Monday, July 1, 2013

Ninth Circuit Allows Removal of Wage and Hour Class Action Under CAFA

Plaintiff filed a state-law wage-and-hour class action in California state court on April 27, 2011.  Plaintiff and an added plaintiff filed a first amended complaint on May 24, 2012, adding a new defendant, CHA. 

On September 4, 2012, CHA and the other defendants removed the action, alleging diversity jurisdiction under CAFA "based on the diverse citizenship of one would-be class member" and an amount in controversy in excess of $5 million.  The would-be class member submitted a declaration that she had moved to Nevada in late 2011, intending to live in Nevada for the foreseeable future.  (Although the opinion did not say, apparently all the defendants and all of the other class members are California citizens.)   

The district court granted plaintiffs' motion to remand to state court.  The Ninth Circuit reversed.  The court implicitly assumed that the defendants had shown diversity jurisdiction under CAFA and focused solely on the timing of the notice of removal.  Although the 30-day period for removal under 28 USC 1446(b)(3) had passed (if counted from the filing of the First Amended Complaint), the FAC had not explicitly contained information showing diversity of citizenship.  Using their superior knowledge of the whereabouts of employee class members, the defendants had found the Nevada citizen on their own.

The court noted that plaintiffs could protect themselves from gamesmanship by providing to the defendant "a document from which removability may be ascertained," which will trigger the 30-day removal period.  The court also noted that this case still might be remanded under CAFA's local controversy exception.  Roth v. CHA Hollywood Medical Center, L.P., No. 13-55771 (June 27, 2013).


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