Opinion
7:20-cv-01948-TMC
06-22-2023
Jamila Grice, on behalf of herself and all others similarly situated, Plaintiff, v. Independent Bank, Defendant.
REPORT AND RECOMMENDATION
JACQUELYN D. AUSTIN UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on a motion for class certification filed by Plaintiff. [Doc. 129.] The undersigned United States Magistrate Judge is authorized to review the motion and make recommendations to the District Court pursuant to the Order of reference by the Honorable Timothy M. Cain dated February 8, 2023. [Doc. 143.]
On December 12, 2022, Plaintiff filed a Rule 23 motion for class certification, a memorandum in support, and 46 supporting exhibits. [Docs. 129-129-47.] On January 17, 2023, Independent Bank (“Independent”) filed a response in opposition, along with 14 exhibits. [Docs. 135-135-14.] Plaintiff then filed a reply with additional exhibits on February 7, 2023 [Docs. 142-142-3], and supplements on March 27, 2023 [Doc. 157], and April 12, 2023 [Doc. 158]. Accordingly, the motion is ripe for review.
By Order dated February 28, 2023, the Court denied Independent's motion to file a sur-reply, noting “[t]he parties combined have submitted almost 500 pages of materials relating to the motion for class certification; the issues are well-briefed, and a sur-reply would not aid in the court's ultimate resolution of the issue at hand.” [Doc. 154.]
BACKGROUND
As the Court has noted in its prior Orders, this is an electronic debit transaction banking case. The Court has extensively documented the facts in this case in its Order dated March 3, 2021. [Doc. 39 at 1-4.] For the sake of brevity, the undersigned will summarize the relevant facts related to the issues presently before the Court.
Independent is a bank headquartered in Michigan and organized under Michigan law. [Docs. 1 ¶ 10; 13-2 ¶¶ 2-3.] Plaintiff is a customer of Independent's and currently a resident of South Carolina, although she was not a resident of South Carolina when she first became an Independent customer in June of 2003. [Doc. 13-2 ¶¶ 10-11.] Plaintiff filed a nationwide class action lawsuit on behalf of herself and all other similarly situated customers against Independent based on Independent's allegedly improper practices of assessing various overdraft, insufficient-funds, and ATM fees. [Doc. 1.] The Complaint alleges a single cause of action against Independent for breach of contract. [Id. ¶¶ 156-67.] Based on this sole cause of action, Plaintiff defines three separate proposed nationwide classes-one for each type of allegedly improper fee:
All accountholders who, during the applicable statute of limitations, were charged OD Fees on APPSN Transactions on an Independent checking account (the “OD Fees Class”).
All accountholders who, during the applicable statute of limitations, were charged multiple NSF Fees on the same item on an Independent checking account (the “Multiple Fees Class”).
All accountholders who, during the applicable statute of limitations, were charged two OON Fees by Independent for a single cash withdrawal at an out of network ATM (the “OON Fees Class”).[Id. ¶ 145; Doc. 132 at 1 (together, the “Proposed Classes”).] Plaintiff now requests that the Court grant class certification for each of the Proposed Classes. [Doc. 129.]
THE PARTIES' ARGUMENTS
Plaintiff contends the Proposed Classes satisfy the requirements of Rule 23(a) for numerosity, commonality, typicality, and adequacy. [Doc. 129-1 at 17-22.] Further, Plaintiff contends the Proposed Classes satisfy the requirements of Rule 23(b) for predominance and superiority. [Id. at 22-26.] In support of her motion, Plaintiff points to a “track record” of courts certifying similar bank fee class actions, and she argues that this Court should rely upon the reasoning of those cases in determining that class treatment is appropriate in this case. [Id. at 14-17.] Finally, anticipating an argument previously raised by Independent, Plaintiff argues that S.C. Code § 15-5-150 (the “Door Closing Statute”), does not apply in federal court and therefore should not bar certification of the Proposed Classes on a nationwide basis in this case. [Id. at 26-28.]
Independent, on the other hand, opposes class certification on a number of grounds. [Doc. 135.] First, as anticipated by Plaintiff, Independent again asserts its argument that the Door Closing Statute bars the inclusion of any non-resident members in the Proposed Classes. [Id. at 10-17.] Second, Independent again asserts its argument that this Court lacks personal jurisdiction over Independent and over the prospective nonresident members of the Proposed Classes. [Id. at 17-22.] Third, Independent argues Plaintiff is unable to satisfy the requirements for class certification under Rule 23. [Id. at 22-31.] Finally, Independent argues that, even if Plaintiff had satisfied her burden of meeting the requirements of Rule 23(a) and (b), the Proposed Classes cannot be certified as described. [Id. at 31-33.] Specifically, Independent contends the scope of the Proposed Classes must be limited because (1) certain claims are barred by a prior settlement agreement and release arising from a previous class action case involving Independent and (2) the claims that allegedly arose after October 1, 2020, are without merit based on amended and updated language in the Account Agreement. [Id.]
