This case presents an issue of first impression for this court: whether amending a complaint to add a defendant "commences" a new suit under the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. 109-2, 119 Stat. 4. We answer in the affirmative and, for that reason, we reverse the district court's order of remand, and we remand to that court for further proceedings.

On August 30, 2004, Pamela Braud and certain other plaintiffs (the "Braud plaintiffs") filed a "Class Action Petition for Damages" in state court. On April 8, 2005, the Braud plaintiffs amended their petition to name as an additional defendant Ineos Americas, LLC ("Ineos"), which plaintiffs contend was the owner and co-shipper of the chemical that allegedly spilled. Ineos was served with the original and supplemental class action petition on April 19, 2005.

On May 19, 2005, Ineos timely removed the action to federal court, basing removal jurisdiction on CAFA. The Braud plaintiffs are citizens of Louisiana, and Ineos is a foreign corporation authorized to do business in Louisiana.

On June 17, 2005, the Braud plaintiffs moved to remand to state court, and on July 12, 2005, they filed a purported unopposed motion to dismiss Ineos. By order entered on December 9, 2005, the district court remanded, finding that CAFA does not apply because the Braud plaintiffs had filed their initial complaint before CAFA's effective date, despite the fact that Ineos was not named as a defendant until after the effective date, which is February 18, 2005. Transport Service Company of Illinois ("Transport"), pursuant to 28 U.S.C. § 1453(c), filed on December 16, 2005, a timely application for leave to appeal,1 which we granted on January 27, 2006.2

Section 9 of CAFA provides that "[t]he amendments made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act." 119 Stat. at 14. To determine whether a lawsuit was commenced on or after February 18, 2005, the district court relied on Federal Rule of Civil Procedure 3, which, as plaintiffs correctly point out, reads that "[a] civil action is commenced by filing a complaint with the court." Despite the logical of this argument, the courts of appeals that have examined the issue have unanimously held that when a lawsuit is initially "commenced" for purposes of CAFA is determined by state law.3 We agree.

As the court in Bush explained, CAFA broadens diversity jurisdiction for certain qualifying class actions and authorizes their removal, and thus, "given its context, CAFA's `commenced' language surely refers to when the action was originally commenced in state court." Bush, 425 F.3d at 688. Furthermore, when an action is commenced in state court is determined based on the state's own rules of procedure.4 In most states "commencement" occurs either when the suit is filed or when the complaint or summons is served, but in Connecticut the action commences by service.5 In Louisiana, a suit is commenced by filing of a pleading presenting the demand to a court of competent jurisdiction. LA. C.C.P. art. 421. Therefore, the Braud plaintiffs' original action commenced on August 30, 2004.

A distinct issue, however, is whether an amendment of the complaint through the addition of a new defendant "commences" a new suit for purposes of CAFA. The defendants urge us to employ the reasoning of Knudsen I, 411 F.3d at 807, and Schillinger v. Union Pac. R.R., 425 F.3d 330 (7th Cir.2005), to hold that the post-CAFA amendment of a pre-CAFA complaint by adding a new defendant "commences" a new suit. Plaintiffs respond that (1) CAFA was not meant to be retroactive; (2) Knudsen I is inapposite, and any language that may support appellants' position is "mere dicta;" (3) even applying Knudsen I's reasoning, no new suit would commence here, because the addition of Ineos "related back" to the original complaint; and (4) in any event, Ineos's dismissal after removal and before the ruling on the motion to remand ousted the court of subject matter jurisdiction.

Plaintiffs' argument regarding "retroactivity" is without merit. Although CAFA is meant to apply only to suits "commenced" after the effective date, and courts apply a presumption against the retroactivity of a statute absent a plain congressional intent to the contrary, Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994), the issue is not whether CAFA should apply to suits "commenced" before February 18, 2005, but whether the addition of a new defendant "commences" a new suit. That is, if under the applicable decisional law, Ineos's addition "commenced" a new suit on April 8, 2005, the removal would not be retroactive, because the suit would be considered "commenced" on or after February 18, 2005.

