1

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

ROBERT DICUIO, on behalf of himself :

and all others similarly situated, :

:

Plaintiff, : Civ. Action No.: 11-1447 (FLW)

:

v. : OPINION

:

BROTHER INTERNATIONAL :

CORPORATION, :

:

Defendant. :

____________________________________:

WOLFSON, District Judge:

In this putative class action, Plaintiff Robert Dicuio (“Plaintiff” or “Dicuio”), a New 

Jersey resident, brings this suit under the Class Action Fairness Act of 2005 (“CAFA”), 28 

U.S.C. § 1332, alleging that Defendant Brother International Corporation (“Defendant”), a 

Delaware corporation with its principal place of business in New Jersey, designed its color ink 

cartridges to deplete one color faster than others in order to increase sales. In the instant matter, 

Plaintiff moves to remand the action back to New Jersey Superior Court. For the reasons that 

follow, the Court finds that remand is inappropriate, and therefore, Plaintiff’s motion is denied. 

I. BACKGROUND

The following facts are taken from Plaintiff’s Complaint. For the purposes of this motion 

to remand, the Court will construe these facts as true. Steel Valley Auth. v. Union Switch & 

Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987). The Plaintiff, a resident of New Jersey, 

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purchased a color printer, manufactured by Defendant, in December of 2008. Compl., ¶ 3. 

According to the complaint, this type of printer “contains four different toner cartridges, one in 

black . . . one in yellow, one in magenta and one in cyan.” Compl., ¶ 13. Plaintiff alleges that 

when any one ink color is depleted, all must be replaced in order for the printer to function. 

Compl., ¶¶ 2, 15. Plaintiff seeks injunctive relief and compensatory damages for himself and a 

class, stemming from an alleged breach of implied and express warranties, breach of contract and 

violation the New Jersey Consumer Fraud Act. Compl., ¶ 2. 

This action was originally brought by the Plaintiff in New Jersey Superior Court. See

Compl. dated January 31, 2011.1

II. STANDARD OF REVIEW

As stated in the complaint, Plaintiff is a New Jersey resident, 

and the class consists of “[a]ll purchasers in New Jersey, who since 2005 purchased Brother 

Laser Printers” of similar models to Plaintiff’s and required the same color ink cartridges. 

Compl., ¶ 5. Defendant, a Delaware corporation with its principal place of business in New 

Jersey, later removed the case to this Court arguing that the Court had jurisdiction pursuant to 

CAFA. See Notice of Removal at 4. Plaintiff now moves to remand the action back to New 

Jersey State Court.

The Class Action Fairness Act of 2005 grants federal district courts original jurisdiction 

over class action cases that meet the required criteria. See 28 U.S.C. § 1332(b). Within CAFA, 

there are two exceptions that direct district courts to decline jurisdiction in favor of the 

appropriate state court. Id. at § 1332. One of these exceptions has been termed the “home state” 

 1 The date in which this complaint was filed appears to be January 31, 2011, however, the 

date stamp is not completely legible to the Court. No amended complaint has been filed. 

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exception by several courts, including the Third Circuit. Kaufman v. Allstate N.J. Ins. Co., 561 

F.3d 144, 149 (3d Cir. 2009). The second exception is the “local controversy” exception. Id.

Under the home state exception, a district court must decline to exercise jurisdiction 

where

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). If a class action meets these requirements, a district court must 

remand the case back to the state court where it was originally filed. Importantly, the party 

seeking to remand the suit back to state court bears the burden of meeting the home state

exception requirements. Kaufman, 561 F.3d at 153; Serrano v. 180 Connect, Inc., 478 F.3d 

1018, 1024 (9th Cir. 2007); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 680-81 (7th 

Cir. 2006); Frazier v. Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir. 2006); Evans v. Walter 

Indus., Inc., 449 F.3d 1159, 1165 (11th Cir. 2006). 

