Elmira Preston Howard Preston Rose Lefrance Preston Sheryl Preston Deborah Mazie v. Tenet Healthsystem Memorial Medical Center, Inc., Doing Business as Memorial Medical Center v. Lifecare Hospital of New Orleans Llc, Doing Business as Lifecare Hospital Lifecare Management Services, L.L.C., Cheryl Weems, Individually and on Behalf of Her Deceased Mother, Veola Mosby, and on Behalf of All Others Similarly Situated v. Touro Infirmary, Shono, Inc., Doing Business as Specialty Hospital of New Orleans

Tenet Health Systems Memorial Medical Center d/b/a Memorial Medical Center ("Memorial") moved to remand this class action lawsuit to state court under the "local controversy" exception of the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d). The district court granted the motion to remand, and LifeCare Management Services, L.L.C., and LifeCare Hospitals of New Orleans, L.L.C. (collectively "LifeCare"), timely appealed the order. We affirm the district court's judgment.

Preston represents a putative class of patients and the relatives of deceased and allegedly injured patients hospitalized at Memorial when Hurricane Katrina made landfall in New Orleans, Louisiana. Memorial owned and operated the hospital, and LifeCare leased the seventh floor of the facility for an acute care center. On October 6, 2005, Preston brought suit against Memorial in the Civil District Court for the Parish of Orleans. Preston asserted claims for negligence and intentional misconduct, "reverse patient dumping" under the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, and involuntary euthanization. Preston alleged that Memorial failed to design and maintain the premises in a manner that avoided loss of power in the building. Preston further alleged that Memorial and LifeCare failed to develop and implement an evacuation plan for the patients. According to the petition, Memorial's and LifeCare's failure to maintain the premises and timely evacuate the facility resulted in the deaths and injuries of hospitalized patients. Preston named LifeCare in the Fifth Supplemental Amended Petition for Damages, seeking to certify the following class of persons:

All patients of Memorial and LifeCare who sustained injuries including death or personal injury as a result of the insufficient design, inspection and/or maintenance of LifeCare and/or Memorial's back-up electrical system, its failure to implement its evacuation plan and/or its emergency preparedness plan and/or its failure to have a plan which would have facilitated the safe transfer of patients out of harm's way, and its failure to have a plan of care for patients in the event of a power outage in the wake of Hurricane Katrina within the property owned by Memorial and leased and/or operated by LifeCare on or about the time period of August 26, 2005 through and including August 29, 2005 and thereafter, and all persons who sustained personal injury as a result of the deaths or personal injuries to patients of LifeCare and Memorial....

On June 26, 2006, LifeCare filed a timely notice of removal. Memorial never consented to removal from the state court. Shortly thereafter, LifeCare amended its removal notice to assert the following grounds: the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1); the Multiparty, Multiforum Trial Jurisdiction Act, 28 U.S.C. § 1369; the Class Action Fairness Act of 2005, 28 U.S.C. § 1369; and federal question jurisdiction, 28 U.S.C. § 1331. Preston filed a motion to remand under the local controversy exception of CAFA. On August 22, 2006, the district court conducted a non-evidentiary hearing on the remand motion. The court declined to rule on the motion at the hearing but instead ordered the parties to present additional evidence regarding the citizenship of the class members. Preston withdrew the motion to remand prior to the deadline for submitting additional proof. Nevertheless, on November 13, 2006, Memorial filed a memorandum supporting remand and adopting Preston's withdrawn motion. As a result, Memorial effectively resurrected Preston's motion to remand. On November 21, 2006, the district court remanded the lawsuit to state court under the local controversy exception, home state exception, and the discretionary jurisdiction provision. The district court also declined to exercise federal jurisdiction under the alternative grounds asserted in LifeCare's amended notice of removal. LifeCare filed a timely petition for appeal pursuant to 28 U.S.C. § 1453. On February 5, 2007, this court granted permission to appeal.1 LifeCare only contests the district court's citizenship findings under CAFA's exceptions to federal jurisdiction.