Plaintiffs' argument that Knudsen I and the other cases cited by defendants are inapposite and provide mere "dicta" is also misplaced. Even if the statements are dicta, they are persuasive; moreover, the court in Schillinger explained that the defendants "correctly observe that in general, `a defendant added after February 18 could remove because suit against it would have been commenced after the effective date[.]'" Schillinger, 425 F.3d at 333 (quoting Schorsch v. Hewlett-Packard Co., 417 F.3d 748, 749 (7th Cir.2005)). The Schillinger court noted that this principle was inapplicable to the defendant in that case because his addition to the amended complaint was a "scrivener's error." Id.

We agree with the Seventh Circuit that amendments that add a defendant "commence" the civil action as to the added party.6 We reach this conclusion based on two considerations, of which only the latter has been discussed by that court.

First, the district court's remark that "there's no specific language in the CAFA legislation itself . . . that would support that position that if a new party was added [post-CAFA to a pre-CAFA case then] CAFA would apply" misses the mark.7 Precisely because CAFA does not define "commencement" of an action, it is obvious that CAFA is not intended to replace caselaw deciding when a lawsuit is considered "commenced" as to a new defendant.

The caselaw holds that generally "a party brought into court by an amendment, and who has, for the first time, an opportunity to make defense to the action, has a right to treat the proceeding, as to him, as commenced by the process which brings him into court." United States v. Martinez, 195 U.S. 469, 473, 25 S. Ct. 80, 49 L. Ed. 282 (1904) ((citing Miller v. M'Intyre, 31 U.S. (6 Pet.) 61, 8 L. Ed. 320 (1832))). As the Miller Court explained, this is because it "would be a novel and unjust principle to make the defendants responsible for a proceeding of which they had no notice." Miller, 31 U.S. at 64.8 Therefore, if a defendant was added post-CAFA, the suit commences post-CAFA as to him.

Second, we agree with the Knudsen I court that the addition of a new defendant "opens a new window of removal" under 1446(b).9 Section 1446(b) indicates that a case that was previously non-removable can become removable when a new party is added. As explained in WRIGHT, MILLER & COOPER, supra, § 3732 at 311-48, § 1446(b) "supplements the thirty-day removal period described in the first paragraph of the provision," which covers only the period for effecting removal to federal court following the "receipt or filing" of the initial pleading.

That is, if an original complaint is not amended, removal must be determined based only on the law and facts as to removability at the time of filing or receipt of the initial pleading under § 1446(b) 1. If the complaint is amended, however, § 1446(b) 2 provides that the new defendant has a new window to remove as of the date of receipt of service of the amended complaint:

[I]f the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, 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). Therefore, as to the new defendant, removability is determined as of the date of receipt of service of the amended complaint, not as of the date on which the original suit was filed in state court.

Furthermore, under CAFA a new defendant may remove regardless of whether it was added more than one year after the original complaint was filed in state court. Therefore, the district court incorrectly pointed out that the addition of a new party does not commence a new suit because (as the district court improperly reasoned) Congress "give[s] you a specific time period within which you must remove or forever lose your right to remove without regard to if you happen to add a party—if the plaintiff decides to add a party a year and a half from now, your time period doesn't run again."

Instead, a new defendant can remove even if the plaintiff decided to add it more than one year after the initial suit. Therefore, there is no indication that the time when the initial suit was filed has any relevance as to when an action "commences" under CAFA for an amendment adding a new defendant. Rather, the correct approach is that used in Adams, Martinez, and Miller, which, because of concerns regarding notice and limitations, looked at commencement as to a new defendant as of the date of service of the amended pleading (or receipt of that pleading under 1446(b)).