LEGAL STANDARD
To fulfill the requirements for class certification, plaintiffs must first show compliance with Rule 23(a) of the Federal Rules of Civil Procedure, which applies to all class actions. Gunnells v. Health Plan Servs., Inc., 348 F.3d 417, 423 (4th Cir. 2003). Once plaintiffs have met the requirements of Rule 23(a), they must show that class certification is proper under one of the subdivisions of Rule 23(b). Id. In addition to the explicit requirements listed in Rule 23, the Fourth Circuit has recognized that Rule 23 “contains an implicit threshold requirement that the members of a proposed class be ‘readily identifiable.'” EQT Prod. Co. v. Adair, 764 F.3d 347, 358 (4th Cir. 2014). The party seeking class certification bears the burden of proof. Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 146 (4th Cir. 2001).
Rule 23 “does not set forth a mere pleading standard.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (internal quotation marks omitted). Instead, “a party must . . . be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation, as required by Rule 23(a).” Id. (internal quotation marks omitted). Likewise, “[t]he party must also satisfy through evidentiary proof at least one of the provisions of Rule 23(b).” Id. Although the plaintiff bears the burden of showing compliance with Rule 23, “the district court has an independent obligation to perform a rigorous analysis to ensure that all of the prerequisites have been satisfied.” EQT Prod. Co., 764 F.3d at 358 (internal quotation marks omitted). “Frequently that ‘rigorous analysis' will entail some overlap with the merits of the plaintiff's underlying claim.” Wal-Mart Stores, Inc. v. Duke, 564 U.S. 338, 351 (2011). And while “Rule 23 does not give district courts a license to engage in free-ranging merits inquiries at the certification stage, a court should consider merits questions to the extent that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” EQT Prod. Co., 764 F.3d at 357-58 (internal quotation marks omitted).
DISCUSSION
The four threshold Rule 23(a) requirements for certification are as follows: (1) the class must be so numerous that joinder of all members is impractical (“numerosity requirement”); (2) there must be questions of law or fact common to the class (“commonality requirement”); (3) the representative parties' claims must be typical of the claims of the class (“typicality requirement”); and (4) the representative parties must be able to fairly and adequately protect the interests of the class (“adequacy-of-representation requirement”). Fed.R.Civ.P. 23(a). Here, Plaintiff fails to establish at least one of these requirements, numerosity.
In addition to meeting the requirements of Rule 23(a), Plaintiff must also satisfy the two requirements of Rule 23(b)(3) to certify a class. First, “questions of law or fact common to class members [must] predominate over any questions affecting only individual members” (“predominance”). Fed.R.Civ.P. 23(b)(3). And, second, “a class action [must be] superior to other available methods for fairly and efficiently adjudicating the controversy” (“superiority”). Id.
“There is no mechanical test for determining whether in a particular case the requirement of numerosity has been satisfied. The issue is one . . . to be resolved in the light of the facts and circumstances of the particular case.” Kelley v. Norfolk & W. Ry. Co., 584 F.2d 34, 35 (4th Cir. 1978). Although there is no specific rule as to how many members a class must have, the language of the rule states that there must be a showing that “joinder of all members is impractical.” Fed.R.Civ.P. 23(a); see Williams v. Henderson, 129 Fed.Appx. 806, 811 (4th Cir. 2005) (concluding the district court did not abuse its discretion in denying class certification when the plaintiff identified only eight individuals in the proposed class, which was insufficient to satisfy the numerosity requirement).
As to numerosity, Plaintiff asserts the following:
This case easily satisfies numerosity. Independent has well over 50,000 accountholders. All of them would have been subject to the Independent's policies of assessing overdraft fees on APPSN transactions, Multiple Fees on the same transaction, and OON fees on ATM withdrawals preceded by a balance inquiry. While Plaintiff has yet to receive and analyze this full class-wide data to calculate exactly how many unique accounts were affected, given the voluminous size of the sample data produced, common sense dictates numerosity is met.[Doc. 132 at 18 (citations to the record omitted).] Plaintiff's contentions are without merit.