We review the district court's factual findings as to the citizenship of the parties for clear error. Acridge v. Evangelical Lutheran Good Samaritan Soc., 334 F.3d 444, 450 (5th Cir.2003) (The district court's "analysis of the facts and circumstances" relevant to determining domicile is reviewed under the clearly erroneous standard.); Coury v. Prot, 85 F.3d 244, 251 (5th Cir.1996) ("Nevertheless, in practice, the district court's determination of domicile is reviewed on appeal as a question of fact; it will be upheld unless `clearly erroneous.'"); Carrasco-Favela v. Immigration & Naturalization Serv., 563 F.2d 1220, 1222 (5th Cir.1977) ("Whether petitioner abandoned this domicile ... is mainly a question of fact turning on petitioner's intent to remain indefinitely ... or a lack of intent to make his home elsewhere."); Welsh v. Am. Surety Co. of N.Y., 186 F.2d 16, 18 (5th Cir.1951) ("The question is always one of compound fact and law ... [and] we are not warranted in setting aside his findings and conclusions unless clearly erroneous."). But see Evans v. Walter Indus., Inc. 449 F.3d 1159, 1161-62 (11th Cir.2006) (conducting a de novo review of the district court's citizenship determination under CAFA's local controversy exception). A finding of fact is clearly erroneous only 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." Campos v. City of Baytown, Tex., 840 F.2d 1240, 1243 (5th Cir.1988) (citing Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).

The standard of review for a district court's remand under the discretionary provision constitutes an issue of first impression. We review the district court's remand order for abuse of discretion. In determining the burden of proof to show citizenship under the local controversy exception, courts treating the question in the first instance looked to 28 U.S.C. § 1441(a), the general removal statute. Frazier v. Pioneer Ams. LLC, 455 F.3d 542 (5th Cir.2006) (determining that plaintiffs had the burden of proof to show citizenship based on analogy to the general removal statute); Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675 (7th Cir. 2006) (same); Evans v. Walter Indus., Inc., 449 F.3d 1159 (11th Cir.2006) (same).

In the traditional removal context, a district court "shall have original jurisdiction" over lawsuits involving a federal question or lawsuits satisfying statutory diversity and amount in controversy requirements. 28 U.S.C. §§ 1331 & 1332(a). On the other hand, the district courts "may decline to exercise supplemental jurisdiction" over a prescribed list of state and federal law claims in certain circumstances. 28 U.S.C. § 1367(c). In interpreting the discretionary language of supplemental jurisdiction, this court reviews an order to remand pursuant to § 1367(c) for abuse of discretion. Smith v. Amedisys, Inc., 298 F.3d 434 (5th Cir.2002) (upholding the district court's remand of case based on existence of novel and complex issues of state law); Welch v. Thompson, 20 F.3d 636 (5th Cir.1994) (upholding district court's remand of case after dismissal of federal claims); Kaplan v. Clear Lake City Water Auth., 794 F.2d 1059 (5th Cir. 1986) (same); Jones v. Fitch, 665 F.2d 586 (5th Cir.1982) (upholding district court's remand of case based on the presence of a substantial state law claim).

Similarly, the local controversy and home state exceptions read that the "district courts shall decline to exercise jurisdiction," while the discretionary provision provides that the district court "may in the interests of justice and looking at the totality of the circumstances" decline to exercise jurisdiction. Compare §§ 1332(2) & (4) with § 1332(3). LifeCare, cogently argues that the local controversy and home state exceptions should be construed narrowly and resolved in favor of federal jurisdiction based on the "shall decline to exercise jurisdiction" language, which represents the classic formulation for abstention. Under the discretionary jurisdiction provision, however, Congress permitted the district court greater latitude to remand class actions to state court. As with supplemental jurisdiction under 28 U.S.C. § 1367(c), the district court does not wield unfettered discretion over whether to remand a case; instead Congress provided a list of factors to guide the district court's consideration.

Congress enacted CAFA to expand federal jurisdiction over interstate class action lawsuits of national interest. CAFA contains a basic jurisdictional test for removal, which requires the removing defendant to prove minimal diversity and an aggregated amount in controversy of $5,000,000 or more. § 1332(d). CAFA eliminates the standard requirements of unanimous consent among the defendants and the one-year removal deadline. § 1453(b). The district court can decline jurisdiction under three provisions: (1) the home state exception, § 1332(d)(4)(B); (2) the local controversy exception, § 1332(d)(4)(A); and (3) discretionary jurisdiction, § 1332(d)(3).