The inquiry for the local controversy exception is similar to the home state exception 

inquiry. Like the home state exception, CAFA’s local controversy exception, provides that, a 

district court must remand when more than two-thirds of the proposed class are citizens of the 

state in which the action was originally filed.

2

 2 There are additional requirements that must be met for this exception to apply. The local 

controversy exception provides, in toto:

 Moreover, as with the home state exception, the 

party seeking removal bears the burden of demonstrating citizenship. Kaufman, 561 F.3d at 153.

(I) greater than two-thirds of the members of all proposed plaintiff 

classes in the aggregate are citizens of the State in which the action 

was originally filed;

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CAFA, further, grants district courts discretion to decline jurisdiction over classes 

comprised of between one-third and two-third citizens of the state from which the action was 

removed. Hirschbach v. NVE Bank, 496 F.Supp.2d 451, 459 (D.N.J. 2007) (citing 28 U.S.C. § 

1332(d)(3)). Before exercising that discretion, a court must engage in a totality of the 

circumstances balancing test, considering a number of statutorily enumerated factors.3

 

 These 

(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) principal 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 class action has been filed asserting the same or 

similar factual allegations against any of the defendants on behalf 

of the same persons; or

(B) 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)(A). 

3 The factors are:

(A) whether the claims asserted involve matters of national or 

interstate interest;

(B) whether the claims asserted will be governed by laws of the 

State in which the action was originally filed or by the laws of 

other States;

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factors are designed to elicit whether the parties’ dispute is “uniquely local” as opposed to multistate in character. Kaufman, 561 F.3d at 149. If the balance of factors suggests that the dispute 

is local, the court may exercise its discretion to remand.

III. DISCUSSION

Plaintiff does not dispute the existence of CAFA jurisdiction, and rightly so. CAFA, 

indeed, provides this Court with jurisdiction. There is minimal diversity between the parties

because Defendant is a citizen of both New Jersey and Delaware, see Brother Int’l Corp. Rule 

7.1 Certification at 1 (stating that Defendant is a Delaware corporation with its principal place of

business in New Jersey); see also 28 U.S.C. § 1332(c)(1) (“[A] corporation shall be deemed to be 

a citizen of any State by which it has been incorporated and of the State where it has its principal 

place of business.”), and because at least one purchaser is a non-citizen of New Jersey and 

Delaware. Because Plaintiff’s Complaint defines the class as individuals who purchased 

cartridges in New Jersey since 2005, it is reasonable to conclude that at least one purchaser was 

 

(C) whether the class action has been pleaded in a manner that 

seeks to avoid Federal jurisdiction;

(D) whether the action was brought in a forum with a distinct 

nexus with the class members, the alleged harm, or the defendants;

(E) whether the number of citizens of the State in which the action 

was originally filed in all proposed plaintiff classes in the 

aggregate is substantially larger than the number of citizens from 

any other State, and the citizenship of the other members of the 

proposed class is dispersed among a substantial number of States; 

and

(F) whether, during the 3-year period preceding the filing of that 

class action, 1 or more other class actions asserting the same or 

similar claims on behalf of the same or other persons have been 

filed.

28 U.S.C. § 1332(d)(3).

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not a resident of either state: many people and companies from the neighboring state of 

Pennsylvania travel into New Jersey to purchase goods. Alternatively, it is reasonable to 

conclude that at least one purchaser who may have previously been a New Jersey or Delaware 

resident is no longer a resident of either of those states. 

With respect to amount in controversy, the Third Circuit has held that an uncabined 

damage request coupled with a statement in the Notice of Removal that the aggregated damages

exceed $5 million, like that found here, is sufficient to establish the amount in controversy for 

CAFA purposes. See Kaufman, 561 F.3d at 151; Compl. at ¶¶ 19 – 39 (seeking unspecified 

damages); Notice of Removal, ¶ 10b (stating that aggregation of claims exceeds $5,000,000). 

Moreover, Plaintiff seeks treble damages. Id. at ¶ 39. Finally, according to Plaintiff’s 

Complaint, there are at least 100 class members. See id. at ¶ 7 (defining class as “hundreds, if 

not thousands” of purchasers). 

