The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM DECISION AND ORDER
The following facts are derived from the pleadings and the parties submissions on the motions.
The plaintiffs in this putative class action are former tenants of a luxury apartment complex located at 1299 Corporate Drive, Westbury, N.Y. 11590 (the "Westbury Complex"). On or about November 27, 2008, the tenants were notified by their landlord, ASN Roosevelt Center, LLC d/b/a Archstone Westbury ("Archstone Westbury"), that they would have to vacate their apartments due to water intrusion issues at the Westbury Complex. The tenants were instructed that their leases would be terminated and they had to vacate the premises no later than March 31, 2008. The letter explained that mold had been found in spaces between the exterior and interior of the wall surfaces and that due to the extensive nature and scope of the work required to be done, the buildings would need to be vacant during reconstruction. The tenants dispute whether the leases were appropriately vacated.
On November 28, 2007, Andrea Sorrentino filed the instant putative class action in New York State Supreme Court, Nassau County on behalf of herself and all present and former Archstone Complex tenants, naming only Archstone Westbury as a defendant. Following a motion to dismiss by the defendants, Sorrentino amended her class action complaint on January 7, 2008, adding fourteen plaintiffs and two Archstone Westbury affiliates as defendants--Archstone Smith Communities LLC and Archstone Smith Operating Trust. In addition, the plaintiffs added claims for medical monitoring and violation of N.Y. Gen. Bus. Law § 349.
Two additional class action cases were filed by residents of the Westbury Complex in state court in December 2007, Marchese v. ASN Roosevelt Center, LLC, Index No. 07/021745, and Francois v. ASN Roosevelt Center, LLC, Index No. 07/021967. The Marchese and Francois actions were consolidated in state court and are known jointly as In re Archstone Westbury Tenant Litigation. On February 22, 2008, a fourth class action was filed by Jessica Ventimiglia, and others, in New York State Supreme Court, Ventimiglia v. Tishman Speyer Archstone-Smith Westbury, L.P., Index No. 07/021135. ("the Ventimiglia Action").
On February 6, 2008, the Honorable Leonard B. Austin granted the plaintiffs' unopposed motion to consolidate this action, Sorrentino, with the Marchese and Francois actions. However, the final order was not entered by the Nassau County Clerk until February 14, 2008 and in the interim, the two newly-named defendants filed a notice of removal to this Court. On March 10, 2008, the plaintiffs moved to remand this action to Supreme Court, Nassau County.
In addition, on March 11, 2008, and April 29, 2008, respectively the defendant Archstone Westbury removed the Ventimiglia Action and the In re Archstone Westbury Tenant Litigation action to this Court asserting jurisdiction pursuant to the Class Action Fairness Act of 2005.
The Ventimiglia Action and the In re Archstone Westbury Tenant Litigation actions differ from this action in two important respects. First, this action includes as class members "all tenants who lived at Archstone Westbury pursuant to leases with Defendant on or prior to November 27, 2007 and their successors in interest," whereas the plaintiff classes in the Ventimiglia Action and the In re Archstone Westbury Tenant Litigation were narrowly structured to include only those persons who (a) are or were residents of the Westbury Complex and (b) were citizens of the State of New York at the commencement of the action. In addition, following the amendment in the Sorrentino Action, this case names three separate defendants, namely Archstone Westbury, Archstone-Smith Operating Trust, and Archstone Communities, LLC. However, the Ventimiglia and In re Archstone Westbury Tenant Litigation cases name only Archstone Westbury as a defendant. These differences create jurisdictional distinctions among the cases.
The defendants removed this action on February 8, 2008, citing 28 U.S.C. § 1332(d) as the basis for federal jurisdiction. The Class Action Fairness Act of 2005, ("CAFA"), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28 U.S.C., including § 1332), expanded federal diversity jurisdiction over state-based class actions. Enacted on February 18, 2005, the purpose of the CAFA, was to amend the "procedures that apply to consideration of interstate class actions to assure fairer outcomes for class member and defendants." Id. (emphasis added).
CAFA vested federal district courts with diversity jurisdiction over class actions where (1) there is minimal diversity, i.e., at least one plaintiff and one defendant are citizens of different states; (2) the proposed class contains at least 100 members; and (3) the amount in controversy is at least $5 million in the aggregate, exclusive of interest and costs. 28 U.S.C. § 1332(d); Blockbuster, Inc. v. Galeno, 472 F.3d 53, 56 (2d Cir. 2006). The statute further contains a removal provision that allows for any such case filed as a class action in state court to be removed to federal court. 28 U.S.C. § 1453. "Section 1453 permits a defendant to remove a class action even if a co-defendant is a citizen of the state in which the action was originally brought and without the consent of the other defendants in the action." Blockbuster, 472 F.3d at 56.
