UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BILL G. NICHOLS, on behalf of himself and all others similarly situated, Plaintiff - Appellant,

v. CHESAPEAKE OPERATING, LLC; CHESAPEAKE EXPLORATION, LLC, Defendants - Appellees. No. 18-6006 (D.C. No. 5:16- CV-01073-M) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BALDOCK , and BACHARACH , Circuit Judges.

________________ _________________ Bill Nichols appeals from a district cour t order denying his motion to abstain and remand to state court in this putative cla ss-action suit against Chesapeake Operating, LLC and Chesapeake Explora tion, LLC (collectively, “Chesapeake”). Exercising jurisdiction under 28 U.S.C. § 1453(c)(1), we affirm.

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### March 7, 2018
Elisabeth A. Shumaker Clerk of Court2 I Nichols is a royalty owner in Oklahom a natural gas wells owned in part or operated by Chesapeake. In Au gust 2016, he sued Chesapea ke in Oklahoma state court for underpayment or non-paymen t of royalties. He sought class certification of certain “Oklahoma Residents,” which he defined using a four-part test: Persons to whom, from January 1, 2015 to the date suit was filed herein, (a) Chesapeake mailed or sent each mont hly royalty check on an Oklahoma well to an Oklahoma address (includi ng direct deposit); (b) Chesapeake mailed or sent a 1099 for both 2014 and 2015 to an Oklahoma address; (c) the Settlement Administrator in F itzgerald Farms, LLC v. Chesapeake Operating, Inc., Case No. CJ-10-38, Beaver County, Oklahoma mailed or sent a distribution check and 1099 to an Oklahoma address; and[ ] (d) except for charitable institutions, were not subject to the Oklahoma Withholding Tax for Nonresidents on r oyalties paid in 2014 to the date suit was filed. Chesapeake removed the case to federal court based on the Class Action Fairness Act (“CAFA”), which grants district courts original jurisdicti on over class actions involving at least 100 proposed class members, more than $5,000,000 in controversy, and the presence of any plaintiff class member w ho is a citizen of a State different from any defendant. See 28 U.S.C. § 1332(d)(2)(A ), (d)(5)(B). In rega rd to citizenship, Chesapeake pointed out that its principal place of business is in Oklahoma, thereby making it an Oklahoma citizen, see § 1332(d)(10 ), and that there was a class member that met Nichols’ resident definition— Austin College, a Texas citizen. Nichols soon filed a motion arguing that CAFA’s home-state exception required the district court to remand the case to state court. This exce ption requires a district court to decline jurisdiction if “two -thirds or more of the members of all proposed plaintiff3 classes in the aggregate, and the primary defe ndants, are citizens of the State in which the action was originally filed.” § 1332(d)(4)(B). Nichols proffered evidence to show that at least two-thirds of the proposed class members shared Ches apeake’s Oklahoma citizenship, including the declaration of sta tistician Joseph Kadane, Ph.D., who randomly selected 100 royalty owners from “a spreadshee t containing 28,929 unique records of royalty owners paid from Okla homa wells and who have an Oklahoma address.” Of the 100 royalty owners comprising Kadane’s samp le, there were 13 trusts, 7 entities, and 80 individuals. To obtain citizenship in formation about those royalty owners, Nichols employed a marketing research firm and a private inves tigator. The research firm successfully surveyed 54 of the sample’s royalty owners. It asked individuals whether they considered themselves to be Oklahoma citizens and whethe r they planned to move from Oklahoma in the near future. And it asked businesses whether they were organized or headquartered in Oklahoma. The firm did not propose any questions about trustees or trust beneficiaries. Based on the survey results, Nichols’ coun sel determined that 95% of the sample’s royalty owners were Oklahoma citizens “becau se the data shows indicia of Oklahoma citizenship with no conflicting data of c itizenship elsewhere.” Based on that 95% determination, Kadane performed a statistical analysis and conclude d that “it is more likely than not that more than 67% of the members of the [entire] proposed plaintiff class are Oklahoma citizens.”4 The district court was not persuaded, finding three significant flaws in the evidence. First the district court noted that neither the su rvey data nor the skip-trace investigation provided informatio n as to the citizenship of tr ust beneficiaries or trustees— important components of a trust’s citizenship. 1 Second, the district court found that a number of individuals identifie d as Oklahoma citizens were actually deceased, with no information provided as to he irs’ citizenship. Finally, th e district court found that Nichols’ counsel had an “insufficient basis” for determining that some members of the random sample were Oklahoma citizens. 2 Accordingly, the district court denied Nichols’ motion to abstain and remand, finding he had not shown the applicability of CAFA’s home-state exception by a preponderance of the evidence. Nichols now appeals.
II We review de novo the district cour t’s interpretation of CAFA’s home-state exception to jurisdiction. See Woods v. Standard Ins. Co., 771 F.3d 1257, 1262 (10th Cir. 2014). “CAFA was enacted to re spond to perceived abusive practices by plaintiffs and their attorneys in litigating major class actions with interstate features in state courts.” Id. (quotation omitted). Th us, “once a defendant establishes [CAFA]

1 See Conagra Foods, Inc. v. Americol d Logistics, LLC, 776 F.3d 1175, 1181 (10th Cir. 2015) (expla ining that “[w]hen a trustee is a party to litigati on, it is the trustee’s citizenship that controls for purposes of diversity jurisdic tion” as long as the trustee is a real party in inte rest, and “[w]hen the trust itsel f is party to the litigation, the citizenship of the trust is derived from all the trus t’s ‘members,’” which “includes the trust’s beneficiaries”), aff’d sub nom. Americold Rea lty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016).