For these reasons, I am independently satisfied that CAFA jurisdiction exists. I now turn 

to Plaintiff’s request to remand under both the home state and the local controversy exceptions to 

CAFA jurisdiction.

A. Home State Exception

The Third Circuit has yet to issue a precedential decision applying the CAFA home state

exception. However, there are several courts within, and outside of, the Third Circuit that have 

ruled on this issue. In a First Circuit case, a class consisting of credit/debit card users at the 

defendant-owned grocery store chain filed an action based on inadequate security after the 

plaintiffs’ credit card information was stolen by a computer hacker. In re Hannaford Bros. Co. 

Customer Data Security Breach Litigation, 564 F.3d 75, 76-77 (1st Cir. 2009). The complaint in

that case defined the class as consisting of entirely Florida citizens, and the sole defendant’s 

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principal place of business was also in Florida. Id. at 78. The defendant argued that the plaintiff 

class definition “requiring that all class members be Florida citizens” was an improper class 

limitation. Id. at 81. The First Circuit rejected this argument finding that a complaint alleging a 

class entirely comprised of citizens from one state was permissible under CAFA. Id.

More recently, in In re Sprint Nextel Corp., 593 F.3d 669 (7th Cir. 2010), the Seventh 

Circuit held that the home state exception applied to an alleged class consisting of “all Kansas 

residents” who purchased text-messaging services from the defendant, Sprint Nextel. The 

plaintiff, in that case, brought suit claiming the defendant “artificially [imposed] high prices for 

text-messaging service,” and limited the class to anyone who “(1) had a Kansas cell phone 

number, (2) received their cell phone bill at a Kansas mailing address, and (3) paid a Kansas 

‘USF fee.’” Id. at 671. The plaintiff argued that these three criteria demonstrated that every 

member of the class was a Kansas citizen, and therefore the case should be remanded back to 

state court under the home state exception. Id. The defendant argued, in contrast, that there was 

insufficient evidence “that two-thirds of their proposed class members were in fact Kansas 

citizens.” Id.

The Seventh Circuit ruled that since the plaintiff provided no evidence of the citizenship 

of the class members, the court could not find that the two-thirds requirement was met even 

though it may have been reasonable to infer as much from the complaint’s allegations. 

According to the court, it could “not draw conclusions about the citizenship of class members 

based on things like their phone numbers or mailing addresses.” Id. at 674. Notably, the court 

suggested two instances in which the plaintiff class would have met the home state requirements. 

First, the plaintiff could have alleged in the complaint that all members of the class were “Kansas 

citizens.” Id. This, in the Seventh Circuit’s view, would have ensured that the class would have 

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met the two-thirds requirement while eliminating the possibility that the class included “out-ofstate businesses, college students, soldiers, and the like. . . .” Id. Second, the court noted, the 

plaintiff could have issued surveys to the class to determine the percentage of the citizenship 

based on a sample size. Id. at 675-76. Acknowledging that “that there are probably hundreds of 

thousands of putative class members, if not more,” the court reasoned that “it would be infeasible 

to document each class member's citizenship individually ....” Id. at 675. Hence, the court 

further explained, a district court could rely on evidence such as “affidavits or survey responses 

in which putative class members reveal whether they intend to remain in Kansas indefinitely ....” 

Id. 

District courts in this district have also ruled on cases in which the home state exception

was raised. In Hirschbach, a district court in the District of New Jersey remanded a case 

involving a putative class of “all persons” who held a certificate of deposit in a particular New 

Jersey bank during a specified time frame. 496 F.Supp.2d at 460. Presented with a certification 

from the bank that 30% of its customers used mailing addresses outside of New Jersey, the court 

concluded that the plaintiff failed to demonstrate that two-thirds of the certificate holders were 

New Jersey citizens. However, in that court’s view, at least one-third of the certificate holders 

were likely New Jersey citizens. Thus, the court engaged in the totality of circumstances 

analysis under 28 U.S.C. § 1332(d)(3) to determine whether it should exercise its discretion to 

remand. Concluding that the matter was primarily local, as opposed to interstate, in nature, the 

court determined that a balancing of the factors weighed in favor of remand. Id. at 461-62.

