Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2006

Morgan v. Gay
Precedential or Non-Precedential: Precedential

Docket No. 06-4497




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PRECEDENTIAL


   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                Case No: 06-4497

       SARAH MORGAN, on behalf of herself
          and all others similarly situated

                         v.

           DENNIS W. GAY; GINA GAY;
             BASIC RESEARCH, L.L.C.;
     BAN, L.L.C.; KLEIN-BECKER, USA L.L.C.;
       COVAXIL LABORATORIES, L.L.C.;
        CARTER-REED COMPANY, L.L.C.,
      a/k/a THE CARTER-REED COMPANY;
            A.G. WATERHOUSE, L.L.C.;
 ALPHAGENBO TECH, L.L.C.; BODY FORUM, L.L.C.;
  BODY INNOVENTIONS, L.L.C.; COVARIX, L.L.C.;
BYDEX MANAGEMENT, L.L.C.; NUTRASPORT, L.L.C;
  SOVAGE DERMALOGIC LABORATORIES, L.L.C.;
WESTERN HOLDING, L.L.C.; GEORGE EVAN BYBEE;
            DANIEL B. MOWREY, Ph.D;
           NATHALIE CHEVREAU, Ph.D;
  MITCHELL K. FRIEDLANDER; MICHAEL MEADE,

                              Appellants
      On Appeal from the United States District Court
                 for the District of New Jersey
                District Court No. 06-cv-01371
     District Judge: The Honorable Garrett E. Brown, Jr.


     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                    November 27, 2006

 Before: BARRY, SMITH, and NYGAARD, Circuit Judges


                 (Filed: December 15, 2006)




John M. Agnello
Kerrie Heslin
Carella, Byrne, Bain, Gilfillian, Cecchi, Stewart & Ostein
5 Becker Farm Rd.
Roseland, NJ 07068

Christian H. Gannon
Walter H. Swayze, III
Robert J. Kenney
Maria C. Carlucci
Segal McCambridge Singer & Mahoney, LTD.
830 Third Ave., Suite 400
New York, NY 10022
Counsel for Appellants


                              2
Jeffrey I. Carton
Jill C. Owens
Meiselman, Denlea, Packman, Carton & Eberz, PC
1311 Mamaroneck Ave.
White Plains, NY 10605
Counsel for Appellee

                 ________________________

                           OPINION

                 _______________________

SMITH, Circuit Judge.

                                I.

       This appeal requires us for the first time to interpret
certain provisions of the newly-enacted Class Action Fairness
Act of 2005 (CAFA), Pub. L. No. 109-2, 119 Stat. 4 (2005)
(codified in scattered sections of 28 U.S.C.). Specifically, after
the defendants removed the case from state court to the District
Court, the plaintiff moved to remand to state court.1 That
motion was granted. Because we agree that the District Court
properly placed the burden of proof on the defendants to


   1
    We use the singular version of “plaintiff.” The plaintiff is
“Sarah Morgan, on behalf of herself and all others similarly
situated.”

                                3
establish federal subject matter jurisdiction under CAFA, and
appropriately determined that the defendants failed to prove that
the plaintiff’s claims exceeded CAFA’s amount in controversy
requirement of $5 million, we will affirm.

                               II.

       We repeat verbatim the District Court’s recitation of the
facts of this case because of its brevity and accuracy:

This civil action is based upon false advertising claims by New
Jersey purchasers of the skin cream StriVectin-SD. Plaintiff
asserts violations of the New Jersey Consumer Fraud Act,
N.J.C.A. 56:8-1, et seq., as well as claims under common law
fraud, unjust enrichment and breach of express and implied
warranties. Originally, the instant action was filed as a
nationwide class with representatives in New York, Ohio,
Indiana, Mississippi, Texas, New Jersey, Illinois and Vermont.
Plaintiff’s chosen forum for the original Complaint was the
United States District Court, Southern District of New York. At
that time, Defendants moved to transfer the action to the District
of Utah, based upon a related case previously filed in that
district and because all Defendants maintained residences and/or
principal places of business in Utah. Defendants’ venue motion
was ultimately granted.