Plaintiff has not put forward any evidence showing the members of the Proposed Classes are so numerous that joinder is impracticable. Instead, Plaintiff simply argues that the class includes some number of the approximately 50,000 Independent accountholders and that common sense dictates the actual number of class members to be voluminous. [Id.]
However, Plaintiff has not proffered evidence showing how many accounts were actually assessed any of the disputed fees at issue in this case. The actual number of Independent accountholders assessed an allegedly improper fee may be thousands, but the actual number also may be none. In short, Plaintiff has not produced evidence from which this Court can conclude the numerosity requirement is met under the “rigorous analysis” that Rule 23 requires. See, e.g., Ealy v. Pinkerton Gov't Servs., Inc., 514 Fed.Appx. 299, 308 (4th Cir. 2013) (emphasizing the need for a court to engage in a “rigorous analysis into whether . . . the numerosity, commonality, typicality, representativeness, predominance, and superiority requirements of both Rule 23(a) and (b)(3) are met.” (internal quotation marks omitted)). Although “[t]he court may certify a class based on a common sense estimation of the class size if the precise number of class members is unknown,” Talbott v. GC Servs. Ltd. P'ship, 191 F.R.D. 99, 102 (W.D. Va. 2000), an “unsubstantiated allegation as to numerosity . . . is insufficient to satisfy Rule 23(a)(1),” Hewlett v. Premier Salons Int'l, Inc., 185 F.R.D. 211, 215 (D. Md. 1997).
The undersigned finds that the facts and circumstances of the present case are strikingly similar to those in Adams v. Devos, No. 3:15-cv-3592, 2017 WL 3633744, at *3 (S.D. W.Va. Aug. 23, 2017) (explaining “unsupported speculation about the size of the potential class” without any evidentiary support is insufficient to permit the court to “make a ‘common-sense' assumption finding the numerosity requirement [is] met”). In Adams, which involved a dispute over discharged student loans subject to rehabilitation as a result of a defunct school in Florida, the court declined to certify either of the plaintiff's two proposed classes, noting that the plaintiff
provides no support for the speculative conclusion that because a large number of students [estimated to be approximately 10,000] enrolled in [the school], a large number were also affected by [the Department of Education's] decision to rehabilitate loans.
[The plaintiff] has not identified a single . . . potential class member, other than herself, whose discharged loan was subject to rehabilitation. Without even a sliver of evidence to base a decision, the court cannot assume that [the plaintiff] has met the numerosity requirement.Id. (footnote omitted). The same is true here. Plaintiff provides no support for the speculative conclusion that because Independent has a large number of accountholders-approximately 50,000-a large number of accountholders must have been affected by Independent's allegedly improper fee schemes.
Indeed, the undersigned finds it compelling that, despite this case entering its third year of litigation, Plaintiff has not identified a single class member other than herself and has not even tried to approximate for the Court how many potential class members actually might be culled from the total number of Independent customer accounts. Thus, “[w]ithout even a sliver of evidence to base a decision,” Id., the Court cannot find that Plaintiff has demonstrated numerosity, and the undersigned recommends the motion to certify be denied on that basis.
Because the Court recommends denying the motion to certify on this basis, the Court declines to address the parties' arguments regarding the other elements. See, e.g., Adams, 2017 WL 3633744, at *5 (“Failing to have made a sufficient showing of numerosity, the court declines to address [the plaintiff's] arguments on the other three elements required to certify a class.”).
Additionally, even if Plaintiff's allegations were otherwise sufficient, the Court concludes that Plaintiff's attempt to establish numerosity would be thwarted by the Door Closing Statute. Independent argues that, under the Door Closing Statute, nonresidents whose claims arose outside the State of South Carolina cannot be included in a class action brought in South Carolina against a foreign corporation. [Doc. 135 at 10-17.] Plaintiff contends, however, that “the Door Closing Statute does not limit class membership in federal court” and that “Rule 23 determines the appropriate size of a class, and not any state procedural rule.” [Doc. 129-1 at 26-27.] The Court agrees with Independent.