Other district courts within the Third Circuit have denied motions to remand where the

plaintiff failed to provide any evidence of citizenship. In a suit relating to Pennsylvania workers, 

a district court in the Eastern District of Pennsylvania determined the applicability of the home 

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state exception to a class defined as any worker of a particular Pennsylvania factory. See

Anthony v. Small Tube

Similarly, the court in Schwartz v. Comcast Corp., No. 05-2340, 2006 WL 487915, at *3 

(E.D.Pa. Feb. 28, 2006) denied remand where the putative class was defined as “[a]ll persons and 

entities residing or doing business in the Commonwealth of Pennsylvania who subscribed to 

Comcast's high-speed internet service during the period April 7, 2004 to April 14, 2005.” The 

court reasoned that, at best, the purchase of internet service indicates residency and residency 

does not equate with domicile or citizenship. Id. at *5-*6. Without specific proof of citizenship, 

the court was not willing to infer citizenship from residency alone. Notably, the Third Circuit 

affirmed this decision in a non-precedential opinion, noting that, in light of the district court’s 

conclusion that fewer than one-third of the class were citizens of Pennsylvania, the district court 

was not obligated or allowed to remand under either the home state exception or the local 

controversy exception. Schwartz v. Comcast Corp., 256 Fed.Appx. 515, 517 n.1 (3d Cir. 2007). 

The Circuit did not express any opinion about the district court’s finding that less than one-third 

of the class were citizens of Pennsylvania had been proven.

Mfg. Corp., 535 F.Supp.2d 506, 508 (E.D.Pa. 2007). Because the 

plaintiff in that case failed to provide evidence to support the citizenship of the class, or define 

the class as Pennsylvania citizens, the court found that the home state exception did not apply.

Id. at 517. The court reasoned that, though one could infer that the factory workers were 

domiciled in Pennsylvania, such an inference does not satisfy the plaintiff’s burden of proof: 

“Individual employees may retire and move away. Employees may change jobs and move to 

another State or country. Employees may also commute from an out-of-state location.” Id.

While there is no binding Third Circuit authority on point, the persuasive authority 

outlined above strongly suggest that Dicuio’s motion to remand should be denied for several 

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reasons. As an initial matter, rather than defining the class as “[a]ll purchasers in New Jersey” 

who purchased Brother Printers and color ink replacement cartridges since 2005, Compl., ¶ 5, he 

could have defined the class as “all New Jersey citizens who have purchased a Brother Printer 

and/or color ink replacement cartridges since 2005.” 4

Plaintiffs’ citation to American Gen. Financial Services v. Griffin, 685 F.Supp.2d 729

(N.D.Ohio 2010), does not alter my conclusion. In applying the local controversy exception, the 

court in that case was willing to infer that two-thirds of a class comprised of “Ohio residents” 

who entered into loan agreements with an Ohio corporation were Ohio citizens. Id. at 734. 

Plaintiff also points to Mattera v. Clear Channel Communications, Inc., 239 F.R.D. 70 (S.D.N.Y.

2006), which held it “reasonably likely” that two-thirds of a class comprised of sales 

representatives employed at New York radio stations are New York citizens. Id. at 80.

 Having failed to define the class as New 

Jersey citizens, Dicuio bears the burden of supplying evidence that two-thirds of the putative 

class members are New Jersey citizens in order for remand to be mandatory. At the least, he 

must provide evidence that one-third of the class are citizens in order for the court to exercise its 

discretion to remand. Dicuio has not provided any evidence in an attempt to meet either the onethird or two-thirds requirement.

