United States Court of Appeals

for the Fifth Circuit

No. 21-90028

Taylor Madison; Angie Dickson, 

Plaintiffs—Respondents,

versus

ADT, L.L.C., 

Defendant—Petitioner.

Motion for Leave to Appeal

Pursuant to 28 U.S.C. § 1453

Consolidated With

No. 21-10837

United States Court of Appeals

Fifth Circuit

FILED

August 24, 2021

Lyle W. Cayce

Clerk

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Taylor Madison; Angie Dickson, 

Plaintiffs—Appellees,

versus

ADT, L.L.C., 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:20-CV-2516

Before Jones, Duncan, and Engelhardt, Circuit Judges.

Edith H. Jones, Circuit Judge:

Telesforo Aviles was an ADT LLC (“ADT”) employee who installed 

ADT’s home-security surveillance systems and used his access privileges to 

spy on customers in their homes. Taylor Madison and Angie Dickson, now 

also representing a class of plaintiffs, sued Aviles in state court seeking 

millions in damages.

ADT, which is being sued directly by other plaintiffs in both Texas 

and Florida for the breach of privacy, intervened in this suit and removed to 

the Northern District of Texas pursuant to the Class Action Fairness Act 

(“CAFA”). The plaintiffs moved to remand the suit to state court, and the 

district court granted the motion, citing the “home state” exception to 

CAFA. ADT sought this appeal pursuant to 28 U.S.C. § 1453(c), and 

plaintiffs oppose. We GRANT permission to appeal and REVERSE the 

district court’s remand order.

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This court reviews de novo the district court’s order to remand to 

state court a suit removed pursuant to CAFA. Robertson v. Exxon Mobil Corp., 

814 F.3d 236, 239 (5th Cir. 2015). The party objecting to CAFA jurisdiction 

must prove that a CAFA exception divests the federal court of the ability to 

retain a class action. Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571 

(5th Cir. 2011)(citing cases).

“CAFA provides district courts with jurisdiction over ‘class 

action[s]’in which the matter in controversy exceeds $5,000,000 and at least 

one class member is a citizen of a State different from the defendant.

§ 1332(d)(2)(A).” Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746

(2019) reh'g denied, 140 S. Ct. 17 (2019). However, CAFA seeks to “draw a 

delicate balance between making a federal forum available to genuinely 

national litigation and allowing the state courts to retain cases when the 

controversy is strongly linked to that state.” Hollinger, 654 F.3d at 570 (citing 

Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 682 (7th Cir. 2006)). 

Therefore, the act provides a number of scenarios in which federal courts 

must abstain from exercising jurisdiction. Id. The “home state” exception 

affords one such scenario, whereby the court must abstain 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.” Id. at 570; 28 U.S.C. § 1332(d)(4)(B).

Aviles, who was sued by the plaintiffs, is a “primary defendant,” of 

course. The issue here is whether ADT, a non-citizen of Texas, is also a 

“primary defendant” under CAFA. If ADT is not a primary defendant, the 

district court was right to remand to the state court, but if ADT is a primary 

defendant, the district court was required to retain jurisdiction.

This court has only addressed this question with minimal reasoning,

and there is scant discussion across our sister circuits. The leading case that

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examines the meaning of primary defendant is Vodenichar v. Halcón Energy 

Props, Inc., 733 F.3d 497 (3rd Cir. 2013). In that case, the Third Circuit 

described two chief approaches district courts have used to define primary 

defendant. The first attempts to “capture those defendants who are directly 

liable to the proposed class, as opposed to being vicariously or secondarily 

liable based upon theories of contribution or indemnification.” Id. 504. This 

approach focuses “on the defendants who plaintiffs alleged are the real 

wrongdoers as opposed to those defendants who may have to pay because of 

the actions of others.” Id. at 505. The second looks “to identify the 

defendants expected to sustain the greatest loss if liability were found . . . and 

whether such defendants have substantial exposure to significant portions of 

the proposed class.” Id. (internal citations omitted).

The Vodenichar panel adopted a blend of these two approaches, 

holding that courts “should assume liability will be found and determine 

whether the defendant is the ‘real target’ of the plaintiffs’ accusations.” Id.

at 505. This includes “determin[ing] if the plaintiffs seek to hold the 

defendant responsible for its own actions, as opposed to seeking to have it 

pay for the actions of others,” and also requires the court to consider

whether, “given the claims asserted against the defendant, it has potential 

exposure to a significant portion of the class and would sustain a substantial

loss as compared to other defendants if found liable.” Id. at 505–06. In that 

case, the circuit court held that three defendants were primary defendants: 

two had been non-diverse leasing agents of the plaintiff class, while the third 

was an oil and gas company, a diverse defendant, that allegedly reneged on 

lease agreements. Accordingly, the court rejected remand based on the home 

state exception.

This court’s sparse analysis is similar to that in Vodenichar. In 

Hollinger, the panel merely stated in passing (the issue of primary defendant 

was not in dispute) that a class of insurance companies were primary 

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defendants because “all putative class members . . . have claims against the 

[non-diverse] County Mutuals, and as the entities that issued the insurance 

policies, the County Mutuals have a primary role in the alleged 

discrimination.” 654 F.3d at 572. Several years later, in Watson v. City of 

Allen, Tx., another panel of this court considered whether three private

companies of diverse citizenship, with whom Texas municipalities

contracted to operate challenged red light cameras, were primary defendants. 

821 F.3d 634 (5th Cir. 2016). The panel began its analysis by observing that 

the “suit’s primary thrust [wa]s an attempt to declare unconstitutional the 

Texas red light camera legislative scheme.” Id. at 641. Although the panel 

noted that the claims against the private companies were “expressly 

contingent on a threshold finding that the challenged legislative scheme [wa]s 

unconstitutional,” id., its quest was to identify the “suit’s primary thrust” 

and thereby to determine the suit’s “primary defendant.” The court 

concluded that because the companies were not primary parties to the suit, 

as opposed to the state and the municipalities, the CAFA home state 

exception applied.

None of these cases is factually apposite to the present litigation, but 

there is much to commend the Vodenichar emphasis on the “real target” of 

the litigation and Watson’s description of the controversy’s “primary 

thrust.” Whether ADT is vicariously or secondarily liable is a relevant 

factor,1 certainly, but it does not necessarily control a court’s determination, 

or the analysis would often be at odds with the Supreme Court’s admonition

“against adopting rules in the CAFA context that would ‘exalt form over 

1 Plaintiffs make much of the fact that ADT became a defendant by voluntary

intervention, and they have not—yet—sued ADT. To accept their demurrer, however, 

would be naïve, because the statute of limitations will not run on ADT’s potential liability 

for some months, and the parties are currently embroiled in litigation over a substantial 

discovery request and a motion to compel arbitration.

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substance.’” Kitchin v. Bridgeton Landfill, LLC, 3 F.4th 1089, 1096 (8th Cir. 

2021) (citing Standard Fire Ins. v. Knowles, 568 U.S. 588, 595, 133 S. Ct. 1345, 

1350 (2013)). Madison and Dickson claim to represent a class of plaintiffs 

seeking millions in recovery for the invasion of their privacy, although, as of 

yet, they have asserted claims against only the offending employee (who is 

imprisoned). But the thrust of this suit is to gain access to ADT’s deep 

pockets, and ADT, having properly intervened, must be considered a 

primary defendant under CAFA.

We GRANT permission to appeal. Further, because the district court 

erred in remanding, its order is REVERSED.

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