selected

Opelousas residents surveyed or that CLECO customers would answer census and survey data

relied upon by Dr. Blanchard any differently. The surveys, data, and opinions are provided to

support everyone's innate knowledge of the makeup of Opelousas—it is a community in which

no significant out migration occurs and the vast majority of residents are likely citizens of

Louisiana. In making the citizenship determination, the Court cannot divorce itself from its

knowledge of this and its people.

THE DISCRETIONARY EXCEPTION

The home state and local controversy exceptions to CAFA are mandatory. Should the

Court determine that the Plaintiffs have satisfied their burden of proof, as we contend they have,

in establishing that more probably than not two-thirds of the proposed class are Louisiana

citizens, then the court must remand the case. This assumes that the Court also has found that

CLECO properly removed the case in the first place by meeting their burden of establishing

minimal diversity, which we contend they did not.

The discretionary exception to CAFA is not mandatory and extends only to those actions


in which greater than one-third but less than two-thirds of the members of all proposed classes,

and the primary defendants are citizens of the state in which the action was originally filed.”28

U.S.C. §1332 (d)(3). The only Defendant in this case, CLECO, is a Louisiana citizen. The

primary Defendant requirement of the Discretionary exception is therefore met. The

Discretionary exception would therefore apply in a situation where more than one-third but less
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326

than two-thirds of the proposed Class are Louisiana citizens. In that case the Court would then

balance certain factors to determine if the case should be remanded in the Court’
s discretion.

Key among those factors is whether the action was brought in a forum with a distinct

nexus with the class members, the alleged harm, or the Defendants. Clearly that is the case here.

This is an action by Opelousas rate payers against CLECO. It is purely a local matter.

CAFA was passed to give Defendants greater protection when they were sued in state

court and greater rights to have the case heard in Federal Court. CAFA was never designed to

take a purely in-state controversy away from the state courts.

Based upon the statistical survey and study presented, we submit in this case that the

Plaintiffs have easily met their burden of proof, establishing that more than two-thirds of the rate

payers from Opelousas during the period of time in question are also Louisiana citizens. Dr.

Schneider has a 99.9999% confidence rate that more than 66% of Opelousas residents are

Louisiana citizens. If, for whatever reason, the Court should find somehow that the number of

Louisiana citizens falls between one-third and two-thirds, then Court should remand the case

using the discretionary exception.

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surveys allow him to conclude on a more probable than not basis, more than two thirds of

Opelousas residents are Louisiana citizens. Depending upon the sample he uses, his confidence

level ranges between 66.8% and 99.9% certainty. The burden of proof in a civil case is more

probable than not, and as the Fifth Circuit noted in Sprint Nextel, any statistical number greater

than fifty percent would have allowed the District Court to conclude that the Plaintiffs had

established the citizenship requirement by a preponderance of the evidence.

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327

The discretionary exception allows the Court to remand in those situations where less

than two-thirds but more than one third of the putative class members are citizens of the same

state. To be clear, we do not think application of the discretionary exception by the Court is

necessary since it is clear more than two thirds of the population in question are Louisiana

citizens. Out of an abundance of caution, and so there would be evidence in the record in the

unlikely event the Court would be required to consider the discretionary exception, we asked Dr.

Schneider to opine based on any of the sample numbers what certainty level he had that more

than 33.33% of Opelousas residents are Louisiana citizens. His conclusions in that regard

confirm the obvious; that he is 99.999% certain that more than one third of Opelousas residents

are Louisiana citizens.

PLAINTIFFS SHOULD BE ALLOWED TO CONDUCT REMAND DISCOVERY

Should the Court find that CLECO removed the case properly and that none of the three

CAFA exceptions have been proven by the data provided, then Plaintiffs ask that the Court allow

a period of time for the Plaintiffs to conduct remand discovery. This would include discovery

directed to CLECO to determine the billing addresses of Opelousas rate payers during the period

of time in question. Depending upon the proof the Court would require, there may be additional

appropriate discovery.

CONCLUSION

In conclusion, for the above-stated reasons, Plaintiffs' Motion to Remand should be

granted and the case returned to State District Court. The case was not properly removed by

CLECO in that CLECO failed to offer proof of minimal diversity.

Even if the case was properly removed, more than two-thirds of the proposed class are

Louisiana citizens as is the defendant, CLECO. The Home State and Local Controversy
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328

exceptions apply. Should the Court find the statistical study insufficient for any reason, then the

Court can still remand under the Discretionary exception.

It is, at the end of the day, a matter of jumping through whatever jurisdictional hoops the

Courts have set up to prove citizenship in a CAFA removed case. As in all cases, the bottom line

is that the Court should use whatever power it has to achieve a fair and just decision.

Everyone instinctively understands in this case that Opelousas rate payers are most likely

Louisiana citizens. This is not the type of case CAFA meant to be in federal court. The Courts

have set up certain hoops we had to jump through to get back to State Court and we have jumped

through the hoops. If there is another hoop to pass through, then we should be allowed remand

discovery to prove what is intuitively known.

Respectfully submitted:

MORROW, MORROW, RYAN & BASSETT

By:__/s/ Jeffrey M. Bassett _____________


Patrick C. Morrow, # 9748
Jeffrey M. Bassett, # 2840
Post Office Drawer 1787
Opelousas, LA 70571-1787
Phone: 337-948-4483

NEBLETT, BEARD & ARSENAULT


Richard J. Arsenault, #2563
J. R. Whaley, #25930
Post Office Box 1190
Alexandria, LA 71309-1190
Phone: 318-487-9874

LAW OFFICE OF ROBERT L. BECK, JR. LLC


Robert L. Beck, Jr. # 02886
5208 Jackson Street Extension, Ste. A
P. O. Drawer 12850
Alexandria, LA 71315-2850
Phone: 318-445-6581
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329

THE DORAN LAW FIRM


Pride J. Doran, # 25035
Quincy L. Cawthorne #29791
2410 Jake Drive, Ste. 1
Opelousas, LA 70570
337-948-8008

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 13, 2010, a copy of the foregoing pleading was filed

electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be

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electronic filing system. I also certify that I have mailed this filing by United States Postal

Service to all counsel of record who are not registered to receive electronic service by operation

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/s/ Jeffrey M. Bassett___________________

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