Seventh Circuit Offers Useful Reminders About Removal

Published date02 December 2021
Subject MatterLitigation, Mediation & Arbitration, Trials & Appeals & Compensation, Civil Law
Law FirmJenner & Block
AuthorGabriel K. Gillett, Kelsey L. Stimple and Howard S. Suskin

In Railey v. Sunset Food Mart, Inc., -- F.4th --, No. 21-2533, 2021 WL 4808222 (7th Cir. Oct. 15, 2021), the U.S. Court of Appeals for the Seventh Circuit affirmed the district court's order remanding a class action asserting claims under the Illinois Biometric Information Privacy Act because the removal was untimely. Beyond the specific holding, the Court's opinion serves as a useful reminder about some of the contours around removal of class actions, including under the Class Action Fairness Act (CAFA). We discuss some of those key principles below, through the lens of the Court's decision.

Appellate courts can review remand orders in some situations. Though appellate courts typically lack jurisdiction to review remand orders, they have the discretion to do so for orders remanding a case removed under CAFA, 28 U.S.C. ' 1453(c)(1), and are 'free to consider any potential error in the district court's decision.' Slip op. 4-5, 9 (quoting Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 451 (7th Cir. 2005)).

Removal may be permitted based on 'complete preemption.' The defendant in Railey first argued that removal to federal court was appropriate because the named plaintiff'an employee at one of the defendant's grocery stores'was represented by a union, and her claims were therefore preempted by the Labor Management Relations Act. See Slip op. 2. The court acknowledged that removal is appropriate if the plaintiff's claims are 'completely preempted' by federal law and that one of its recent decisions indicated that the plaintiff's claims 'may, in fact, be preempted by the Labor Management Relations Act.' Slip op. 9 (citing Fernandez v. Kerry, Inc., No. 21-1067, 2021 WL 4260667, at *1-2 (7th Cir. 2021)).

A defendant's time to remove may be triggered by its own subjective knowledge or ability to learn key facts related to removal. The court held, however, that the defendant's November 2020 notice of removal was untimely because it was not filed within 30 days of the plaintiff serving her complaint in February 2019. Slip op. 11. Defendants can remove a class action within 30 days after the case is filed, or 30 days after 'the defendant receives a pleading or other paper that affirmatively and unambiguously reveals that the predicates for removal are present.' Walker v. Trailer Transit, Inc., 727 F.3d 819, 824 (7th Cir. 2013) Though the defendant claimed that the 30-day clock was triggered by the plaintiff confirming her union membership in an October 2020...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT