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CAFA Law Blog Information, cases and insights regarding the Class Action Fairness Act of 2005

Defendant’s Second Notice of Removal Timely and Proper due to Relevant Change in Circumstances caused by Supreme Court’s Decision in Standard Fire

Posted in Case Summaries, Wage and Hour

Taylor v. Cox Communications California, LLC, 2016 WL 7422717 (9th Cir. Dec. 23, 2016).

The Ninth Circuit affirmed the District Court’s order denying the plaintiff’s motion to remand, finding that the defendant’s second notice of removal was timely and proper, particularly when the plaintiff did not provide the defendant with any “other paper” necessary to trigger CAFA’s 30-day period for removing the case to the federal court.

The plaintiff was a field technician for the defendant employer. He brought a class action alleging that the defendant systematically underpaid its employees who travelled to customers’ residences to install and repair TV and internet services, in violation of the California Labor Code.

The defendant filed notices of removal on two separate occasions in an effort to have the case removed to federal court, pursuant to CAFA. After the District Court granted the plaintiff’s motion to remand following the first notice of removal, the Defendant filed a second notice of removal three years later.  The plaintiff again filed a motion to remand, arguing that the defendant had no basis to justify a successive removal petition and that the defendant’s second notice of removal was untimely because it fell outside of one of CAFA’s 30-day filing windows.  This time, the District Court denied the plaintiff’s motion to remand and the plaintiff appealed to the Ninth Circuit.

With regard to the plaintiff’s first argument, the Ninth Circuit held that the defendant’s second notice of removal was permissible given that there had been a relevant “change of circumstances” in the three years that had passed since their first notice of removal was filed. The Ninth Circuit remarked that because the first remand was on grounds that subsequently became incorrect due to the Supreme Court’s decision in Standard Fire Insurance Company v. Knowles, 133 S. Ct. 1345 (2013) and the Ninth Circuit’s own decision in Rodriguez v. AT&T Mobility Services, LLC, 728 F.3d 975 (9th Cir. 2013) that the successive notice of removal was permissible.  (Editor’s Note: see CAFA Law Blog analysis of Knowles posted on April 12, 2013;  see also, CAFA Law Blog analysis of Rodriguez posted on August 14, 2014).

The plaintiff also argued that the defendant’s second notice of removal was untimely because it fell outside of one of CAFA’s 30-day filing windows. The Ninth Circuit noted that a case may be removed at any time under CAFA, provided that neither of the two 30-day periods under §§ 1446(b)(1) and 1446(b)(3) has been triggered. The Court observed that both parties admitted that the first 30-day time period was never triggered, as neither the initial complaint nor the first amended complaint revealed on its face the facts necessary for federal court jurisdiction under CAFA.  

The Ninth Circuit further stated that the plaintiff never provided the defendant with the “other paper” sufficient to trigger the second 30-day time period. The plaintiff argued that the plaintiff’s deposition, in combination with the other evidence in the record was sufficient to start the 30-day clock. However, the court noted that here, the defendant’s first notice of removal alleged certain figures that were supported only by an unsworn declaration of another employee, which provided no support for the defendant to assume that class members worked four shifts per week or 50 weeks per year.  The Court further found that the plaintiff’s subsequent deposition testimony provided insufficient additional information to cure the defects in the initial removal.

Thus, the Court concluded that because the information already contained in the record was insufficient to establish an amount-in-controversy exceeding $5 million, the second 30-day time period was not triggered and the defendant was free to remove at any time after the “change in circumstances.”

The Ninth Circuit also ruled that the plaintiff did not independently contest that the amount-in-controversy exceeded $5 million, nor did he contest any of the other jurisdictional requirements for removal under CAFA. Accordingly, the Ninth Circuit affirmed the judgment of the District Court.

Melissa Broussard