Pursuant to the local controversy exception, the district court "shall decline to exercise jurisdiction" when the class action meets the following criteria:

(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;

(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) 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 or other persons.

§ 1332(4)(A). The home state exception provides that the district court "shall decline to exercise jurisdiction" when "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." § 1332(4)(B).

Under the discretionary jurisdiction provision, a "district court may, in the interests of justice and looking at the totality of the circumstances, decline to exercise jurisdiction . . . over a class action in which greater than one-third but less than two-thirds 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 . . . ." The district court must consider these factors:

(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;

(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.

§ 1332(d)(3).

The district court remanded this class action lawsuit to state court under all three carve-outs to federal jurisdiction: the local controversy exception, the home state exception, and the discretionary jurisdiction provision. Each CAFA exception requires the court to make an objective factual finding regarding the percentage of class members that were citizens of Louisiana at the time of filing the class petition. The local controversy and home state exceptions to federal jurisdiction are separate and distinct statutory provisions with a common requirement-greater than "two-thirds of the members of all proposed plaintiff classes in the aggregate [must be] citizens of the State in which the action was originally filed." LifeCare concedes that this class action lawsuit satisfies the distinguishable remaining elements of the two exceptions. Compare Serrano v. 180 Connect, Inc., 478 F.3d 1018 (9th Cir.2007) (declining to reach the "primary defendants" issue under the home state exception), with Frazier v. Pioneer Ams. L.L.C., 455 F.3d 542 (5th Cir.2006) (holding that the state entity named as a defendant does not qualify as a citizen of the state in which suit was filed under the local controversy exception).

Under CAFA's discretionary jurisdiction provision, the citizenship requirement lowers to require that "greater than one-third but less 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 . . . ." § 1332(d)(3). The movants must satisfy the citizenship requirement as a prerequisite to the district court weighing the additional statutory factors enumerated to guide the court's remand determination. The same legal principles apply to the discretionary jurisdiction provision as apply to the local controversy and home state exceptions. Despite the burden to prove a lesser percentage of class members were citizens of Louisiana, which party bears the burden of proof and the sufficiency of evidence necessary to satisfy the citizenship requirements remains consistent throughout either analysis.

Congress crafted CAFA to exclude only a narrow category of truly localized controversies, and § 1332(d)(3) provides a discretionary vehicle for district courts to ferret out the "controversy that uniquely affects a particular locality to the exclusion of all others." Evans, 449 F.3d at 1164 (11th Cir.2006). After careful review of the record, the discretionary jurisdiction provision proves to be a particularly well-suited framework for considering the interconnections between the underlying facts giving rise to the alleged legal claims and the extenuating circumstances affecting this preliminary jurisdictional determination.2 The district court determined that a distinct nexus exists between the forum of Louisiana, the Defendants, and the proposed class. We observe, more specifically, that Preston alleges that LifeCare and Memorial, citizens of Louisiana, committed acts in Louisiana causing injuries and deaths to patients hospitalized in New Orleans, Louisiana, when Hurricane Katrina made landfall. The claims asserted in the petition involve issues of negligence governed by state law. Memorial does not contest that the instant lawsuit fulfills the threshold requirements for removal under CAFA, i.e. the requisite number of proposed class members, minimal diversity, and the necessary aggregate amount in controversy. See § 1332(d)(2). Accordingly, we limit our review to whether Memorial presented sufficient evidence to show that at least one-third of the putative class members were citizens of Louisiana at the time that the suit was filed.

We now consider which party bears the burden of proof under the discretionary jurisdiction provision. Under CAFA, the moving party on the remand motion, not the defendant seeking federal jurisdiction, bears the burden to establish the domicile of at least one-third of the class members at the time of filing the lawsuit. Frazier, 455 F.3d at 546 ("[P]laintiffs have the burden to show the applicability of the §§ 1332(d)(3)-(5) exceptions when jurisdiction turns on their application."). The plaintiffs in this case, however, withdrew their motion to remand before the court entered judgment. The district court reasoned that "whether or not the Motion is viable in view of the Plaintiffs' withdrawal is of no consequence since the Court must sua sponte address the issue and remand the action back to state court if it determines at any time that it lacks subject matter jurisdiction." (emphasis and citations omitted). We agree that the moving party's decision to withdraw the motion does not render the district court unable to review its subject matter jurisdiction, but we offer an additional reason for this conclusion.

