On April 1, 2015, a Ninth Circuit panel addressed the question whether the term "removable" in 28 U.S.C. § 1446(b)(3) refers to the first date on which any basis for removal is disclosed or the date a basis for CAFA removal is disclosed. In Jordan v. Nationstar Mortgage LLC, Nos. 14-35943, 15-35113, 2015 WL 1447217 (9th Cir. Apr. 1, 2015), the panel, relying on the recent Supreme Court decision Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014), adopted the latter, much broader interpretation. Reversing the district court, the panel found that Nationstar's removal, which was filed within 30 days after receiving interrogatory responses identifying more than $5 million in damages, was timely for CAFA removal, despite that such removal occurred more than two years after the case was removable on federal question grounds. Citing Dart Cherokee, the panel explained: "Even though Dart Cherokee focused on how specifically the 'amount in controversy' requirement must be asserted in a defendant's removal notice under CAFA, the Supreme Court left no doubt, 'that no antiremoval presumption attends cases involving CAFA.' 135 S. Ct. at 554." Nationstar, 2015 WL 1447217 at *5. The panel found its interpretation consistent with the Ninth Circuit's broader reading of the term "removable" for federal officer removal as set out in its decision in Durham v. Lockheed Martin Corp., 445 F. 3d 1247 (9th Cir. 2006). Nationstar, 2015 WL 1447217 at *3–4.
William J. Holley II is a partner with Parker Hudson Rainer & Dobbs in Atlanta, Georgia.
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