### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-40820

TONI HOLLINGER; BERTHA JOHNSON; FERNANDO DELUNA; NORMA H O LD E R ; SANDRA DUPLANT; PATRICIA RANDOLPH; PLAINTIFF CLA S S ; ALL PLAINTIFFS, Plaintiffs - Appellants
v. HOME STATE MUTUAL I N SURANCE COMPANY; OLD AMERICAN COUNTY MUTUAL FIRE INSURANCE COMPANY; CONSUMERS COUNTY MUTUAL INSURANCE COM PANY; SOUTHERN COUNTY MUTUAL I N S U RAN C E C O MPANY; AFFIRMATIV E I N S U RAN C E C O M PANY ; AMERICAN CENTURY CASUALTY COMPANY; AMERICAN HAL LMARK INSURANCE COMPANY OF TEXAS; AMERICAN INTERNATIONAL INSURANCE COMPANY; DIRECT GENERAL INSURANCE C O MPANY; D O RI NCO RE-INSURANCE COMPANY; FIRST ACCEPTAN C E I N S URAN C E COMPANY; GENERAL INSURANCE COMPANY OF AMERICA; IMPERIAL FIRE AND CASUALTY INSURANCE COMPANY; INTEGON NATIONAL INSURANCE COMPANY; MENDOTA INSURANCE COM PANY; MIDDLE STATES INSURANCE COMPANY; NATIONAL GENERAL INSURANCE COMPANY; REPUBLIC UNDERWRITERS INSURANCE COMPANY; TITAN INDEMNITY COMPANY; TRANSATLANTIC RE-INSURANCE COMPANY; UNITED AUTOMOBILE INSURANC E C OMPANY; YOUNG AMERICA INSURANCE COMPANY, Defendants - Appellees ODYSSEY AMERICA REINSURANCE CORPORATION, Defendant - Appellee

Appeal from the United States District Court for the Eastern District of Texas U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Sep tem ber 6 , 20 11 Lyle W . Cayce Clerk Case: 10-40820 Document: 00511593162 Page: 1 Date Filed: 09/06/2011No. 10-40820

Before REAVLEY, GARZA, and GRAVES, Circuit Judges. PER CURIAM: Plaintiffs, appellants and cross appellees Toni Hollinger, Bertha Johnson, Fernando Deluna, Norma Holder, San d ra Duplant, and Patricia Randolph, as class representative s (c o l l ectively “the Insured”), filed this class action case alleging violations of the Texas Insurance Code

. The Insured allege insurance dis c rimination in the non-standard insurance market, which serves lower income individuals and those drivers with less than ideal driving records. The defendants and appellees are Home State County Mutual Insurance Company (misnamed as “Home State Mutu al I n s ur anc e C o m p any” in th e di s trict court), Old American County Mutual Fire Insurance Company, Consume r s County Mutu a l I nsurance Company, Southern County Mutual Insurance Company, Affirmative Insurance Company, American Century Casualty C o m p a ny, American Hallmark Insurance Company of Texas, American International Insurance Company, Direct G e n e r al Insurance Company, Dorinco Re-in s urance Company, First Acceptance Insurance Company, General Insurance Company of America, Imperial Fire and Casualty Insurance Co m p any, Integon National Insurance Company, Mendota Insurance Company, Middle States Insurance Company, National General Insurance Company, Republic Underwriters Insurance Company, Titan Indemnity Company, Transatlantic Re-Insurance Company, United Automobile Insurance Company

a n d Young America Insurance Company, as well as defendant, appelle e a n d

cross appellant Odyssey America Reinsurance C o m pany (collectively “the 1 Insurance Companies”). The jurisdictional basis for the district cour t ’ s o riginal jurisdiction was diversity of citizenship pursuant to the Class Action Fairness Act (“CAFA”), 28

Und er 5th Cir. R. 42(b ), the cro ss -ap pea l of Od yss ey Ame ric a Reins uranc e Com pany 1
wa s dis mi ss ed as of Apri l 6 , 2011, p urs uant to the jointm oti on of the par tie s. 2 Case: 10-40820 Document: 00511593162 Page: 2 Date Filed: 09/06/2011No. 10-40820

