MARGARET M. MORROW, District Judge.
On June 19, 2013, Shawn Leon filed this putative class action in Los Angeles Superior Court against Gordon Trucking, Inc. ("Gordon Trucking").
On September 18, 2014, Leon filed a motion to remand.
This is the second time Gordon Trucking has removed this action to federal court. After it was served with the summons and complaint on June 26, 2013, Gordon Trucking timely removed the case on July 25, 2013, invoking the court's federal question jurisdiction based on Leon's FLSA claim.
On August 21, 2014, sixty-two days after remand, Gordon Trucking filed a second notice of removal. In it, Gordon Trucking contends that removal is proper under CAFA because the amount in controversy exceeds $5,000,000 and the citizenship of the parties is minimally diverse. In addition to noting that it is a Washington corporation, Gordon Trucking now asserts that its principal place of business is in Washington as well. In all other respects, its notice of removal is identical to its response to the court's order to show cause. On September 19, 2014, Leon filed a motion to remand.
"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a). "If at any time before final judgment[, however,] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).
The right to remove a case to federal court is entirely a creature of statute. See Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979). The removal statute, 28 U.S.C. § 1441, allows defendants to remove when a case originally filed in state court presents a federal question or is between citizens of different states and involves an amount in controversy that exceeds $75,000. See 28 U.S.C. §§ 1441(a), (b); see also 28 U.S.C. §§ 1331, 1332(a). Only state court actions that could originally have been filed in
The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction," and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir.1988), Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir.1985), and Libhart, 592 F.2d at 1064). "The `strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (citing Nishimoto v. Federman-Bachrach & Assocs, 903 F.2d 709, 712 n. 3 (9th Cir.1990); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir. 1988)). Doubts as to removability must be resolved in favor of remanding the case to state court. Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1090 (9th Cir.2003).
In 2005, Congress enacted the Class Action Fairness Act of 2005, Pub.L. No. 109-2, 119 Stat. 4. CAFA gives district courts original jurisdiction to hear class actions "in which the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs," and "in which[, inter alia,] any member of a class of plaintiffs is a citizen of a State different from any defendant." 28 U.S.C. § 1332(d)(2); see also Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031, 1033-34 (9th Cir.2008) ("The Class Action Fairness Act of 2005 § 4(a), 28 U.S.C. § 1332(d)(2), amended the requirements for diversity jurisdiction by granting district courts original jurisdiction over class actions exceeding $5,000,000 in controversy where [the citizenship of] at least one plaintiff is diverse from at least one defendant. In other words, complete diversity is not required. CAFA also provided for such class actions to be removable to federal court. See 28 U.S.C. § 1453(b). CAFA was enacted, in part, to `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.' Pub.L. No. 109-2, § 2(b) (2), 119 Stat. 4, 5 (codified as a note to 28 U.S.C. § 1711)").
Under CAFA, the number of members of all proposed classes must exceed 100 in the aggregate. 28 U.S.C. § 1332(d)(5)(B). See also Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1020-21 (9th Cir.2007) ("As a threshold matter, CAFA applies to `class action' lawsuits where the aggregate number of members of all proposed plaintiff classes is 100 or more persons and where the primary defendants are not `States, State officials, or other governmental entities against whom the district court may be foreclosed from ordering relief.' § 1332(d)(5).... Once the prerequisites of § 1332(d)(5) are satisfied, CAFA vests federal courts with `original' diversity jurisdiction over class actions if (1) the aggregate amount in controversy exceeds $5,000,000, and (2) any class member is a citizen of a state different from any defendant. § 1332(d)(2)"); id. at 1021 n. 3 ("The Fifth Circuit characterized § 1332(d)(5) as an `exception' to CAFA jurisdiction conferred under § 1332(d)(2).... We view § 1332(d)(5) somewhat differently.... [S]atisfaction of § 1332(d)(5) serves as a prerequisite, rather than as an exception, to jurisdiction under § 1332(d)(2). This
The Ninth Circuit has confirmed that CAFA does not disturb the traditional rule that the burden of establishing removal jurisdiction is on the proponent of federal jurisdiction. Abrego Abrego v. The Dow Chemical Co., 443 F.3d 676, 685 (9th Cir. 2006) ("We ... hold that under CAFA the burden of establishing removal jurisdiction remains, as before, on the proponent of federal jurisdiction").