LifeCare argues that the district court remanded the case despite any "extant" motion to remand. Under CAFA, however, both plaintiffs and non-consenting defendants may move to remand the class action to state court because Congress eliminated the standard requirement that defendants must unanimously consent to federal jurisdiction.3 Therefore, in this instance, we adopt the broader statement that "once federal jurisdiction has been established under [CAFA], the objecting party bears the burden of proof as to the applicability of any express statutory exception under §§ 1332(d)(4)(A) and (B) [the local controversy and home state exceptions]." Serrano, 478 F.3d at 1024 (9th Cir.2007) (emphasis added).

In Frazier, the court reasoned that the "longstanding § 1441(a) doctrine placing the burden on plaintiffs to show exceptions to jurisdiction buttresses the clear congressional intent to do the same with CAFA. This result is supported by the reality that plaintiffs are better positioned than defendants to carry this burden." 455 F.3d at 545. Our holding extends Frazier and reconciles CAFA's elimination of the typical full-consent requirement for removal with the facts presented in this appeal, wherein the plaintiffs withdrew their motion to remand and a defendant resurrected the motion. In the district court proceedings, Memorial did not seek removal pursuant to the discretionary jurisdiction provision; instead, the district court determined sua sponte that the discretionary provision supported its order to remand the class action back to state court. The differing percentage requirements between the two provisions, however, do not vitiate the burden to prove citizenship by a preponderance of the evidence. Accordingly, Memorial, the only party moving for remand, must show that the exceptions to federal jurisdiction apply in this class action despite its position as a named defendant.

2. Evidentiary Standard for Proving Citizenship

Memorial must prove that greater than one-third of the putative class members were citizens of Louisiana at the time of filing the class action petition. 28 U.S.C. § 1332(d)(7) ("Citizenship of the members of the proposed plaintiff classes shall be determined for purposes of paragraphs (2) through (6) as of the date of the filing of the complaint."). Preston filed this class action lawsuit on October 6, 2005; therefore, Memorial must prove citizenship as of this date. The parties contest the quantum of proof necessary to sustain the moving party's burden. Pursuant to well-settled principles of law, we hold that the party moving for remand under the CAFA exceptions to federal jurisdiction must prove the citizenship requirement by a preponderance of the evidence. Welsh, 186 F.2d at 17. This holding means that Memorial, as the movant, must demonstrate by a preponderance of the evidence that at least one-third of the putative class members were citizens of Louisiana.

In drafting CAFA, Congress explicitly and expressly delineated all deviations from traditional requirements of the general removal statute. For example, Congress eliminated the requirements for complete diversity and unanimous consent among the defendants to effectuate removal, such changes are clear from the plain language of the statute. Nothing in the statute suggests that Congress intended to impose a heightened burden of proof on parties attempting to remand a class action lawsuit to state court.

In the context of diversity jurisdiction, once a person establishes his domicile in a particular state, he simultaneously establishes his citizenship in the same state. Stine v. Moore, 213 F.2d 446, 448 (5th Cir.1954). Someone acquires a "domicile of origin" at birth, and this domicile presumptively continues unless rebutted with sufficient evidence of change. Acridge, 334 F.3d at 448 (citing Palazzo v. Corio, 232 F.3d 38, 42 (2d Cir.2000)).

[I]t is elementary that, to effect a change of one's legal domicile, two things are indispensable: First, residence in the new locality; and second, the intention to remain there. The change cannot be made, except facto et animo. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be animus to change the prior domicile for another. Until the new one is acquired, the old one remains.... When challenged as here, the burden rested on him [the plaintiff] to show by a preponderance of the evidence that he was a citizen of that State.

Welsh, 186 F.2d at 17 (internal citations omitted); see also Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638-39 (5th Cir.2003). Absent specific language in the statute specifying a different evidentiary standard, we employ the time-honored standard routinely applied to the fundamental question of citizenship: proof by a preponderance of the evidence.

