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Quiroz v. Mistras Group, Inc., No. CV 09-7146 PSG (SSX), 2010 WL 2079833 (C.D. Cal. May 21, 2010).

While retaining the jurisdiction under CAFA after denial of class certification, the District Court in California observed that although the denial of class certification does not eliminate CAFA jurisdiction, the Court can still determine whether the case was properly removed under CAFA.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Allen v. Novaquest LLC, No. 8:10-CV-1119-T-24EAJ, 2010 WL 2330330 (M.D. Fla. Jun 09, 2010).

While this case is not a CAFA case, we bring it to you because it is an example (for good or bad) of a CAFA decision being applied to a non CAFA case.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Rhoades v. Progressive Cas. Ins. Co., Inc., No. 2:10-CV00763GEBKJM, 2010 WL 2402847 (E.D. Cal. Jun 10, 2010).

A District Court in California remanded the action to the state court holding that the amount in controversy must be determined according to the plaintiffs’ pleading at the time of the petition for removal and not at the time of a subsequent amendment to the pleadings

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Lincoln Nat. Life Ins. Co. v. Bezich, No. 10-8013, 2010 WL 2541203 (7th Cir. (Ind.) Jun 25, 2010).

The Seventh Circuit affirmed the order of remand to the state court holding that the plaintiff’s challenge to variable life insurance policy related to rights, duties and obligations concerning a security qualifying under the “securities exception” to CAFA. (Editors’ Note: See the CAFA Law Blog analysis of the District Court decision in Bezich posted on August 11, 2010).

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Schiller v. David’s Bridal, Inc., No. 10-616 (E.D. Cal. July 14, 2010)

Surprise, surprise. When there’s a dispute between a removing defendant and a potential CAFA plaintiff over the amount in controversy, you (defendant) can’t use the plaintiff’s refusal to stipulate that the amount in controversy is less than $5,000,000 as evidence that the amount in controversy will exceed $5,000,000, says the court in Schiller v. David’s Bridal, Inc.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Graphic Communications Local 1B Health & Welfare Fund “A”, etc. v. CVS Caremark Corp., et al., Case No. 09-CV-2203 (D. Minn. July 19, 2010) 

Unless you are like the late Anna Nicole Smith or the late Michael Jackson, you probably get your prescription drugs from your local pharmacy. Doing so helped saved the plaintiffs in this case from litigating in federal court because CAFA’s local controversy exception applied. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Gutierrez v. Wells Fargo Bank, N.A., No. C 07-05923 WHA, 2010 WL 3198928 (M.D. Cal. August 10, 2010)

In keeping with our up-to-the minute, breaking news coverage of the Cappuccitti v. DirecTV, Inc. Eleventh Circuit decision [Editor's Note:  for those readers who've recently living under a rock, here's the CAFA Law Blog's initial post on Cappuccitti], we wanted to jump right to what appears to be the first consideration of Cappuccitti by another court. 

Posted By McGlinchey Stafford at 08:55 AM | Comments / Questions (0)

Thomas v. Southern Pioneer Life Ins. Co., No. 3:09CV00120-WRW, Slip Copy, 2009 WL 4894695 (E.D. Ark., Dec 11, 2009).

A District Court in Arkansas remanded the action to state court for the defendant’s failure to establish that the amount in controversy exceeded $5 million holding that under the preponderance standard, the jurisdictional fact is not whether the damages are greater than the requisite amount, but whether a fact finder might legally conclude that they are.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Castillo v. Apple Core Enterprises, Inc., No. 09-CV-1622HRBB, Slip Copy, 2009 WL 2849124 (S.D. Cal. Sep 01, 2009).

A District Court in California remanded the action to state court holding that Apple Core (which does business as Applebee’s Neighborhood Grill and Bar) did not establish to a “legal certainty” that the amount in controversy exceeded $5 million, and that the plaintiffs were not in bad faith when they limited the potential recovery to avoid CAFA jurisdiction.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Bowen v. Toys “R” Us-Delaware, Inc., No. CV 08-08121MMM (MANX), 2009 WL 2460763 (C.D. Cal. Aug 07, 2009).

Disagreeing with the defendant’s method of calculating damages and penalties, a District Court in California ordered it to show cause why the action should not be remanded to state court for lack of subject matter jurisdiction.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Willis v. Greenpoint Mortg. Funding, Inc., , No. CIV 09-593-GPM, Slip Copy, 2009 WL 4730957 (S.D. Ill. Dec 08, 2009).

Because the complaint did not allege that the amount in controversy exceeded $5 million, the District Court in California sua sponte ordered the plaintiffs to file a second amended complaint properly alleging the amount in controversy for purposes of federal subject matter jurisdiction in diversity under CAFA, failing which it would dismiss the complaint for lack of federal subject matter jurisdiction.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Macula v. Lawyers Title Ins. Corp., 2010 WL 1278868 (N.D. Ohio Mar. 30, 2010) (No. 1:07 CV 1545).

Joining with the Seventh Circuit’s opinion in Cunningham Charter that federal jurisdiction under CAFA does not depend on certification, a District Court in Ohio declined to dismiss the individual claims for lack of subject matter jurisdiction after dismissing the class claims.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

BP America, Inc. v. Oklahoma, No. 09-705, 2010 WL 2961253 (10th Cir. July 29, 2010).

A Twofer on Hump Day...10th Circuit CAFA Ruling merits an additional post today.

Ruling on an issue of first instance in the Tenth Circuit, the Court of Appeals granted BP leave to appeal the Western District of Oklahoma’s remand order. The Court of Appeals found that CAFA provided a discretionary exception to the general rule that a remand order was not appealable, and so doing, decided to exercise that discretion.

Posted By McGlinchey Stafford at 08:35 AM | Comments / Questions (0)

Thomas v. Chesapeake Louisiana, L.P., 2010 WL 1229943, (W.D. La. Mar. 26, 2010) (No. CIV.A 09-0888).

Given the Supreme Court’s decision in Hertz Corp that a company’s “principal place of business” for purposes of federal diversity jurisdiction is its “nerve center,” the District Court in Louisiana found it unnecessary to allow the plaintiff’s motion for limited jurisdictional discovery to develop information regarding the citizenship of the defendant.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Patton v. Schneider Nat. Carriers, Inc., No. CV 09-01010 MMM AJWX, 2009 WL 545779 (C.D. Cal. Mar 03, 2009).

Because the plaintiff merely alleged in the complaint the defendants’ place of domicile and not their principal place of business, the District Court in California expressed doubt if it had CAFA jurisdiction, and accordingly, ordered the plaintiff to show cause why the action should not be dismissed for lack of subject matter jurisdiction.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Well, it didn't take long.  Unsurprisingly, DirecTV filed its petition for panel rehearing or rehearing en banc on August 9th, seeking rehearing of the Cappuccitti v. DirecTV decision by the Eleventh Circuit adding a requirement that at least one plaintiff allege damages exceeding $75,000 in addition to the other CAFA jurisdictional requirements.  Here's a copy of the petition.   Mellissa Ingalls and Robyn Bladow, of the Los Angeles office of Kirkland & Ellis, and Matthew Richardson of the Altana office of Alston & Bird signed off on the peition for DirecTV. 

The statement of issues meriting rehearing has some interesting language:  "Under the guise of interpreting the Class Action Fairness Act . . . the panel decision in this case effectively repeals it.  The decision eliminates CAFA jurisdiction over class actions unless an individual plaintiff has a claim worth more than $75,000, even if the aggregate amount in controversy exceeds CAFA's $5 million threshold.  Not only does this decision invent a new jurisdictional requirement that does not exist in the statute, but it also contradicts how courts around the country - including the United States Supreme Court - have interpreted CAFA since its enactment."  There's a bunch more in the petition, so take a look if you're as interested in this case as we at the CAFA Law Blog are.

Posted By McGlinchey Stafford at 08:55 AM | Comments / Questions (0)

Chemical Logistics, Inc. v. Wabash Nat. Corp., Slip Copy, 2010 WL 1427327 (D. Nev. Apr 08, 2010) (No. 210-CV-0110-LRH-PAL).

The Nevada District Court remanded the action to state court finding that the defendants failed to establish that the amount in controversy exceeded $5 million by a preponderance of the evidence.  

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Service Workers Intern. Union, AFL-CIO, CLC v. Shell Oil Co., 2010 WL 1571190 (9th Cir. (Cal.) Apr 21, 2010).

The Ninth Circuit reversed the district court’s remand order holding that if a defendant properly removed a putative class action, a district court’s subsequent denial of class certification does not divest the court of jurisdiction.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Peralta v. Countrywide Home Loans, Inc., Slip Copy, 2010 WL 1500047, (9th Cir. (Cal.), Apr. 15, 2010) (No. 10-15413).

The Ninth Circuit recently vacated the permission it granted to appeal the remand order and dismissed the appeal holding that a non-CAFA issue, although important, does not warrant interlocutory appellate review of a remand order.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Bezich v. Lincoln Nat. Life Ins. Co., 2010 WL 1382346 (N.D. Ind. Mar 29, 2010) (No. 1:09-CV-200-JVB).

A federal District Court in Indiana remanded an action to state court holding that the ‘single flexible premium variable life insurance policy’ registered with the SEC was a security for the purposes of CAFA. Thus, the claim fell within CAFA’s securities exception.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Randall v. Evamor, Inc., 2010 WL 1727977 (E.D. Mo. Apr 29, 2010) (No. 4:09CV01756 ERW).

While declining to exercise jurisdiction under CAFA’s home-state exception, a District Court in Missouri found that a putative class member’s last-known residence is the best reasonably available means of ascertaining his citizenship.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Norris v. Commercial Credit Counseling Services, Inc., Slip Copy, 2010 WL 1379732 (E.D. Tex., Mar 31, 2010)(No. 4:09-CV-206).

The District Court in Texas dismissed the action without prejudice for improper venue holding that CAFA does not preempt the contractual forum selection/choice-of-law clause.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Perez v. Del Monte Fresh Produce N.A., Inc., Slip Copy, 2010 WL 1406390 (D. Or. Jan 21, 2010) (No. CV. 09-1194-AC).

While recommending to remand the action to state court for not meeting the jurisdictional requirements, the Magistrate Judge in Oregon found that the “typicality” of claims in a class action relates to the underlying source of the claim, not the dollar amount of the damages. Thus, typicality of the claims does not mean that all the class members sought equal amount of damages. Subsequently, the District Court adopted the report and recommendation.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Haynes v. EMC Mortg. Corp., Slip Copy, 2010 WL 1445650 (N.D. Cal. Apr. 12, 2010) (No. C 10-00372 WHA).

The District Court in California remanded the action to state court under the “local controversy” exception to CAFA removal holding that because the local defendant’s conduct was intertwined with the out-of-state defendant, and even though the local defendant was not explicitly named in the proposed class definition, it was clear that the local defendant was significantly implicated.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Lafalier v. Cinnabar Service Co., Inc., Slip Copy, 2010 WL 1486900 (N.D. Okla., Apr 13, 2010) (NO. 10-CV-0005-CVE-TLW)

While remanding the action to state court under CAFA’s local controversy exception, the District Court in Oklahoma observed that when the defendant did not raise the misjoinder issue—that the local defendant was joined to defeat CAFA jurisdiction – in the notice of removal, and if the complaint has sufficient allegations to establish that a joinder of parties to a law suit, such a joinder was appropriate.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (1)

Connecticut v. Moody’s Corp., No. CIV 308CV1314 AWT, CIV 308CV1315 AWT, CIV 308CV1316 AWT, Slip Copy, 2009 WL 3245888 (D. Conn. Sep 30, 2009).

The District Court in Connecticut remanded the case to the state court holding that when the State brings an action as a sovereign and not on behalf of a circumscribed group of its citizens, CAFA does not apply.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

California Public Employees Retirement System v. Moody’s Corp., No. C 09-03628 SI, 2009 WL 3809816 (N.D. Cal. Nov 10, 2009).

This defendant has a case of the Moody Blues. The defendant thought it would have a Night in White Satin. Instead, it rode My See Saw back to state court.

Posted By McGlinchey Stafford at 08:34 AM | Comments / Questions (0)

Leal v. Government Employees Ins. Co., No. CIV. A. M-09-228, Slip Copy, 2009 WL 4852670 (S.D. Tex. Dec 14, 2009).

In this case a District Court in Texas found that when an amended petition adds a plaintiff and proposed class members, whose claims the defendants were not aware of, then the addition is equivalent to commencement of a new civil action under CAFA.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Brady v. Denton County Elec. Co-op., Inc., No. 4:09-CV-130, Slip Copy, 2009 WL 3151177 (E.D. Tex. Sep 28, 2009)().

Every TV cop show has a story line that involves Internal Affairs.  But did you know that CAFA has Internal Affiars as well?  In Brady, a District Court in Texas remanded the case to Denton County court finding that CAFA’s internal affairs exception negated the federal court jurisdiction, and also that the home state exception favored remand.

Posted By McGlinchey Stafford at 07:47 AM | Comments / Questions (0)

Froud v. Anadarko E & P Company Limited Parntership, 2010 WL 2196015 (8th Cir.(Ark.), Jun 03, 2010)(NO. 10-8010)

The Eighth Circuit Court of Appeals recently told litigants they could appeal district court removal orders under 28 U.S.C. § 1453, but only if they ask nicely for permission. This action arose following a district court’s denial of a plaintiff’s motion to remand back to state court a case which had been previously removed to federal court under CAFA. The issue before the Eighth Circuit was whether to grant the petitioners the ability to appeal the denial.  (Editors' Note:  See the CAFA Law Blog analysis of the district court's decision in Froud posted on May 21, 2010).

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

In re Burlington Northern Santa Fe Railway Co., 2010 WL 1980172 (C.A. 7 (Wis.) May 19, 2010).

In a well-known children’s tale, a little engine overcame obstacle and defeat, pulling a long train over a high mountain while repeating (Come on, you remember.) “I think I can, I think I can, I think I can.” Just recently, out of the Seventh Circuit, federal jurisdiction under the Class Action Fairness Act won a similar victory. Even after the plaintiffs decided not to pursue class certification, amending their complaint post-removal to eliminate class allegations, CAFA jurisdiction was not defeated.       

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Miranda v. Weaver Popcorn Co., Inc., Not Reported in F.Supp.2d, 2010 WL 1929771 (C.D.Cal., May 12, 2010)(NO. EDCV10-632 PARZX)

Remember the good ole days? You know, back when Russia was still the enemy and SNL was actually funny? Back when Ford was President, Nixon was in the White House, and FDR was running this country into the ground? (Bonus points if you have any idea what movie that is from). Well, enough reminiscing. Don’t worry, this will all tie in soon. So let’s get down to brass tacks….

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

The recent Eleventh Circuit decision in Cappuccitti v. DirecTV, has already caused quite a stir, with undoubtedly more to come in the immediate future.  The CAFA Law Blog has received a number of comments and emails about the decision and its likely effects on class action practice, particularly in the Eleventh Circuit, and the potential national ramifications.  We're happy to feature a guest post from Atlanta lawyer Eric Jon Taylor, with an assist from Jon Chally, both of the firm of Parker, Hudson, Rainer & Dobbs LLP, with their thoughts and observations on Cappuccitti. Take a look, and let us know what you think.

Posted By McGlinchey Stafford at 07:54 PM | Comments / Questions (0)

Cappuccitti v. DirecTV, Inc., --- F.3d ---, 2010 WL 2803093, No. 09-14107 (11th Cir. July 19, 2010)

(Editor’s Note: More detailed analyses of this case will be published by CAFA Law Blog in the near future – stay tuned.)