U.S.C. § 133 2 ( d). The Insurance Companies each moved to dismiss the case based on the “local controversy” and “home state” m a n d a tory abstention provisions of CAFA, 28 U.S.C. § 1332(d)(4). The litigants have asked this court to consider the following issues: I. Whether the district court erred when it found that t h e Insurance Com p a n i e s p roved, by a preponderance of the evidence, that at the time the lawsuit was filed on Au gu s t 17, 2009, more than two-thirds of the members of the Insured classes were citizens of the Unit ed States or perman e n t aliens, for purposes of determining mandatory abstention pursuant to CAFA, 28 U.S.C. § 1332(d)(4). II. Whether the district court e r red when it found that the Insurance Companies proved, by a preponderance of the e vi d e n c e , that at the time the lawsuit was f

i l e d on August 17, 2009, more than two-thirds of the members of the Insured c lasses were domiciled in and citizens of Texas, for the purposes of determining mandatory abstention pursuant to CAFA, 28 U.S.C. § 1332(d)(4). This court finds no reversible error. We AFFIRM.

I. ESSENTIAL BACKGROUND The Insured’s operative complaint defines their proposed class as: All persons who p urchased an automobile insurance policy in Texas of [one of the County Mutual insurance 2 companies] and whose policies were in effect on or after August 17, 2007 up to the date of judgment, specifically excluding all federal district and magistrate judges of the Eastern District of Texas and members of th e ir immediate families, Class Counsel and the directors, officers, and the employees of the defendants . . .

The County Mut uals are: H o m e S t ate County Mut ual Insur ance Com pany, Ol d 2 Ame ric an County Mut ual F i r e Insur ance Com pany, Cons ume rs County Mut ual Insur ance Com pany and Sout hern County Mut ual Insur anceCom pany. 3 Case: 10-40820 Document: 00511593162 Page: 3 Date Filed: 09/06/2011No. 10-40820

The Insured allege that various County Mutuals have violated the a n t i

d i s c r i m ination provisions of Section 544.052 of the Texas Insurance Code , by charging certain consumers higher policy fees on their automobil e i n s u rance than they charged other consumers, w h e n th o se consumers were of the same class and hazard. The Insure d a l s o allege that the Reinsurers , which the 3 Insured define as the Insurance Companies other than the County Mutuals, have participated in and permitted such violations of the Texas Insurance Code

. The Insured assert diversity subject matter jurisdiction pursuant to CAFA, 28 U.S.C. § 1332(d)(2). The In s u r ance Companies prevailed at the trial court on motions to dismiss on the grounds that CAFA’s “local controversy” and “home state” exceptions required th e di s trict c o urt to ab s t ain f ro m j urisdiction pursuant to 28 U.S.C. § 1332(d)(4), which is the crux of this case. 4 II. STANDARD OF REVIEW “This court reviews legal issues de novo .” Harris v. Trustmark Nat'l Bank , 287 Fed. Appx. 283, 293 (5th Cir. 2008). This court reviews the district court’s factual findings as to the citizenship of parties for clear error. Preston v. Tenet Heal t h sy s tem Medical Memorial Center, Inc