Leon advances several arguments in support of his motion to remand. First, he asserts that the court lacks jurisdiction because the court has already rejected Gordon Trucking's invocation of CAFA jurisdiction, and it identifies no new grounds for removal.
Leon first contends that the court lacks jurisdiction to entertain Gordon Trucking's successive removal. When a case is remanded for lack of subject matter jurisdiction, § 1446(d) bars review of the remand order "on appeal or otherwise." 28 U.S.C. § 1447(d); Kircher v. Putnam Funds Trust, 547 U.S. 633, 640, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) ("[W]e have relentlessly repeated that `any remand order issued on the grounds specified in § 1447(c)
Stated differently, "a party is not entitled to file a second notice of removal upon the same grounds where the district court previously remanded the action." Allen v. UtiliQuest, LLC., No. CV 13-4466 SBA, 2014 WL 94337, *2 (N.D.Cal. Jan. 9 2014) (citing St. Paul & C. Ry. Co. v. McLean, 108 U.S. 212, 217, 2 S.Ct. 498, 27 L.Ed. 703 (1883) ("Assuming that the second petition for removal was filed before or at the term at which the cause could have been tried in the state court, we are of opinion that a party is not entitled, under existing laws, to file a second petition for the removal upon the same grounds, where, upon the first removal by the same party, the federal court declined to proceed and remanded the suit, because of his failure to file the required copy within the time fixed by the statute")); see also Seedman, 837 F.2d at 414 ("Once a district court certifies a remand order to state court it is divested of jurisdiction and can take no further action on the case. Contrary to respondent's position, a second removal petition based on the same grounds does not `reinvest' the court's jurisdiction. A remand order returns the case to the state courts and the federal court has no power to retrieve it. As the statute makes clear, if the remand order is based on section 1447(c), a district court has no power to correct or vacate it"); see also Andersen v. Schwan Food Co., No. CV 13-02208 JGB, 2014 WL 1266785, *4 (C.D.Cal. Mar. 26, 2014) (same).
This general prohibition on successive removals, however, does not apply "when subsequent pleadings or events reveal a new and different ground for removal." Kirkbride v. Continental Casualty Co., 933 F.2d 729, 732 (9th Cir.1991) (quoting FDIC v. Santiago Plaza, 598 F.2d 634, 636 (1st Cir.1979) (emphasis original)); Andersen, 2014 WL 1266785 at *5 ("Thus, the court recognized that the information required for removal was available to Defendants at the time of the first removal as it was `uniquely within the records of Schwan.' ... Accordingly, Defendants have not demonstrated that their `second notice of removal is based on newly discovered facts not available at the time of the first removal,' and thus their successive removal is improper"); Sweet v. United Parcel Serv., Inc., CV No. 09-02653 DDP,
Leon contends that Gordon Trucking's second removal "constitutes an improper attempt to redo what it should have done initially in response to the [c]ourt's [o]rder to [s]how [c]ause by offering additional evidence of citizenship [ ] to establish diversity."
Gordon Trucking attempts to avoid this conclusion, arguing first that the "new and different" evidence upon which it relies concerns the amount in controversy. The evidence Gordon Trucking adduces concerning the amount in controversy, however, is neither new nor different. It cites a damages assessment that Leon's counsel emailed to its attorney, which stated that the amount in controversy exceeded
Gordon Trucking also argues that it originally removed solely on federal question grounds, and that Leon's assertion that it cannot file a second removal petition based on CAFA is inconsistent with Ninth Circuit precedent permitting successive removals based on new and different grounds. The court disagrees. The court did not remand the case solely on federal question grounds — the basis for jurisdiction asserted in Gordon Trucking's notice of removal. Rather, after Leon amended his complaint to drop the federal claim, the court issued an order to show cause. Gordon Trucking responded, arguing not only that the court continued to have federal question jurisdiction, but also that it could exercise jurisdiction under CAFA. Because Gordon Trucking's contention that the court had federal question jurisdiction lacked merit, and because it failed to meet its burden of showing that CAFA's minimal diversity requirement was met, the court remanded the action to state court. Stated differently, the court found that Gordon Trucking had failed to show both that it had federal question jurisdiction and that it had CAFA jurisdiction. In essence, Gordon Trucking argues that the court should not look to all grounds considered in its remand order, but exclusively to the grounds raised in its respective notices of removal. This argument is unpersuasive for a number of reasons.