OK, gang. Pay attention. This is important. Like really important. 

Earlier this week, the Eleventh Circuit surprised everyone with an opinion in Cappuccitti v. DirecTV, Inc., --- F.3d ---, 2010 WL 2803093, No. 09-14107 (11th Cir. July 19, 2010), that literally turned CAFA jurisdiction on its head (and knocked unsuspecting CAFA watchers on their collective rears). If the ruling stands as is (and is a controlling precedent), it would arguably require that most of the cases now in federal court within the Eleventh Circuit which are based on CAFA jurisdiction be dismissed for lack of subject matter jurisdiction. Yep. We said that. Dismissed for lack of subject matter jurisdiction. And might well serve to make the state courts within the Eleventh Circuit magnet jurisdictions for class actions and create new judicial hellholes all over the Southeast. And be cited by removed plaintiffs around the country as authoritative. And, . . . well, you get the picture. Enough of the doomsday predictions (for now).

Posted By McGlinchey Stafford at 07:31 PM | Comments / Questions (1)

West Virginia v. ComCast Corp., --- F. Supp. 2d ---, 2010 WL 1257639 (E.D. Pa., March 31, 2010) (No. 09-4671).

The State of West Virginia in its capacity as parens patriae (for those who have no idea how to pronounce that, just say parent), brought suit against Comcast Corporation to stop Comcast’s policy of you have to “pay to play” pricing methods on its cable boxes. The suit was filed in state court alleging that the cable company’s policy of requiring their premium subscribers to only rent Comcast cable boxes “constituted impermissible tying behavior.” (or in other words they were acting like a spoiled three year who is not willing to share his toys) Comcast had the suit removed to federal court based on CAFA diversity requirements. The most pivotal aspect of the case hinged on the Court’s analysis of when is a State acting as a real party plaintiff.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Long v. Dick’s Sporting Goods, Inc., 2010 WL 2044524 ((W.D.Ky.), May 21, 2010)

No Shirt, No Shoes, No CLASS, No Problem! (Editors’ Note: Yes, we recognize that the caption of this case would make for some really hilarious puns. But we respect our loyal readers too much to make childish remarks about the length of body parts or the use of those limbs in sport contexts.)

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (1)

Trahan v. U.S. Bank National Association, No. 10-15665, 2010 WL 1986182 (9^th Cir. May 18, 2010)(designated not for publication).

In Trahan, U.S. Bank National Association (“U.S. Bank”) removed this case to federal court on the basis of diversity under 28 U.S.C. § 1332 (a) and § 1332 (d). Jerry Trahan (“Trahan”) subsequently filed a motion to remand. There was no dispute that the parties were diverse; the only question before the court was the amount in controversy. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Auxer v. Alcoa, Inc., Slip Copy, 2010 WL 1337725 (W.D.Pa., Mar. 29, 2010) (No. 2:09cv995).

The District Court for the Western District of Pennsylvania held that plaintiffs seeking damages after their exposure to emissions from an Australian refinery should take their case to the land of Nicole Kidman and kangaroos. The court said “G’day mate” by granting the defendants’ motion for dismissal on the grounds of forum non conveniens before even reaching other jurisdictional matters.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Gradeless v. American Mutual Share Insurance Corp., Slip Copy, 2010 WL 1935867 (S.D. Ind., May 7, 2010) (NO. 1:10CV86-WIL-DML).

I would be embarrassed too if a district court judge called me out for reading a case erroneously, then pointed out how my interpretation would force me to sue myself. After pointing out the plaintiffs’ implausible arguments, the court declined to remand the case to state court because there was complete diversity of the parties at the time of removal and the requisite amount in controversy.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Waters v. Advent Product Development, Inc., No. 07-2089 (S.D. CA June 26, 2008)

Where would we be without the “Duck Shield,” the “Cow Gas Detector,” the “Hand Near Mouth Alarm,” “Pogo Shoes,” “Insect Balls,” or the “Gerbil Shirt”? In state court, that’s where! Yes, these fine examples of human ingenuity are actual patented inventions brought to you by inventors; people with loads of work ethic and not a lick of common sense. And, like their inventions, their sales pitch in federal court supporting a remand to California state court sold about as well as the “Flatulence Deodorizer”.

Posted By McGlinchey Stafford at 07:53 AM | Comments / Questions (0)

Moffit v. Residential Funding Co., LLC, 604 F.3d 156, 2010 WL 1782435 (4^th Cir. (M.D.), May 3, 2010)(NO. 10–1316)

Apparently all of the talk about leak-stoppage in the news has made quite an impact on the judges of the 4^th Circuit. In Moffit, the court decided to show that it could do what a certain oil and gas company has recently been incapable of doing—it stopped a leak. 

Posted By McGlinchey Stafford at 07:19 AM | Comments / Questions (0)

Pretka v. Kolter City Plaza II, Inc., No. 10-11471, 2010 WL 2278358 (11th Cir. June 8, 2010)

Litigants, who don’t like a binding opinion and who can’t muster up some cogent reason to distinguish the case, often find themselves labeling the unfavorable portions of the opinion as non-precedential “dicta.” It is somewhat rare, however, for a federal circuit court to spend several pages of an opinion analyzing whether portions of a prior opinion by that same court were dicta. Nonetheless, that is what happened in the Eleventh Circuit’s recent decision in Pretka v. Kolter City Plaza II, Inc

Posted By McGlinchey Stafford at 06:42 PM | Comments / Questions (1)

Delsing v. Starbucks Coffee Corp., Slip Copy, 2010 WL 1507642 (D. Minn. Apr 14, 2010)(No. 08-CV-1154PJS/JSM).

Who would have thought that the tip jar at Starbucks would amount to a federal case? The Court refused to remand the action to state court concluding that CAFA jurisdiction over an action depends on whether the action was filed as a class action, and not on whether the action was eventually certified as a class action.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Cardinale v. Quorn Foods, Inc, Slip Copy, 2010 WL 1332551 (D. Conn. Mar 31, 2010) (No. CIVA 3:09-CV-1660JCH).

The Court remanded the nation-wide class action to state court holding that since the defendant did not directly distribute its food products, it was not able to identify consumers to account for nearly one-sixth of its sales to meet the $5 million threshold.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Conard v. Rothman Furniture Stores, Inc., Slip Copy, 2010 WL 1692973 (E.D. Mo. Apr 27, 2010) (No. 4:09CV2059 TIA).

A Magistrate Judge in Missouri ordered limited discovery for obtaining information whether at least two-thirds of the class resided in Missouri, and, thus deferred his ruling whether CAFA’s home-state controversy exception applied in this case.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Curry v. Applebee’s International, Inc., 2009 WL 3855679, (S.D. Ohio November 17, 2009)

It is often said that if something is too good to be true it probably is. Weight conscious Applebee’s customers found this out the hard way. Apparently those oriental roll-ups on the special diet menu were as fattening as they tasted. Angered by pants that snugged too tight around the waistline, several customers filed law suits alleging fraud. These lawsuits led to the class action suit in Curry. 

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Missouri v. Portfolio Recovery Assoc., Inc., 09-1641, 2010 WL 675153 (E.D. Mo Feb. 24, 2010).

The State of Missouri filed a state court action alleging that defendant debt collection companies violated the Missouri Merchandising Practices Act (MMPA). The defendants removed under CAFA, and, naturally, the plaintiff filed a Motion to Remand.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Corsino v. Perkins, 2010 WL 317418, *1+ (C.D.Cal. Jan 19, 2010) (NO.CV0909031 MMMCWX).

The District Court in California raised a doubt whether the out of state defendant was a primary defendant under CAFA’s home-state controversy exception. As a result, it ordered the defendants to show cause why this action should not be remanded to the state court for lack of subject matter jurisdiction.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Ferrell v. Express Check Advance of SC LLC, 591 F.3d 698 (4th Cir. (S.C.) Jan. 08, 2010) (No. 09-2401).

The Fourth Circuit affirmed the order of the district court that for purposes of determining subject matter jurisdiction under CAFA,  a limited liability compain is an "unincorporated association" as that term is used in § 1332(d)(10), and, therefore is a citizen of the State under whose laws it is organized and the State where it has its principal place of business.  You can stop reading now, but if you get off on the law, particularly CAFA, then we have prepared a nice summary for you.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

D&J Plastics, Inc. v. Veolia Es Solid Waste Southeast, Inc., 2010 WL 1257734, (M.D. Ga. Mar 26, 2010).

I want to say one word to you.  Just one word. Yes, sir. Are you listening? Yes, I am. Plastics. Was the court thinking about this famous dialogue when it remanded this case?

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Kitazato v. Black Diamond Hospitality Investments, LLC, Slip Copy, 2009 WL 3824851 (D.Hawai'i, Nov 13, 2009) (NO. CV.09-00271 DAE-LEK).

The United States District Court of Hawaii agreed with the magistrate judge’s recommendation that the defendants offered no evidence that the plaintiffs outnumbered the requisite 100 member CAFA requirement. The District Court also agreed with the recommendation that as the plaintiffs’ complaint did not seek any monetary relief, any exercise of jurisdiction under CAFA would be inappropriate. (Editors’ Note: See the CAFA Law Blog analysis of the Magistrate Judge’s recommendation in Kitazato posted on May 20, 2010).

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

GreenwichFinancial Services Distressed Mortg. v. Countrywide Financial Corp., Slip Copy, 2009 WL 2499149 (S.D.N.Y., Aug 14, 2009)(NO. 08 CIV. 11343RJH).

The United States District Court for the Southern District of New York held that a third exception to CAFA (28 U.S.C. § 1332(d)(9)(C)) applied in this case because the plaintiffs were attempting to create and define their securities; and remanded the case to the state court.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Ramirez v. Dollar Phone Corp., 09-cv-2290 (E.D. N.Y. November 10, 2009).

On November 10, 2009, Senior United States District Judge Jack B. Weinstein, writing for the Eastern District of New York, handed down a 35-page opinion denying class certification and dismissing a case for lack of jurisdiction. We would like to thank Judge Weinstein for his table of contents which was very helpful in reviewing the opinion.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Behrazfar v. Unisys Corp., --- F.Supp.2d ----, 2009 WL 3437433 (C.D. Cal., Oct 23, 2009)(NO. SACV 08-0850 AG(RCX)).

The Court remanded the class action to state court finding that 28 U.S.C. § 1447(c)’s 30 days time limit to seek remand does not apply when the plaintiff asserts lack of subject matter jurisdiction.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Powell v. Tosh, 2009 WL 3484064, *1+ (W.D. Ky. Oct 22, 2009) (No. 5:09-CV-000121-TBR).

Does your swine waste smell? Mine doesn’t. At least that's what the defendants will argue in federal court since the case will remain in federal court. 

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Smith v. CRST Van Expedited, Inc., Slip Copy, 2010 WL 399126 (S.D.Cal., Jan 28, 2010)(NO. 09CV2885LWMC).

This case was remanded to state court because the facts and arguments presented in the defendant’s notice of removal did not meet the burden of establishing removal jurisdiction.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Verner v. Swiss II, LLC, Not Reported in F.Supp.2d, 2010 WL 99084 (C.D. Cal., Jan 06, 2010) (No. CV 09-5701 PA CTX).

Time is of the Essence! You were taught this maxim in law school for a reason. Follow it, and you shall succeed; Ignore it, and you can notify your malpractice carrier.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Handforth v. Stenotype Institute of Jacksonville, Inc., 2010 WL 55578, *1+ (M.D.Fla. Jan 04, 2010) (NO. 309-CV-361-J-32MCR).

You’ve got to have at least minimal diversity! If you don’t, why bother filing in federal court?

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Green v. SuperShuttle Intern., Inc., Slip Copy, 2010 WL 419964 (D. Minn., Jan 29, 2010)(NO. CIV. 09-2129 ADM/JJG).

Do you hate having to share a van full of strangers as you try to get from your hotel to the airport? Little did you know that your driver may have been a franchisee.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Whitwell v. Wal-Mart Stores, Inc., 2009 WL 2601259, *1+ (S.D.Ill. Aug 21, 2009) (NO. CIV. 09-513-GPM) 

In this case, the Illinois District Court remanded the action to state court holding that the Tax Injunction Act of 1937 and principles of comity barred the district court’s subject-matter jurisdiction under CAFA.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

City of Fairview Heights v. Orbitz, Inc., Slip Copy, 2006 WL 6319817 (S.D. Ill., Jul 12, 2006) (NO. 05-CV-840-DRH).

The Illinois District Court refused to remand the action holding that given the different standards for consolidation under 28 U.S.C. § 1407 and the subject-matter jurisdiction under 28 U.S.C. § 1332(d)(4)(A)(ii), the defendants’ inconsistent arguments against consolidation of a similar case and against remand because of pendency of a similar case did not foreclose federal jurisdiction. It also helps if you have a hovercraft.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Froud v. Anadarko E&P Co. Ltd. Partnership, 2010 WL 961456, *2+ (E.D.Ark. Mar 16, 2010) (NO. 4:09CV00936-WRW).

In this ‘quiet title case’, the Arkansas District Court declined to remand the action to state court under CAFA’s ‘local controversy’ exception, 28 U.S.C. § 1332(d)(4), holding that the plaintiffs sought ‘significant relief’ against defendant Anadarko -- a non-citizen. 

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Kitazato v. Black Diamond Hospitality Investments, LLC, Slip Copy, 2009 WL 3209298 (D. Hawaii, Oct 06, 2009)(NO. CIV.09-00271DAE-LEK)

The magistrate judge recommended the United States District Court of Hawaii rule that since the mass action concerns the direct claims of individual plaintiffs, it cannot retain jurisdiction unless the removing defendants can establish the numerosity requirement – over 100 plaintiffs’ presence in the case, along with a specific monetary relief in the complaint.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Clausnitzer v. Federal Exp. Corp., --- F.Supp.2d ----, 2008 WL 4194837, 21 Fla. L. Weekly Fed. D 326 (S.D. Fla., June 18, 2008) (No. 06-21457CIV-ALTONAGA, 06-21457-CIV/BROWN).

Since Federal Express withdrew its sponsorship of the Orange Bowl, this district court in Florida took revenge and dismissed the case, which presumably led to the filing of the case in Florida state court.  (And I am sure we can guess what will happen to Federal Express in state court.) That would make for an interesting headline. Unfortunately, it is not true because this case was decided long before Federal Express announced that it was terminating its long standing sponsorship of the Orange Bowl. But it is fun to dream up such interesting connections. Back to reality.  Here is what really happened.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Myers v. Jani-King of Philadelphia, Inc., Slip Copy, 2009 WL 2394362 (E.D. Pa., Aug 04, 2009)(No. CIV.A. 09-1738).

If you are the mob and you are desperately seeking Susan, then don’t be confused by Roberta. If you are the plaintiff and you are desperately seeking remand, then you better allege all CAFA exceptions in your remand motion.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Passarella v. Ginn Co., --- F.Supp.2d ----, 2009 WL 1953030 (D. S.C., Jul 02, 2009) (NO. C/A 3:09-417-JFA).

Although the Interstate Land Sales Full Disclosure Act (“ILSA”) prohibits removal of a case filed in state court, the South Carolina District Court declined to remand the action to state court holding that CAFA, as a specific statute for removal, has a categorical right to removal, and therefore, effects an implied repeal of the ISLA’s bar to removal.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Lohr v. United Financial Cas. Co., Slip Copy, (W.D. Pa., Aug 25, 2009)(NO. 09-752).

