May 23, 2019 Articles

Why All Federal Courts Should Adopt the Ninth and Sixth Circuits’ Approach to Removal under CAFA

A (second) window of opportunity for removal is consistent with CAFA’s purpose of ensuring that significant interstate class actions are heard in federal court.

By Kymberly Kochis, John Sharpe, and Melissa Fox

Pursuant to the Class Action Fairness Act (CAFA), federal district courts have original jurisdiction over certain class actions when, among other things, the amount in controversy exceeds $5 million. If a plaintiff files an action in state court that meets the requirements for CAFA jurisdiction, the defendant may remove the case to federal court within 30 days of service or “within 30 days after receipt . . . through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. 1446(b). Generally, courts agree that the 30-day window for removal does not run until the plaintiff provides a document, by pleading or otherwise, that “includes a clear statement of the damages sought or . . . sufficient facts from which” the defendant can easily determine whether the amount in controversy exceeds $5 million. E.g., Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 75 (1st Cir. 2014). Conversely, many courts have not considered whether CAFA opens a second window for removal when a defendant previously passed on the opportunity to remove the case on other grounds (e.g., based on federal question or diversity jurisdiction). But the Ninth and Sixth Circuits have considered the issue, both holding that a prior opportunity for removal does not preclude a defendant from later removing the case under CAFA.

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