First and foremost, Gordon Trucking's position is clearly at odds with the plain language of § 1447(d), the statute on which the Ninth Circuit relied in deciding that successive removals alleging the same grounds are impermissible. Section 1447(d) states that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." 28 U.S.C. § 1447(d). The statute makes no reference to the grounds alleged in the notice of removal; rather, it provides that the court's remand order is unreviewable. See, e.g., New Orleans Pub. Serv., Inc. v. Majoue, 802 F.2d 166, 167 (5th Cir.1986) ("Not only may the order not be appealed, but the district court itself is divested of jurisdiction to reconsider the matter. Thus, even if it later decides the order was erroneous, a remand order cannot be vacated even by the district court," citing Browning v. Navarro, 743 F.2d 1069, 1078 (5th Cir.1984); Pelleport Investors, Inc. v. Budco Quality Theatres, 741 F.2d 273, 279 n. 3 (9th Cir.1984); Three J Farms, Inc. v. Alton Box Board Co., 609 F.2d 112, 115 (4th Cir.1979)). In
This conclusion is supported by the fact that the Ninth Circuit has never held that § 1447(d) bars successive removals only if they are based on the grounds asserted in the original notice of removal. Rather, the Ninth Circuit's decision in Seedman indicates that it is the district court's remand order that controls whether a second removal petition can be considered. There, one month after defendant removed an action to federal court, the district court sua sponte remanded the case to state court on the basis that the removal petition was untimely. Seedman, 837 F.2d at 413. One month later, after the remand order had already been certified to the state court, defendants filed a second notice of removal, claiming the earlier remand was erroneous. Id. at 413-14. Plaintiff filed a motion to remand, which the court denied, stating that its initial order had been the result of a clerical error, and that the removal had been proper. Id. at 414. Plaintiff then filed a petition for a writ of mandamus. The Ninth Circuit granted the writ, holding that the district court lacked jurisdiction to entertain the second removal. The court noted that once the district court certified the remand order, it was "divested of jurisdiction and [could] take no further action on the case." Id. at 414. Seedman does not reference defendants' notice of removal in any way; it speaks solely in terms of the district court's remand order. See 837 F.2d at 413 ("Once a district court certifies a remand order to state court it is divested of jurisdiction and can take no further action on the case. Contrary to respondent's position, a second removal petition based on the same grounds does not `reinvest' the court's jurisdiction. A remand order returns the case to the state courts and the federal court has no power to retrieve it. As the statute makes clear, if the remand order is based on section 1447(c), a district court has no power to correct or vacate it" (emphasis added)). See also Rea v. Michaels Stores Inc., 742 F.3d 1234, 1238 (9th Cir.2014) ("In Seedman, we interpreted the provision in 28 U.S.C. § 1447(d) stating that a remand order `is not reviewable on appeal or otherwise' as preventing the district court from considering a removal based on the same grounds as one the court had previously remanded").