By way of brief review, the undersigned notes that Independent previously raised this argument in a motion for leave to amend its Answer [Doc. 68] and a motion for partial summary judgment [Doc. 67]. Judge Dawson denied both motions, concluding that, at that stage in the litigation, the Door Closing Statute was not a basis for granting Defendant's requested relief. [Doc. 96.] In a subsequent Order on Independent's motion for reconsideration, Judge Dawson clarified as follows:
Judge Dawson denied Plaintiff's motion for leave to amend its Answer to add a defense based on the Door Closing Statute, concluding that the defense was a matter of subject matter jurisdiction and thus did not need to be included in the Answer to be considered. [Doc. 96 at 2 n.1]; see Flex-Van Leasing, Inc. v. Travelers Indem. Co., No. 2:15-cv-01787-DCN, 2017 WL 11707321, at *3 (D.S.C. Dec. 7, 2017) (“If the [Door Closing Statute] bars this suit, then the court lacks subject matter jurisdiction to hear this case.”).
No finding was made that Plaintiff was entitled to class certification.... Neither party has offered any evidence to support or refute whether Plaintiff's three separate proposed nationwide classes, whose members may include residents from other states, will satisfy Rule 23 (or the Door Closing Statute).[Doc. 107 at 2-3.] Because the Court is now faced with the decision of whether to certify Plaintiff's proposed classes, the undersigned will consider whether the Door Closing Statute forecloses non-resident members from the classes. For the reasons below, the undersigned concludes that it does.
The Door Closing Statute provides:
An action against a corporation created by or under the laws of any other state government or country may be brought in the circuit court:
(1) By any resident of this State for any cause of action; or
(2) By a plaintiff not a resident of this State when the cause of action shall have arisen or the subject of the action shall be situated within this State.S.C. Code Ann. § 15-5-150. The Door Closing Statute “affects . . . a party's capacity to sue,” Tuttle Dozer Works, Inc. v. Gyro-Trac (USA), Inc., 463 F.Supp.2d 544, 548 (D.S.C. 2006), and “closes the doors of South Carolina's courts for suits . . . involving a foreign cause of action brought by a foreign plaintiff against a foreign corporation,” Proctor & Schwartz, Inc. v. Rollins, 634 F.2d 738, 739 (4th Cir. 1980). The Fourth Circuit has instructed that “a South Carolina federal court exercising diversity jurisdiction must apply § 15-5-150 unless there are affirmative countervailing federal considerations.” Id. at 739-40 (emphasis added) (internal quotation marks omitted); see also Bumgarder v. Keene Corp., 593 F.2d 572, 573 (4th Cir. 1979) (holding that the Door Closing Statute barred the lawsuit and finding no countervailing federal considerations).
The South Carolina Supreme Court has applied the Door Closing Statute in the class action context to mean that a “class itself cannot include members who would not be able to bring the action in their individual capacities under the [D]oor [C]losing [S]tatute.” Farmer v. Monsanto Corp., 579 S.E.2d 325, 328 (S.C. 2003) (“[W]e hold § 15-5-150 controls the eligibility of class members in a class action where the defendant is a foreign corporation.”). And it is well settled in this District that the Door Closing Statute “applies to non-named and non-resident class members,” Tomczak v. United Servs. Auto. Ass'n, No. 5:21-cv-01564-MGL, 2022 WL 1022647, at *3 (D.S.C. Mar. 31, 2022), “and that each member of the putative class must meet the requirements of this statute,” Hart v. Navy Fed. Credit Union, No. 2:21-cv-44-RMG, 2021 WL 2418459, at *3 (D.S.C. June 11, 2021). As such, the undersigned concludes that the Door Closing Statute applies to this case and bars all non-resident members from this class action.
Plaintiff advances a number of arguments to support her contention that the Door Closing Statute does not apply. First, Plaintiff contends
the Fourth Circuit has repeatedly suggested that the Door Closing Statute does not apply to absent class members, first by affirming certification of a nationwide class despite an objection regarding the Door Closing Statute, see Cent. Wesleyan Coll. v. W.R. Grace & Co., 6 F.3d 177, 186 n.3 (4th Cir. 1993), and then by declining to affirm the denial of nationwide certification based on the Door Closing Statute and instead analyzing the proposed nationwide class using the factors set forth in Rule 23, see Ward v. Dixie Nat'l Life Ins. C., 257 Fed.Appx. 620, 628 (4th Cir. 2007).[Doc. 129-1 at 26-27.] Plaintiff's reliance on Central Wesleyan is misplaced. Judge Lewis recently disposed of an identical argument as follows:
Plaintiffs make a valiant, yet unsuccessful, attempt to overcome Defendants' arguments. First, they cite to [a] footnote in [Central Wesleyan] to say that we are to look only to the residency of the named plaintiff in a class action suit, not to the unnamed and non-resident plaintiffs, to decide whether the Door-Closing Statute applies .... From the last sentence [of the footnote], however, it is clear the Central Wesleyan court understood that the Door-Closing Statute applies in federal diversity actions “unless there are affirmative countervailing federal considerations.”