5

 4 In his opening brief, Plaintiff argued that his counsel could stipulate that the class is 

comprised of New Jersey citizens. Plaintiff retracted from that position in his reply brief, 

apparently (and appropriately) recognizing that the complaint may not be amended via counsel 

stipulation attached to a brief. Cf. Bell v. City of Philadelphia, 275 Fed.Appx. 157, 160 (3d Cir. 

2008) (“A plaintiff may not amend his complaint through . . . his brief .....”).

5 While these are local controversy exception cases, Plaintiff cites to them in the home 

state exception section of its opening brief. As noted, the citizenship analysis under both 

exceptions is similar.

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Unlike Griffin and Mattera, the class here is not limited to New Jersey residents or 

employees but is comprised of people who merely purchased goods in New Jersey.6

 In what appears to be a belated attempt to gather the information to determine the 

citizenship of each putative class member, Plaintiff makes a broad, unspecific discovery request 

in his reply brief. Specifically, Plaintiff states that “the undisputed facts related to the 

overwhelmingly local nature of this case, as set forth above, warrant, at the very least, that 

 New York, 

Pennsylvania, and Delaware residents often travel through and commute to New Jersey, 

purchasing goods along their travels. I see no basis for presuming that two-thirds of those who 

purchase goods in New Jersey are New Jersey citizens. Moreover, because the proposed class 

includes all purchasers since 2005, those who were New Jersey residents several years ago in 

2005, 2006, and 2007, may have since relocated and become citizens of other states. See

Romano v. SLS Residential, Inc., --- F.Supp.2d ----, 2011 WL 2671526, *4 (S.D.N.Y. Jun 22, 

2011) (distinguishing Mattera where class was comprised of residents of psychiatric facility from 

2004 through 2006 and, at the time the complaint was filed “more than four years ha[d] passed”). 

Finally, to the extent that Griffin and Mattera stand for the proposition that the Plaintiff need not 

provide evidence of citizenship, I disagree with that approach and find more persuasive the case 

law discussed supra, such as Sprint, Anthony, and Schwartz, which place an evidentiary burden 

on the plaintiff.

 6 For this same reason, Plaintiff’s reliance on portions of legislative history found in the 

Senate Judiciary Committee Report is likewise misplaced. See Pl. Reply at 3-4 (citing Senate 

Judiciary Committee Report on the Class Action Fairness Act of 2005, reprinted in 2005 

U.S.C.C.A.N. 3, 23 available at 2005 WL 627977 at *23). In that report, the committee gives 

examples of classes comprised of a certain number of residents from a given state. Here, by 

contrast, Plaintiff’s proposed class includes all purchasers who purchased cartridges in New 

Jersey. Plaintiff has not provided this Court with any basis for determining the residency, much 

less citizenship or domicile, of any of the purchasers.

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Plaintiff be allowed to obtain discovery from Defendant as to the citizenship of the members of 

the proposed class.” See Pl. Reply at 9.

Under Third Circuit law, while a plaintiff is generally entitled to jurisdictional discovery, 

such a request may be denied if the plaintiff’s claim is “clearly frivolous” or constitutes a mere 

“fishing expedition.” Eurofins Pharma US Holdings v. BioAlliance Pharma SA, 623 F.3d 147, 

157 (3d Cir. 2010); LaSala v. Marfin Popular Bank Public Co., Ltd., 410 Fed.Appx. 474, 478 (3d 

Cir. 2011). Moreover, a plaintiff seeking jurisdictional discovery must state the request with 

reasonable particularity. Eurofins, 623 F.3d at 157. In that connection, the discovery request 

should be limited in scope. Hirschbach v. NVE Bank, 496 F.Supp.2d at 460.

Indeed, CAFA’s legislative history suggests that Congress intended for jurisdiction to be 

determined “largely on the basis of readily available information,” and that courts should not 

grant broad discovery requests:

Allowing substantial, burdensome discovery on jurisdictional 

issues would be contrary to the intent of these provisions to 

encourage the exercise of federal jurisdiction over class actions. 