2 For instance, the skip-tr ace reports indicated that only 35 of the sample’s class members had Oklahoma driver’s licenses and that 37 members had nonOklahoma addresses.5 removal is proper, a party seeking remand to the state court bears the burden of showing jurisdiction in federal court is improper unde r one of CAFA’s exclusionary provisions.” Id. Because Nichols concedes the propriety of removal, he must show the applicability of a CAFA exception by a preponder ance of the eviden ce. See Mondragon v. Capital One Auto Fin., 736 F.3d 880, 884 (9th Cir. 2013) ; Vodenichar v. Halcón Energy Props., Inc., 733 F.3d 497, 503 (3d Cir. 2013); In re Sprint Nextel Corp., 593 F.3d 669, 673 (7th Cir. 2010); see also Dutcher v. Matheson, 840 F.3d 1183, 1189, 1190 (10th Cir. 2016). 3 “The preponderance of the evidence standard requir es the party with the burden of proof to support its position with the greater weight of the evidence.” Nutraceutical Corp. v. Von Eschenbach, 459 F.3d 1 033, 1040 (10th Cir. 2 006) (footnote omitted). Nichols contends that a rebuttable pres umption of citizenship arises from his allegation that the proposed class member s are Oklahoma residents. And because

3 Nichols suggests that in order to meet his burden, he must make only “some minimal showing” that at least two th irds of the proposed class members are Oklahoma citizens. Reece v. AES Corp., 638 F. App’x 75 5, 769 (10th Cir. 2016) (unpublished). In Reece, a panel of this court observed, in the context of CAFA’s local-controversy exception, 28 U.S.C. § 1332(d)(4)(A), that although “[s]everal of our sister circuits have re quired plaintiffs to establis h the elements of a CAFA jurisdictional exception by a preponderan ce of the evidence[,] [s]ome district courts[ ] . . . have require d less proof, embracing a reasona ble-probability standard or something akin to it.” 638 F. App’x at 768 (emphasis added; citations omitted). The Reece panel declined to embr ace either approach, and in stead selected a burden it found common to both, which, as Nichols posits, requires “some minimal showing of the citizenship of th e proposed class at the time th at suit was filed.” Id. at 769 (quotations omitted). We conclude, however, that a mo re definitive standard is warranted, and we choose to follow our sib ling circuits in their use of the more exacting preponderance-of-the-e vidence standard. That sta ndard is consistent with the “strong preference that in terstate class actions should be heard in a federal court if properly removed by any defendant.” Dutcher, 840 F.3d at 1190 (quotation omitted).6 Chesapeake did not offer evid ence that more th an one-third of the proposed class members are not Oklahoma residents, Nichol s says, the district court was required to abstain. To support this contention, he c ites the Sixth Circuit’s majority opinion in Mason v. Lockwood, Andrews & Newnam, P. C., 842 F.3d 383 (6th Cir. 2016), cert. denied, 137 S. Ct. 2242 (2017). The Maso n majority reasoned that because “the law affords a rebuttable presumption that a person’s residence is his domicile,” id. at 390, and because state citizenship is based on domicile, citizensh ip could be presumed from residence—a transitive propositi on (i.e., if A = B and B = C, then A = C). The majority stated that this propositi on was compelling from a policy standpoint: “Affording the moving party a rebuttable presumption of c itizenship based on residency avoids the exceptional difficulty of proving the citizenship of a class of over 100 individuals, given the nature and timing of the citizenship inqui ry under the local controversy exception.” Id. at 392-93. The dissent pointed out that triggeri ng a CAFA exception based on the mere allegation of residence conflicted with the fe deral courts’ “strict duty to exercise the jurisdiction that is conferred upon them by Congress.” Id. at 397 (Kethledge, J., dissenting) (quotation omitted). And given that ab stention had long been considered “an extraordinary and narrow excep tion to that duty,” id. (q uotation omitted), the dissent concluded the better approach was to follow othe r circuits and require “at least some facts in evidence from which the district cour t may make findings regarding the class members’ citizenship.” Id. at 397-98 (quotation omitted). It cited, among other cases, the Tenth Circuit’s unpublished decision in Reece v. AES Corp., in which a panel of this7 court applied in the CAFA-exception context the longstanding view that “allegations of mere residence may not be equated with citizen ship.” 638 F. App’x at 769 (unpublished) (quotations omitted). Thus, the Reece panel sa id, such allegations must be accompanied by “some persuasive substantive evidence (extrinsic to the amended petition) to establish the [requisite] citizen ship of the cla ss members.” Id. The Eighth Circuit has similarly “rea d the historical citizenship/residency distinction into” the CAFA ma