. (“Preston I ”), 485 F.3d 793, 795

The Reins urer s are: Aff irm a t iv e Insur ance Com pany, Ame ric an Centur y Casua lty 3 Com pany, Ame ric an Ha llm ark Insur a n c e C om pany of Texas , Ame ric an Inter natio nal Insur ance Com pany, Di rec t Ge nera l Insur ance Com pany, Do rinc o Re-Ins ur a n c e Com pany, Firs t Acce pt ance Insur ance Com pany, Ge nera l Insur ance Com pany of Ame ric a, Imp eria l Fire and Casua lty Insur ance Com pany, Integon Nat ional Insur ance Com pany, Me ndot a Insur ance C om pany , Mi ddle States Insur ance Com pany, Nat ional Ge nera l Insur ance Company , R ep ub lic Und erw rit ers Insur ance Com pany, Titan In d em nity Com pany, Trans atla ntic Re-Ins uranc e Com pany, Unit ed Automo bile I nsur ance Com pany, Yo ung Ame ric a Insur ance Com pany and Od yss ey Am eric a Re ins uranc e Co mp any. All of the Insur a n c e Com pani es (s ave and excep t for Cons ume rs County Mut ual 4 Insur ance Com pany (“ Cons ume rs ”) ) do not chall enge subject mat ter juris dic tio n bas ed on the requ ired $5,0 00,0 00 juris dic tio nal amo unt in cont rover sy em bod ied in 28 U. S. C. § 1332( d) (2)

. On ly Cons ume rs chall enged wh ethe r the juris d i c t i o n al amo unt wa s me t, and bas ed on cir cum st ance s applic able to it alone , Cons ume rs pr evaile d on that iss ue at the dis tri ct cour t. On app eal to this cour t, the Insur ed do not chall enge the dis mi ss al of Cons ume rs on the bas is of the juris dic tio nal amo unt. 4 Case: 10-40820 Document: 00511593162 Page: 4 Date Filed: 09/06/2011No. 10-40820

(2007) (citing Coury v. Prot , 85 F.3d 244, 249 (5th Cir. 1996)). The standard of review is whether th e d i s t r i c t court clearly erred in making its decisions with respect to the citizenship of the members of the plaintiff class. Preston , supra , 485 F.3d a t 796. Clear error exists when “although there may be evidence to support it, the reviewing court on the entire [record] is left with the definite and firm conviction that a mistake has been committed.” Id

. at 796- 9 7 ; Campos v. City of Baytown, Tex ., 840 F.2d 1240, 1243 (5 th Cir. 1988) (citing Anderson v. th City of Bessemer , N.C., 470 U.S. 564, 573 (1985); see also Sheffield v. Itawamba County Bd. of Supervisors , 439 F.2d 35 (5th Cir. 1971) (motion to dismiss class action). This court also recognizes “the inherent power of the court to protect its jurisdiction and judgments and to control its docket." Far g u s o n v . MBank Houston, N.A. , 808 F.2d 358, 360 (5th Cir. 198 6). III. ANALYSIS A. Class Action Fairness Act C AFA greatly expands federal jurisdiction over interstate class action 5 lawsuits. In re Katrina Canal Litig. Breaches, 524 F.3d 700, 711 n. 47 (5th Cir.2008) ; Preston v. Tenet Healthsys. Mem'l Me d

. Ct r . , Inc. (“Preston II ”) , 485 F.3d 804, 810 (5th Cir.2007) ; Werner v. KPMG, L.L.P., 415 F.Supp.2d 688, 691 (S.D.Tex.2006)

. CAFA accords subject matter jurisdiction for certain cases with at least minimal diversity of citizenship:

(2) The d i strict courts shall have original jurisdiction of any civil action in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, and is a class action in which–

“Bec aus e inters tate clas s act ions typi call y involve mo re peo ple , mo re mo ney, and mo re 5 inte rs tat e com me rce ram ifi cat ions than any othe r type of laws uit, [Congr es s] fir ml y belie ves that s u c h cas es pr ope rly belon g in fed eral cour t. ” S. REP. NO

. 109- 14, at 4 (200 5) , as re pr inte d in200 5 U .S. C. C. A. N. 3, 5
. 5 Case: 10-40820 Document: 00511593162 Page: 5 Date Filed: 09/06/2011No. 10-40820 (A) any member of a class of plaintiffs is a citizen of a State different from any defendant; (B) any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any defendant is a citizen of a State; or (C) any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state. 28 U.S.C. § 1332(d)(2).
Accordingly, CAFA grants the federal courts original jurisdiction to hear interstate class actions where: (1) the proposed class contains

more than 100 members; (2) minimal diversit y exists between the parties ( i.e., at least one plaintiff and one defendant are from different states); (3) the amount in c ontroversy exceeds $5,000,000; and (4) the
p r i ma ry d e f

e n d a nt s a r e n o t s t at e s , s t ate officials, or other governmental entities. 28 U.S.C. § 1332(d)(2) , (5); see also I n re Katrina Canal Litig. Breaches, supra , 524 F.3d at 706 ; Preston II, s u p ra , 485 F.3d at 810 ; Werner , supra , 415 F.Supp.2d at 691