3. Evidence Adduced to Prove Citizenship Requirement

In an order dated August 22, 2006, the district court acknowledged that "limited discovery is required in order to determine whether it has jurisdiction, particularly in regards to Lifecare's claim that removal is proper under . . . [CAFA]." Accordingly, the district court ordered that Memorial "shall provide the Plaintiffs and Lifecare with patient information which will permit these parties to identify the patients who suffered personal injuries, including death, during the relevant period; these patients' addresses and phone numbers; as well as next of kin." In a second order, dated August 30, 2006, the district court required Memorial to "provide an affidavit of a Memorial representative attesting to the percentage of patients at issue, both deceased and living, with Louisiana addresses and percentage of those with addresses outside Louisiana." After the district court entered these orders, Preston moved to withdraw her motion to remand, and on September 26, 2006, the district court granted this motion.

a. Residency: Medical Records and Current Addresses

Both Memorial and LifeCare submitted evidence in response to the district court's order. Memorial's Medical Records Supervisor, Hal Rome, submitted two affidavits averring to the residency of patients hospitalized when Hurricane Katrina made landfall. In the first affidavit, Rome avers to the following facts:

That he has reviewed the complete list of all patients hospitalized at Memorial Medical Center at the time that Hurricane Katrina struck on August 29, 2005. That list contains a total of 256 patients. Of that total population of patients, the hospital's records show that 7 of those 256 patients, or 2.83% of the total, provided information to the hospital at the time they registered as patients indicating that they were residents of states other than Louisiana.

In his second affidavit, Rome produced a list showing that thirty-five patients died after the hurricane and records showing that two of the deceased patients gave out-of-state addresses. These same two patients were the only deceased persons that listed emergency contacts with telephone numbers outside of the New Orleans calling area.

LifeCare retained a private investigator, Robert Mazur, to trace the current mailing addresses of potential class members located throughout the country. LifeCare maintained that forty-nine of 146 persons identified as potential class members, more than one-third, currently reside outside of Louisiana. LifeCare's citizenship numbers include patients and surviving beneficiaries. In assessing these documents, the district court noted that "this information presents a valuable indication of the citizenship of the proposed class" but admonished LifeCare's failure to prove "residence and intent, both at the date the suit was filed." The district court reasoned that "LifeCare did not provide information regarding the length of time that these individuals have been residing outside of Louisiana . . . . Additionally, if these individuals were in fact displaced, LifeCare did not indicate whether these individuals intend to remain in their new state of residence."

We agree with the district court's treatment of LifeCare's rebuttal evidence. The pre-Katrina addresses in the medical records, however, only make a prima facie showing of domicile, and citizenship requires residency and the intent to return or remain in the state. Stine, 213 F.2d at 448; Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). A party's residence alone does not establish domicile. Mas v. Perry, 489 F.2d 1396, 1399 (5th Cir.1974). We now turn to the evidence establishing intent, the second element of citizenship.

b. Intent: Statements from Potential Class Members

Memorial presented no evidence from its records to demonstrate that the hospitalized patients not only resided in Orleans Parish at the given addresses but also were domiciled in Louisiana at the time of Hurricane Katrina and at the time of filing suit. As the movant, it relies on the additional evidence filed by the plaintiffs. Preston submitted eight affidavits regarding the intent of potential class members to return to New Orleans, Louisiana, even though they currently resided in a different state. The named plaintiffs provided six of the eight affidavits. For example, the affidavit of Darlene Preston states her former address in New Orleans prior to Hurricane Katrina; her current address in Houston, Texas; and concludes by stating that "[s]he is planning on returning as soon as housing becomes available to her. She is a resident and domiciliary of and has always intended on returning to the City of New Orleans."4 The affidavit of Aster Abraham, currently residing in Dallas, Texas, states that she and her husband "completed repairs of the family home and she is returning July 2006." Similarly, Terry Gaines-Oden, currently residing in the Colony, Texas, avers that "she has every intention on returning as soon as her house is repaired." These affidavits unequivocally evince the intent of these plaintiffs to not change their domicile.