In this putative class action, the Pennsylvania District Court remanded the action to state court concluding that the evidence to establish jurisdictional amount should be to a legal certainty, and not sheer speculation.  One person’s legal certainty is another person’s sheer speculation.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

First Bank v. DJL Properties, LLC, Slip Copy, 2010 WL 380904 (S.D. Ill., Jan 27, 2010) (NO. 09-CV-970-JPG).

Double header…While the post earlier today regarding this decision was much more scholarly, this post is much more enjoyable. Enjoy this free double header from your friends at the CAFA Law Blog.

Posted By McGlinchey Stafford at 05:23 AM | Comments / Questions (0)

First Bank v. DJL Properties, LLC, Slip Copy, 2010 WL 380904 (S.D. Ill., Jan 27, 2010) (NO. 09-CV-970-JPG).

In this case, the Illinois District Court held that CAFA does not expressly or impliedly permit a plaintiff/counter-defendant to remove a class action to federal court.  (Editors' Note:  See the CAFA Law Blog analysis of the Seventh Circuit's decision in First Bank v. DJL Properties published on May 8, 2010).

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Donaldson v. GMAC Mortg. LLC, 2010 WL 381838, *2+ (M.D.Ga. Jan 26, 2010) (NO. 4:09-CV-117 (CDL)).

In this case, the United States District Court for the Middle District of Georgia, remanded the action back to the state court finding that nothing in the complaint suggested that the amount in controversy exceeded $5 million to impose CAFA jurisdiction.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Horning v. Laboratory Corp. of America, Slip Copy, 2009 WL 2905553 (N.D. Ill., Sep 03, 2009) (NO. 09C3421).

In this case, the United States District Court for the Northern District of Illinois, denied the plaintiffs’ motion to remand the action finding that when evaluating a motion to remand, the amount in controversy is assessed on the claims made in the complaint, and not the amount that the plaintiffs are actually entitled to recover.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Brown v. Jevic, --- F.3d ----, 2009 WL 2342731 (3rd Cir. (N.J.), Jul 31, 2009)(NO. 08-478).

In this appeal implicating CAFA, the Third Circuit reversed the district court’s order and held that a defendant, the parent company, was not precluded from removing a class action to federal court because a co-defendant, the subsidiary, was in bankruptcy.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

First Bank v. DJL Properties, LLC, --- F.3d ----, 2010 WL 1050283 (7th Cir. (Ill.), Mar 24, 2010)(NO. 10-8008, 10-8009).

Recently, the Seventh Circuit affirmed the order of the district courts in two related cases that remanded the actions removed by the plaintiff/counter defendant holding that CAFA permits a defendant only, and not a plaintiff/counter-defendant, to remove a class action to federal court.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Wang v. Asset Acceptance, LLC, --- F.Supp.2d ----, 2010 WL 308800 (N.D. Cal., Jan 27, 2010) (NO. 09-4797 SC).

In Wang…alright, we’re going to take a quick break right off the bat so that we can go ahead and get the obvious out into the open—yes, the plaintiff’s name is Wang. But if you have any thoughts that we’re going to take advantage of the situation for the sake of a few sophomoric jokes, well….you’re in luck. Seriously, the guy’s name is Wang. How can we resist? You would probably stop reading our blog if we did not take advantage of the plaintiff’s name.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Bergquist v. Mann Bracken, LLP, --- F.3d ----, 2010 WL 273973 (7th Cir. (Ill.), Jan 26, 2010)(NO. 09-8046, 09-8047).

The Seventh Circuit reversed the district court’s remand order holding that although Rooker-Feldman doctrine that prevents federal adjudication of any claim that seeks to invalidate judgments entered by state courts applies to CAFA, it did not apply here as the plaintiff was no longer a state-court loser (at least procedurally; we can’t speak about in general).

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Cox v. Microsoft Corp., 2007 WL 7045224, *2+, 2007 N.Y. Slip Op., 52667(U), 52667(U) + (N.Y. Sup. Feb 02, 2007).

In this case, the Supreme Court of New York, New York County, declined the plaintiffs’ counsel’s request for an award of attorneys’ fee on a higher percentage basis finding it inappropriate in coupon settlements, specifically when the Congress enacted CAFA in part on concerns over fairness of coupon settlements.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Gardnerv. Rockwool Industries, Inc., Slip Copy, 2009 WL 2902573 (W.D. Mo., Sep 02, 2009) (NO. 09-6082CVSJGAF).

In this case, the United States District Court, for the Western District of Missouri, denied the plaintiff’s motion to remand finding that the CAFA’s home state controversy is not applicable when the plaintiff charged the foreign corporation as directly liable for the injuries. (Editors’ Note: See the CAFA Law Blog analysis of Gardner’s companion case, Helms v. Rockwool Industries, published on April 13, 2010.)

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Anwar v. Fairfield Greenwich Ltd., 2009 WL 5103234, *1+ (S.D.N.Y. Dec 23, 2009) (NO. 09 CIV. 0118, 09 CIV. 5012, 09 CIV. 2366, 09 CIV. 5650, 09 CIV. 2588)

In this consolidated derivative action, a New York federal magistrate judge recommended to remand the action to state court holding that securities litigation is not a mass action to be treated as class action, thus not removable under CAFA.

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Descoteau v. Analogic Corporation, Civil Number 09-312-P-S (D.C. Maine October 13, 2009).

In some cases, simple math just saves the day. Always remember the KISS principle, which stands for Keep It Simple, Stupid!

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

College of Dental Surgeons of P.R. v. Conn. General Life Ins. Co., No. 09-2201, 2009 WL 3384807 (1st Cir. P.R. Oct. 22, 2009).   

In this case, the First Circuit vacated a premature order of the district court that the complaint, which did not sufficiently define the contours and membership of the plaintiff class within federal pleading requirements, eliminated jurisdiction under CAFA.

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Kennedy v. Natural Balance Pet Foods, Inc., No. 08-56378, 2010 U.S. App. LEXIS 248 (9th Cir. Cal. Jan. 6, 2010).

In this case, the Ninth Circuit recently reversed a district court’s ruling that the dismissal of a case was warranted when it lost the subject matter jurisdiction over a removed action as a result of denial of class certification. 

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Abshire v. The State of Louisiana, 08-369-RET-SCR (M.D. La. December 30, 2008).

On November 10, 2008, United States Magistrate Judge Stephen C. Riedlinger handed down a magistrate judge’s report on the plaintiffs’ motion to remand recommending that the case be remanded to state court. 

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Blumer v. Acu-Gen Biolabs, Inc., Civil Number 06-10359-RCL (D.C. Mass. July 28, 2009).

On July 28, 2009, United States District Judge William G. Young of the District of Massachusetts handed down a memorandum and order on a plaintiffs’ motion to amend to file their third amended complaint.

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Vathana v. EverBank, 5:09-cv-2338-RS (September 10, 2009).

Nice try, but try again. The Northern District of California gives the defendant another shot at proving the amount in controversy.

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Peralta v. Countrywide Home Loans, Inc., 2009 WL 3837235 (N.D. Cal. 2009)

The plaintiffs filed a civil action and punitive class action in the Superior Court of the State of California alleging that Countrywide violated California state law in conjunction with the sale of “payment option” loans (loans where the borrower has the option in the early years of the loan of making less than fully-amortizing monthly payment). 

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Brown v. City Chevrolet, 2009 WL 3485833 (W.D.Mo. Oct. 28, 2009)

This is without a doubt the most boring opinion ever to be assigned to a CAFA Law Blog analyst. In fact, this post was severely late getting to the whip-thrashing blog editor because the analyst couldn’t think of a single interesting thing to say about it. 

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Aburto v. Midland Credit Management, Inc., No. 3:08CV1473K, 2009 WL 4884147 (N.D. Tex., Dec. 16, 2009).

This tidy four-page opinion appears to be a mere procedural footnote, but lurking between the lines is a tale of… murder! 

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Gilmore v. Bayer Corporation, 2009 WL 4789406 (S.D. Ill. Dec. 9, 2009)

We seasoned CAFA Law Blog analysts know that when it comes to remand opinions, the stuff of life is in the footnotes. In Gilmore, 19 plaintiffs, including 2 who were co-executors of the estate of a deceased party, filed suit in Illinois state court against various Bayer entities for injuries caused by the drug Trasylol. 

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240 (10^th Cir. 2009)

In this matter, the federal appellate court sides with the plaintiffs and sends the case back to state court with a message to clean it up. 

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Geismann, M.D., P.C. v. Aestheticare, LLC, No. 07-2575, 622 F. Supp. 2d 1091 (D. Kansas April 9, 2008).

Such a belated post demands discussing in song, after a short introduction. 

The removal in this case was improperly based on diversity because the amount in controversy was too low. The district court held that the notice of removal could not be amended to assert CAFA jurisdiction, which would be a new ground because CAFA substantially changed jurisdictional principles and did not simply affect the amount in controversy.   Now, feel free to sing along – you know the tune.  Just think Doris Day.

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Helms v. Rockwool Industries, Inc., Slip Copy, 2009 WL 2900037 (W.D. Mo., Sep 02, 2009) (NO. 09-6081-CV-SJGAF).

In this case, the United States District Court for the Western District of Missouri, refused to remand the case back to the Missouri state court holding that CAFA’s home state controversy was not applicable when the plaintiff also charged the foreign corporation as directly liable for the injuries.

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Baldanzi v. WFC Holdings Corp., 2010 WL 125999 (S.D.N.Y. Jan 13, 2010) (NO. 07 CIV.9551 LTS GWG).

We bloggers hope this isn’t a typical New York Story. The plaintiffs burst out of the court after the judge, screaming frantically, wringing their hands, with their frumpy disheveled appearance – "But we were in the pool! We were in the pool!" It doesn’t take a guy to know what they were talking about – shrinkage. The plaintiffs believed that there had been significant shrinkage. The Judge’s response you ask – "It shrinks? Hmph, I don’t know how you guys put up with those things!"

Posted By McGlinchey Stafford at 04:38 AM | Comments / Questions (0)

Witowsky v. Home Depot USA, Inc., 2009 WL 3739454 (C.D.Cal. Nov. 5, 2009)

Plaintiffs, Hope and Michael Witkowsky, filed suit on behalf of a nationwide class of customers of Home Depot in California state court claiming that Home Depot calculated its flooring installation fee on the total amount of flooring purchased by a customer, rather than the amount actually installed, which wasn’t fair and really made them mad. Home Depot removed, and apparently would have had a hard time avoiding remand had the plaintiffs not provided some helpful tools in their Fourth Amended Complaint.

Posted By McGlinchey Stafford at 04:08 AM | Comments / Questions (0)

The CAFA Law Blog is proud to bring you a guest post.  Guyon Knight is a student at the Fordham University School of Law.  He recently published an outstanding student note in the Fordham Law Review.  It is available on SSRN by clicking here.  We were so impressed with Guyon's law review article, we asked him to send us a post about it.  So, here is Guyon's article.
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Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Thorogood v. Sears, Roebuck and Company, __ F. 3d __, 2010 WL 476653 (7th Cir. Feb. 12, 2010)

As long-time readers of the CAFA Law Blog know, we’re huge music fans. We’re also huge fans of George Thorogood and the Destroyers. And of Seventh Circuit Judge (and fellow blogger) Richard Posner. Some of us even know that an early iteration of the band was known as the “Delaware Destroyers,” and that George was a very talented semi-pro baseball player back in the 70s. And that nobody plays slide on a Gretsch White Falcon like he does. (In fact, we don’t know anyone else who plays slide on a White Falcon.)

Posted By McGlinchey Stafford at 04:30 AM | Comments / Questions (0)

Ford v. Healthport Techs., LLC, No. 3:08-CV-208, 2008 U.S. Dist. LEXIS 90077 (E.D. Tenn. Aug. 21, 2008).

In this case, the Tennessee District Court remanded the action holding that CAFA’s thirty-day limitations period commenced when the Chancellor orally granted the plaintiffs’ motion to amend the complaint, not when the order memorializing the oral ruling was entered by the court. 

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (0)

Nicholson et al., v. Prime Tanning Corp., et al., No. 09-6083-CV-SJ-GAF, 2009 U.S. Dist. LEXIS 80445 (W.D. Mo. Sept. 3, 2009).

In this case, the Missouri District Court refused to remand an action holding that because the complaint failed to distinguish among defendants as to theories of liability, it considered all the defendants (including an out of state defendant) as primary defendants for the purpose of CAFA’s home state controversy exception.

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (0)

In re Sprint Nextel Corp., 593 F.3d 669 (7th Cir. Ill. Jan. 28, 2010).

In In re Sprint Nextel Corp., the Seventh Circuit held that it would take more than just cell phone numbers and mailing addresses for the plaintiffs to establish the home-state exception.

Posted By McGlinchey Stafford at 03:29 PM | Comments / Questions (0)

Somal v. Allstate Property and Casualty Insurance Company,Case No. C09-1064RSL (W.D. Wash. Sept. 29, 2009).

Teen idol Bobby Sherman performed the hit song, Seattle, declaring that “the bluest skies you’ve ever seen are in Seattle…and the hills the greenest green in Seattle.” Last year, the defendant, Allstate, must have been gazing at the blue skies and hiking the green hills instead of focusing on the preponderance of the evidence standard required to establish the amount in controversy under CAFA! 

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

In re Jamster Marketing Litigation, MDL No. 1751, U.S.D.C. S. D. Cal. Sept. 29, 2008 (Miller, J.).

You may want to think twice about accepting an offer for a “free” download of your favorite Lady Gaga song as a cell phone ring tone. The sound that you may hear may be the ringing cash register of Jamster, a former subsidiary of Internet infrastructure provider VeriSign, which specializes in custom content for mobile devices, and which has been accused of defrauding customers into paying for ring tones that they didn’t authorize, and using deceptive marketing methods to lure consumers into purchasing its products. Say it ain’t so! 

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

In Re Text Messaging Antitrust Litigation, MDL No. 1997, Case No. 08-7082 (N.D. Ill. August 13, 2009).

In In re Text Messaging Antitrust Litig., the United States District Court for the Northern District of Illinois, Eastern Division found the home state controversy exception applied and told the parties BCNU. Can’t figure that one out? Ask your nine year old.

Am I RMOCC (running my own cuckoo clock)? Maybe, but here’s the deal. I’m funny. I mean, really funny. Sometimes people take one look at me and LOL before I’ve even said a word. (If I have to translate LOL for you, you’ve just been living under a rock and even The Blog can’t help you.) I am so beyond LOL, or even LMAO. I am more in the league of ROTFLUTS (rolling on the floor laughing unable to speak). But when our editors assigned this case to me, I just was not inspired. Seriously, I had nothing. I was AAK (asleep at keyboard), not to be confused with AFK (away from keyboard)) on this one. 

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (1)

Thomas v. Bank of America Corporation, et al, 09-11143 (11th Cir. June 12, 2009).

In Thomas v. Bank of America Corp., the Eleventh Circuit found a case does not become removable as a CAFA case until a document is received by the defendant from the plaintiff that unambiguously establishes federal jurisdiction.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Pretka v. Kolter City Plaza II, Inc., No. 09-80706-CIV-MARRA, 2009 WL 4547042 (S.D. Fla. Nov. 30, 2009)

A basic lesson in removal procedure for defendants: your evidence that removal is proper must come from the plaintiffs and must be submitted with your notice of removal.  If you had any doubt on this subject, then the decision in Pretka, shows that this procedure applies to removing under CAFA as well.  (Editors' Note:  the district court decision was reversed by the 11tth Circuit.  See the CAFA Law Blog analyis of the appellate decision in Pretka posted on June 27, 2010).