        Thereafter, Plaintiff voluntarily dismissed the action and
re-filed a modified, New Jersey law-based Complaint in the

                                4
Superior Court of New Jersey, Law Division, Monmouth
County on January 30, 2006. On March 22, 2006, Defendants
removed this action pursuant to 28 U.S.C. §§ 1441 and 1453
based on federal diversity jurisdiction pursuant to 28 U.S.C. §
1332. On April 20, 2006, Plaintiff filed this Motion to Remand
back to New Jersey Superior Court. On May 26, 2006,
Defendants moved to transfer the case to the United States
District Court, District of Utah (Central Division).

       The present Complaint addresses the amount in
controversy as follows: “this action ... seeks ... trebled
compensatory damages; including but not limited to a refund of
the purchase price that each member of the class paid for
StriVectin-SD; ... punitive damages; ... injunction; interest; court
costs; and attorneys fees; however, the total amount of such
monetary relief for the class as a whole shall not exceed $5
million in sum or value.”

Morgan v. Gay, Civ. No. 06-1371 (GEB), 

at
*1 (D.N.J. Aug. 7, 2006).

        On August 7, 2006, the District Court granted the
plaintiff’s motion to remand to state court, concluding that the
requisite amount in controversy of $5 million had not been
demonstrated. The defendants then timely filed a Petition for
Leave to Appeal on August 16, 2006, as well as a motion for a
stay of the Remand Order pending appeal. The District Court
granted the stay that same day. This Court then granted the

                                 5
defendants leave to appeal. See Morgan v. Gay, 

(3d Cir. 2006). Pursuant to § 1453(c)(2), we have 60 days from
October 16, 2006 to decide the appeal. See, e.g., Miedema v.
Maytag Corp., 

, 1326-27 (11th Cir. 2006); Braud
v. Transp. Serv. Co. of Illinois, 

, 803 n.2 (5th Cir.
2006). But see Patterson v. Dean Morris, L.L.P., 

,
370 (5th Cir. 2006) (Garza, J., dissenting) (arguing that the plain
language of § 1453(c)(2) mandates that the 60 day time limit
begin from when the appeal is filed).

                               III.

        We exercise jurisdiction pursuant to 28 U.S.C. §
1453(c). Our standard of review for issues of subject matter
jurisdiction is plenary. Samuel-Bassett v. KIA Motors Am.,
Inc., 

, 396 (3d Cir. 2004).

                               IV.

                                A.

       The first issue we address is whether the District Court
properly placed the burden of proof on the defendants to
establish federal subject matter jurisdiction under CAFA. The
defendants concede that CAFA is silent as to which party bears
the burden of proof on the amount in controversy. In an attempt
to convince this Court that the burden to establish the amount in
controversy falls upon the plaintiff rather than themselves, the

                                6
defendants focus on the legislative history of CAFA as opposed
to the text of the statute.

        The defendants are correct that the legislative history
indicates that some members of Congress probably wished to
switch the burden of proof from the party seeking removal to the
party seeking remand. The Senate Judiciary Committee Report
(issued ten days after CAFA was signed by the President) states
that “[i]f a purported class action is removed pursuant to these
jurisdictional provisions, the named plaintiff(s) should bear the
burden of demonstrating that the removal was improvident (i.e.,
that the applicable jurisdictional requirements are not satisfied).”
S. Rep. No. 109-14, at 42 (Feb. 28, 2005), reprinted in 2005
U.S.C.C.A.N. 3, 40. See also 

(noting that “plaintiff
should have the burden of demonstrating that ‘all matters in
controversy’ do not (in the aggregate) exceed the sum or value
of $5,000,000, exclusive of interest and costs”). Further, this
Senate Report states that “new section 1332(d) is intended to
expand substantially federal court jurisdiction over class actions.
Its provisions should be read broadly, with a strong preference
that interstate class actions be heard in a federal court if properly
removed by any defendant.” 

These passages indicate
that at least some members of the Senate thought that CAFA
shifts the burden to the party wishing to litigate in state court
and, more generally, close cases should fall under federal
jurisdiction.