District courts have also recognized that it is the grounds discussed in the remand order, rather than the grounds alleged in the notice of removal, that govern whether a successive removal is based on "new and different" grounds. See Domenico v. Veolia Transp., Inc., No. 10-CV-02104 WYD, 2010 WL 3516901, *1 (D.Colo. Aug. 31, 2010) ("Thus, while a defendant may reremove a case pursuant to section 1446(b), where, for example, the plaintiff amends her non-diverse state law complaint after remand to add a federal cause of action,
Here, whether the notice of removal or the remand order controls in assessing whether a successive removal is based on new and different grounds is academic because Gordon Trucking effectively amended its notice of removal by arguing that the court had jurisdiction under CAFA in its response to the order to show cause. Cohn v. Petsmart, Inc., 281 F.3d 837 (9th Cir.2002), is instructive in this regard. There, "Petsmart's notice of removal was deficient because it only summarily alleged that the amount in controversy exceeded $75,000, without alleging any underlying facts to support this assertion." Id. at 843 (citing Gaus, 980 F.2d at 567). Petsmart's opposition to plaintiff's motion to remand, however, provided further facts supporting its assertion that the amount in controversy exceeded $75,000; it explained that its contention was based on a settlement demand by plaintiff. The Ninth Circuit held that "the district court [had] not err[ed] in construing Petsmart's opposition as an amendment to its notice of removal." Id. (citing Willingham v. Morgan, 395 U.S. 402, 407 n. 3, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969) ("It is proper to treat the removal petition as if it had been amended to include the relevant information contained in the later-filed affidavits"); see also 28 U.S.C. § 1653 ("Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts")). See also Geerlof v. C & S Wholesale Grocers, Inc., No. 13-CV-02175-MCE-KJ, 2014 WL 1415974, *5 (E.D.Cal. Apr. 14, 2014) ("Subsequently, the Ninth Circuit stated that Cohn distinguished Gaus, and stands for the proposition `that a district court may consider later-provided evidence as amending a defendant's notice of removal," quoting Gen. Dentistry For Kids, LLC v. Kool Smiles, P.C., 379 Fed.Appx. 634, 636 (9th Cir.2010) (Unpub.Disp.)); Morella v. Safeco Ins. Co. of Ill., No. 12-CV-00672 RSL, 2012 WL 2903084, *1 (W.D.Wash. July 16, 2012) ("[T]he post-removal submission of supporting evidence can be treated as amending the notice of removal," citing Cohn, 281 F.3d 837).
This is precisely what happened in this case. After Leon filed an amended complaint alleging no federal claims, the court issued an order to show cause. In response, Gordon Trucking argued that the court continued to have federal question jurisdiction. It also proffered evidence (the same evidence it adduces in support of its second removal) that purportedly demonstrated the court had diversity jurisdiction under CAFA. Consistent with Cohn, the court considered the new information, effectively allowing Gordon Trucking to amend its original notice of removal to assert that the court had jurisdiction, inter alia, under CAFA. Because Gordon Trucking has once again asserted CAFA as a ground for removal, the court lacks jurisdiction to entertain the successive removal.
Finally, the court notes that to accept Gordon Trucking's argument would effectively undermine § 1447(d)'s prohibition on appeals or motions for reconsideration of
Even if the court could entertain Gordon Trucking successive notice of removal, it would conclude that it had not met its burden of showing that the court has jurisdiction to hear the action. As noted, the burden of establishing federal jurisdiction is on the party seeking removal. Serrano, 478 F.3d at 1021 ("We concluded that [in enacting CAFA,] Congress intended to maintain the historical rule that it is the proponent's burden to establish a prima facie case of removal jurisdiction," citing Abrego Abrego, 443 F.3d at 685). Thus, "[a] defendant seeking removal of a putative class action must demonstrate, by a preponderance of evidence, that the aggregate amount in controversy exceeds the jurisdictional minimum. This standard conforms with a defendant's burden of proof when the plaintiff does not plead a specific amount in controversy." Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 981 (9th Cir.2013); see also Rea v. Michaels Stores Inc., 742 F.3d 1234, 1239 (9th Cir.2014) (observing that Rodriguez held that "the preponderance of the evidence standard applies [in CAFA cases]"); Morgan v. Gay, 471 F.3d 469, 472-73 (3d Cir.2006) (holding that under
"[T]he amount in controversy is simply an estimate of the total amount in dispute, not a prospective assessment of defendant's liability." Lewis v. Verizon Communications, Inc., 627 F.3d 395, 400 (9th Cir.2010). A damages estimate "is relevant evidence of the amount in controversy if it appears to reflect a reasonable estimate of the plaintiff's claim." Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002). "A plaintiff's damage estimate will not establish the amount in controversy, however, if it appears to be only a `bold optimistic prediction.'" Romsa v. Ikea U.S. West, Inc., No. CV 14-05552 MMM (JEMx), 2014 WL 4273265, *2 (C.D.Cal. Aug. 28, 2014) (quoting Molina v. Lexmark Intern., Inc., No. CV 08-04796 MMM (FFMx), 2008 WL 4447678, *4 (C.D.Cal. Sept. 30, 2008) (in turn quoting Surber v. Reliance Nat'l Indem. Co., 110 F.Supp.2d 1227, 1232 (N.D.Cal.2000))).