As both Archstone Smith Communities LLC and Archstone Smith Operating Trust are Colorado entities, the plaintiffs here do not dispute that the minimal diversity requirement is satisfied. In addition, the plaintiffs do not dispute that CAFA's numerosity requirement is satisfied. However, the plaintiffs contend that this action is not subject to federal jurisdiction because the defendants have failed to satisfy the $5 million amount in controversy requirement. In addition, the plaintiffs contend that this action should be remanded to state court under CAFA's local controversy, home state, and discretionary exceptions to federal jurisdiction.
The Second Circuit has made clear that the party asserting federal jurisdiction under CAFA bears the burden of establishing jurisdiction. Blockbuster, 472 F.3d at 57--58; DiTolla v. Doral Dental IPA of New York, LLC, 469 F.3d 271, 275 (2d Cir. 2006); Mattera v. Clear Channel Commc'ns, Inc., 239 F.R.D. 70, 78 (S.D.N.Y. 2006). In addition, the Court must construe all ambiguities and draw all reasonable inferences in favor of the party asserting federal jurisdiction. Mattera, 239 F.R.D. at 78.
Further, while the Second Circuit has not ruled on the issue, the Court agrees with the weight of authority finding that the party resisting federal jurisdiction pursuant to one of CAFA's exception provisions bears the burden of proving that a CAFA exception applies. Mattera, 239 F.R.D. at 79 ("[P]lacing the burden of establishing the applicability of a CAFA exception on the party challenging federal jurisdiction, rather than on the party invoking federal jurisdiction at the outset, better protects against the risk of state courts adjudicating class actions with national ramifications."); Brook v. UnitedHealth Group Inc., No. 06CV12954, 2007 WL 2827808, at *3 (S.D.N.Y. Sept. 27, 2007) ("[T]he party opposing the exercise of the Court's established jurisdiction bears the burden of demonstrating that a CAFA exception exists."); see also Hart v. FedEx Ground Package System Inc., 457 F.3d 675, 681 (7th Cir. 2006).
The removing defendant must show that it appears to a "reasonable probability" that the aggregate claims of the plaintiff class are in excess of $5 million. Blockbuster, 472 F.3d at 58; Kocienda v. U-Haul Intern., Inc., No. 07CV0954, 2007 WL 2572269, at *1 (D. Conn. Sept. 4, 2007). Facts relating to the jurisdictional amount can be challenged by the plaintiff, thereby requiring the defendant to support those facts with a "competent proof" by a preponderance of the evidence. United Food & Commercial Workers Union, Local 919, AFL-CIO v. Centermark Props. Meriden Square, Inc., 30 F.3d 298, 301--02 (2d Cir. 1994).In determining the amount in controversy, courts first turn to the allegations of the plaintiff's complaint. See DiTolla, 469 F.3d at 276; Koceinda, 2007 WL 2572269, at *1 ("The Court must evaluate the amount in controversy on the basis of the pleadings viewed at the time of the filing of the notice of removal."). Where "the pleadings themselves are inconclusive as to the amount in controversy . . . federal courts may look outside those pleadings to other evidence in the record."
Here, the plaintiffs' complaint does not make any specific damages demand. Instead, the plaintiffs seek rent abatement for approximately396 rental units plus monetary damages for personal injury and property damage, including actual damages and medical monitoring. The defendants contend thatbased upon the monthly rental range from $2000 to $3125 (Amend. Compl. at ¶¶ 3--13), the average monthly rent is $2626. Accordingly, the defendants contend that assuming the plaintiffs seek rent abatement of four months for those 396 units, at least $4.2 million dollars is in controversy in this action. Further, the defendants contend that it is "reasonably probable" that the plaintiffs' remaining claims, including claims for medical monitoring, place an additional $800,000, in controversy.
The defendants reasonably presume that the demanded rent abatement period is four months based upon the time from when tenants were first informed that they would have to vacate the Westbury Complex on November 27, 2007 until March 31, 2008, the date by which all units had to be emptied. Accordingly, the Court finds with reasonable probability that at ...