       The defendants’ reliance on CAFA’s legislative history

                                 7
is misplaced, for at least two reasons. First, the actual text of
CAFA makes no reference to this burden-shifting legislative
history. Prior to the passage of CAFA, the party seeking to
remove a case to federal court bore the burden to establish
jurisdiction. See, e.g., Lujan v. Defenders of Wildlife, 

, 561 (1992) (“The party invoking federal jurisdiction bears
the burden of establishing these elements.”); Boyer v. Snap-On
Tools Corp., 

, 111 (3d Cir. 1990). The text of
CAFA does not explicitly address whether it shifts this burden
to the party seeking to keep the class action in state court. The
Seventh Circuit was the first court of appeals to confront this
issue. Writing for a unanimous panel, Judge Easterbrook went
so far as to state that “none [of the statute’s language] is even
arguably relevant” to the burden-shifting inquiry. Brill v.
Countrywide Home Loans, Inc., 

, 448 (7th Cir.
2005). The problem with relying solely on CAFA’s legislative
history is that the portion that supports burden-shifting “does not
concern any text in the bill that eventually became law.” 2



   2
     Judge Easterbrook states his point more forcefully later in
the opinion: “But when legislative history stands by itself, as a
naked expression of ‘intent’ unconnected to any enacted text, it
has no more force than an opinion poll of legislators—less,
really, as it speaks for fewer. Thirteen Senators signed this
report and five voted not to send the proposal to the floor.
Another 82 Senators did not express themselves on the question;
likewise 435 Members of the House and one President kept their
silence.” 

.

                                8
        The only section of CAFA that might be applicable to
this debate is its “Findings and Purposes,” which broadly
indicates an intent by Congress to make federal courts more
available to class action litigants.3 However, the Findings and
Purposes say nothing about burden-shifting, and should not be
taken by this Court as an indication that Congress intended to
shift a long- and well-established burden. See 

(rejecting the Findings and Purposes for similar
reasons). It should take more than a few lines in a Senate
Judiciary Committee Report and some vague language in a
statute’s “Findings and Purposes” section to reverse the well-
established proposition that the party seeking removal carries the
jurisdiction-proving burden. Second, and related, as a general
matter this Court need not look to legislative history at all when
the text of the statute is unambiguous and there is no indication
that Congress, for example, made a typographical error in
drafting this part of the statute. Cf. Morgan v. 

(stating that, where the “uncontested intent of Congress”
shows that the statute contains a typographical error, the court’s

  3
    Section 2(b) of CAFA states that “[t]he purposes of this Act
are to (1) assure fair and prompt recoveries for class members
with legitimate claims”; (2) restore the intent of the framers of
the United States Constitution by providing for federal court
consideration of interstate cases of national importance under
diversity jurisdiction; and (3) benefit society by encouraging
innovation and lowering consumer prices.” 28 U.S.C. § 1711
note.


                                9
duty is to make a “common sense revision” to the text of the
statute).

       While several district courts have shifted the burden from
the party seeking removal, no appellate court to date has done
so. In addition to the aforementioned Seventh and Eleventh
Circuits (in Brill and Miedema, respectively), the Ninth Circuit
has also held that the burden remains with the party seeking
removal. See Abrego Abrego v. The Dow Chem. Co., 

(9th Cir. 2006) (per curiam). We see no reason to create an
exception for CAFA to the well-settled practice in removal
actions. Accordingly, we join our sister courts of appeals.
Under CAFA, the party seeking to remove the case to federal
court bears the burden to establish that the amount in
controversy requirement is satisfied.

                               B.

       The second issue we address is whether the District Court
appropriately determined that the defendants failed to prove that
the plaintiff's claims exceeded CAFA’s amount in controversy
requirement of $5 million.4


     4
     The minimal diversity requirement and the minimum
number of putative class members requirement of 28 U.S.C. §
1332(d) are not at issue in this appeal. The disputed §
1332(d)(2) requirement in this case is whether the aggregate
amount in controversy exceeds $5 million.

                               10
1. The Standard: What the Defendants are Required to Prove

         The Supreme Court has long held that plaintiffs may limit
their claims to avoid federal subject matter jurisdiction. See,
e.g., St. Paul Mercury Indem. Co. v. Red Cab Co., 

,
294 (1938) (“If [the plaintiff] does not desire to try his case in
the federal court he may resort to the expedient of suing for less
than the jurisdictional amount, and though he would be justly
entitled to more, the defendant cannot remove.”). CAFA does
not change the proposition that the plaintiff is the master of her
own claim. See, e.g., 

(noting that “a
removing defendant can’t make the plaintiff’s claim for him; as
master of the case, the plaintiff may limit his claims (either
substantive or financial) to keep the amount in controversy
below the threshold”).