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (2)

Vanegas v. Dole Food Co., Inc., No. 09-181 (C.D. Cal. Jan. 29, 2009)

Well, this post has absolutely nothing to do with those banana-seated bikes. Sorry. Rather, this very brief, non-reported case highlights the fact that – in a banana peel (like “in a nutshell” – c’mon!) – the CAFA removal statute “is to be ‘strictly construed against removal jurisdiction and any doubt must be resolved in favor of remand.’”

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Alvarez et al v. Midland Credit Management, Inc. et al, 585 F.3d 890 (5^th Cir., October 19, 2009). 

The plaintiffs should not have tried it. Did they really think the judges of the United States Fifth Circuit Court of Appeals would not see right through it? What were they thinking? [Ok, ok, maybe it was all an innocent change of circumstances, but it is more fun to think of it this way.] 

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Delaney v. Landry’s Restaurants, Inc., No. 09-cv-1421 (D. N.J. Oct. 21, 2009)

9,269 gift cards can buy a lot of shrimp platters, but they are not redeemable for CAFA jurisdiction if your calculation of the maximum damages per putative class member is tad low. 

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Redd v. Suntrup Hyundai, Inc., No. 09CV411MLM (E.D. Mo. Aug. 28, 2009) and Tonnies v. Southland Imports, Inc., No. 09CV414SNLJ (E.D. Mo. Sept. 29, 2009).

Sometimes you don’t need to argue the kitchen sink, but, then again, you might need to wash dishes. This pair of opinions from the Eastern District of Missouri illustrates that proving the domicile of class members to meet CAFA’s “home state” exception (28 U.S.C. § 1332(d)) can involve some strange evidence. 

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Brennan v. Rite Aid Corp., No. 08-CV-02970-JF (E.D.Pa. Oct. 7, 2009) –

♪♪♪ Real Litigant of Genius (Sorry Miller Lite for the shameless rip) ♪♪♪

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

In re Am. Family Mut. Ins. Co. Overtime Pay Litig., 638 F. Supp. 2d 1290 (D. Col. 2009).

In this consolidated action, the Colorado District Court dismissed without prejudice the Rule 23 state law class action claims asserted in the amended complaint filed post CAFA ruling that it related back to the original complaint filed pre CAFA, therefore, the commencement date of the state claims was the date of filing of the original complaint notwithstanding the amendments. In doing so, the Court reiterated that it could not exercise original jurisdiction on the action “commenced” prior to CAFA’s effective date.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Admiral Ins. Co. v. Abshire, 574 F.3d 267 (5th Cir. 2009)

The U.S. Fifth Circuit recently upheld a district court’s ruling that the plaintiffs did not commence a new suit under CAFA, by seeking class certification in an amended complaint or by reviving claims held by the deceased plaintiffs, in a suit which was filed prior to commencement of CAFA.

Posted By McGlinchey Stafford at 02:00 AM | Comments / Questions (0)

Beauford v. E.W.H. Group Inc., WL 1808468 (E.D. Cal. Jun. 24, 2009).

In this case, the California District Court remanded the action to state court ruling that in absence of diversity of citizenship, it lacked subject matter jurisdiction under CAFA. No surprise there!  No diversity, even minimal diversity; no federal court.

Posted By McGlinchey Stafford at 02:56 AM | Comments / Questions (0)

Cunningham Charter Corp. v. Learjet, Inc., __ F.3d __, 2010 WL 199627 (7th Cir. Jan. 22, 2010)

We are honored again to bring you another guest column from one of the smartest Chicago lawyers from below the Mason-Dixon line.  Our regular, loyal readers know we are referring to none other than Gabriel Crowson, a consumer finance defense attorney of the Howrey firm.   Heeeere's, Gabe....

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In a case of first impression, the Seventh Circuit recently reversed a district court’s ruling that the denial of class certification eliminated jurisdiction under CAFA. Cunningham Charter had sued Learjet in Illinois state court, asserting breach of warranty claims, on behalf of itself and all buyers of Learjets who had received the same warranty (not a bad class to be a part of). 

Posted By McGlinchey Stafford at 02:24 AM | Comments / Questions (0)

Lucker, et al., v. Bayside Cemetary, et al., No. 07-CV-3823; 08-CV-3555; 08-CV-3923 2009 (E.D.N.Y., Sep 30, 2009), 2009 WL 3213079

As many of our loyal readers are aware, the CAFA Law Blog originates from the great State of Louisiana. As many of those same readers will no doubt know, the State is steeped in rich stories of spirituality, mysticism, and chicanery.

Posted By McGlinchey Stafford at 02:03 PM | Comments / Questions (0)

Manson v. GMAC Mortgage, LLC, 602 F.Supp.2d 289 (D. Mass. 2009)

The plaintiffs in this case thought there was no way that the amount in controversy could reach $5 Million, I mean, that’s a LOT of change . . . they were wrong. 

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Fluke v. Cashcall, Inc., 2009 WL 637461 (E.D. Pa. March 10, 2009)

 Yes, CAFA’s amount in controversy requirement is $5,000,000. And no, you cannot get around CAFA jurisdiction by simply stating in your complaint that you are not seeking $5,000,000.

This is no Fluke.

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Walker v. Motricity, Inc., Case No. 09-01316 (N.D. Cal. June 19, 2009)

A cell phone user brought a putative class action against a mobile phone content developer, Motricity, Inc., alleging that Motricity charged cell phone users for unwanted content sent to their mobile phones. For those of you who do not know, mobile content consists of features like customized ring tones, premium text messages and sports score reports. 

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Rivera v. Washington Mutual Bank, Case No. 09-021 (D.N.J. July 10, 2009)

The U.S. District Court for the District of New Jersey was presented with several Motions to Dismiss an Amended Complaint which the Court described as a “hopelessly muddled, misstated and mangled Amended Complaint” in which jurisdiction was based solely on CAFA. Recognizing the split of authority regarding whether a federal court retains jurisdiction based solely on CAFA if class certification is ultimately denied, the Court determined that, under 28 U.S.C. § 1332(d)(8), it had “provisional jurisdiction” to decide issues bearing on class certification, and that the Court would no longer retain jurisdiction if class certification is later denied. The Court granted the motions to dismiss, and granted leave to the plaintiffs to file a Motion to Amend the Complaint. 

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Gates v. Starbucks Corp., No. 09-02702 (N.D. Ca August 21, 2009)

Another CAFA case, another predictable decision; but what is the real story – that’s what makes this case “H” “O” “T,” hot, hot, hot. 

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Chambers v. CVS Pharmacy, Inc., 2009 WL 2579661 (S.D.Cal. Aug. 19, 2009)

California resident Doug Chambers purchased an eyeglass repair kit manufactured and sold by CVS which was labeled “Made in USA,” only to find that the kit contained component parts made in China. We can only imagine the horror Chambers must have experienced when the screwdriver asked for a fried wonton. Nonetheless, Chambers managed to pull himself together enough to file a class action complaint against CVS in the United States District Court for the Southern District of California, asserting claims under various California statutes based on this “hi-anus” crime.

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

In re Safeco Ins. Co. of America, Case No. 09-8027, 2009 WL 3380355 (7th Cir. Oct. 22, 2009)

We are delighted to bring to you, our smart, sexy CAFA aficionados, a Guest Post from Gabriel Crowson, a talented consumer class action defense lawyer with the Howrey firm in its Chicago office. Without further ado, heeere’s Gabe…

********************************************

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

New Jersey Carpenters Vacation Fund v. Harborview Mortgage Loan Trust, et al., Case No. 08-CV-05093 (SDNY Sept. 24, 2008).

If your email account is like mine – you are told everyday from some business start up in Tanzania that size matters. I, for one, am buying into the hype. I do everything I can to increase my size. The size of what you ask? My client portfolio, of course! What did you think I was talking about?

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Wells Fargo Bank v. Gilleland, 621 F.Supp.2d 545 (N.D.Ohio 2009)

A defendant is only a defendant if it was named as a defendant in the original complaint, according to the Ohio district court in Gilleland. There, mortgagee Wells Fargo filed a foreclosure action in state court against the Gillelands. They in turn filed counterclaims based on servicing and collection practices against Wells Fargo and other defendants, including Lerner, Sampson & Rothfuss (“LSR”), on behalf of a putative class with “hundreds of thousands” of members. LSR removed the action, and the Gillelands moved to remand, arguing that LSR was a “third-party defendant” which was not entitled to remove.

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Anderson v. Hackett, 09-227 (S.D. Ill. July 30, 2009)

Unlike Love Canal, the plaintiffs in Anderson don't have a President Carter to evacuate their toxic village . . . but at least they can rely on the “local controversy” exception to CAFA

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Forlenza v. Dynakor Pharmacal, LLC, CV09-03730 MMM (C.D. Cal. June 18, 2009).

If you are looking for a primer on CAFA jurisdiction, this is it. The Central District of California has done a great job of outlining CAFA jurisdiction and even the exceptions to CAFA jurisdiction just for you.

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Coleman v. Chase Home Finance, LLC, 08-2215NLHJS, 2009 WL 1323598 (D.N.J., May 11, 2009). 

Pay attention to those citizenship allegations, litigators, or you risk being forced off the federal court turnpike at the next exit! Remember that federal courts sometimes analyze whether they have subject matter jurisdiction, even if the parties themselves do not raise the issue. 

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Kaufman v. Allstate New Jersey Insurance Company, et al, 561 F. 3d 144 (3^rd Cir. 2009).

When I read this case I thought hmm, insurance, New Jersey, the Sopranos. Then I thought, is it really fair to the mafia to compare them to the insurance industry? Then I thought , I miss the Sopranos. HBO has not had a show as good as that one. Well, Deadwood was good, but we only got two seasons. And I have never gotten in to Entourage. Then I thought, what is on TV tonight? I wish Lost would start. Wouldn’t it be nice to go to Hawaii for a vacation. I can’t go on a vacation, I’ve got work to do. What was I doing, oh yeah, a CAFA post. That my friends, is the thought process that sometimes goes into blog writing. And to think, many people today get their “news” from blogs. Lord, help us.

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Green v. Staples Contract and Commercial, Inc., CV08-7138-SVW (C.D. Cal. December 10, 2008).

In this case, the Central District of California was kind enough to explain AGAIN the Ninth Circuit’s three different burdens of proof for establishing removal jurisdiction under CAFA. Thanks again, Judge Wilson!

Posted By McGlinchey Stafford at 10:57 AM | Comments / Questions (0)

Mathews v. ALC Partner Inc., No. 4:08-cv-10636, --- F.Supp.2d ----, 2009 WL 2390526 (E.D. Mich. July 31, 2009)

The Zen philosopher Basho once wrote, “A flute with no hole, is not a flute; and a CAFA argument with no evidence of $5 million in controversy is dismissed.” He was a funny guy.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Bemis v. Safeco Ins. Co. of America et al.,  No. 09-315, 2009 WL 1972169 (S.D. Ill. Jul. 8, 2009). 

Yes, we are still…in the second half of 2009… seeing new remand opinions addressing whether a lawsuit was commenced before CAFA’s enactment on February 18, 2005. [Really Safeco? You really tried that?!?] And oddly enough, three of the eight commencement cases summaries we have posted in 2009 have involved chiropractor claims against insurers. (Editors' Note: See the CAFA Law Blog analysis of Komeshak posted on August 14, 2009 and Fischer posted on June 5, 2009.) Really. 

Posted By McGlinchey Stafford at 09:17 PM | Comments / Questions (0)

Weaver v. Nestle USA, Inc., 2008 WL 5453734 (N.D. Cal. October 31, 2008)

In a CRUNCH® decision, the court waived its Pixie Stick®, took the Nestea® plunge, and held that Nestle could not have its Butterfingers® and eat them too . . .. 

Posted By McGlinchey Stafford at 09:50 AM | Comments / Questions (0)

Salazar v. Avis Budget Group, Inc., 2008 WL 5054108 (S.D. Cal. November 20, 2008)

Workers: “We’ve been working on the railroad all the live long day without a break boss.”

Bossman: “Obviously someone has been taking breaks because someone’s in the kitchen with Dinah ...”

Ok, that was cheesy … we here at the CAFA Law Blog try our best to spice up even the most mundane of topics, but sometimes we just have nothing to work with …this is one of those times.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Anthony L. Cooper, et al., v. R.J. Reynolds Tobacco Co., etc., et al., No. 3:08-cv-153, 586 F. Supp. 2d 1312 (M.D. Fla. Aug. 29, 2008)

Studies conducted by some very smart scientists probably suggest that your lungs can almost fully recover within fifteen years of quitting smoking. In about as much time, a tobacco class action suit wound its way through Florida’s state courts until the Supreme Court of Florida decertified the 700,000-member plaintiff class. Conveniently, Congress managed to enact CAFA in that time, too. The decertification prompted the filing of suits by 3,400 plaintiffs in groups of about 200.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Redd v. Suntrup Hyundai, Inc. d/b/a Suntrup Hyundai, Slip Copy, 2009 WL 1161622, 09CV411, (E.D. Mo. 04/29/09)

The plaintiff, Randall Redd, sure loves getting behind the wheel in his new Hyundai. And who can blame ol’ Redd? There is nothing like taking the Hyundai out on the stunning Missouri plains.  For Redd there’s not a care in the world for when he’s behind the wheel of his baby. But when he’s not taming her on the open road, he is in a feisty court battle with her ex-owner Suntrup Hyundai, Inc. 

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Wright v. American Bankers Life Assurance Company of Florida, 586 F.Supp. 2d 464 (D.S.C. 2008)

“Hey Court, although this case was originally filed back in 2000 (5 years prior to CAFA), the plaintiffs have now amended their complaint to (1) add new parties, (2) assert new statutory violations and causes of action, and (3) rephrase their class definition. We would now like to remove under CAFA …”

“Not so fast my friend…”

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

PHLD Partnership v. Arch Specialty Insurance Company, 565 F.Supp. 2d 1342 (S.D. Fla. 2008)

If one is going to take it upon themselves to remove a case under CAFA jurisdiction, one should take the time to read the provisions of CAFA … all of them.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Labor Day is almost here, and if you’re like us at the CAFA Law Blog, you’re probably looking for some good reading material to take with you on your end-of-summer vacation, as you sit on the beach, sipping margaritas.  Well, have no fear . . . have we got some good ones for you! 

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Bullard v. Burlington Northern Santa Fe Railway Co., 535 F.3d 759 (7th Cir. 2008)

Here at the CAFA Law Blog we are nothing if not hip, up-to-date, groovy people; just look at our references (Oklahoma!, the Beach Boys!, Happy Gilmore!, Insurance Commercials!). The list of exciting and bleeding-edge, up-to-the-minute references is almost endless. In today’s post, we will learn about a topic that is less than 3(ish) years old – texting. Thus, CAFA Law Blog will text its response to the case below.    

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Avritt v. Reliastar Life Ins. Co., 2009 WL 1703224 (D. Minn. June 18, 2009)

Alas, jurisdiction under CAFA was never meant to be for the defendant. In this case, the plaintiffs’ motion for class certification was denied, and, thus, jurisdiction under CAFA was let go by the defendant. Without class certification, the plaintiffs questioned whether they should even be with the defendant any more (in federal court). 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Asahi Kasei Pharma Corporation v. Actelion, 2009 WL 801555 (N.D. CA March 25, 2009)

 Check out http://failblog.org/ for great failures of communication, because this case probably should be included on the list of failure to communicate.  Here are some of our favorite examples of failure to communicate.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Puglisi v. Citigroup Alternative Investments, LLC, 08-9774, 2008 WL 1515071 (S.D.N.Y. May 29, 2009)

The plaintiffs wanted to stay in state court; however, they alleged so many charges that the federal court was the proper forum to resolve these nasty allegations. Did they forget about artful pleading?

