On Consecutive Days, Appeals Courts Fortify Defendants’ Efforts to Remove Class Actions from States

9thCir8th CircuitAs anticipation builds for the U.S. Supreme Court’s next big CAFA case later this fall, two federal appeals courts are doing their part to make removal under the Class Action Fairness Act (CAFA) a little easier.

In Raskas v. Johnson & Johnson, the U.S. Court of Appeals for the Eight Circuit held that a removing defendant need not prove the $5 million jurisdictional threshold to an absolute certainty, but only need show that a fact finder might legally conclude that the damages exceed $5 million.  So long as the trier of fact might award more than $5 million in damages, CAFA’s amount-in-controversy requirement is satisfied.

In a CAFA removal case decided the next day, the Ninth Circuit held in Roth v. CHA Hollywood Medical Center, LP that removal is not barred after 30 days by 28 U.S.C. § 1446 so long as the defendant discovers its own facts or information supporting removal.  The Court held that the 30 day time limit for removal applies only when the plaintiff has put a defendant on notice that the case is removable.  Thus, a defendant can conceivably remove a case at any time based on its own information, so long as it received no indication of removability from the plaintiff.

Both of these decisions are part of an encouraging trend permitting out-of-state defendants, in order to ensure that their cases will be heard in an impartial forum, to remove those cases from state to federal court.

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