        There is, however, a broad good faith requirement in a
plaintiff’s complaint with respect to the amount in controversy.
See Red 

; Golden v. Golden, 

,
354-55 (3d Cir. 2004). Good faith in this context is entwined
with the “legal certainty” test, so that a defendant will be able to
remove the case to federal court by “show[ing] to a legal
certainty that the amount in controversy exceeds the statutory
minimum[.]” Samuel-Bassett v. KIA Motors Am., Inc., 

, 398 (3d Cir. 2004).

       In the context of CAFA’s statutory minimum of $5
million, one court of appeals squarely addressed how the legal

                                11
certainty test plays out and one ducked the issue.5 The Seventh
Circuit in Brill provides persuasive guidance to this Court on
how we should apply the test in the present situation. The Brill
Court states that, because the plaintiff is the “master of the case”
and “may limit his claims . . . to keep the amount in controversy
below the threshold,” the removing party must “show not only
what the stakes of the litigation could be, but also what they are
given the plaintiff’s actual demands.” 

.
Because “the complaint may be silent or ambiguous on one or
more of the ingredients needed to calculate the amount in
controversy,” “[a] defendant’s notice of removal then serves the
same function as the complaint would in a suit filed in federal
court.” 

Abrego Abrego, the Ninth Circuit recognized that this test
usually applies in the reverse scenario where a plaintiff alleges
damages in excess of the federal statutory minimum, so that
“remand is warranted only if it appears to a ‘legal certainty’ that
the claim is actually for less than the jurisdictional 

n.8. However, “[i]f the complaint alleges
damages of less than the jurisdictional amount, ‘more difficult
problems are presented’.” 

Charles Alan
Wright, Arthur R. Miller, & Edward H. Cooper, F EDERAL
P RACTICE & P ROCEDURE § 3725 at 84). The Ninth Circuit
avoided the issue of how the legal certainty test would apply
when the plaintiff alleges an amount below the statutory
minimum because the plaintiffs did not allege a specific damage
amount.

                                12
        Brill and Samuel-Bassett provide three main instructions
to this Court in the present case: 1) The party wishing to
establish subject matter jurisdiction has the burden to prove to
a legal certainty that the amount in controversy exceeds the
statutory threshold; 2) A plaintiff, if permitted by state laws,
may limit her monetary claims to avoid the amount in
controversy threshold; and 3) Even if a plaintiff states that her
claims fall below the threshold, this Court must look to see if the
plaintiff’s actual monetary demands in the aggregate exceed the
threshold, irrespective of whether the plaintiff states that the
demands do not. Key to the present matter is that the plaintiff’s
pleadings are not dispositive under the legal certainty test. This
Court’s task is to examine not just the dollar figure offered by
the plaintiff but also her actual legal claims.

              2. The Application of the Standard

        If this court had all the information available to make
such a determination, our conclusion here might be that the
plaintiff’s claim in all likelihood exceeds $5 million. Two
factors, however, prevent us from agreeing with the defendants.
First, the defendants bear the burden to prove to a legal certainty
that the complaint exceeds the statutory amount in controversy
requirement. Second, there are at least three inconclusive
assumptions that the defendants rely upon to meet this burden.



       First, the District Court accurately noted that the

                                13
defendants do not state what sort of punitive damages could be
found when no harmful side effects are being alleged. The
defendants argue in conclusory fashion that the plaintiff will
certainly seek an award of millions of dollars in punitive
damages. The defendants then cite this Court’s decision in
Golden v. Golden, 

(3d Cir. 2004), for the
proposition that a demand for punitive damages will generally
satisfy the amount in controversy requirement because it cannot
be said to a legal certainty that the value of the plaintiff’s claim
is below the statutory minimum. This reliance on Golden is
misplaced. The plaintiffs in Golden did not limit their damages
as the plaintiff here ostensibly did. Moreover, it was the
plaintiffs in Golden who sought federal jurisdiction under 28
U.S.C. § 1332. Finally, the defendants simply failed to prove
what possible exposure existed with respect to punitive damages
so as to satisfy any portion of the $5 million amount in
controversy requirement.

