Case Gets Crated and Barreled Back to State Court: A Paper Filed In State Court Has More Weight Than One Filed In Federal Court At Least For Removal

Article by CAFA Law Blog

Salmonson v. Euromarket Designs, Inc., No. CV 11–5179 PSG (PLAx), 2011 WL 4529396 (C.D. Cal. Sept. 28, 2011).

Recently, a District Court in California held that only a paper filed in state court and not federal court opens § 1446(b)'s second thirty-day removal window.

On February 14, 2011, the plaintiff, Jason Salmonson, filed this class action in California state court against Euromarket Designs, Inc. d/b/a Crate & Barrel, asserting one cause of action for violation of the Song–Beverly Credit Card Act, Cal. Civ.Code § 1747.08.

On February 16, the plaintiff served Crate & Barrel with the summons and complaint, and on March 23—i.e., 35 days after service of the complaint—Crate & Barrel removed the action to the federal court under CAFA, 28 U.S.C. § 1332(d). Crate & Barrel contended that it was not evident from the face of the complaint that the case was removable and Crate & Barrel did not discover that the case was removable until it examined its own records on March 22.

On April 1, the plaintiff moved to remand the case to state court arguing that removal was improper and untimely.

On June 9, the Court granted the plaintiff's motion to remand, and noted that under 28 U.S.C. § 1446(b), the statute governing removal procedure, there are two time periods during which a case may be removed: First, a thirty-day window triggered by receipt of the initial pleading or summons if the case stated by the initial pleading is removable "on its face", and second, a thirty-day window triggered by receipt of "a copy of an amended pleading, motion, order or other paper" from which removability may be first ascertained, if the initial pleading does not indicate, on its face, that the case is removable.

The Court also found that removability was not ascertainable from the face of the complaint, and thus § 1446(b)'s first thirty-day window never opened. And even if removability had been ascertainable from the face of the complaint, the Court noted the defendant had not removed within 30 days of service of the complaint, and thus removal was untimely.

The Court also found that Crate & Barrel had never been served with any "amended pleading, motion, order or other paper" that would trigger the opening of § 1446(b)'s second thirty-day window. Thus, the Court concluded, at the time the case was removed, it was not removable.

Twelve days after the Court remanded the case, however, Crate & Barrel removed it again contending that removal was...