"A court cannot base a finding of jurisdiction on a defendant's speculation and conjecture; "[r]ather, a defendant must set forth the underlying facts supporting its assertion that the amount in controversy exceeds the statutory minimum."" See Deaver v. BBVA Compass Consulting & Benefits, Inc., No. 13-CV-00222 JSC, 2014 WL 2199645, *3 (N.D.Cal. May 27, 2014) (quoting Fong v. Regis Corp., No. C 13-04497 RS, 2014 WL 26996, *2 (N.D.Cal. Jan. 2, 2014)).
It was incumbent on Gordon Trucking to offer something to substantiate the damages estimate provided by Leon's lawyer, or otherwise to demonstrate that the amount in controversy exceeds $5,000,000. In its opposition to Leon's remand motion, Gordon Trucking proffers a March 13, 2014 email from Leon's counsel that was allegedly sent with the damages estimate.
To the extent the email has any probative value, it suggests that Leon's counsel believes the amount in controversy is in fact less than the amount stated in the risk assessment. Although Cohn held that a settlement letter could be used to show that the amount in controversy requirement is satisfied, the court specifically noted that the plaintiff "could have argued that the demand was inflated and not an honest assessment of damages, but ... made no attempt to disavow his letter or offer contrary evidence." 281 F.3d at 840. Subsequent cases have held that where a plaintiff take steps to disavow a damages estimate, the estimate, standing alone, is insufficient to show that the requisite amount is at issue. See Walker v. Core-Power Yoga, LLC, No. 12-CV-0004-WHQ-DHB, 2013 WL 2338675, *7 (S.D.Cal. May 28, 2013) (settlement letter not sufficient to establish amount in controversy where plaintiff later "disavowed the letter by stating: The exposure figure... was calculated using nothing but unsupported and inflated assumptions because at the time Plaintiff had not yet received initial disclosures or any discovery from Defendant"); Cadenas v. Union Pac. R.R., No. CV 10-5089-RJB, 2010 WL 890046, *2 (W.D.Wash. Mar. 9, 2010) ("Further, unlike the plaintiff in Cohn, Plaintiff here states that his case is not worth $75,000.00 or more"). In the email that included the damages assessment, Leon's counsel stated that "[a]lthough Gordon [Trucking's] potential risk assessment exceeds $20,000,000 ... we are prepared to mediate in good faith with appropriate pre-certification discounts."
In sum, because Gordon Trucking's second notice of removal is premised on the facts addressed in the court's remand order, the court lacks jurisdiction to entertain the second removal petition. For this reason, the court must remand the action to state court. Even if court could exercise jurisdiction over the removal, moreover, Gordon Trucking has failed to carry its burden of proving that the amount in controversy requirement is satisfied. For this reason as well, remand is appropriate. Accordingly, the court grants Leon's motion to remand.
Leon seeks attorneys' fees under 28 U.S.C. § 1447(c). "Under 28 U.S.C. § 1447(c), `[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.'" Federal Home Loan Mortg. Corp. v. Lettenmaier, No. CV-11-165-HZ, 2011 WL 1297960, *1 (D.Or. Apr. 5, 2011) (quoting 28 U.S.C. § 1447(c)). "`Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied.'" Id. (quoting Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005)).
Leon contends that attorneys' fees are warranted because Gordon Trucking's removal clearly lacked merit, and constituted an impermissible interference with his right to be the master of his complaint.
For the reasons stated, the court grants Leon's motion to remand, and directs the clerk to remand the action to Los Angeles Superior Court forthwith. Leon's request for attorneys' fees and costs is denied.