              Second, the defendants do not provide information
about how much profit from New Jersey sales of StriVectin-SD
would be eligible for disgorgement. The defendants respond by
arguing that this class action will seek disgorgement of the
profits from the nationwide sales of StriVectin-SD rather than
just the New Jersey profits. To this end, the defendants
submitted an affidavit by Ted J. Galovan, the Chief Financial
Officer for Basic Research LLC, one of the defendants in the
case. The Galovan Affidavit states that disgorgement from
nationwide sales will easily exceed the $5 million amount in

                                14
controversy requirement.

               The plaintiff’s initial complaint is at least
ambiguous as to whether disgorgement applies to nationwide
profits or New Jersey profits. As the defendants note, the
plaintiff did not explicitly limit the disgorgement of profits
demand to New Jersey sales rather than nationwide sales until
her remand reply brief. However, the plaintiff has explicitly
limited her claim to disgorgement as a restitutionary remedy, so
that the type of disgorgement of profits sought by Morgan
cannot extend any further than profits derived directly from
sales of StriVectin-SD to the New Jersey class members. See
also Tull v. United States, 

, 424 (1987) (stating that
“[a]n action for disgorgement of improper profits is ... a remedy
only for restitution”). Based on these considerations, and
without stepping into a larger discussion about potential
differences between disgorgement and restitution, we are
satisfied that disgorgement in the context of this case only
applies to profits earned by sales to class members.

                Third, but least damaging to the defendants’ case,
is that, with respect to compensatory damages, the defendants do
not provide “statistical sales information regarding the amount
of StriVectin-SD sold in New Jersey.” Morgan v. Gay, 

at *5. Further, the defendants do not state the
actual cost of StriVectin-SD. These two factors do not fatally
harm the defendants’ position because the plaintiff notes that the
size of the class is at least 10,000, and “it is likely to be far

                               15
larger than that.” While StriVectin-SD retailed for $135 for a
six ounce tube on the defendants’ w ebsite
(www.strivectin.com), discounts are apparently available with
the purchase of multiple tubes. However, neither the plaintiff
nor the defendants provide information as to the amount of this
discount.6 The defendants want us to multiply 10,000 (the
minimum size of the class as alleged by the plaintiff) by $405
(the cost of one bottle at full price trebled, because the plaintiff
seeks treble damages). This total amounts to slightly over $4
million. This figure may be too large or too small, depending on
both the actual class size and the actual cost of the product to
class members. The defendants provide no evidence of the
actual price paid for StriVectin-SD by class members.

             In sum, the defendants did not carry their burden
to show, to a legal certainty, that the amount in controversy



     6
       There were two discounts available on the StriVectin
website as of December 1, 2006: 1) $10 off when a consumer
purchases two six-ounce bottles; and 2) once a consumer
purchases the first $135 bottle, future bottles cost $108. See
http://www.strivectin.com/sd/buy-strivectin.php. StriVectin also
offers StriVectin-SD Eye Cream, with a 1.3 ounce tube retailing
for $59. The website also offers a “100% Money Back
Guarantee: If you are not totally satisfied with the significant
decrease in the appearance of your existing wrinkles or stretch
marks, simply return the unused portion within 30 days for a
full, prompt refund, no questions asked!” 

the statutory minimum.7

                                    C.

                The final issue that we address is whether the
plaintiffs, in state court, will be able to recover more than $5
million in damages even with the express limitation in the
complaint. New Jersey follows Federal Rule of Civil
Procedure 54(c) with its own Rule 4:42-6, which states that
“[e]very final judgment, except final judgments by default,
shall grant the relief to which the party in whose favor it is
rendered is entitled even though that party has not demanded
such relief in the pleadings, provided the parties have been
given an adequate opportunity to be heard as to the relief
granted.” N.J. Ct. R. 4:42-6. See also N.J. Ct. R. 4:5-2. As
interpreted by the Supreme Court of New Jersey, “[i]t appears
universally agreed that the effect of the Rule is to significantly
curtail, if not totally neutralize, the binding effect of the

  7
    We note in passing that the defendants’ assertion that Sarah
Morgan does not have the ability to limit damages of unnamed
class members has no merit. The availability of opting out by
unnamed class members assuages any concerns that Sarah
Morgan’s damage limitation harms these other class members.
The potential class members in this case will be notified
pursuant to New Jersey Court Rules 4:32-1(b)(3) and 4:32-
2(b)(2). Under N.J. Ct. R. 4:32-2(b)(2)(E), “the court will
exclude from the class any member who requests exclusion,
stating when and how members may elect to be excluded.”

