The opinion of the court was delivered by: Matthew F. Kennelly, District Judge:
THIS DOCUMENT RELATES TO:
QUIN JACKSON & DAVID WHITWORTH, on behalf of themselves and a class of others similarly situated, Plaintiffs, v. SPRINT NEXTEL CORPORATION, Defendant.
MEMORANDUM OPINION AND ORDER
This case is one of around three dozen transferred to this Court by the Judicial Panel on Multidistrict Litigation (JPML) pursuant to 28 U.S.C. § 1407. Plaintiffs have sued Sprint Nextel Corporation (Sprint) for alleged violations of the section of the Kansas Unfair Trade and Consumer Protection Act dealing with antitrust violations, Kan. Stat. § 50-112.
Plaintiffs initially filed this case in Kansas state court. Sprint then removed the case to federal court. This Court subsequently granted plaintiffs' motion to remand the case to the District Court of Douglas County, Kansas, based on the "home-state exception" in 28 U.S.C. § 1332(d)(4)(B). See In re Text Messaging Antitrust Litig., Nos. 08 C 7082 & 09 C 2192 (MDL No. 1997), 2009 WL 2488301 (N.D. Ill. Aug. 13, 2009). On appeal, the Seventh Circuit reversed and remanded, instructing this Court to "give the plaintiffs another opportunity to prove that the proposed class satisfies the requirements of the home-state exception." In re Sprint Nextel Corp.,593 F.3d 669, 676 (7th Cir. 2010).
Following remand, the parties conducted jurisdictional discovery. Plaintiffs now move this Court a second time for remand to Kansas state court. For the reasons stated below, the Court grants plaintiffs' motion.
Plaintiffs' complaint alleges that Sprint, a Kansas corporation, conspired with other cell phone providers to impose artificially high prices for text-message service. Plaintiffs bring the suit on behalf of themselves and all individuals who purchased texting from Sprint or an alleged co-conspirator from January 1, 2005 to the present; had a Kansas cell phone number; received their cell phone bill at a Kansas mailing address; and paid a Kansas "USF fee." Plaintiffs exclude from the proposed class all government entities, as well as Sprint and its parents, affiliates, subsidiaries, officers, and directors.
Sprint removed the case to the United States District Court for the District of Kansas on the basis of the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. § 1332(d)(2). Pursuant to that provision of CAFA, federal courts have subject matter jurisdiction over "any civil action in which the matter in controversy exceeds the sum or value of $5,000,000 [and] . . . any member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2). The JPML transferred the case to this Court. This Court then held that it had subject matter jurisdiction over the case under section 1332(d)(2). See In re Text Messaging Antitrust Litig., 2009 WL 2488301, at *1-2.
Plaintiffs moved for remand of the case to Kansas state court based on the "home-state exception" in section 1332(d)(4)(B). Pursuant to that provision, a federal district court must decline jurisdiction if "two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in which the action was originally filed." 28 U.S.C. § 1332(d)(4)(B). Neither party disputed that Sprint, the sole defendant, is a Kansas citizen. To establish the Kansas citizenship of two-thirds of the proposed class members, plaintiffs relied on the fact that the class was defined to include only members with Kansas billing addresses and cell phone numbers. This Court held that plaintiffs had established eligibility for the home-state exception and granted the motion for remand. In re Text Messaging Antitrust Litig., 2009 WL 2488301, at *2-4.
On appeal, the Seventh Circuit reversed. In re Sprint Nextel Corp., 593 F.3d at 676. The Seventh Circuit held that "a court may not draw conclusions about the citizenship of class members based on things like their phone numbers and mailing addresses." Id. at 674. Instead, the Court clarified that plaintiffs could have established eligibility for the home-state exception through one of two approaches:
For starters, . . . they might have submitted evidence that two-thirds of the class members were indeed Kansas domiciliaries or businesses. Given that there are probably hundreds of thousands of putative class members, if not more, it would be infeasible to document each class member's citizenship individually, but the district court could have relied on evidence going to the citizenship of a representative sample. This evidence might have included affidavits or survey responses in which putative class members reveal whether they intend to remain in Kansas indefinitely, or, if they are businesses, their citizenship under the relevant test. 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 95 percent certainty, but any number greater than 50 percent would have allowed the district court to ...