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Guenther v. Crosscheck Inc., Slip Copy, 2009 WL 1248107 (N.D.Cal., Apr 30, 2009)(NO. C 09-01106 WHA)

In this proposed class action CAFA card game, the plaintiff played a hand in the Sonoma County Superior Court. The plaintiff alleges that he was fraudulently enrolled in the defendant’s (Crosscheck Inc) check-verification service without his knowledge and then was forced to pay termination fees and penalties to extricate himself.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Lorah v SunTrust Mortgage, Inc., No. 08-703 (E.D. Penn. Feb. 17, 2009).

In the post subprime meltdown, SunTrust is such a great name for a lender funding loans through mortgage brokers. However, the plaintiffs in this suit did not think so, and they sued SunTrust for generating illegal fees. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (2)

Bates v. Sendme, Inc., Slip Copy, 2009 WL 942342 (N.D. Cal., Apr. 06, 2009)

Ring Tone companies and class action plaintiffs are splitting up rowdy fans (read: judges) across the country, from California to Wisconsin. Where is Simon Cowell when you need him to break the tie vote?

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Joseph v. Unitrin, Inc., 2008 WL 3822938 (E.D. Tex. 2008)

Dear Ann Landers – I am an overworked, underpaid insurance lawyer practicing in the Great State of Texas. My wife has recently started spending an exorbitant amount of money on socks, I am afraid my 12 year old son is going to develop arthritis and/or carpal tunnel in his thumbs from excessive texting and Twittering, and I am pretty sure my dog has anxiety. But my biggest concern is this here perplexing legal issue that is consuming me – PLEASE HELP

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Laws v. Priority Trustee Serv. of N.C., L.L.C., No. 3:08-cv-103 (W.D.N.C. Aug. 11, 2008).

Not So Breaking News / CAFA-E! exclusive: Undercover Blogger reporting.

It started in a small country café, over coffee, quiet enough of course for Mrs. Law to overhear the scandalous CAFA conversation. What Mrs. Law heard was shocking; Morris Schneider had been playing both sides of the fence (not that there was anything wrong with it – of course not), and what was worse, it was doing it in exchange for cold hard cash.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Manufacturing, Energy, Allied Industrial & Service Workers International Union, AFL-CIO, CLC v. Concophillips, No. CV 08-2068PSG(FFMx), 2009 WL 1652975 (C.D. Cal. June 11, 2009).

Never underestimate the allure of the lunch lady. USW union workers filed a class action lawsuit alleging that the defendant skimped on lunch periods in violation of California law. The defendants tried removal based on CAFA, but CAFA stole their lunch money and ran. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

While these cases are close to being classified as "Not Worthy" for prime time posts, we thought we would give you something a little more substantive than just a listing of these cases and tell you to read them if you are bored.  So, here are 4 case notes of almost not worthy of prime time analysis. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Komeshak v. Illinois Farmers Insurance Co., 2008 WL 3875265

Do YOU know when CAFA was enacted? And I mean the Month (hint: think Valentine’s[1]), Day (hint: think voting age[2]) and Year (hint: think Hurricane Katrina[3]) it was enacted…do you know? C’mon, venture a guess. One tiny, little guess. A true CAFA-er would know! If you still don’t know and haven’t cheated by looking at the footnotes, read on and ye shall find out. It’s kind of an important detail. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Tanoh v. Dow Chemical Co.,  No. 09-55138, 09-55145, 09-55147, 09-55148, 09-55153, 09-55156, 09-55160, 2009 WL 826404 (9^th Cir. Mar. 27, 2009). 

In this case, the Ninth Circuit Court of Appeal affirms a remand order sending the claims of 680 named plaintiffs back to state court because the claims did not meet CAFA’s jurisdictional requirements as a “mass action.” 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Landsman & Funk, P.C. v. Skinder-Strauss Associates, 2009 WL 1916316 (D.N.J. June 20, 2009)

This incredibly confusing case started with an unsolicited advertisement faxed from a New Jersey partnership, Skinder-Strauss Associates (“Skinder”) to a New York law firm, Landsman & Funk, P.C. (“Funk”). (Yeah, it should really be “Landsman,” but geez, we need material here.) Funk sued Skinder in New Jersey federal court for violations of the Telephone Consumer Protection Act (“TCPA”), and Skinder moved to dismiss for lack of jurisdiction.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (1)

College of Dental Surgeons of Puerto Rico v. Triple S Management Inc., 2009 WL 1076308 (D.Puerto Rico).

The plaintiffs in this case are either very smart or enjoy Puerto Rican rum too much. Lord knows there is plenty of Puerto Rican rum to choose from.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Marine v. Interstate Distrib. Co., Slip Copy, 2009 WL 1066303 (N.D. Cal., Apr. 20, 2009) (NO. C 08-5414 SI)

Sorry, Interstate Distributor Company’s (IDC) California truck drivers, you were forced to wait and not afforded your mandatory rest periods or regular meals. The Northern District Court of California ruled that defendant’s only chance to remove based on CAFA was during its first attempt to remove this case through diversity jurisdiction.

After initial removal, the case was remanded back to state court for lack of diversity jurisdiction. However, the defendant was hungry and tried to go in for seconds, a second chance at removal, that is. The Northern District was not swayed by the defendant’s argument that CAFA jurisdiction was not apparent from the face of the complaint during the first removal.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

In re Hp Inkjet Printer Litigation, No. 05-3580 (N.D. CA 02/05/09)

Hewlett Packard’s Inkjet printer’s ink cartridges may run out too quickly, but its jurisdiction in federal court does not. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Clover v. Sunset Auto Co., Slip Copy, 2009 WL 1490489 (E.D.Mo., May 27, 2009)(NO. 4:09CV58 HEA)

Attorneys have earned quite a name for themselves. But, there is one profession whose reputation might be a bit more tarnished. Yep, you guessed it, the car salesmen. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Ventimiglia v. Tishman Speyer Archstone-Smith Westbury, L.P., 588 F.Supp.2d 329 (E.D. N.Y. 2008).

This putative class action was brought by former tenants of a luxury apartment complex whose leases were allegedly improperly terminated. The defendants had apparently terminated the leases because of mold infestation. The case was initially filed in the New York State Supreme Court, Nassau County, but later removed by the defendants under the Class Action Fairness Act. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Muehlbauer v. General Motors Corp., Slip Copy, 2009 WL 874511 (N.D.Ill., Mar 31, 2009)(NO. 05 C 2676)

The Northern District of Illinois has reached the end of its rope. It has grown sick and tired of all the other federal district courts getting their views on CAFA jurisdiction after a class certification denial heard by Papa Westlaw. In a fit of anger and desperation, the Northern District Court of Illinois released Meuhlbauer v. General Motors Corp. in order to display its opinion on the matter. In its best whiny little sister voice, the Court dismisses the case for lack of CAFA jurisdiction since the class was denied certification.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Magee and Johnson v. Advance America Servicing of Arkansas, Inc., d/b/a Advance America Cash Advance; and Advance America, Cash Advance Centers, Inc., No. 08-06105 (W.D. Ak. 04/01/09).

We, at the CAFA Law Blog, pride ourselves in making the esoteric entertaining.  However, sometimes we are not given enough to work with to achieve our goal.  So, here is a post you will just have to gut out.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Lewis v. Ford Motor Co., Slip Copy, 2009 WL 840233 (W.D.Pa., Mar 26, 2009)(NO. CA 09-164)

Although some people might enjoy a front-end that vibrates too much, owners of Ford F-250s and F-350s filed a class action suit in state court against Ford. The suit alleged that the vibratations were not pleasurable and constituted a breach of the Magnuson-Moss Warranty Act.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Coffey v. Freeport-McMoran Copper & Gold, Inc., 2009 WL 1138051 (W.D. Okla. Apr. 27, 2009).

“And the waving wheat can sure smell sweet when the wind comes right behind the rain.” You probably didn’t even recognize those are the lyrics from the musical Oklahoma, did you? I didn’t know them either. Thank you, Google.

Well, there’s nothing like a good ol’ musical to get anyone excited about CAFA, right? So naturally I thought I would use Oklahoma as the backdrop to give you the latest CAFA developments from that state.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Bell v. Hershey Co., 557 F. 3d 953 (8^th Cir. Feb. 26, 2009).

Earlier this year the 8^th Circuit ruled against Willy Wonka in an antitrust action and ordered the distribution of additional golden tickets in his competitor’s candy bars. Just kidding. But, the 8^th Circuit did hold that the burden for removal under CAFA is analyzed under the much easier preponderance standard, as opposed to the much more difficult legal certainty standard.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Allen-Wright v. Allstate Ins. Co., Slip Copy, 2009 WL 1285522 (E.D.Pa., May 05, 2009)(NO. CIV.A. 07-CV-4087)

The plaintiff filed a class action and Allstate removed it to federal court under CAFA. The plaintiff did not move for remand at that time. Subsequently, the plaintiff moved for class certification. The Eastern District of Pennsylvania denied class certification, finding that the plaintiff failed to establish commonality, typicality, predominance and superiority. Consequently, the only remaining claim was plaintiff’s individual claim against defendant for alleged underpayment of certain policy benefits. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Stevens v. Divericare Leasing Corp., 2009 WL 1212488 (W.D. Ark.)

Grandma: Sir, can I trouble you for a glass of warm milk? It helps put me to sleep.

Nursing Home Orderly: You can trouble me for a warm glass of shut-the-hell-up. Now, you will go to sleep or I will put you to sleep. Check out the name tag. You're in my world now, grandma.

Grandma may have been at the nursing home’s mercy in Happy Gilmore, but the district court in Stevens v. Divericare Leasing Corp., decided the defendants are in Grandma’s world now and that world is an Arkansas state court.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Wells Fargo Bank, N.A. v. WMR e-Pin, LLC, 08-5472, 2008 WL 5429134 (D. Minn. Dec. 29, 2008)

If you are a National Bank, can you claim the citizenship of more than one state? The answer to that question is yes and no. No, this in not a trick question, but the answer depends on the federal district court. 28 U.S.C. § 1348 provides “All national banking associations shall…be deemed citizens of the States in which they are…located.” But what exactly does “located” mean?

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Anwar v. Fairfield Greenwich Ltd., Slip Copy, 2009 WL 1181278 (S.D.N.Y., May 01, 2009)(NO. 09 CIV. 0118 VMTHK)

When the plaintiffs realized that Bernard Madoff had “made-off” with their investments (tough crowd?) with Fairfield Greenwich, the first logical thing to do was to sue the defendant…in state court. Of course, Fairfield Greenwich preferred defending those claims in federal court and had the case removed from state court to the federal district court for the Southern District of New York pursuant to jurisdiction under the Class Action Fairness Act of 2005. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

“U-Haul Me Into Federal Court For Dis? Trict You, Go Back To Superior Court!” or,

“I’d Rather Sua Sponte Than Have U-Haul Me Into Federal Court!” or,

“Districter Da Time Limit, Da Better Da Denial” or,

“If You Seek A U-Haul, Appeal Back This Leave, Remand Order Me Around” or,

“Dissent The Same Mr. Roger’s Nay-borhood U-(H)aul Watched As Kids” or,

“However U Parse Me, Sage, (Rosemary, and) Timely Appeal!”

In Re:  U-Haul International, Inc., No. 08-7122 (D.C. Cir. 4/6/09)

Remember those old Rocky and Bullwinkle cartoons? Remember how at the end of each episode the announcer would preview the upcoming episode? Remember how he would always give it two titles? And remember how neither of those titles were ever the actual title when the upcoming episode finally aired? Well, the CAFA Law Blog is like those episodes: lots of titles, none of which have much to do with the subject case (except for a few silly puns formed from words found in the opinion).   

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Rynearson v. Motricity, Inc., 601 F.Supp.2d 1238 (2009)

This opinion on amount in controversy is short and boring. We just couldn’t make it funny, so here is a bland report on the case.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Smalls v. Advance America, Slip Copy, 2008 WL 4177297 (D.S.C., Sep 05, 2008)(NO. 2:07-3240-TLW-TER)

On behalf of the class, the one named plaintiff filed a class action suit in South Carolina State Court against the everyone’s favorite defendant these days…payday lenders. In this case the defendants were Advance America Cash Advance Centers of South Carolina, Inc., Carolina Payday Loans, Inc., and Check into Cash Into Cash of South Carolina Inc.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031 (9^th Cir. 7/16/08)

The regulation or lack thereof in the securities world has helped send our economy into the depths of…I can’t say it… you know the R word. However, don’t dispel the power of securities regulation just quite yet. It still apparently has some punch. Securities law maintains it authority where it counts the most. Yep. You guessed it, removal jurisdiction. Right. What could be more important?

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Amoche v. Guarantee Trust Life Ins. Co., 556 F. 3d 41 (1st Cir. 2/13/09).

Amoche filed for a class action againstGuarantee Trust Life Insurance Company (GTL). After three amended petitions, Amoche defined the class “enough” for GTL to seek removal. Not so fast, the district court denied GTL’s request and 1st Circuit Court of Appeal affirmed.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Wiley v. Advance America, 2008 WL 4179652 (D.S.C. Sept. 5, 2008) 

Try to remember back, its your first day of law school and you are sitting in basic civil procedure. You have carefully selected a seat in the middle of the class room. Not far back enough to look like a slacker but not so close to the front as to draw any extra unwanted attention from the grizzled looking man standing at the front of the room. You settle in for what you hope will be an painless and uneventful hour. It is not to be. All of a sudden you hear your name being called. Of course he mispronounces it, but not enough to leave any doubt that the tenured inquisitor is looking for you. “Why couldn’t Mr. Neff be served?” he asks.

“…..Ugh…..Umm…because he never ordered?” you answer to the resounding chuckles of your so called friends and classmates.

Looks like it is going to be a long semester. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Grimmelmann v. Pulte Home Corp., et al, No. 08-1878 (D. Az. May 1, 2009)

In James Bond’s latest outing the poor residents of Bolivia turned to 007 to save the day when a mad man threatened to steal their water supply and sell it back to them at a substantial mark up. Why you might ask would a British super spy waste his time worrying about the price of water in Bolivia?

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Amezcua v. Cellco Partnership, 2009 WL 1190553 (N.D. Cal. May 4, 2009)

Is that extra $20 per paycheck from the president’s stimulus plan not stretching as far as you hoped? Are you still looking for a way to cut back on expenses?

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Jones v. Sears Roebuck and Co., Slip Copy, 2008 WL 4844717 (4th Cir.(W.Va.) Nov 10, 2008) (Not selected for publication in the Federal Reporter)

When you think of Sears, perhaps you think of a store that…carries a softer side. Or perhaps Ty Pennington screaming into his giant megaphone “REMOVE THAT CASE UNDER CAFA!!” (or something like that) comes to mind. Well in this case, Sears asserted anything but a softer side, arguing that CAFA jurisdiction must exist under an amended complaint asserting new causes of action, and not the original complaint – filed before Congress enacted CAFA. Apparently, Sears used Ty Pennington’s megaphone, because the Fourth Circuit heard its argument loud and clear.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Migis v. Autozone, Inc., Slip Copy, 2009 WL 223711 (D.Or., Jan 29, 2009)(NO. CIV. 08-1394-KI)

Walking through my office, I often find humor watching my fellow attorneys using their fingers to make sure they added four plus three correctly (and for those of you who started counting in your head, and then on your fingers, the answer is seven…I think). And that evening when I begin filling out my billable hour sheet, I find myself doing the same thing. Let’s face it. As attorneys, there is a reason we chose not to enter the engineering profession: We stink when it comes to the field of mathematics. That, however, is no excuse when attempting to remove under CAFA.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (2)

Summerhill v. Terminix, No. 4:08-cv-00659, 2008 WL 4809448, (E.D.Ark. October 30, 2008)

Having problems stopping people from trying to go from one place to another instantly? Your friends keep turning into half man, half insect creatures? No? Of course not, stopping plaintiffs from removing their case using the exceptions to the CAFA grant of federal jurisdiction is easy as fly.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

For the following cases, the answer – not very much, certainly not enough to be worthy of an individual post.

