A recent dissent from a denial of rehearing en banc in the Tenth Circuit suggests that a defendant may need to include evidence with its notice of removal under the Class Action Fairness Act (CAFA).  This could heighten the burden on defendants under CAFA, where they are already required to do extensive work in a short time period in order to allege the amount in controversy in their notice of removal.

In Dart Cherokee Basin Operating Company, LLC v. Owens, No. 13-603, 2013 U.S. App. LEXIS 19376 (10th Cir. Sept. 17, 2013), a federal district court in Kansas remanded a case to state court under CAFA, apparently on the sole ground that the defendants failed to submit evidence regarding the amount in controversy together with the notice of removal, even though the defendants had submitted such evidence (which was not found to be lacking) together with their opposition to the plaintiff’s motion to remand.  A divided panel of the Eighth Circuit declined to grant permission to appeal under CAFA.  An equally-divided court then denied rehearing en banc.  Judge Hartz, joined by three other judges of the Tenth Circuit, wrote a dissent from the denial of rehearing en banc.

Judge Hartz’s dissent explains, quite persuasively, that evidence is not required to be submitted with a notice of removal.  He explains that pleadings, under Fed. R. Civ. P. 8(a)(1), require only “a short and plain statement of the grounds for the court’s jurisdiction,” and that the statute governing notices of removal provides simply that the notice must contain “a short and plain statement of the grounds for removal.”  28 U.S.C. § 1446(a).  Under the plain language of those provisions, no evidentiary submission is necessary.  The Federal Courts Jurisdiction and Venue Clarification Act and its legislative history also appears to make clear that a notice of removal requires only allegations, and that evidence, if necessary, can follow later.  Id. at *12-14 (Hartz, J., dissenting).  Judge Hartz concludes that “[t]he burden imposed by the district court on Petitioners was excessive and unprecedented.”  Id. at *9.

Judge Hartz further notes that the issue is unlikely to arise again because defendants, rather than taking their chances, will likely submit evidence with their notice of removal.  Id. at *4-5.

Tags: Tenth Circuit
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Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class…

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class actions involving homeowners’ insurance coverage and market conduct/claim-handling practices. He has been prominently involved in high-profile property insurance litigation concerning the September 11th catastrophe and Hurricane Katrina, and Chinese-made drywall. Based in the insurance capital of Hartford, Connecticut, Wystan writes the blog Insurance Class Actions Insider, which was selected by Lexis Nexis as a top insurance blog for 2011.

Wystan grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state. He always had strong interests in history, politics and baseball and his heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox). Wystan says it was his early fascination with Lincoln that drove him to practice law. As a high school senior, he was one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified his interest in law and government. He went on to Bowdoin College, where he wrote for the Bowdoin Orient and majored in government. After Bowdoin, he went on to Columbia Law School. He also interned in the chambers of then-Judge Sonia Sotomayor on the Second Circuit. Wystan graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole.

When Wystan’s not at his desk, flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation he often can be found watching “Dora the Explorer” or reading or playing whiffleball with his young daughter, helping his wife with her business, Option Realty, reading a book about history or politics, or watching the Boston Red Sox.

Read Wystan’s rc.com bio.

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