Nevertheless, according to Plaintiffs, the statement that “[The named plaintiff] . . . is a South Carolina resident whose suits the statute does not bar” leads to the logical conclusion that only the residency of the named plaintiffs applies in the Court's
consideration of whether the Door-Closing Statute ought to apply to their nationwide class allegations.
The Court is unpersuaded that such a single, simple, sentence, which is buried in a footnote, no less, constitutes the Fourth Circuit's deliberate alteration of well-settled law that the Door-Closing Statute generally applies in federal diversity actions.Tomczak, 2022 WL 1022647, at *2-3 (citations omitted) (some alterations in original).
Like her reliance on Central Wesleyan, Plaintiff's reliance on Ward is also misplaced. In Ward, the Fourth Circuit reviewed a district court decision that certified a state-wide (South Carolina) class rather than the nationwide class that the plaintiff had sought to represent. 257 Fed.Appx. at 628. The Fourth Circuit affirmed the limitation. Id. at 628-29. However, the court did so on the basis that the plaintiff had “failed to establish that the proposed multistate class meets Rule 23(b)(3)'s requirement that common legal issues predominate.” Id. at 628. Because the court affirmed on that basis, it did “not find it necessary to decide what effect the [Door Closing Statute as reinterpreted in Farmer] has on class membership in suits being heard in South Carolina federal courts sitting in diversity.” Id.
Plaintiff's argument invoking Ward, like her argument concerning Central Wesleyan, draws an improper inference from the Fourth Circuit's decision. Whatever the Fourth Circuit believes about the Door Closing Statute, there is no basis for assuming, as Plaintiff has, that in Ward “the Fourth Circuit . . . suggested that the Door Closing Statute does not apply to absent class members . . . by declining to affirm the denial of nationwide certification based on the Door Closing Statute and instead analyzing the proposed nationwide class using the factors set forth in Rule 23.” [Doc. 129-1 at 27.] The Fourth Circuit is “entitled to affirm on any ground appearing in the record, including theories [that were] not relied upon or [that were] rejected by the district court.” Scott v. United States, 328 F.3d 132, 137 (4th Cir. 2003). It is not for this Court to conjure the Fourth Circuit's motivation for basing its ruling in Ward on an analysis of the Rule 23 factors to limit class membership rather than on the Door Closing Statute. Until the Fourth Circuit revisits its decisions on the Door Closing Statute, this Court is bound to apply this Circuit's well settled law on the issue. See, e.g., United States v. Brown, 74 F.Supp.2d 648, 652 (“A district court is bound by the precedent set by its Circuit Court of Appeals, until such precedent is overruled by the appellate court or the United States Supreme Court.”).
Next, Plaintiff argues that the Door Closing Statute conflicts with Rule 23 and that the federal rule, rather than the statute, should control, in light of Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), and Pledger v. Lynch, 5 F.4th 511, 518-19 (4th Cir. 2021). [Doc. 129-1 at 27.] Again, Judge Lewis rejected this very argument, explaining as follows:
Rule 23 sets forth the elements required for certification of a class in federal court .... Conversely, the Door Closing Statute has nothing to do with the requirements for class certification, and it does address who may bring substantive claims on an individual basis. To the contrary, the Door-Closing Statute deals with whether nonresident plaintiffs, regardless of whether they are individual plaintiffs, class representatives, or class members, are disallowed from suing nonresidents for claims arising outside of South Carolina. Thus, Plaintiffs are unable to prevail on their Shady Grove argument as to Rule 23.Tomczak, 2022 WL 1022647, at *3 (internal quotation marks and citation to the record omitted).
Finally, Plaintiff argues that the Door Closing Statute should not apply because of “the existence of unique countervailing federal considerations-nationwide class actions granted by Rule 23.” [Doc. 142 at 15.] The Court is unaware of any case law identifying Rule 23 as a unique countervailing federal consideration to overcome the Door Closing Statute. As stated above, the Door Closing Statute applies in federal diversity actions “unless there are affirmative countervailing federal considerations.” Szantay v. Beech Aircraft Corp., 349 F.2d 60, 64 (4th Cir. 1965). As noted by the Fourth Circuit, Szantay identified “several countervailing federal considerations: (1) the purpose in the grant of diversity jurisdiction of avoiding discrimination against nonresidents; (2) the policy of encouraging a state to enforce the laws of its sister states; and (3) the fact that South Carolina was the only state in the country in which the two defendants could be joined.” Proctor, 634 F.2d at 740. The Fourth Circuit “has since limited the need to apply Szantay balancing to situations in which a plaintiff has no other available forum in which to bring its action.” California Buffalo v. Glennon-Bittan Grp., Inc., 910 F.Supp. 255, 257 (D.S.C. 1996) (finding no countervailing federal considerations outweighed the application of the statute where the plaintiff could have brought his action in North Carolina rather than in South Carolina).