. B. “Local Controversy” and “Home State” Exceptions to CAFA Indeed , t h e law is not complete without its exceptions. CAFA requires federal courts to decline jurisdiction over a proposed class action if either of the following narrow exce p t i o n s is proven by a preponderance of the evidence: (1) the local controversy exception, 28 U.S.C. § 1332(d)(4)(A); or (2) the home state exception, 28 U.S.C. § 1332(d)(4)(B). The CAFA mandatory abstention provisions are "designed to draw a delicate b a l ance between making a federal forum available to genuinely national litigation and allowing the state courts to retain cases when the controversy is strongly linked t o that state." Hart v. FedEx Ground Package Sys., Inc. , 457 F.3d 675, 682 (7th Cir. 200 6). (1) “Local Controversy” Mandatory Abstention

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Pursuant to the “local controversy” mandatory abstention provision of CAFA, the district court “shall decline to exercise jurisdiction”:

(i) over a class action in which- (I) greater than two-thirds of the member s o f all proposed plaintiff classes in the aggregate are citizens of the State in which the action was originally filed; (II) at least 1 defendant is a defendant- (aa) from whom significant relief is sought by members of the plaintiff class; (bb) whose alleged conduct forms a significant basis for the claims asserted by the proposed plaintiff class; and (cc) who is a citizen of the State in which the action was originally filed; and (III) pri n c i pal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed; and (ii) during the 3-year period preceding the filing of that class action, no other clas s a ction has been filed a s serting the same or similar factual allegatio n s against any of the defendants on behalf of the same or other persons. 28 U.S.C. § 1332(d)(4)(A). “Congress crafted CAFA to exclude only a narrow category of truly localized controversies, and the e x c eptions provide a statutory vehicle for the district c o u r t s to ferret out the controversy that uniquely affects a particular locality to the exclusion of all others.” Preston II , 485 F.3d at 823 (citing Evans

v. Walter Indus., Inc. , 449 F.3d 1159 (11th Cir. 2006)) (internal quotes omitted). (2) “Home State” Mandatory Abstention CAFA’s “home state” mandatory abstention provision states: (4) A district court shall decline to exercise jurisdiction under paragraph (2) [over a class action in which]-- (B) two-thir d s o r more of the members of all proposed plaintiff classes in the aggregate , a nd the primary defendants, are citizens of the State in which the action was originally filed. 28 U.S.C. § 1332(d)(4)(B).

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In other words, the home state mandatory abstention provision prevents

a federal district c o urt from exercising subject matter jurisdiction when “twothirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State in w h ich the action was originally filed.” 28 U.S.C. § 1332(d)(4)(B). C. Burden of Proof and Evidentiary Standard under CAFA Jurisdictional determinations “should be made largely on the basis of readily available information.” S. REP. NO. 109-14, at 44; accord Abrego Abrego

v. The Dow Chem. Co., 443 F.3d 6 7 6 , 6 92 (9th Cir.2006); Hirschbach v. NVE Bank, 496 F.Supp.2d 451, 460 (D

. N

. J

. 2 0 07). “The court has wide, but not unfettered, discretion to determine what evidenc e t o use in making its determination of jurisdiction.” Coury , supra , 85 F.3d at 249; accord Preston II, 485 F.3d at 817; see, e.g., Preston v. Tenet Healthsys. Mem'l Med. Ctr., Inc., 463 F.Supp.2d 583, 592-93 (E.D.La.2006) (district court ordere d the defendants to produce additional evidence regarding the citizenship of the putative class). This court has held that the party objecting to C A FA jurisdiction must 6
prove that the CAFA exceptions to federal jurisdiction divests the district court of subject matter jurisdiction. Preston II , supra , 485 F.3d at 813