ndatory exception statute and rejected the assertion that “presumptions alone may tran sform a challenged allegati on of residency into the establishment of citizenship.” Hargett v. RevClaims, L.L.C., 854 F.3d 962, 966 & n.2 (8th Cir. 2017) (citing Mason, 842 F.3d at 39 7-99 (Kethledge, J., dissenting); Reece, 638 F. App’x at 769-70; and Mond ragon, 736 F.3d at 884). We agree with the dissent in Mason, this court’s non-precedential decision in Reece, and the other circuits that reject th e applicability of a rebuttable presumption of citizenship in the context of a CAFA exception invoked base d on the mere allegation of residence. There is a “strong preference that in terstate class actions should be heard in a federal court if properly removed by any de fendant.” Dutcher, 840 F.3d at 1190 (quotation omitted). Further, “[a]n individual’s residence is not equivalent to his domicile and it is domicile that is relevant fo r determining citizenship .” Siloam Springs Hotel, L.L.C. v. Century Sur. Co., 781 F. 3d 1233, 1238 (10th Cir. 2015); see, e.g., Bingham v. Cabot, 3 U.S. (3 Dall.) 382, 383 (1798) (“A citizen of one state may reside for a term of years in another state, of which he is not a citizen; for, citizenship is clearly8 not co-extensive with inhabitancy.”). 4 Congress no doubt “mean [t] to incorporate the established meaning of these terms,” NLRB v. Amax Coal Co., 453 U.S. 322, 329 (1981), into the CAFA exceptions premised on “citizensh ip,” 28 U.S.C. § 1332(d)(4). See Hargett, 854 F.3d at 966. We therefore turn to the evidence Nichols submitted to show that two-thirds or more of the prop osed plaintiff class members were Oklahoma citizens.
III We review for clear error the district court’s factual findings concerning the applicability of CAFA’s home-state exception. See Mondragon, 736 F.3d at 886; see also Middleton v. Stephenson, 749 F.3d 1197, 1201 (10th Cir. 2014) (indicating that domicile and citizenship findings are review ed for clear error). Under the clear-error standard, “we may reverse only if the district court’s finding lacks factual support in the record or if, after reviewing all the evidence, we have a definite an d firm conviction that the district court erred.” Middleton, 749 F.3d at 1201. Nichols maintains that he provided en ough evidence of the putative class members’ Oklahoma citizenship to require remand. He presented business records provided by Chesapeake of its royalty ow ners along with their Oklahoma addresses; identified class members as being exempt fro m non-resident withholding tax; selected a representative sample of class members and obtained citizenship da ta on those members;

4 Domicile requires both residence in a State and intent to remain there indefinitely. Middleton v. Stephenson, 749 F.3d 1197 , 1200 (10th Cir. 2014).9 and employed a statistician to draw conclusi ons about the composition of the class based on a random sample. Further, he stresses that his evidence was unrebutted. We acknowledge the significant effort Nichol s employed to show that at least twothirds of the class members sh ared Chesapeake’s Oklahoma citiz enship. But we note that the need for this evidence was of Nichols’ ow n making: he chose to define the class in terms of residence rather than citizenship. Se e In re Sprint Nextel Corp., 593 F.3d at 676 (stating that CAFA’s home-sta te exception would have been satisfied had the plaintiffs simply limited the class to Kansas citizens because “it doesn’t take any evidence to establish that Kansas citizens make up at least two-thirds of the member s of a class that is open only to Kansas citizens”). By defining the class in terms of residence, Nichols saddled himself with an ev identiary burden, one which he sought to meet through admittedly imperfect evidence. In particular, Kadane reached his conclusi on that two-thirds or more of the class members are Oklahoma citizens by extrapolati ng from a flawed sample. As the district court observed, trusts—which make up near ly 15% of the sample —were not properly accounted for. Further, the sample include d deceased individuals without providing further identifying citizenship information. And finally, the district court alluded to information in the skip-trace re ports inconsistent with Oklahoma citizenship for some of the sample’s members. Nichols does not di spute these problems or otherwise explain how Kadane’s evidentiary extrapola tion remains statistically viable. Given the clear-error standard of review , we must affirm the district court’s conclusion that Nichols failed to prove at leas t two-thirds of the proposed plaintiff class10 members were Oklahoma citizens by a preponderan ce of the evidence. The district court, therefore, properly determined that CAFA ’s home-state exception to exercising jurisdiction did not apply.
IV AFFIRMED

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Entered for the Court

Carlos F. Lucero Circuit Judge