Gordon Trucking's assertion that § 1453(c)(1) applies only to cases removed under CAFA similarly lacks merit. As the Ninth Circuit has observed, "[t]he plain language of § 1453(c)(1) confers jurisdiction over `an order of a district court granting or denying a motion to remand a class action.'" Nevada v. Bank of Am. Corp, 672 F.3d 661, 673 (9th Cir.2012) (quoting 28 U.S.C. § 1453(c)(1)). Every circuit court to address the question has held that appealability turns on whether the remand order involved "CAFA determinations," not whether the notice of removal itself invoked CAFA. See Perritt v. Westlake Vinyls Co., L.P., 562 Fed.Appx. 228, 230 (5th Cir.2014) (Unpub.Disp.) ("Though we have acknowledged that `§ 1453(c) does not limit our discretionary appellate jurisdiction to matters unique or peculiar to CAFA,' § 1453(c) tethers our discretionary review to CAFA determinations," citing Berniard v. Dow Chem. Co., 481 Fed.Appx. 859, 864 (5th Cir. 2010) (Unpub.Disp.) ("Rather, our judgment is limited to the rulings over which we have appellate jurisdiction, viz, remand of the subject cases to state court for failure of the proponents of CAFA jurisdiction to demonstrate that statute's amount-in-controversy requirement is met"); Patterson v. Dean Morris, L.L.P., 448 F.3d 736, 742 (5th Cir.2006) ("CAFA provides only for review of a remand order premised on the prerequisites of § 1453 or on claims with an adequate nexus to CAFA"); Wallace v. La. Citizens Prop. Ins. Corp., 444 F.3d 697, 700 (5th Cir.2006) ("The application of § 1453(c)(1) is therefore limited to the context of CAFA.")); Saab v. Home Depot U.S.A., Inc., 469 F.3d 758, 759-60 (8th Cir.2006) ("Thus, we do not interpret `class action' as it is employed in § 1453(c) to encompass all class actions. Rather, we must limit § 1453(c)'s review provisions to those class actions brought under CAFA.... We therefore hold, joining our sister the Fifth Circuit, that the review provisions of 28 U.S.C. § 1453(c) are limited to class actions brought under CAFA, 28 U.S.C. § 1332(d)"); Tmesys, Inc. v. Eufaula Drugs, Inc., 462 F.3d 1317, 1319 (11th Cir.2006) ("As to the first issue, we find that we do have jurisdiction to review a district court's order to remand when that order is based on a determination that CAFA does not apply, at least to the extent of reexamining that jurisdictional issue").
It is thus clear that Gordon Trucking could have appealed the court's remand order under § 1453(c)(1). It cannot now file a second notice of removal based on CAFA and thereby circumvent the 10-day time limit on appeals set forth in § 1453(c)(1). See 28 U.S.C. § 1453(c)(1) ("Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not more than 10 days after entry of the order").
In Standard Fire Insurance Company v. Knowles, ___ U.S. ___, 133 S.Ct. 1345, 1347, 185 L.Ed.2d 439 (2013), plaintiff filed a class action, alleging that he and the "[c]lass stipulate[d] they [would] seek to recover total aggregate damages of less than [the CAFA jurisdictional threshold of] five million dollars." Defendant removed, invoking CAFA. Id. at 1348. The district court remanded. It found that although the amount in controversy would have exceeded $5,000,000 in the absence of the stipulation, the jurisdictional threshold could not be met given the stipulation. Id. The Supreme Court held that the district court erred in relying on the stipulation because "a plaintiff who files a proposed class action cannot legally bind members of the proposed class before the class is certified." Id. at 1349.
In Rodriguez, 728 F.3d 975, the Ninth Circuit recognized that Standard Fire overruled Lowdermilk's "legal certainty" standard in CAFA cases. See id. at 977 ("Our reasoning there for imposing on defendants the burden to prove the amount in controversy to a legal certainty, rather than the ordinary preponderance of the evidence standard, is clearly irreconcilable with the Supreme Court's reasoning in Standard Fire"). The court held that the second principle informing the Lowdermilk rule — to "preserve the plaintiff's prerogative... to forgo a potentially larger recovery to remain in state court" — was "directly contradicted by Standard Fire[`s holding that] a plaintiff seeking to represent a putative class could not evade federal jurisdiction by stipulating that the amount in controversy fell below the jurisdictional minimum." Id. at 980, 981. The court also concluded that Standard Fire had overruled Lowdermilk's directive that district courts "need not look beyond the four corners of the complaint to determine whether the CAFA jurisdictional amount is met," and that § 1332(d) required district courts to evaluate the potential claims of absent class members rather than plaintiff's complaint. Id. at 981. The court thus applies the preponderance of the evidence standard in light of Knowles and Rodriguez.