- 1 4 ; s e e a lso Serrano v. 180 Connect, Inc ., 478 F.3d 1018, 102 4 ( 9 t h Cir. 2007); Frazier v. Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir. 2006). H e r e , the Insurance Companies bore the burden of proof as to each element of the “local controversy” and “home state” mandatory abstention provisions of CAFA. See , e.g ., Preston II , 485 F.3d at 813. Since both of the two mandat o ry ab s t e n t ion provisions

In the pr es ent instan ce, the I nsur ed originally fil ed their com plai nt in fed eral cour t, 6
so the In s u r a n ce Com pani es did not fil e mo tio ns to rem and to st ate cour t lik e in Pres ton II , but ins tead , the Insur ance Com pani es fil ed mo tio ns to dis mi ss . Never thel es s, the sam e re a s o n i n g app lies

. Altho ugh a mo tio n to rem and to st ate cour t and a mo tio n to dis mi ss are not the sam e, the net re sul t hereis the s ame– the rem oval of thecasefrom fede ral co urton the theo ry t hat it is a “ loca l c ontr overs y” or “hom e s tat e” in natur e. 8 Case: 10-40820 Document: 00511593162 Page: 8 Date Filed: 09/06/2011No. 10-40820

require proof, by a preponderance of the evidence, that two-thirds or more of the members of the proposed class are citizens of the state where the action is filed, the dispositive issue here is whether the Insurance Companies proved the “twothirds element” of the CAFA mandatory abstention p r o vi s i o ns by a preponderance of the e vi d e nce. See 28 U.S.C. § 1332(d)(4)(A)(i)(I); 28 U.S.C. § 1332(d)(4)(B). D. Proving Citizenship: Residence and Intention to Remain

“In determining diversity jurisdiction, the state where someone establishes his domicile serves a dual function as his state of citizenship. A person’s state of domicile p r e s u m p tive ly c ontinues unless rebutted with s uf f ici e nt e vi d e n c e o f c h a n g e . D o m i c i l e r e q u i r e s t h e demonstration of two facto r s : residence and the i n t ention to remain.” Preston I , 485 F.3d at 797-98 (internal cites omitted).
Evidence of a person's place of residence, however, is prima facie proof of his domicile. Preston I, 485 F.3d at 799 (citing Stine, 213 F.2d at 448); Martin, 548 F.Supp.2d at 273 n. 22. Furthermore, once established, “[a] person's state of domicile presumptively continues unless rebutted with sufficient evidence of change.” Preston I, 485 F.3d 798; see also Acridge, 334 F.3d at 448. Here, the Insurance Companies moved to dismiss the Insured’ class action based on the “local controversy” and “h o m e s tate” mandatory abstention exceptions to CAFA diversity jurisdiction pursuant to 28 U.S.C. § 1332(d)(4)(A)- (B). The only elements at issues are whether “greater than two-thirds” (28 U

. S .C. § 1332(d)(4)(A)(i)(I)) or “two-thirds or more” (28 U.S.C. § 1332(d)(4)(B) ) of the members of all of the proposed Insured’s classes are citizens of Texas and the United States. 1. Preponderance of the Evidence – Residence in Texas U n i t e d States census data is an appropriate and frequent subject o f judic i a l n o t i c e . See United States v. Esquivel , 88 F.3d 722, 726-27 (9th Cir.