LifeCare contends that the affidavits should receive little weight under Circuit precedent because the documents show only the subjective intent of the parties. This court gives little weight to statements of intent evidence, however, only when the subjective evidence conflicts with the objective facts in the record. Coury, 85 F.3d at 251. LifeCare points to no objective evidence in the record indicating that the affidavits misrepresented the plaintiffs' intent of returning to New Orleans. To the contrary, in its reply brief to this court, LifeCare accepted the medical records and affidavits as undisputed facts.5

In addition to the medical records and affidavits, LifeCare suggests that Memorial should adduce evidence of citizenship in accordance with traditional diversity cases involving one defendant. Prior to CAFA, the removing parties only needed to show citizenship with respect to the named plaintiffs. § 1332(d)(3)-(4). "The factors [considered by the district court] may include the places where the litigant exercises civil and political rights, pays taxes, owns real and personal property, has driver's and other licenses, maintains bank accounts, belongs to clubs and churches, has places of business or employment, and maintains a home for his family." Acridge, 334 F.3d at 448 (quoting Coury, 85 F.3d at 251). This suggestion not only affects the moving party but suggests that at this threshold stage of the case, the district court must engage in the arduous task of examining the domicile of every proposed class member before ruling on the citizenship requirement. We decline to adopt such a heightened burden of proof considering the far greater number of plaintiffs involved in a class action as compared to the traditional diversity case. From a practical standpoint, class action lawsuits may become "totally unworkable in a diversity case if the citizenship of all members of the class, many of them unknown, had to be considered." 1 CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS § 72, at 521 (5th ed.1994). The requisite showing under CAFA prompts this court to reconcile congressional intent, our precedent for determining citizenship, and judicial economy. Thus, the evidentiary standard for establishing the domicile of more than one hundred plaintiffs must be based on practicality and reasonableness.

"The [district] court has wide, but not unfettered, discretion to determine what evidence to use in making its determination of jurisdiction." Coury, 85 F.3d at 249 (citing Ray v. Bird & Son & Asset Realization Co., 519 F.2d 1081 (5th Cir. 1975)). Preston admitted the statements of eight potential class members. The district court concluded that the affidavits "suggest that at least some displaced proposed class members intend to return to New Orleans in the near future. Each of these individuals state that they lived in New Orleans at the time of the hurricane, but were forced to evacuate to another state. However, they continue to have every intention of returning to the New Orleans area."

In the wake of Hurricane Katrina, and the compounding effects of the breached levees, nearly eighty percent of New Orleans was engulfed in flood waters rising over twenty feet in lower-lying areas. These cataclysmic events damaged, destroyed, or rendered inaccessible approximately 850,000 housing units.6 Left with no other option, authorities vested with the responsibility of public safety forced people to evacuate New Orleans in any available mode of transportation. The underlying facts of this lawsuit and the reason for the parties contesting the citizenship issue emanate from a common origin of circumstances: the unmerciful devastation caused by Hurricane Katrina. As an inevitable result of the property damage and evacuation, a great majority of the city's population either temporarily or permanently relocated to habitable areas of Louisiana and other states. In this case, the aftermath of Hurricane Katrina and attendant flooding serves as a common precipitating factor for the mass relocation pertinent to our citizenship determination and threads together the proposed class and many other citizens. The sheer magnitude of this shared catalyst formed an adequate backdrop for the district court's extrapolation that the reasons offered by the affiants for not immediately returning home, i.e. repairing the family home, finding gainful employment, and waiting for the availability of housing units, were probably representative of many other proposed class members.

The Fifth Amended Petition for Damages defines a circumscribed class that includes "all patients of Memorial and LifeCare who sustained injuries ... and all persons who sustained personal injury as a result of the deaths or personal injuries to patients of LifeCare and Memorial." The eight affidavits in and of themselves are not dispositive proof that at least one-third of the defined putative class were citizens of Louisiana at the time in which the suit was filed. The uncontroverted affidavits of eight beneficiaries stating an intent to return to New Orleans, the emergency contact phone numbers of the deceased patients, and the uncontroverted data gathered from the medical records, however, permitted the district court to make a reasonable assumption that at least one-third of the class members were citizens of Louisiana during the relevant time period regardless of the rebuttal evidence placed in the record. Upon reviewing the medical records, Rome averred that only seven of the 256 patients hospitalized at the time of Hurricane Katrina gave permanent addresses outside the state of Louisiana, which equates to 2.83% of the total number of hospitalized patients. The putative class cannot extend significantly beyond this finite number of persons because in this case, we are not presented with an immeasurably amorphous proposed class. See, e.g., Evans, 449 F.3d at 1166 (The plaintiffs defined a class of property owners and persons suffering personal injury as the result of harmful toxins released by over eighteen defendant-manufacturers spanning a time period of approximately eighty-five ye