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.