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1996) ; see also Bennett v. Board of Commissioners for East Jefferson L e vee District, 2007 WL 2571942, *4-5 (E.D.La. 2 0 0 7 ) (using United States Census Bureau data in CAFA analysis); O’Toole v. Northrop Grumman Corp ., 499 F.3d 1218, 1225 (10th Cir. 2007) (concluding that the failure to take judici a l notice

was an abuse of discretion when t he party opposing judicial notice did not dispute its accura c y a n d did not request a hearing on the appropriateness of judicial notice); In re Sprint Nextel Corp. , 593 F.3d 669, 675 -76 (7th Cir. 2010) (surveys of a representative sample of the proposed class might be s u f ficient evidence). Here, the district court took judicial notice that the relocation rate of A m erican citizens of all ages and races out of Texas was about 5.2% betwe e n 2007 and 2009 – the relevant time period. Unit e d States Census Bureau Statistics / Estimates 2006-08 (excerpt), Appendix 3

. In addition, a sma ller percentage of people move out o f Texas than from any other state. See Pew Research Center R e p o rt, American Mobility. Who Stays Put? Where's Home? Social & Demographic Trends(December 17, 2008). Appendix 1, Appendix 2. The Insurance Companies put forth further statistical support showing by

a p reponderance of the evidence — i.e. , that it is more likely than n o t

— t h a t greater than two-thirds of the members of all p r oposed plaintiff classes in the aggregate are citizens of Texas an d o f t h e United States. For example, more than 99% of the automobiles that the County Mutuals i n s u r e are located in Texas. Also, only about 11% of Texas residents are not United States citizens. Al th o u gh the Insurance Companies’ statistics about Texas residents are not specifi c to the Insured, these statistics are nonetheless probative, particularly in the absence of any contrary showing by the Insured. Cf. Caruso , supra , 469 F. Supp. 2d at 368 (“Although there well may be proposed classes where detailed proof of the two-thirds citizenship requirement is required, the Court finds that

common sense should prevail in this closed-end class involvi n g p e o ple who, as noted, hold an asset that is a measure of domicile, their home.”); see also Coury , 10 Case: 10-40820 Document: 00511593162 Page: 10 Date Filed: 09/06/2011No. 10-40820

supra , 85 F.3d at 251(noting that factors for determining domicile in c lude “places where the litigant . . . owns real and personal property”). Even more so, the anti-discriminati o n provision of the Texas Insurance Code is the st a t u t o ry basis for this action. Likewise, the Insured limit their proposed class to “persons who pu r c h a s ed an automobile insurance policy in Texas. ” Indeed, the principal injuries resulting from the alleged conduct or any related conduct of each of the Insurance Companies occurred in Texas. A d d itionally, the County Mutuals are citizens of Texas and only is s u e policies in Texas. The County Mutuals are the primary defendants, because all putative class members, by definition, have claims against the County Mutuals, and as the entities that issued the insurance policies, the County Mutuals have

a primary role in the alleged discrimination. A preponderance of the evidence (statistical and otherwise) thus sho w s t h a t the Insured’s proposed class were domiciled in Texas at the time the complaint was filed. 2. Preponderance of the Evidence – Intention to Remain in Texas The evidentiary standard for establishing citizenship and domicile at this preliminary stage must be practical and reasonable:

The requisite showing under CAFA prompts this court to reconcile congressional intent, our precedent f o r determining citizenshi p , and judicial economy. Thus, the evidentiary standard for establishing the do m icile of more than one hu ndred plaintiffs must be based on practicality and reasonableness. Preston II , supra , 485 F.3d at 813.
Citizenship, f

o r p u rposes of proving an exception to CAFA, must be analyzed as of the date the complaint or amended complaint was filed. 28 U.S.C. § 1332(d)(7); Preston I, 485 F.3d at 798; Martin v. Lafon Nursing Facility, 548 F.Supp.2d 268, 271 (E.D.La.2008). In Joseph v. Unitrin , Inc

. (“ Unitrin”), 2008 WL 3822938, *1 (E.D.Tex.), the

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district court addressed whether a claim against insurers for cancellation of insurance coverage f

o r “ dw e llin g s , ho u s eho l d go o d s , an d w earing apparel” should be remanded to state c o u r t. The class action plaintiffs in Unitrin , like the I n surance Companies here, argued that the “local controversy exceptio n” to cl a s s action diversity jurisdiction, 28 U.S.C. § 1332(d)(4)(A), prevented the court from exercising jurisdiction because greater than two-thirds of the proposed class members were citizens of Texas. Unitrin , supra , at 2. The insurance companies i n Unitrin responded that the insured had failed to offer sufficient proof th a t

more than two-thirds of the pr o p o s e d c l a ss members were Texas citizens. Id

