Creative Construction: The Ninth Circuit Relaxes Removal Statute’s Timeliness Test In Class Action Fairness Act Cases

In Jordan v. Nationstar Mortgage LLC, No. 14-35943 and 15-35113, 2015 WL 1447217 (Apr. 1, 2015 9th Cir.), a Ninth Circuit panel held that cases subject to the Class Action Fairness Act ("CAFA") become "removable" only when removal under CAFA is first ascertainable even if the initial pleading earlier disclosed a separate non-CAFA basis for removal which the defendant chose not to pursue. This holding changes Ninth Circuit law which ordinarily requires courts to strictly construe removal statutes against removal and to generally treat as untimely any notice of removal filed more than 30 days after receipt of an initial pleading disclosing a removal basis. The panel considered itself no longer bound to this circuit precedent given the U.S. Supreme Court's recent decision in Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547 (2014), which recognized Congress's strong preference that federal courts adjudicate certain interstate class actions. A significant Ninth Circuit shift, Jordan opens the door for more lenient and less technical applications of removal requirements in CAFA cases.

In Jordan, plaintiff mortgagor commenced a putative class action against Nationstar in state court alleging violation of the Fair Debt Collection Practices Act ("FDCPA"). The initial pleading specified no amount in controversy. Despite the removable FDCPA claim, Nationstar did not file a removal notice within 30 days of receiving the initial pleading as 28 U.S.C. § 1446(b)(1) prescribes. When plaintiff's interrogatory answer later disclosed her $25 million damages estimate, Nationstar filed a notice of removal based on CAFA jurisdiction. The plaintiff moved to remand the case, arguing removal was untimely.

In opposing remand, Nationstar claimed the interrogatory answer provided the first occasion to ascertain an amount in controversy exceeding $5 million, a CAFA element. And although 28 U.S.C. § 1446(b)(3)'s plain language bestows a second 30-day removal window in such instance only if removability was not clear from the initial pleading, Nationstar urged the district court to recognize CAFA as a "second and separate ground for removal" that opened a second 30-day removal window "even if the initial complaint provided some other ground for removal." As analogous precedent, Nationstar cited a Ninth Circuit decision, Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006), that deemed a defendant's removal under the "federal officer" removal...

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