                               17
specific demand for damages.” Lang v. Baker, 

,
158 (N.J. 1985) (per curiam).

                Federal Rule of Civil Procedure 54(c) and its
state analogs conflict with pre-54(c) cases like Red 

, which permit the plaintiff to be the master of her
complaint. As the Fifth Circuit noted, Red Cab’s statement
that a plaintiff could limit damages to avoid federal court
“plainly was premised on the notion that the plaintiff would
not be able to recover more in state court than what was
alleged in the state court complaint.” De Aguilar v. Boeing
Co., 

, 1410 (5th Cir. 1995).

               There is tension, then, between Rule 54(c)/Rule
4:42-6 and the Red Cab line of cases. The Supreme Court of
New Jersey, in Lang, stated that, “[u]nder the Rule, a verdict
in excess of the demand is not prohibited unless it would
clearly prejudice the opposing 

. The
text of the decision is ambiguous about whether “the Rule”
refers to Fed. R. Civ. P. 54(c) or N.J. Ct. R. 4:42-6, but this
ambiguity is of no moment because Rule 4:42-6 was patterned
after Rule 54(c)–and Lang’s discussion of the two rules does
not differentiate between them. To resolve this tension, and
in light of Lang, we admonish that a verdict in excess of the
demand could well be deemed prejudicial to the party that
sought removal to federal court when the party seeking
remand uses a damages-limitation provision to avoid federal



                              18
court.8

                                     V.

               For these reasons, we will affirm the judgment
of the District Court. The District Court properly placed the
burden on the parties seeking removal to prove to a legal
certainty that the amount in controversy exceeds the statutory
minimum. The defendants in the present matter failed to
carry this burden. We do caution, however, that the plaintiffs
in state court should not be permitted to ostensibly limit their
damages to avoid federal court only to receive an award in
excess of the federal amount in controversy requirement.9

   8
    On this point, we agree with the Fifth Circuit’s statement in
De Aguilar that “[t]hese new rules have created the potential for
abusive manipulation by plaintiffs, who may plead for damages
below the jurisdictional amount in state court with the
knowledge that the claim is actually worth more, but also with
the knowledge that they may be able to evade federal
jurisdiction by virtue of the pleading. Such manipulation is
surely characterized as bad faith.” See De 

.
       9
      We note the potential availability of judicial estoppel
arguments by the defendants should the plaintiffs in the future
change legal positions in an attempt to achieve an award in
excess of $5 million. The Supreme Court has stated that
“several factors typically inform the decision whether to apply
that doctrine in a particular case: First, a party’s later position

                                19
The plaintiff has made her choice, and the plaintiffs in state
court who choose not to opt out of the class must live with it.




must be clearly inconsistent with its earlier position. Second,
courts regularly inquire whether the party has succeeded in
persuading a court to accept that party's earlier position, so that
judicial acceptance of an inconsistent position in a later
proceeding would create the perception that either the first or the
second court was misled. Absent success in a prior proceeding,
a party’s later inconsistent position introduces no risk of
inconsistent court determinations, and thus poses little threat to
judicial integrity. A third consideration is whether the party
seeking to assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party
if not estopped.” New Hampshire v. Maine, 

,
750-51 (2000) (internal quotations and citations omitted);
United States v. Pelullo, 

, 222-23 (3d Cir. 2005);
McCurrie v. Town of Kearny, 

, 795 (N.J. 2002)
(stating that “judicial estoppel is a doctrine designed to protect
the integrity of the judicial process by not permitting a litigant
to prevail on an issue and then to seek the reversal of that
favorable ruling”); State of New Jersey Dept. of Law & Public
Safety v. Gonzalez, 

, 691 (N.J. 1995) (stating that
judicial estoppel “bars a party to a legal proceeding from
arguing a position inconsistent with one previously asserted”)
(internal quotation and citation omitted).

                                20