Plaintiffs filed a state court class action against the Golden Gate Transportation District, the Bay Area Toll Authority and Conduent, the private entity that collects bridge tolls under contract with the other two defendants for violating California’s privacy laws by sharing personal identification information with unauthorized third parties. Conduent removed under CAFA. This decision affirms remand under the local controversy exception to CAFA jurisdiction, finding that the no-prior-action requirement of 28 USC 1332(d)(4) (“no other class action “asserting the same or similar factual allegations against any of the defendants” has been filed within three years prior to the present action”) was satisfied because, though Kelly had filed and dismissed without prejudice a similar class action a year earlier, she joined Kendrick as a co-plaintiff in this action, effectively making this action a continuation of her prior dismissed suit. (The dissent disagrees, as did the district court.) The majority does not decide the more interesting issue of whether Conduent can be treated as a state entity for purposes of 28 U.S.C. § 1332(d)(5)(A)’s exception to CAFA jurisdiction for cases in which “the primary defendants are States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief” by the Eleventh Amendment. However, the majority does point out that the district court erred in analyzing that issue according to standards developed under 42 USC 1983. Instead, the issue is properly analyzed under tests developed to determine whether an entity can claim Eleventh Amendment immunity from suit in federal court. See Beentjes v. Placer County Air Pollution Control Dist. (9th Cir. 2005) 397 F.3d 775, 778.
Ninth Circuit Court of Appeals (Schroeder, J., sitting by designation; Watford, J., dissenting); December 13, 2018; 910 F.3d 1255