122 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com claims by 100 or more plaintiffs are proposed to be tried jointly because they involve common questions of law or fact.605 C. Removal Under CAFA 1. The Timeliness Requirement For A CAFA Removal The burden of establishing removal jurisdiction remains on the proponent of federal jurisdiction.606 Removal must be timely and must be done during one of two thirty-day periods for removing the case. The first thirty-day removal period is triggered “if the case stated by the initial pleading is removable on its face.”607 The second thirty-day removal period is triggered if the initial pleading does not indicate that the case is removable, and the defendant receives “a copy of an amended pleading, motion, order or other paper” from which removability may first be ascertained.608 A defendant does not have a duty of inquiry if the initial pleading or other document is “indeterminate” with respect to removability under the CAFA. Accordingly, even if a defendant could have discovered grounds for removability through investigation, it does not lose the right to remove because it did not conduct such an investigation and then file a notice of removal within thirty days of receiving the indeterminate document.609 Defendants should be aware that mere verbal statements that opposing counsel or the plaintiff make regarding the amount in damages may not qualify as the “other paper” that can trigger removal.610 The published decisions have considered only oral statements made in the context of mediation and settlement communications, so it is unclear whether oral statements made in other contexts can be used to satisfy the “other paper” requirement. The Ninth Circuit has established the framework for determining whether the amount in controversy meets the jurisdictional threshold. A district court “may consider whether it is ‘facially apparent’ from the complaint that the jurisdictional amount is in controversy. If not, the court may consider facts in the removal petition, and may ‘require parties to submit summary-judgment-type evidence relevant to the amount in controversy at the time of removal.’”611 Corp., 747 F. 3d 1117, 1124 (9th Cir. 2014) (“We hold only that PAGA is not sufficiently similar to Rule 23 to establish the original jurisdiction of a federal court under CAFA.”). 605 Id. § 1332(d)(11)(B)(i). 606 See Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013); Rodriguez v. AT&T Mobility Services LLC, 728 F.3d 975 (9th Cir. 2013). 607 Harris v. Bankers Life & Cas. Co., 425 F.3d 689, 694 (9th Cir. 2005). 608 Carvalho v. Equifax Info. Serv., LLC, 629 F.3d 876, 885 (9th Cir. 2010). 609 Kenny v. Wal-Mart Stores, Inc., 881 F.3d 786, 791 (9th Cir. 2018) (citing Roth v. CHA Hollywood Med. Ctr., L.P., 720 F.3d 1121, 1125 (9th Cir. 2013)). 610 See Molina v. Lexmark Int’l, Inc., 2008 WL 4447678, at *17 (C.D. Cal. Sept. 30, 2008) (holding that oral communications during settlement do not constitute “other papers for the purposes of § 1446(b)”); see also Jiminez v. Sears, Roebuck & Co., 2010 WL 653548, at *2 (C.D. Cal. Feb. 18, 2010); Mendoza v. OM Fin. Life Ins. Co., 2009 WL 1813964 at *5 (N.D. Cal. June 25, 2009). 611 Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997) (citing Allen v. R&H Oil & Gas Co., 63 F.3d 1326 (5th Cir. 1995)).
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