Todd Bank v. Hydra Group LLC

SUMMARY ORDER Appellant Todd Bank, an attorney appearing pro se, appeals the district court’s sua sponte dismissal of his putative class action for lack of subject matter jurisdiction. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court’s dismissal of a complaint for lack of subject matter jurisdiction. See Delgado v. Quarantillo, 643 F.3d 52, 54 (2d Cir.2011) (per curiam). In determining whether we have subject matter jurisdiction to consider a suit brought as a class action, we will treat it as such even though the district court has yet to certify the class. See Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 n. 7 (2d Cir.2000). The district court found that it lacked jurisdiction because Bank’s putative class action did not satisfy the amount in controversy requirement. The Class Action Fairness Act (“CAFA”) requires a party seeking entrance to federal court to demonstrate that the aggregate amount in controversy exceeds $5,000,000, exclusive of interest and costs. See 28 U.S.C. § 1332(d)(2) (2006); Blockbuster, Inc. v. Galeno, 472 F.3d 53, 56 (2d Cir.2006). Assuming that the general standards governing the amount of controversy requirement under 28 U.S.C. § 1332(a)(1) apply coextensively with those standards governing the CAFA, dismissal is warranted on that basis only if it “appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.” St. Paul Mercury *51 Indem. Co. v. Red Cab Co., 308 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); accord Tongkook Am., Inc. v. Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994) (discussing Red Cab Co., 303 U.S. at 288-89, 58 S.Ct. 586); see also Scherer v. Equitable Life Assurance Soc’y of U.S., 347 F.3d 394, 397 (2d Cir.2003); Zacharia v. Harbor Island Spa, Inc., 684 F.2d 199, 202 (2d Cir.1982). Based on our review of Bank’s complaint and the paucity of analysis by California courts of Section 17529.5(a)(3) of the California Business & Professional Code, Cal. Bus. & Prof.Code § 17529.5(a)(3) (West 2008), under which Bank brings this suit, we cannot say with a “legal certainty” that the amount in controversy in his class action is less than $5,000,000. See Tongkook, 14 F.3d at 785 (“Where the damages sought are uncertain, the doubt should be resolved in favor of the plaintiffs pleadings.”). We therefore VACATE the district court’s judgment and REMAND for further proceedings. 1 Footnotes [1] We express no view as to whether Bank's complaint should be dismissed on any other ground, including for the reasons articulated by defendant-appellee in its motion to dismiss, on which the district court declined to rule.