For example, in assessing the citizenship of the various members 

of a proposed class, it would in most cases be improper for the 

named plaintiffs to request that the defendant produce a list of all 

class members (or detailed information that would allow the 

construction of such a list), in many instances a massive, 

burdensome undertaking that will not be necessary unless a 

proposed class is certified. Less burdensome means (e.g., factual 

stipulations) should be used in creating a record upon which the 

jurisdictional determinations can be made.

Schwartz, supra at *3 (quoting Judiciary Committee Report on Class Action Fairness Act, S.Rep. 

No. 109-14, at 44 (1st Sess. 2005)). But see Clover v. Sunset Auto Co., No. 4:09CV58, 2009 

WL 1490489, *3 (E.D.Mo. May 27, 2009) (granting plaintiff’s blanket request for jurisdictional 

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discovery even though “Plaintiff . . . presented nothing, other than argument and speculation, 

from which the Court could begin to assess whether the statutory requirements have been met.”)

Here, the one-sentence discovery request in Plaintiff’s reply brief does not state with 

reasonably particularity what sort of discovery Plaintiff would need to ascertain class member 

citizenship. While he suggests that Defendant would have information on the purchasers’ 

citizenship, this is unlikely. For non-cash purchases, Defendant could have retained the 

purchasers’ credit card zip code information but, at best, that information would indicate only 

residency. For cash purchases, Defendant would not likely have retained any information about 

the purchaser. The Court cannot discern at this early stage of litigation whether Plaintiff’s claims

are meritorious, but it can be said that Plaintiff’s failure to specify the type of discovery he seeks 

smacks of a fishing expedition. As the Third Circuit has indicated that jurisdictional discovery 

may not be used for that purpose, and in light of the suggestion by CAFA’s drafters that broad, 

undefined discovery periods are not favored, I deny Plaintiff’s blanket request for discovery.

Having denied Plaintiff’s request for jurisdictional discovery, I focus my analysis on the 

complaint and briefing. As noted, the complaint does not define the class as New Jersey citizens. 

Further, Plaintiff’s filings contain no facts or evidence suggesting that two-thirds of the class is 

comprised of New Jersey citizens.7

 7 While Defendant has provided the court with some generally available statistical 

information about New Jersey, as well as common sense arguments as to why “purchasers” 

should not be equated with “citizens,” I need not rely upon this data or argumentation. As noted, 

it is the Plaintiff’s burden to demonstrate citizenship and, in light of Plaintiff’s failure to provide 

any such evidence, no further analysis is required.

 It is Plaintiff’s burden to prove that the home state exception

applies and Plaintiff has failed to meet his burden. Indeed, Plaintiff has not even presented 

evidence that at least one-third of the proposed class are citizens, which would permit me to 

engage in the totality of the circumstances test set forth in 28 U.S.C. § 1332(d)(3). Without a 

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basis for concluding that more than one-third of the proposed class is comprised of New Jersey 

citizens, there is basis for granting remand here. See Schwartz, 256 Fed.Appx. at 517 n.1. 

Accordingly, I deny Plaintiff’s request to remand based on the home state exception to CAFA.

B. Local Controversy Exception

For the local controversy exception to apply, as with the home state exception, Plaintiff 

must demonstrate that “greater than two-thirds of the members of all proposed plaintiff classes in 

the aggregate are citizens of the State in which the action was originally filed ....,” inter alia. 28 

U.S.C. § 1332(d)(4)(A)(i)(I). Plaintiffs’ failure to limit its pleading to New Jersey citizens, 

combined with his failure to provide any evidence in support of his contention that two-thirds of 

the proposed class are New Jersey citizens renders his local controversy exception contention 

untenable. Moreover, as explained above in connection with my home state exception analysis, 

Plaintiff has not stated his discovery request with reasonable particularity. Accordingly, 

Plaintiff’s motion to remand based on the local controversy exception is denied.

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion to remand is denied.

DATED: November 15, 2011 /s/ Freda L. Wolfson___

 Freda L. Wolfson, U.S.D.J.

 

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