That right, its time for our “Not Worthy” of a post category for this quarter. The following is a collection of cases that only mention CAFA and do not qualify for an individual post check them out in your spare time and determine which one is the biggest CAFA loser! Click here to listen to the Biggest Loser theme song. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Marshall v. H&R Block Tax Services, Inc., 564 F.3d 826 (7th Cir. 2009)

 We are delighted to present a Guest Post from one of our original CAFA analysts. Our Guest Poster today is Gabe Crowson from Howrey, LLP’s Chicago office. Welcome Back, Gabe

Posted By McGlinchey Stafford at 07:46 AM | Comments / Questions (0)

Irish v. BNSF Railway Co., No. 08-CV-496-SLC, 2009 WL 276519 (W.D. Wis. Feb. 4, 2009). 

Note to all those dreaming of one day bringing a class action lawsuit of your own: don’t bring suit on behalf of your entire town unless you want the case removed to Federal Court. 

Posted By McGlinchey Stafford at 06:43 AM | Comments / Questions (0)

Leathermon v. Grandview Memorial Gardens, Inc., No. 4:07-CV-137-SEB-WGH, 2009 WL 301923 (S.D. Ind. Jan. 22, 2009). 

One important thing to keep in mind before you try to prove that greater than two-thirds of your plaintiff class are citizens of the State in which you filed: don’t use addresses that are forty years old! Common sense, I know, but the plaintiffs in Leathermon attempted to use the addresses of their plaintiff class members that were on file at the time the underlying contracts to the suit were entered into – twenty, thirty, and forty years prior. 

Posted By McGlinchey Stafford at 06:10 AM | Comments / Questions (0)

Vallier v. American Fidelity Assurance Company, Slip Copy, 2008 WL 4330028 (D. Kan., Sep. 16, 2008)(No. 08-2267-JAR)

Plaintiff, Verle Vallier, filed a putative class action seeking damages from American Fidelity Assurance Company (AFA) for breach of contract with fraudulent intent, fraud and bad faith, claiming that AFA changed the “actual charges” policy language in its disease cancer expense policy. 

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Chiropractic Neurodiagnostic, P.C. v. Allstate Insurance Co., No. 08-2319, 2009 WL 210866 (E.D. NY 01/26/2009).

What happens when the plaintiff files a “class action” lawsuit touting withheld payments in excess of “One Million Dollars,” but then admits it’s not really a class-action suit and that the plaintiff is only seeking “in excess of” $35,000.00? That’s right, folks, it’s back to state court for this cheap, no-class lawsuit!

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Harris v. Sagamore Insurance Company, No. 08-109, 2008 WL 4816471 (E.D.Ark. Nov. 3, 2008).

Sometimes life imitates art. In the classical view, the structure of narrative is properly divided into three acts. This analysis may be traced back to Aristotle’s Poetics, wherein that great thinker propounded that the structure of narrative is properly divided into beginning, middle, and end:

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Kitson v. Bank of Edwardsville, 2008 WL 4671743 (S.D. Ill., October 21, 2008)

Readers, feast upon the following nuggets of legal wisdom. . .

1.        CAFA is required reading for all who engage in class-action litigation.

2.        The Court rejected the argument that the statute cannot mean what it says.

3.        Congress writing a deadline imprecisely, or even perversely*, is not a sufficient reason to disregard the enacted language.

4.        CAFA is written for judges and lawyers.

5.         Judicial investigation of legislative history has a tendency to become an exercise in looking over a crowd and picking out your friends.

6.         CAFA properly understood is a manual on how to invoke or avoid federal jurisdiction

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Yes, wild and raucous readers, it's time for the Summer editionof “We’re Not Worthy.” Maybe you were hoping for a wet t-shirt contest in Panama City or a dance-off in Cancun, but you get CAFA instead.

Well, you get those senior-trip level cases which don’t quite make theCAFA cut but limbo around the edges of the law. This quickrun-through will leave you with more time for Jell-O shots on the sand anyway.

Blausey v. U.S. Trustee, --- F.3d ---, 2009 WL 153241 (9^th Cir., Jan. 23, 2009)

Carr v. International Refining & Mfg. Co., --- So.2d ---, 2009 WL 129952 (Ala., Jan. 16, 2009) (If you really want to read this one, you will have to pay to download it from the Alabama Supreme Court).

Moore and Carroll v. State Farm, 2009 WL 130204 (5th Cir. 2009)

Kosen v. Ruffing, Slip Copy, 2009 WL 56040 (S.D. Cal., Jan. 7, 2009)

Bellows v. NCO Financial Systems, Inc., Slip Copy, 2009 WL 35468 (S.D. Cal., Jan. 5, 2009)

Pipes v. Life Investors Ins. Co. of America, --- F.R.D. ---, 2008 WL 5328201 (E.D. Ark., Nov. 21, 2008)

Carter v. Novartis Consumer Health, Inc., 582 F.Supp.2d 1271 (C.D. Cal. 2008)

Katz v. Gerardi, --- F.3d ---, 2009 WL 18137 (7th Cir., Jan. 5, 2009)

George v. Nat’l Collegiate Athletic Ass’n, Not Reported in F.Supp.2d, 2008 WL 5422882 (C.D. Cal., Dec. 17, 2008)

Adler v. Dell, Slip Copy, 2008 WL 5351042 (E.D. Mich., Dec. 18, 2008)

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Freebird, Inc. v. Cimarex Energy Co.,  No. 08-1190, 2008 WL 5575067 (D. Kan. Sep. 2, 2008). 

Your name does not have to be Van Zant, Collins, Gaines or Rossington to appreciate this case.  Click here for the music for the proper setting for this post.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Vekic v. Shell Pipeline Co. LP, et al., 2008-1469 (La. App. 4 Cir. 1/29/09), 2009 WL 213105.

Plaintiffs were Louisiana oyster farmers (oh yea, I said “oyster farmers”) and lessees of state water bottoms for the purpose of bedding and growing oysters. Shell came along and constructed a hydrocarbon pipeline through the leaseholds. All was going well until a little thing we like to call “Hurricane Katrina” came along in August 2005 and disturbed life in general in Louisiana, along with rupturing Shell’s pipeline, spilling hydrocarbons. For some reason, hydrocarbons don’t’ taste as good as Tabasco on oysters.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Pereira v. Gate Gourmet, Inc., 2009 WL 177591 (C.D. Cal. Jan. 26, 2009)

Airplane food...some of the finest in the land.  Want to know why?  Apparently, the people who make it are not paid enough.

Stewardess: Can I get you something?

First Jive Dude: 'S'mofo butter layin' me to da' BONE! Jackin' me up... tight me!

Stewardess: I'm sorry, I don't understand.

Second Jive Dude: Cutty say 'e can't HANG!

Old Lady: Oh stewardess! I speak jive.

Stewardess: Oh, good.

Old Lady: He said that he's in great pain and he wants to know if you can help him.

Stewardess: All right. Would you tell him to just relax and I'll be back as soon as I can with some medicine?

Old Lady: Jus' hang loose, blood. She gonna catch ya up on da' rebound on da' med side.

Click here to see the video.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Bartnikowski v. NVR, Inc., 2009 WL 106378, (4th Cir. Jan. 16, 2009)

Plaintiffs brought a state-law based class action for unpaid overtime. Not surprisingly, plaintiffs did not specify the amount they were seeking in damages. 

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Fischer v. Continental Loss Adjusting Services, Inc., Case No. 08-00416 (Dec. 24, 2008)

Amazingly, commencement cases are still out there! Three days before CAFA was enacted, Dale Fischer, a chiropractor, filed a class action complaint against certain insurers alleging improper preferred provider practices. Years later, on May 7, 2008, Fischer was granted leave to add his closely held corporation, Lebanon Chiropractic Clinic (“LCC”), as a plaintiff. 

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Moua v. Jani-King of Minnesota, Inc., Slip Copy, 2009 WL 212425 (D.Minn. Jan. 27, 2009)

In Moua certain Jani-King franchisees filed a class action in state court against Jani-King International (“JKI”) and some of its subsidiaries. Jani-King International (“JKI”) is a Texas corporation that sells franchises to individuals across the United States entitling the franchisee to cleaning or janitorial service accounts from Jani-King customers. 

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Bryan v. Wal-Mart Stores, Inc., 2009 WL 440485 (N.D.Cal. Feb. 23, 2009)

In Bryan, a class of Wal-Mart truck drivers brought claims in California state court based on Wal-Mart’s alleged violations of California labor laws, and Wal-Mart removed under CAFA. Plaintiffs moved to remand based in part on Wal-Mart’s failure to establish the requisite amount in controversy.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Villareal v. Dole Food Company, Inc., et al., 09:-cv-00189 (C.D. CA. 01/29/09)

Thousands of banana plantation farmers in Latin America have filed suits in California state courts against some of the most recognizable banana vendors in the world. Their claims you ask: exposure to pesticides and chemicals have resulted in serious injuries, including sterility. The CAFA Law Blog appreciates that sterility is a sensitive issue, so let’s just refer to it in this post as the “banana problem.”

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Rasberry v. Capitol County Mutual Fire Insurance Company, et al., No. 08-cv-392, --- F.Supp.2d ----, 2009 WL 42603 (W.D. La. Jan. 23, 2009) (Magistrate Report and Recommendation)

In a Texas state court very, very, very, very, far away, there lived a ruthless race of beings known as . . . Co-Defendants.  

The evil leaders of the Co-Defendants, having foolishly squandered their precious research hours, have devised a secret removal plan under CAFA to take every breath away from their peace-loving neighbor, Planet State Court. 

Today is Princess Class Representative’s day in court. Unbeknownst to the Princess, but knowest to us, danger lurks in the federal courts above. . .

If you can read this, you don't need glasses.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Migis v. AutoZone, Inc., _____ F. 3d _______, 2009 WL 69027 (D. Or.).

OK, CAFA readers, who watches Lost? I know you are out there. I am both a Lost fan (never missed an episode) and an appellate law junkie. It is a miracle I snagged a husband and managed to produce a normal child. 

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

White v. Playphone, Inc. et. al, 2009 WL 499103 (W.D. Wis. February 27, 2009)

“Look into your cell phone and see what your future holds” just doesn’t have the same ring to it. (Pun fully intended) But these days, cell phones provide all kinds of information and are probably putting fortune tellers out of business left and right. 

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Galstaldi v. Sunvest Communities USA, L.L.C., ---F.R.D.---( 2/17/09 S.D. Fla.)

There’s a big difference between a dilapidated bug and rodent infested apartment and a posh condo in a swanky complex with a world class spa, golf course, and sports complex. For over $300,000 a unit, plaintiffs said they thought they were buying the latter. (Go figure.) Defendants, Sunvest Communities and affiliates, sold Walter Galstaldi and the other plaintiffs pre-converted condominium units in sunny Orlando, Florida, home to the Happiest Place on Earth! 

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

Deutsche Bank National Trust Company, etc. v. Jeffrey A. Weickert, et al. Case No. 3:09-CV-288 (N.D. Ohio April 15, 2009)

“Impleader” or “joinder” – Funny how the Civil Rules make all the difference when it comes to removal. A federal district court in the Northern District of Ohio recently held that new parties “joined” by the original defendants to a simple foreclosure action were authorized to remove the case to federal court under CAFA. 

Posted By McGlinchey Stafford at 05:18 PM | Comments / Questions (0)

Marshall v. H&R Block Tax Services, Inc., No. 09-8002 (7^th Cir. 04/30/09)

Heads up defense attorneys, if you want to remove under CAFA for claims filed before it became effective, all you have to do is increase your client’s potential liability by getting all the other defendants dismissed and decertifying the defendant class. Seriously, this just happened. You should be sure to make it look like an accident though, if the admonition Posner included in his opinion carries any weight. 

Posted By McGlinchey Stafford at 05:30 AM | Comments / Questions (0)

International Union, United Auto-Mobile, Aerospace, and Agricultural Implement Workers of America v. General Motors Corporation, 2008 WL 2968408 (E.D. Mich. July 31, 2008)

International Union, United Auto-Mobile, Aerospace, and Agricultural Implement Workers of America v. Chrysler, LLC, 2008 WL 2980046 (E.D. Mich. July 31, 2008)

I mean, what could be more fun than discussing CAFA requirements related to notice of proposed class settlements?? Well, in two lengthy opinions in two related cases with little ties to CAFA, the courts have held that both Chrysler and GM correctly followed the mandates of CAFA. Can it be??

Posted By McGlinchey Stafford at 05:40 PM | Comments / Questions (0)

Newport v. Dell, Inc., CV-08-00096 (D. Az. 2008).

Everyone know that plaintiffs’ lawyers have some basic math skills – they are usually virtual savants about some things, who can instantly calculate their 1/3^rd or 40% contingency fees in their heads, down to the fifth digit, always rounding up where possible. And they’re real good in stringing zeros together while writing out their damages on the chalkboard in closing arguments. But sometimes, some of them sort of forget their basic math skills. Now, come closer, children, and listen to this tale of simple multiplication and federal jurisdiction.

Posted By McGlinchey Stafford at 05:20 PM | Comments / Questions (0)

News Flash!  News Flash!!!  Hot off the presses!!!  Abrego, Lowedermilk, and all of the other cases interpreting the burden of proof in CAFA removals have been reversed!!  The plaintiffs now bear the burden of establishing  the nonexistence of minimal-diversity jurisdiction under CAFA.  The plaintiffs!! Finally, someone bothered to read and understand Section 2 of Congress' "Findings and Purposes" for CAFA, and realized (as we've been preaching since Day One) that the Congressional intent was to extend federal jurisdiction over interstate class actions and the burden should fall to the party challenging jurisdiction, not the party.  After this decision, a defendant can simply remove a putative class action with minimal diversity, and the plaintiff has the burden of proving that minimal diversity is not satisfied.  

This decision is so hot, we wanted to bring it to you TODAY before anyone else had a chance to report it to you.  Since it is so fresh TODAY, we have not had a chance to digest it completely for you.  Consequently, until we can draft a formal post on TODAY's decision, please click here for more information.  Or, if you don't belive us, check it out yourself on Topeka.com. TODAY.  AND TODAY ONLY!!!

Posted By McGlinchey Stafford at 04:56 PM | Comments / Questions (1)

Welles v. Sprintcom, Inc., 2008 WL 4696157 (N.D. Ill. October 23, 2008 ).

Sprint dropped David Welles’ calls, then dropped the ball on his refund.  Welles filed suit in the Circuit Court of Cook County, Illinois, alleging Sprint committed consumer fraud because Sprint allegedly made refunds for the dropped calls but only to customers who called to ask for a refund. (Apparently, plenty of customers were calling for refunds. Consumer websites are full of articles about how to “stick it to the man” and take advantage of this credit. (See for example “Get Credit For Sprint’s Dropped Calls - Keystrokes To Save You Money” .

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (0)

Friend v. Hertz Corporation, 2008 WL 4750198 (9^th Cir. 10/30/08)*

Hertz revs its engine, throws it into first, and removes this California class action to federal court via CAFA…and then stalls out. The district court remands the case to California state court and the 9^th Circuit affirms.