Thus, although "an amendment of the complaint will not revive the period for removal if a state court case previously was removable but the defendant failed to exercise his right to do so," a different result generally is reached if the pleading amendment provides (1) a "new basis for removal" or (2) "changes the character of the litigation so as to make it substantially a new suit." 14C WRIGHT, MILLER & COOPER, supra, § 3732 at 311-48.10

Ineos's addition "changes the character of the litigation so as to make it substantially a new suit," because as we explained, the addition of the new defendant commences the lawsuit as to it. This permits removal even absent any discussion of "relation back," provided, of course, that the defendant is indeed a "new" defendant.11

This distinction for new defendants, as opposed to new claims, is a distinction without a difference, because the same result is reached as though the relation back test were used: Under federal law, adding a new defendant generally does not relate back to the filing of the original complaint unless Federal Rule of Civil Procedure 15(c)(3) applies.12 Also, under Louisiana law the addition of a new defendant does not relate back to the original complaint unless a misnomer situation as described in rule 15(c)(3) applies.13

Although plaintiffs argue that Ineos's addition related back to the original complaint because it arose out of the same transaction or occurrence, this assertion is, at best, careless. Even if the "misnomer" exception described in Ray, 434 So.2d at 1087 (or the identical rule 15(c)(3)) were to apply, plaintiffs discussed only the same-transaction-or-occurrence prong for relation back.14 Both federal and Louisiana procedural law also require, among other things, that the new defendant "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party."15

There is no indication that Ineos had that knowledge. Accordingly, the addition of Ineos does not relate back to the original complaint, because Ineos was an additional defendant, not a misnamed defendant.16

We reject plaintiffs' contention that Ineos's dismissal after removal ousted the district court of subject matter jurisdiction. Under Louisiana law, the Braud plaintiffs commenced their suit against Ineos several months after the effective date of CAFA. Because the amended pleading satisfied CAFA's jurisdictional provisions, at that point the federal court had jurisdiction under 28 U.S.C. § 1332, as amended by CAFA. We agree with the court in Dinkel v. General Motors Corp., 400 F. Supp. 2d 289, 294 (D.Me.2005), that it is the "action," not claims against particular defendants, that is removable, so the subsequent dismissal of the removing defendant cannot render the entire lawsuit improperly removed.

The language of CAFA is plain that any single defendant can remove (without the consent of other defendants) the entire class action (not merely the claims against that defendant): "A class action may be removed to a district court of the United States . . . without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants." 28 U.S.C. § 1453(b). Further, as the Senate Report on CAFA notes,

The law is clear that, once a federal court properly has jurisdiction over a case removed to federal court, subsequent events generally cannot "oust" the federal court of jurisdiction. While plaintiffs undoubtedly possess some power to seek to avoid federal jurisdiction by defining a proposed class in particular ways, they lose that power once a defendant has properly removed a class action to federal court.

Id. (citing Judiciary Committee Report on Class Action Fairness Act, S.Rep. No. 109-14 (1st Sess.2005), reprinted in 2005 U.S.C.C.A.N. 3, 2005 WL 627977, at *43).

A federal court nonetheless may properly remand if the amendment dismissing the removing defendant was made for legitimate purposes, provided, of course, that CAFA's minimal diversity requirement is not satisfied after the dismissal of the removing defendant. As the Schillinger court explained,

When a plaintiff amends his complaint after removal in a way that destroys diversity, a district court must consider the reasons behind the amendment in determining whether remand is proper. If the plaintiff amended simply to destroy diversity, the district court should not remand. See 14B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE (1998 and Supp.), § 3723, at p. 591 (citing district court cases). But an amendment that is made for legitimate purposes may be a proper ground for a remand to state court.

Schillinger, 425 F.3d at 334. Absent the proffer of any reason for Ineos's dismissal, it appears that its dismissal was intended solely to destroy diversity, so there is no justification for remand. Dismissal is inappropriate for the further reason that there is still minimal diversity—the plaintiffs are citizens of Louisiana, and Transport is a foreign corporation authorized to do business in Louisiana.17

The remand order of the district court is REVERSED, and this matter is REMANDED to the district court for further proceedings. The mandate shall issue forthwith.