Earlier this week, the U.S. Supreme Court granted certiorari in Dart Cherokee Basin Operating Co., LLC v. Owens, No. 13-719 (docket). The question presented is:
Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required “short and plain statement of the grounds for removal” enough?
This is a Class Action Fairness Act (“CAFA”) case in which the district court refused to consider evidence concerning the amount in controversy, when the evidence was presented in an opposition to a motion to remand, because the evidence had not been attached to the defendant’s notice of removal. A panel of the Tenth Circuit denied permission to appeal under CAFA, and an equally-divided panel of the Tenth Circuit denied rehearing en banc.
As I covered in my October 11, 2013 blog post, Judge Hartz wrote a persuasive dissent from the denial of rehearing en banc, in which he relied on 28 U.S.C. 1446(a), which requires a notice of removal “containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.” The removal statute does not require that evidence be attached to a notice of removal. Judge Hartz also cited Fed. R. Civ. P. 8(a)(1), which provides that a pleading contain “a short and plain statement of the grounds for the court’s jurisdiction . . . .”
I could turn out to be wrong, but given my recent luck in picking 3 of the 4 Final Four teams in the NCAA men’s basketball tournament, I’m going to venture a prediction on this case: a 9-0 decision agreeing with Judge Hartz. Congress seems to have clearly answered this question in the removal statute, and it appears from the petition for certiorari that all of the circuits that have addressed the question have agreed with Judge Hartz.