JAMES S. MOODY, JR., UNITED STATES DISTRICT JUDGE

Anthony T. Martino, James Dan Clark, Clark & Martino, PA, Christopher Stephen Polaszek, The Poloszek Law Firm, PLLC, Eric A. Seidel, McIntyre Thanasides Bringgold Elliott Grimaldi & Guito, PA, Katherine Earle Yanes, Kynes, Markman & Felman, PA, Richard Jehangir McIntyre, McIntyre Thanasides Bringgold Elliott Grimaldi, Guito PA, Tampa, FL for Plaintiff.

Corey A. Lee, Jamie Zysk Isani, Hunton Andrews Kurth LLP, Miami, FL, Frank M. Lowrey, IV, Bondurant, Mixson & Elmore, LLP, Atlanta, GA, Mark J. Criser, Tori Simmons, Hill Ward Henderson, PA, Tampa, FL, for Defendant.

ORDER

JAMES S. MOODY, JR., UNITED STATES DISTRICT JUDGE

THIS CAUSE comes before the Court upon the parties' briefs regarding subject matter jurisdiction (Dkts. 140, 141). Upon consideration of the briefs, the Court concludes that it retains subject matter jurisdiction over this case.

DISCUSSION

Plaintiff Robert Blobner filed this action as a purported class action lawsuit for deceptive and unfair business practices in violation of Florida's Deceptive and Unfair Trade Practices Act ("FDUTPA"). Blobner sought to represent a class of consumers that purchased "bonded leather" furniture ("a synthetic and primarily polyurethane material containing only bits of pulverized and recycled leather particles") from Defendant R.T.G. Furniture Corp. He initially filed his class action complaint in state court. RTG removed the case under the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1332(d).

On July 24, 2019, the Court denied Blobner's motion for class certification. (Dkt. 137). The Court requested briefing on the question of whether it retains jurisdiction over this matter in light of its denial of class certification.

Blobner's brief argues that the Court lacks subject matter jurisdiction over this action because this case is no longer a class action; it is a claim under Florida state law by one individual Plaintiff. Blobner acknowledges that the Eleventh Circuit has reached conflicting opinions on this matter.

RTG's brief is more extensive and discusses in detail the Eleventh Circuit's opinions in Vega v. T-Mobile USA, Inc. , 564 F.3d 1256 (11th Cir. 2009) and Wright Transportation, Inc. v. Pilot Corp. , 841 F.3d 1266 (11th Cir. 2016). Both opinions concluded that the district court retained original jurisdiction under CAFA after the dismissal of the class claims. Notably, like the instant case, the defendant in Vega had removed the action from state court under CAFA.

RTG also points out that every other Circuit Court to consider the issue has similarly concluded that a dismissal of a class claim does not divest the district court of subject matter jurisdiction. See (Dkt. 141); see also Coba v. Ford Motor Co. , 932 F.3d 114, 118–19 (3d Cir. 2019) ("Thus, before we address the merits of this appeal, we must consider an issue of first impression for our Court: If a federal court properly exercises jurisdiction pursuant to § 1332(d) at the time a claim is filed or removed, does a subsequent denial of class certification divest the court of subject-matter jurisdiction? In accordance with every other Circuit Court to address this question, we conclude that it does not.") (citing cases).

This outcome troubles this Court. As a district court in New York stated:

I cannot pretend to be happy with this result. This breach of contract case between two New York residents belongs in the New York State Supreme Court. The idea that simply alleging the existence of a CAFA class confers extra-constitutional jurisdiction for all time—even when the action ceases to proceed as a class action—is deeply troubling. Class action allegations are easily made, and when CAFA was passed, classes were easily certified. The latter is no longer the case. The notion that plaintiffs can manufacture federal jurisdiction by making classwide allegations that turn out not to be certifiable, for whatever reason, is deeply troubling. Given the unanimity among the Circuit Courts of Appeal on the issue of divestment of jurisdiction—a view supported by the literal language of the statute—I conclude that I have jurisdiction to entertain Berck's individual claim. Because this is an area ripe for abuse, Congress may well wish to take a second look at CAFA, and to make specific provision for what ought to happen when no class is certified.

Fleisher v. Phoenix Life Ins. Co. , 997 F. Supp. 2d 230, 239–40 (S.D.N.Y. 2014) (internal citations omitted). Although the Court is not faced with the scenario referenced in Fleisher because it was RTG that removed this case and Blobner requests that the Court remand this case to state court, Fleisher points out how maintaining jurisdiction over state law claims after the denial of class certification can be problematic and abused by plaintiffs who wish to manufacture federal jurisdiction. Nonetheless, as Fleisher noted, this is an issue for Congress, not this Court, to resolve.

Finally, the Court acknowledges that in Wright the Eleventh Circuit noted that a claim filed or removed under CAFA may be dismissed for lack of jurisdiction only "if those claims contain frivolous attempts to invoke CAFA jurisdiction or lack the expectation that a class may be eventually certified." 841 F.3d at 1271 (citing Cunningham Charter Corp. v. Learjet, Inc. , 592 F.3d 805, 806 (7th Cir. 2010). But as the Eleventh Circuit cautioned in Wright , "CAFA jurisdiction is not easily defeated." Id. at 1272. So, although perhaps the most frivolous of CAFA claims could result in a dismissal for lack of subject matter jurisdiction, the current state of the law does not address the prudential concerns associated with a federal court conducting a federal jury trial over an individualized, state-law claim, involving minimal damages that would not satisfy the jurisdictional amount under 28 U.S.C. § 1332(a)(2). In sum, this Court is constrained by the Eleventh Circuit's binding opinions. Based on the parties' briefs and the Court's independent research, the Court must maintain subject matter jurisdiction over this action. See Perisic v. Ashley Furniture Indus., Inc. , No. 8:16-CV-3255-EAK-SPF, 2018 WL 8581976, at *5 (M.D. Fla. Nov. 7, 2018) ("Nonetheless, the Court finds that it is bound to follow Wright .").

DONE and ORDERED in Tampa, Florida on September 10, 2019.