Plaintiff's contention that Rule 23's mechanism for a nationwide class action suit constitutes a countervailing federal interest is not supported by the Fourth Circuit law set forth above. As such, Plaintiff has not identified any legitimate affirmative countervailing federal consideration that would excuse the application of the Door Closing Statute in this case. See Bumgarder, 593 F.2d at 573 (concluding the plaintiff had failed to identify any countervailing federal considerations requiring the district court to entertain his suit and to ignore the South Carolina statute and noting “there was an alternate forum to the South Carolina court where [the plaintiff] could gain full relief”). Here, as in Bumgarder, Plaintiff has an alternate forum where she can gain relief. Indeed, Plaintiff concedes as much in that she asserts “in the unlikely event this Court is inclined to apply the door closing statute . . . this Court should simply transfer this action to the Western District of Michigan.” [Doc. 142 at 15.]
Considering the present record, this Court finds that the Door Closing Statute precludes the certification of a class that includes nonresident members. See, e.g., Tomczak, 2022 WL 1022647, at *1 (Lewis, J.) (dismissing nationwide class claims); Hart, 2021 WL 2418459, at *2-3 (Gergel, J.) (dismissing nationwide class claims); Ward v. Dixie Nat'l Life Ins. Co., No. 3:03-cv-3239-JFA, Doc. No. 153 at pp. 3-4 (D.S.C. May 5, 2005) (Anderson, J.) (on a motion for class certification, limiting the proposed nationwide class to South Carolina residents only, on the basis that “each member of the class must meet the requirements of [the Door Closing S]tatute”), aff'd on other grounds, 257 Fed.Appx. 620 (4th Cir 2007); see also Spelman v. Bayer Corp., No. 7:10-cv-00091-JMC, 2011 WL 13312222, at *5 (D.S.C. Feb. 22, 2011) (Childs, J.) (applying the Door Closing Statute to consumer protection claims at the motion to dismiss stage; not a class action); Boisvert v. Techtronic Indus. N. Am., Inc., 56 F.Supp.3d 750, 755 (D.S.C. 2014) (Hendricks, J.) (applying the Door Closing Statute and dismissing plaintiffs products liability claims at summary judgment; not a class action); Snell v. Golden Rule Ins. Co., No. 6:08-cv-3555-MHM, 2009 WL 185723, at *2-3 (D.S.C. Jan. 23, 2009) (Herlong, Jr., J.) (dismissal of non-resident lawsuit against non-resident corporation for breach of contract where litigation arose “from a contract entered into in Virginia”; “when a contract is involved, the question for purposes of the door-closing statute is whether the contract was made or was to be performed in South Carolina” (alteration omitted)). Given that Plaintiff has not identified any South Carolina residents in the putative class other than herself, the operation of the Door Closing statute constitutes an additional reason why she has failed to establish numerosity.
In Farmer, the South Carolina Supreme Court opined in dicta that the Door Closing Statute would not apply in federal suits, but this Court nonetheless has subsequently held on numerous occasions that the statute applies in federal court. Farmer, 579 S.E.2d at 558. See, e.g., Lane v. Lane, No. 9:15-cv-1740-RMG, 2015 WL 5918955, at *7 n.10 (D.S.C. Oct. 8, 2015) (Gergel, J.); accord Boisvert, 56 F.Supp.3d at 752; Kaufman v. Techtronic Indus. N. Am., Inc., No. 8:13-cv-2345-BHH, 2014 WL 4929392, at *3 (D.S.C. Sept. 29, 2014); Spelman, 2011 WL 13312222, at *5; Tuttle Dozer Works, Inc. v. Gyro-Trac (USA), Inc., 463 F.Supp.2d at 449-51.
In sum, for the reasons discussed, the Court concludes that Plaintiff has failed to establish the Rule 23 requirement of numerosity and therefore recommends that the Plaintiff's motion for class certification be denied.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, it is RECOMMENDED that Plaintiff's motion for class certification [Doc. 129] be DENIED.