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (0)

Innovative Heath & Wellness LLC, v. State Farm Mutual Auto. Ins. Co., 2008 WL 3471597 (S.D. Fla. 2008). 

The question presented was whether the defendant could submit its own affidavits to establish the amount in controversy exceeded $5 million for the purposes of establishing CAFA jurisdiction. 

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (0)

Leckler v. Cashcall, Inc., 07-04002 (N.D.Ca. 11/21/08)

We, here at the CAFA Law Blog, search high and low to bring you, our loyal readers, cases that will help you understand the intricacies of the Class Action Fairness Act.

Warning: This case is not one of them.

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (0)

Palisades Collections, LLC v. Shorts, No. 08-2188 (4th Cir. 12/16/08).

In previous posts the CAFA Law Blog brought you extensive coverage (yes, full briefs) of the Shorts story. 

In July you read about the West Virginia district court decision in Palisades Collections, LLC v. Shorts, in which the district court yanked AT&T’s drawers and tossed the small collection action turned bulging class action back to state court on the grounds that CAFA does not authorize removal by a counterclaim defendant.  (Editors' Note:  See the CAFA Law Blog analysis of the district court decision in Shorts published on July 23, 2008).  Chances are you don’t remember much about the post other than the picture of Daisy Duke with backlighting à la Touched by an Angel. That’s ok. 

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (2)

Frye v. L’Oreal USA, Inc., 583 F. Supp. 2d 954 (N.D. Ill. 2008).

I don’t know how many of you have seen this video parody done by Weird Al Yankovic. Click here to see it.

You remember Weird Al. Back in the early days of MTV, he did Michael Jackson parodies. Any hoo, Weird Al has experienced a resurgence on You Tube. Apparently mostly among pre-teen boys. My nephew sent me this parody of Rage Against the Machine titled “I’ll Sue Ya." (see footnote)

Posted By McGlinchey Stafford at 03:30 AM | Comments / Questions (2)

Arnold Padgett v. CIGNA Corp., No. 07-00200, 2008 WL 639165 (D. Haw. Mar. 6, 2008)

ACT I:           THE TALK STORY

Aloha, bruddahs and aunties. In other words, ho brah.  This is the story of one huhu kane in Hawai’i named Arnold, who had a big pilikia. You see, Arnold’s employer purchased long-term disability insurance for its employees.   When Arnold became infected with Hepatitis C in his opu, he filed an insurance claim stating that he suffered from advanced liver disease, and was fully disabled.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Freeman v. Blue Ridge Paper Products, Inc.  No. 08-6321, 2008 WL 5396249 (6^th Cir. Dec. 29, 2008). 

In this case, the Sixth Circuit holds that plaintiffs may not avoid federal jurisdiction under CAFA by dividing their claims into five lawsuits containing identical allegations and parties, but covering successive discrete six-month time periods. The plaintiffs are three hundred landowners along the Pigeon River in Tennessee. They filed suit in state court seeking damages due to nuisance water pollution from the defendant’s upriver paper mill. 

Posted By McGlinchey Stafford at 02:41 PM | Comments / Questions (0)

Mount v. Wells Fargo Bank, N.A., No. 2:08-cv-6298, 2008 WL 5046286 (C.D. Cal. Nov. 24, 2008)

A national bank can be a citizen of two states for CAFA diversity purposes when its principal place of business and the main office designated in its articles of association are located in different states.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Katz v. Gerardi, ___ F.3d ___, 2009 WL 18137 (7th Cir. Jan. 5, 2009)

In Katz, the Seventh Circuit* (Bad-ass Easterbrook) holds that CAFA trumps Section 22(a) of the Securities Act of 1933, which prohibited removal of certain securities actions brought under the Act, and dogs out the Ninth Circuit’s recent opinion in Luther v. Countrywide Home Loans Servicing LP, 533 F.3d 1031 (9^th Cir. 2008) for not knowing how to read statutes.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Panter v. Alltel Corporation d/b/a Alltel Wireless, 08-2097 (N.D. Ill. July 11, 2008)

 It seems the Alltel Corporation has it all:

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Levy v. Keystone Food Products, No. 07-5502, (E.D. Pa. 08/27/08).

A class of plaintiffs acquired BIG Booties under unusual circumstances.

Got your attention? Good. Sometime, not every time, but occasionally, the analyst must take creative license to catch the readers’ eye. The Eastern District of Pennsylvania’s decision in Levy v. Keystone Food Products lends itself to this rule. It was a story about a group of people, obviously upset about the size of their booties, a story about BIG booties and their fat content

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Molina v. Lexmark Intern., Inc., No. 2:08-cv-04796, 2008 WL 4447678 (C.D. Cal. Sep. 30, 2008)

“Why does it say paper jam when there is no paper jam? I swear to God. One of these days I just kick this piece of &$@# out the window.” Perhaps sharing Samir Nagheenanajar’s (See a paper jam here)  frustration, the district court kicked out the window (and back to state court) a class action removed by printer manufacturer Lexmark International because a damages analysis exchanged in a mediation two years before removal provided notice of an amount in controversy exceeding the CAFA minimum of $5,000,000.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Webb v. Riceland Foods, Inc., 08:-CV-01048-WRW, Eastern District of Arkansas, Western Division (November 4, 2008).

Really rotten tomatoes! Fightin’ mad onions! Awfully mean beets! Genetically modified foods! At our morning blog meeting the images that were conjured by mentioning this mutagenic term were quite frightening. Soylent Green is PEOPLE! 

Dawn of the Dead type stuff; scary stuff man. Heck, Juan Jillbourn, one of our analysts, was under the table, screaming his 10 gallon hat was feeling 5 gallons flat.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Beye v. Horizon Blue Cross Blue Shield of New Jersey, 568 F.Supp.2d 556 (D.N.J. 2008)

The bottom line is, if your 2-step plan is to: 1) brief the issue and provide evidence supporting your position; and then 2) “respectfully request that the Court render its decision,” don’t take the second step first.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

In re UPS Supply Chain Solutions, Inc., No. 08-0513, 2008 WL 4767817 (6th Cir. Oct. 27, 2008).

No matter how you try to package it, if you remove to federal court asserting ordinary diversity jurisdiction only, you cannot then use the Class Action Fairness Act to appeal the court’s decision to remand

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Gene and Gene, LLC v. Biopay, LLC, 541 F.3d 318 (5^th Cir. 2008)

For the plaintiffs in this junk faxes case, the court will require a few more facts about the fax class before it agrees with the District Court that class certification was proper. But why do we care at CAFA Law Blog whether they get certification? Well, subject matter jurisdiction was based on CAFA, of course! 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Caudle v. Towers, Perrin, Forster & Crosby, _______ F. Supp. 2d ______, 2008 WL 4104035 (S.D.N.Y.).

Well, that is not actually what it said, but the Court did say that stolen laptops with personal information such as SSN’s can cause fear and anxiety sufficient to create injury-in-fact similar to eating beef that may be contaminated with mad cow disease.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Myrick v. Nationwide Mut. Ins. Co., 2008 WL 53183 (W.D. Wash. Jan. 3, 2008).

The plaintiff filed a putative class action in state court against the defendant, asserting that the defendant made Personal Injury Protection (“PIP”) coverage payments to insureds and then inappropriately sought reimbursement of those payments from the insureds even though they had not been made whole by a third party tortfeasor (Editors' Note: Now there’s a shock, an insurance company that doesn’t want to bear the ultimate loss for an insured's claim!). 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Kaufman v. Allstate Ins. Co., 2008 WL 4224911 (D.N.J. Sep. 10, 2008)

Jon Bon Jovi isn’t the only one who wants to go back to New Jersey (although it might be close). In Kaufman v. Allstate Insurance Co., plaintiff vehicle owners claimed their suit against insurance companies for failure to cover the diminished value of their vehicles resulting from accidents belonged in state court, where the defendants could get a proper ass-beating (we mean “fair hearing”) by the good people of New Jersey. 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Deehan v. Amerigas Partners, L.P., No. 3:08-cv-01009, 2008 WL 4104475 (S.D. Cal. Sept. 2, 2008).

What happens when you mix over 14,000 class members each with a minimum claim of $500? Well, you get CAFA jurisdiction, of course!! When Amerigas removed this action to federal court under CAFA, the plaintiff apparently forgot everything he learned on Schoolhouse Rock and tried to remand the case back to state court.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Cox v. Allstate Insurance Company et al., No. 07-1449-L, 2008 WL 2167027 (W.D. Okla. May 21, 2008). 

[The editors of CAFA Law Blog salute the insurance industry, and their advertising wizards, in this post]

The plaintiffs, a putative class of Allstate policyholders, claimed that when a wildfire swept across the plains and damaged their property, their Allstate replacement coverage policies sold by a local Allstate agent, didn’t live up to their promise. After winning a skirmish about fraudulent joinder resulting in the remand of the case to state court, the plaintiffs must have thought they had the strength to be there [www.aig.com]. So, they filed an amended complaint containing class allegations. 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Chochorowski, et al. v. Home Depot USA, No. 4:08-CV-849 CAS (E.D. MO. 2008).

In Chochorowski, the plaintiff originally filed the putative class action in the Circuit Court of Madison County, Illinois in 2002. Building her claim, she alleged she was automatically charged for a “damage waiver” when she rented a power tiller from Home Depot, despite the fact that she never agreed to purchase the waiver, which was an optional charge. Eventually, the defendant, Home Depot, had the case dismissed on the basis of forum non conveniens.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Robinson v. Wal-Mart Stores, Inc., 253 F.R.D. 396 (S.D.Miss. 2008). 

The plaintiffs, who consisted of two hundred and eighty-nine current and former employees of the defendant, Wal-Mart, filed a class action alleging that they were required to work hours “off the clock” for which they were not paid, as well as to work through rest and meal breaks in violation of Wal-Mart’s contractual obligations and Mississippi law. 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Stroh v. Colonial Bank, N.A, NO. 4:08-CV-73, 2008 WL 4831752 (M.D. Ga., Nov. 4, 2008).

Illustrating the timeless caution that “the better part of valor is discretion,” Colonial Bank must defend itself in state court in this case after not proving to a legal certainty that the amount in controversy exceeded $5,000,000. 

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Ronat v. Martha Stewart Living Omnimedia, Inc., et al., 05-520 (S.D. Ill. Nov. 12, 2008). 

This putative class action was brought against Martha Stewart entities and other defendants by purchasers of the “Victoria” model of “Martha Stewart Everyday” brand glass-top patio tables that allegedly spontaneously shattered during ordinary use. 

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Philpot v. Best Buy Stores, L.P., No. 08-56 (W.D. Ky. Jul. 21, 2008)

Having sex at work is probably not a good idea. This lawsuit, originally filed in state court, primarily concerned the employment discrimination claims of two plaintiffs who had been fired after allegedly engaging in sexual misconduct at the Best Buy store where they worked. However, in addition to their retaliation claims, the plaintiffs also filed a class action stating that they were paid less than their male counterparts at Best Buy. 

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Margulis v. Resort Renal, LLC, 2008 WL 2775495, Case No. 08-1719-WJM (D.N J. July 14, 2008).

This is a putative class action for alleged violations of the Telephone Consumer Protection Act (“TCPA”) and common law invasion of privacy. The plaintiff argued that the defendant, a resort rental company, sent promotional pre-recorded messages through residential telephone lines to recipients without their permission and with whom the defendant had no prior business relationship.

Posted By McGlinchey Stafford at 12:30 AM | Comments / Questions (0)

Every corner of history is littered with famous losers. Who can forget ‘em?

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (0)

Glazer v. Whirlpool Corp., No. 1:08-CV-1624, 2008 WL 4534131 (N.D. Ohio Oct. 6, 2008).

The moral of this story is, if you sue for “repair or replacement” of products with a collective retail replacement value of substantially more than $5 million, the CAFA amount-in-controversy requirement may well be met.

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (1)

Navarro v. Servisair, LLC, 2008 WL 3842984, Case No. C-08-02716-MHP (N.D. Cal. Aug. 14, 2008)

The plaintiff filed a class action against his employer, Servisair, LLC (“Servisair”), in the Superior Court of California for the County of San Francisco, alleging inadequate compensation under the California Labor Code. Servisair provides aviation ground services including airline ramp services and cabin cleaning. All of the putative class members were employed in California. 

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (0)

Coit v. Fidelity Assurance Associates, LLC, 2008 WL 3286978 (N.D.Cal. Aug. 6, 2008).

Coit, a California resident, purchased interest in three viatical life insurance policy investments from the defendants (Editors’Note—we see you scratching your head. It’s ok, we’ll save you the time of hitting up Google. It has nothing to do with the Vatican. A viatical investment is the purchase of the death benefits of an insurance policy covering an individual (a/k/a a viator) whose life expectancy, whether through age or serious illness, is greatly diminished. Now you know.) While the opinion is not exactly clear what happened after Coit bought the viatical investment, given that a suit was filed, our penchant for deductive reasoning leads us to believe that things didn’t go so well for Coit’s investment. 

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (0)

Valikhani v. Qualcomm Incorporated, 08-cv-786 WQH JMA (S.D. Cal. August 21, 2008).

Qualcomm defeats motion to remand in S.D. Cal. by producing evidence of amount in controversy. 

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (0)

Broquet v. Microsoft Corp., _____ F. Supp. 2d ______, 2008 WL 2965074 (S.D. Tex)

According to a study that will be featured in the Journal of Adolescent Health, "Exposure to violent electronic media has a larger effect than all but one other well known threat to public health." And what exactly is that threat, you ask? "Cigarette smoking." But you know what is REALLY dangerous? Smoking Video Games.

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (0)

Cannon v. Dow Chemical Co., 08-1397 (E.D.La. June 2, 2008)

It makes INSTA STIK polyurethane roof adhesive, Dow Epoxy, and HYPOD™ Polyolefin Dispersions, but Dow Chemical cannot get removal to stick under CAFA.

Posted By McGlinchey Stafford at 11:30 AM | Comments / Questions (0)

Jésus Trilla-Pinero v. Puerto Rico, 557 F.Supp.2d 258 (D.Puerto Rico, Jun. 04, 2008)

Have you ever thought about CAFA and wondered where it stands in the cosmic order? Ever ponder the mysteries of CAFA and think WWJD? Of course, we’re talking about Jésus Trilla-Pinero, pronounced “Hey, Zeus…” the plaintiff in today’s commencement tale.  (Editors' Note:  Who did you think we were talking about?)  Well, we at the CAFA Law Blog recently unearthed this little gem of CAFA divinity and found that, strangely enough, Jésus doesn’t care much for CAFA, or federal court. Judge for yourself in this excerpt from the sacred book of CAFA:

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Hauer v. Priceline.com, Inc., et al, 3:08-cv-02608-JSW (N.D. Cal. August 6, 2008).

PRICELINE NEGOTIATOR!! Problems with Priceline’s negotiator in California subjects the online peddler of cheap travel to California state court jurisdiction.

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Cunningham Charter Corporation v. Learjet, Inc., 2008 WL 3823710 (S.D. Ill.).

Did you know that an affidavit supporting CAFA jurisdiction removal has to be all admissible and not full of unsupported hearsay? Who knew?

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Bartnikowski v. NVR, Inc., 07CV00768 (M.D. N.C. 6/18/08)

Maybe the defendants in this case have been keeping up with the CAFA Law Blog. The defendant, NVR, Inc., argued that the burden was on the plaintiffs to show CAFA jurisdiction did not exist after the defendants removed this lawsuit. 

