One question that defense practitioners often face when preparing a notice of removal under the Class Action Fairness Act (CAFA) is whether they must attach affidavits or other proof of the facts submitted in support of removal at the time the removal notice is filed, or whether the submission of proof can wait until removal jurisdiction is challenged by the plaintiff.
A removal notice is a pleading that requires factual allegations but should not require verification or proof of the facts alleged, and this is how most federal courts interpret the removal statute. See, e.g., Meridian Security Insurance Co. v. Sadowski, 441 F.3d 536, 539-40 (7th Cir. 2006) (“If [the] allegations [by the party asserting jurisdiction] of jurisdictional facts are challenged by his adversary in any appropriate manner, he must support them by competent proof.”) (quoting McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936)). However, some district courts have ordered remand due to a defendant’s failure to attach affidavits or other support for those allegations to the removal notice itself. Recently, in Dart Cherokee Basin Operating Company, LLC v. Owens, the Tenth Circuit Court of Appeals refused to grant review of a decision by the U.S. District Court for the District of Kansas remanding a class action for this reason. No. 13-603 (10th Cir. Sept. 17, 2013) (refusing to grant review of Owens v. Dart Cherokee Basin Operating Co., LLC, No. 12-4157-JAR (D. Kan. May 21, 2013)). Because the votes on whether to accept review were evenly divided, the petition for review was denied.
Judge Hartz wrote a sharp dissent to the order denying review, stating “I think it is important that this court inform the district courts and the bar of this circuit that a defendant seeking removal under CAFA need only allege the jurisdictional amount in its notice of removal and must prove that amount only if the plaintiff challenges the allegation.” Nonetheless, he recognized the reality that:
After today’s decision any diligent attorney (and one can assume that an attorney representing a defendant in a case involving at least $5 million—the threshold for removal under CAFA—would have substantial incentive to be diligent) would submit to the evidentiary burden rather than take a chance on remand to state court; if so, the issue will not arise again.
Judge Hartz went on to admonish other members of the court for not being more willing to take on issues relating to CAFA removal jurisdiction, stating that
I would add a few words about our discretionary jurisdiction to review removals under CAFA. CAFA is a newcomer to the scene and its intricacies are unfamiliar to many of us. It will always be tempting for very busy judges to deny review of a knotty matter that requires a decision in short order. But we have an obligation to provide clarity in this important area of the law.
Sadly, just as it is tempting for busy appellate judges to avoid having to deal with the intricacies of CAFA jurisdiction, it is tempting for many federal trial judges to look for any excuse to help clear their civil dockets by remanding removed cases. This is of course not true of all federal trial judges, but it happens enough that the appellate courts need to step in from time to time to avoid the law from developing in a way that thwarts CAFA’s legislative purpose of expanding the availability of a federal forum to class action defendants. However, until the appellate courts decide to heed Judge Hartz’s plea to take on more of these issues, the state of the law is likely to continue to be slanted in favor of remand whenever there is the slighest doubt.
In the meantime, as Judge Hartz points out, a diligent defense attorney in the Tenth Circuit will need to submit evidentiary support along with a removal notice. The same is true of any other Circuit where the issue has not been resolved definitively by the Court of Appeals. If the law of the Circuit is clear that factual information need not be attached to the removal notice, then there can be strategic and cost-saving advantages to not attaching the information. However, if the law is not clear, then as the Dart Cherokee Basin case illustrates, a “diligent” attorney should take the safe approach and attach supporting affidavits to the removal notice.
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