Instead, the Damages Subclasses are defined in the past tense, that is, South Carolina citizens “who borrowed money from Defendant in the three years preceding the filing of this complaint” or who “renewed a loan with Defendant
Damages Subclass One: All citizens of South Carolina who borrowed money from Defendant in the three years preceding the filing of this complaint whose monthly obligations exceeded 55% of their gross monthly income.
Advance America contends that these class definitions include “any individual who (1) entered into a deferred presentment services agreement with Advance America and (2) was at any time a South Carolina citizen.” (Br. Appellant 17.) Advance America then argues that the classes would include plaintiffs “who borrowed money” from it while a South Carolina citizen, but who thereafter became citizens of another state before the Complaint was filed. The majority finds this argument unpersuasive based on its reading of the classes as defined in the Complaint and concludes that “if one of Advance America’s customers had in fact established domicile outside of customers would not be ‘citizens of South Carolina’ at the time the complaint was filed and therefore would not be members of the proposed class.” Supra at 937. For the reasons that follow, I agree with the majority as to the Inages Subclass One and Damages Subclass Two (collectively, the “Damages Subclasses”).
The plain language of the Complaint defining the Injunctive Relief Class describes its members in the present tense, that is, South Carolina citizens “who are domiciled in South Carolina.” (Emphasis added). This language establishes a class of plaintiffs who are South Carolina citizens even though the ultimate class membership is further restricted to those South Carolina citizens “who borrowed money from Defendant in the three years preceding the filing of the complaint.” If a person is not “domiciled in South Carolina” at the time the Complaint was filed then that person, by definition, cannot be a member of the Injunctive Relief Class.
Damages Subclass Two: All citizens of South Carolina who renewed a loan with Defendant by repaying only the interest and received a new loan
The majority opinion correctly points out that the plaintiffs are “masters of their complaint,” supra at 937, and have considerable leeway in defining who is, and is not, within the class or classes of the Complaint. In this case, the plaintiffs have circumscribed the membership of the Injunctive Relief Class to include only South Carolina citizens, at least as of the filing of the Complaint.
The definition of the members of the Damages Subclasses are not drawn in the present tense as is the Injunctive Relief Class. The limiting phrase “who are domiciled in South Carolina,” or other similar denotation of present status, is missing. ” Thus, to be a member of the Damages Subclasses, a person need only have borrowed from Advance America over the last three years, or renewed a loan, while a South Carolina citizen. These past actions while a South Carolina citizen speak not at all to that person’s subsequent status as a South Carolina citizen at the time the Complaint was filed.
The plaintiffs, as master of their complaint, have defined the members of the Damages Subclasses in a way that could include members who were South Carolina citizens when they initially borrowed or renewed a loan, but who ceased to be South Carolina Citizens before the Complaint was filed. The failure of the Complaint to place a certain temporal requirement on class membership leaves open the potential membership to persons who were not South Carolina citizens when the Complaint was filed, even though they were South Carolina citizens when their transactions with Advance America took place. If such persons with other than South Carolina citizenship do exist in fact, then the minimal diversity requirements enunciated in CAFA would be met and jurisdiction in the district court would be established. 28 U.S.C. Minnesota cash now § 1332(d)(2) (2006).