. In Unitrin , the court analyzed the evidence of citizenship and noted that the proposed class was made up of Texas residents who are policyholders whose policies wer e c a n celled and there was no evidence of a “mass exodus of more than one-third” of the proposed class from Texas during the applicable time period. Id. The court also noted that one of the insurer d efendants, like the County Mutuals here, was l i m i ted by Texas law to writing homeowners insurance only in Texas. I d

. T h e court reasoned that “[b]ecause the putative class members are alleged to be Texas residents, logic dictates that their homes, and by extension, their domicile, remain in Texas.” Id

. The court further noted that because the policies cover both the residence and the household affects, “it

can be assumed that the members of the putat iv e c l a s s own both real and personal property in Texa s . ” Id

. Ultimately, the court held that “[i]n light of these factors and the discrete nature of the proposed class, [the class action plaintiffs] need not produce additional evidence in order to demonstrate that more than two-thirds of the potential plaintiffs are Texas citizens.” Id

. Like the class action plaintiffs in Unitrin , the Insurance Companies here produced evidence of (1) insurance of personal property (motor vehicles – likely garaged at the residence of the owner) located in Texas and (2) a u t h o r i t y o f county mutual insurers under Texas l aw to write auto insurance only for

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vehicles located i n T e x a s . See Tex. Ins. Code § 912.151 (“A county insurance
company that qualifies for statewide operation may write all lines of automobile insurance.” (Emphasis added.).) Additionally, the courts have acknowled ged that where a proposed class is discrete in nature, a common sense presum p t ion should be utilized in determining whether citizenship requirements have been met. See Be n nett, 2007 WL 2571942, at *4; Caruso, 469 F.Supp.2d at 368. For example, in Caruso, the plaintiff

s s o u ght to r e present a class that included all Louisiana homeowners

w h o had purchased homeowner's policies from one of six insurance com p a n i e s named as defendants to the action. Id. at 367. Because owning a home is an indicium of a person's domicile, the court held that the plaintiff's own

c h a racterizations of the class, particularly plaintiffs' assertions that t h e y represe n ted a class of individuals covered by homeowner's policies for homes located in Loui s iana, created a reliable presumption that the class was comprised of Louisiana citizens. Id .; Dunham v. Coffeyvil le Res., L.L.C., 2007 WL 3 2 8 3 774, at *3 (D.Kan. Nov.6, 2007) (finding that plaintiffs' characterization of class as “residents, domiciliaries, and property owners of Coffeyville, Kansas” demonstrated its local nature). The Insured, more likely than not (or by a preponderance of the evidence), garaged their cars in Texas. Registering a motor vehicle and insuring it in Texas is some evidence of an intent to remain in Texas – at least for a while. Unlike owning a second home, a vehicle owner is more likely than not inclined to wait until actual relocation to register and insure a vehicle. The I n sured produced

no evidence that any potential class member intended to establish a domicile outside of Texas. Based on the statistical evidenc e produced by the Insurance Companies, the district court correctly concluded that two-thirds or more of the Insured’s proposed class of insurance policy holders were citizens of Texas with both residency and the intention to remain in Texas, by a preponderance of the

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evidence, at the time the Insured filed their complaint. IV. CONCLUSION In summary, t h e underlying case presents questions of Texas state law regard i n g i n surance policies issued for automobiles in the state of Texas by Texas County Mutuals to Texas citizens. The Insured’s case does not appear to be national litigation, s o the spirit and intent of CAFA are not fulfilled. This court c o n c l u des that the district court properly applied the “local controversy” and “home state” mandatory abstention pr o vi sions to CAFA diversity jurisdiction. For the foregoi n g r e asons, the judgment of the district court is AFFIRMED.

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