Thus, to establish minimal diversity under CAFA, Advance America must demonstrate that “any member of [the] class of plaintiffs is a citizen of a State different from any defendant.” 28 U.S.C. § 1332(d)(2)(A) (emphasis added). It cannot, however, demonstrate that the plaintiffs, who are South Carolina citizens, are citizens of a State different from Advance America. This is because Advance America is a citizen of South Carolina, even though it is also a citizen of Delaware. Because Advance America has South Carolina citizenship, it cannot carry its burden of demonstrating that the citizenship of the South Carolina class members is different from its own. The language of the statute imposes a requirement on Advance America to prove the negative-i.e. that it is not a citizen of South Carolina-and that it cannot do. 1 Accordingly, we reject its argument that its dual citizenship entitles it to rely on its Delaware citizenship to establish minimal diversity under CAFA. Renewable Envtl. Solutions, LLC, No. 07-5069-CV-SW-ODS, 2007 WL 2994348, at *3 n. 4 (W.D.Mo. ) (“The court does not agree with Defendant’s suggestion that minimal diversity exists unless a member of the class is a citizen of both Missouri and Delaware”). But see Fuller v. Home Depot Servs., LLC, No. 1:07-CV-1268-FLV, 2007 WL 2345257 (N.D.Ga. ) (reaching the opposite conclusion).
See Sundy v
Advance America also contends that the district court erred in “rejecting undisputed evidence establishing that minimal diversity on the Plaintiffs’ side exists.” As Advance America explains:
While Plaintiffs’ proposed class definition is purportedly limited to “citizens of South Carolina,” the Complaint does not define when such citizenship is to be determined. Advance America demonstrated to the district court that many of these individuals are now, and were at the time Plaintiffs filed their Complaint (the time relevant for determining diversity jurisdiction under CAFA), citizens of states other than South Carolina.
(Emphasis added). Advance America presented affidavits demonstrating that at least 19 customers had moved out of South Carolina and “resided” in 19 other States.
Johnson and Herbert respond that Advance America “mischaracterizes” the definition of the class they purport to represent by suggesting that it includes persons who were “at online payday MO any time a South Carolina citizen.” We agree.
As a result, under Plaintiffs’ proposed class definition, fairly read, Plaintiffs’ class contains any individual who (1) entered into a [payday loan] with Advance America and (2) was at any time a South Carolina citizen
The complaint defines three subclasses whom plaintiffs purport to represent, and each is defined as a group of “citizens of South Carolina.” For example, the class for injunctive relief defines the class as:
All citizens of South Carolina who are domiciled in South Carolina and who borrowed money from Defendant in the three years preceding the filing of the complaint or who will borrow money from Defendant in the future.
(Emphasis added). In short, each of the subclasses is defined as a group of South Carolina citizens who engaged in certain transactions or satisfy certain factual criteria. Thus, under the definition in the complaint, if one of Advance America’s customers had in fact established domicile outside of South Carolina before the complaint was filed, as Advance America’s affidavits suggest, 2 such customers would not be “citizens of South Carolina” at the time the complaint was filed and therefore would not be members of the proposed class. See 28 U.S.C. § 1332(d)(7) (providing that citizenship is to be determined as of the date of the complaint or other paper that first indicates the existence of federal jurisdiction).