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Fleury v. Richemont North America, Inc., C-05-4525 EMC, 2008 WL 3287154 (N. D. Cal. Aug. 6, 2008).

After the Northern District of California’s ruling on their application for attorney fees, maybe the class counsel for the settling plaintiffs should enlist Elton John’s help in encouraging the class members to use the “relief” afforded to them in the settlement in this lawsuit. It just might turn a dull and dreary mere $1.24 million attorney fee award into something more befitting royalty and Sheiks.

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (3)

Kates v. Chad Franklin National Auto Sales North LLC, 2008 WL 3065009, Case No. 08-0384-CV-W-FJG (W.D. Missouri July 30, 2008).

In Kates, the plaintiff filed suit in Missouri state court alleging damages resulting from his purchase of a Suzuki Grand Vitara from a dealership in Kansas City, Kansas, and operated by the defendants. The plaintiff alleged that he purchased the vehicle under a promotional plan offered by the dealership and that misrepresentations were made regarding the plan. Among other claims, the plaintiff sought relief under the Missouri Merchandising Practices Act (MMPA) and the federal Truth in Lending Act (TILA). 

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

The CAFA Law Blog is pleased to publish a post by a guest columnist today. Please welcome Tracy D. Rezvani of Finkelstein Thompson, LLP. Ms. Rezvani and Finkelstein Thompson prosecute antitrust, securities and consumer class actions on behalf of consumers, investors, non-profit organizations, and businesses located in the United States and abroad. Ms. Revzani, a partner in the firm, is located in the firm’s Washington, D.C. office.

Please give a warm CAFA Law Blog welcome to Tracy.

Posted By McGlinchey Stafford at 10:34 AM | Comments / Questions (0)

Stella v. LVMH Perfumes and Cosmetics ISA, Inc., --- F.Supp.2d ----, 2008 WL 2669662 (N.D.Ill., Jul 08, 2008)(NO. 07 C 6509).

Tell me, who does not like to see red hot lipstick? Well, this plaintiff does not because she asserted that it was toxic.

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Nelson v. BIC USA, Inc., 2008 WL 906049 (S.D. Cal. April 1, 2008)

The plaintiff originally brought her class action suit in a California state court alleging causes of action under the California consumer protection, false advertising, and unfair competition statutes associated with the sale of certain BIC disposable lighters, which the plaintiff claims falsely claim to be “Made in the USA.”   The putative class included all persons who purchased BIC J-26 Maxi “Made in the USA” lighters in California from 2003 to 2007. BIC removed the putative class action to federal court under the Class Action Fairness Act. 

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Munoz v. J.C. Penney Corp., Inc., 2008 WL 2782879 (C.D. Cal. July 15, 2008)

The plaintiff filed his class action suit in a California state court alleging violations of the California labor code and other state laws. The defendant timely removed the case to federal court. Thereafter, the plaintiff filed a motion to remand the action back to state court.

Posted By McGlinchey Stafford at 10:30 AM | Comments / Questions (0)

Feldman v. Standard Fire Ins. Co., 2008 WL 2074431 (E.D. Ark.)

Joe Feldman decided to sue Standard Fire Insurance Company because it concealed the availability of lower priced policies that provided identical coverage. While he was at it, he decided to file as a class action. In his Complaint he alleged compensatory damages, injunctive relief and attorney’s fees. Probably because he reads the stimulating (in an intellectual sort of way) CAFA Law Blog every day, he stated that his claims does not exceed $74,999.00 and that the claim of the class does not exceed $4,999,999.00. 

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Noto v. Daimler Chrysler Corp., 2008 WL 609796 (E.D. La. March 3, 2008).

The plaintiff filed a petition in state court against 3 defendants seeking to establish a nationwide class, alleging that the gooseneck trailer hitch ball installed on his truck was defective causing a trailer he was pulling to smash into his truck. The petition seeks to hold the defendants liable in redhibition allowing for rescission of the sale and return of the sale price, plus the cost of repairs, attorneys’ fees and costs, and interest. Service of the petition was attempted on 2 of the 3 defendants; however, only one defendant was actually served (despite this, the sheriff certified that the second defendant was served

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

C and E, Inc. v. Friedman’s Jewelers, Inc., 2008 WL 64632 (S.D. Ga. Jan. 4, 2008)

The plaintiffs originally brought this action in a Georgia state court, asserting a class action claim against the defendant for the mass transmission of unsolicited facsimile advertisements to “hundreds, if not thousands” of recipients in violation the Telephone Consumer Protection Act (“TCPA”). The plaintiffs sought to recover for each member of the putative class the actual damages suffered from the receipt of the unsolicited faxes or not more than $1,500 per putative class member (this was the maximum amount allowable for each violation under the TCPA).

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Villegas v. The Pep BoysManny Moe & Jack of California, 06-07642, (C.D. CA May 6, 2008) and Machado v. The Pep BoysManny Moe & Jack of California, 08-01469, (C.D. CA May 6, 2008)

When we heard that blue-collar, hard-working employees like Villegas and Machado were complaining about Manny, Moe and Jack, we thought the same thing that most of you are currently thinking. Those dastardly Pep Boy guys are at it again! Just look at that moustache, it reeks of evil-doing!

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Caught with its pants down, AT&T took one in the Shorts last January, as the CAFA Law Blog previously reported. (Editors' Note:  See the CAFA Law Blog analysis of the district court decision in Shorts posted on July 23, 2008).  

Now, we are pleased to have a guest columnist today.  Our guest columnist is Jonathan Bridges of Susman Godfrey in Dallas, counsel for Charlene Shorts.  Jonathan contacted the CAFA Law Blog to let us know that AT&T is seeking appellate relief from the district court decision.  We asked Jonathan to author a post on the appeal, and here it is.  

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Breakman v. AOL LLC, 545 F. Supp. 2d 96 (D.C. 2008).

Did AOL really think that its loyal members would sit by quietly paying $25.00 a month for dial-up internet service that new members could receive for $9.95 a month? 

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Gayvont v. Davol, Inc., No. 07-1966ML; MDL 07-1842ML; 2008 WL 2433258 (D. R.I. Feb. 6, 2008).

Inspired by Judge Lisi’s economy of words, the editors hereby resolve to keep this post shorter than the opinion it summarizes….

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Bryant v. Service Corp. Int’l, 3:08-cv-01190 (N.D. Cal. May 7, 2008).

Amount in Controversy again – the Northern District of California says “Show me the money!” and denied the plaintiff’s motion to remand when Service Corp. met its burden.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Spivey v. Vertrue, Inc., No. 08-8009 (7th Cir. June 11, 2008).

As always, we at the CAFA Law Blog are monitoring the CAFA cases just for you. In the Spivey case, the Seventh Circuit picked up the appeal and made a fantastic reference to Animal Farm while reversing the District Court. Great job Judge Easterbrook!

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Fiddler v. AT&T Mobility, LLC, et al., 2008 WL 2130436, No. 08 C 416 (N.D. Ill. May 20, 2008)

In Fiddler, the defendants, AT&T Mobility, M-Qube, Inc. and Verisign, Inc., were sued in Illinois state court for allegedly making unauthorized charges for mobile telephone services. The defendants wanted to remove the case to federal court, but they weren’t sure if it was clear from the face of the complaint that the $5,000,000 amount in controversy was met. 

If you want to listen to Bon Jovi's Livin' On a Prayer while you read, click here.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Hanni v. American Airlines, Inc., 2008 WL 1885794 (N.D.Cal. Apr. 25, 2008)

In this CAFA remand case, the plaintiff, Hanni, took an American Airlines flight from San Francisco to Mobile, with a stopover in Dallas. After the weather in Dallas turned a bit rough, the plane got diverted to Austin. According to Hanni, once in Austin, no one was let off the plane. So Hanni, did was so many do when they’ve had a crappy time—she filed a class action in state court.

Posted By McGlinchey Stafford at 09:30 AM | Comments / Questions (0)

Harrington v. Mattel, Inc., No. C07-05110, 2007 WL 4556920 (N.D. Cal. Dec. 20, 2007).

What is the matter with Ann Harrington? You know she ate lead paint chips when she was a kid. Shoot, we all did, and nothing ever happened. It was the thing to eat when mom refused to open the cupboard and let us throw down a bag of Fritos. Heck, my brother lived on paint chips until he was five. We call him Mongo now. We keep him on a leash you know, one of those clothesline runners for the backyard. He’s got plenty of room out there to dig! Ever since we got that leash, the kid’s really blossomed. Now we can take him to ball games, movies--you know, happy stuff. Like I said, nothing ever happened.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Yes, kids, it time again for your summer edition of “we’re not worthy.”  Our cheap and tawdry collection of cases that don’t quite cut the mustard to deserve their own individually treatment. But, here they are. Print them out. Take them to the beach. Read them. Or just use em’ to keep the sun out of your eyes. Either way, enjoy.  And pass the tanning butter…

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

In re Massachessets Smokeless Tobacco, 03-5038, 23 Mass. L. Rptr. 719, 2008 WL 1923063 (Mass. Super. April 9, 2008).

This case reflects the growing consensus among the courts that coupon-only settlements will be highly scrutinized for fairness. This consumer class action was brought against the defendants United States Tobacco Company (“UST”) for alleged antitrust violations.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Yeagley v. Wells Fargo & Co., 2008 WL 171083 (N.D. Cal. 2008).

 Now look at them lawyers, that’s the way you do it

You file a class in a U.S. D.C.

That ain’t workin, that’s the way you do it

Money for nothin’ and chicks for free

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Tompkins v. Basic Research, LLC, 2008 WL 1808316 (E.D. Cal. 2008).

For only $39.99, you can lose all of the weight you want without diet or exercise. Sound too good to be true? Probably because it is, but for the makers of Akavar, CAFA saved the day and it will at least get to trim down the plaintiff’s claims in federal court.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Pew v. Cardarelli, 06-5703-mv (2^nd Cir. May 13, 2008)

Poring over the excrutiating minutiae of the statute in a way that would have driven Elaine straight into Bizarro world, the Second Circuit decided that it has jurisdiction to review a remand order in Pew v. Cardarelli. Take it from your friendly CAFA Law Blog editors, a cup of coffee from Reggie’s (the Bizarro coffeeshop) would aid in reading this case. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Atkinson v. Wal-Mart Stores, Inc., _____ F. Supp. _____, 2008 WL 2261787 (M.D., Fla.).

Really, what’s not to love. Especially Sam’s Club. Hundred roll packs of toilet paper (All I am saying, a house full of men uses A LOT of TP). Giant bottles of ketchup (a vegetable in my house). Plus, as class action defense types, who would not love Wal-Mart, a company that unfairly and routinely incurs the wrath of many a group of disgruntled employees.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Thrift Auto Repair, Inc. v. U.S. Bancorp, et al., 2007 WL 2788465 (N.D. Ga. Sept. 21, 2007)

In this case, the Northern District of Georgia applied Eleventh Circuit law on a removing defendant’s burden of proof for establishing amount in controversy to grant the plaintiff’s motion to remand where the ad damnum clause included a claim for less than CAFA’s jurisdictional amount, but the defendant, in an affidavit submitted with its removal pleadings, asserted that the claims at issue exceeded $5,000,000.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Pastor v. State Farm Mutual Automobile Ins. Co., 487 F.3d 1042 (7^th Cir. 2007)

Step 1: Break windshield.

Step 2: Repair windshield.

Step 3: File claim with insurer.

Step 4: Sue insurer on behalf of class because the insurer did not pay $10 that you are owed by virtue of a clause in the insurance policy that obliges insurer to pay you $10 per day if you do not rent a car while your car is not usable.

At least this is the method Carol Pastor decided to follow almost 10 years after a car accident that originally damaged her window. 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Hart v. ConAgra Foods, Inc., No. 1:07-CV-0395-JDT-WTL, 2007 WL 2286131 (S.D. Ind. Aug. 7, 2007)

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Rosenberg v. Avis Rent A Car System, Inc., 2007 WL 22136642 (E.D. Pa. July 31, 2007)

Ahhh, summer roadtrips. We just love ‘em here at CAFA Law Blog. Who doesn’t love the top down, wind in our hair, radio blasting Rascal Flatts'“Life is a Highway” while we cruise our cares away?

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Giovanniello v. The New York Law Publishing Company, No. 07-CIV-1990, 2007 WL 2244321 (SDNY Aug. 6, 2007).

He wanted to be a part of it, New York New York. Unfortunately for counsel for the plaintiff in this unsolicited fax case, he could not make it there. 

In this case, federal judge Harold Baer dismissed the plaintiff’s putative class action under the Federal Telephone Consumer Protection Act, noting it was plaintiff’s counsel’s third unsuccessful attempt to bring a similar class action claim in a federal court in New York. There is not much here for the CAFA aficionado. But, for our friends in the state of New York and ardent fans of the Erie Doctrine everywhere, here’s the short version along with some music to entertain you.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Colomar v. Mercy Hospital, Inc., civil action no. 05-22409, United States District Court, Southern District of Florida.

So there was Barbara Cololmar, purported class representative, telling the District Court that there was no place like state court. The Court essentially told Colomar that she could click her heels as many times as she wanted, she wasn’t going back to State Court Land. Let’s back up so you don’t get lost.

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (1)

Eavenson, D.C. v. Selective Insurance Company, ., ____ F. 3d ____, 2007 WL 489206, No. 06-731-MJR, (S.D. Ill. Feb. 12, 2007).

Two months after ruling on the case of Coy v. County Mutual Ins., Co., the Southern District of Illinois remanded a case filed by a class of doctors against health care insurer Selective Insurance Company of America in which the doctors alleged Selective improperly discounted medical bills submitted to the insurers. (Editors’ Note: See the CAFA Law Blog analysis of Coy posted on February 23, 2007). 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Dennis W. Gay v. Sarah Morgan, 06-1471 (United States Supreme Court October 1, 2007).

We feel just like Navin R. Johnson in The Jerk when he found his name on page 73 of the phone book. “Things are going to start happening to me now!” 

Posted By McGlinchey Stafford at 08:30 AM | Comments / Questions (0)

Hoffer v. Cooper Wiring Devices, Inc., No. 1:06cv763, 2007 WL 2891401 (N.D. Ohio Sept. 28, 2007).

In this short and sweet opinion, the Northern District of Ohio considered what to do with a case filed in federal court as a class action under CAFA after it dismissed it as a class action. Faced with no Sixth Circuit precedent and a split in other circuits over whether the court retains or loses subject matter jurisdiction in this situation, this court decided that in the particular factual situation presented, it lost jurisdiction. The court was careful to limit its holding to the specific facts of this case, so we’ll lay them out for you.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Simenz v. Amerihome Mortgage Company, LLC, No. 07-C-601, 2007 WL 3129725 (E.D. Wis. Oct. 23, 2007).

Our favorite TV shows just haven’t been the same since the Hollywood writers returned from their strike. So, we have turned to movies when we are not writing for the CAFA Law Blog. We invite you relive some of your favorite movie moments with your favorite CAFA bloggers? 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Brooks v. GAF Materials Corp., No. 8:07-3988, 2008 WL 250368 (D.S.C. Jan. 31, 2008).

We’re going to provide you a soundtrack for this one, because nothing says “rock n’ roll” like CAFA.   Ok, got your speakers cranked up? Good, then let's roll these Steel Wheels. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Once upon a time these claims began in federal district court

The plaintiffs were hoping the federal judges would be good sports

What kind of relief were they seeking you ask

Gaining federal subject matter jurisdiction under CAFA was their first task

For various reasons their requests were not heeded

This left the plaintiffs without the federal court jurisdiction they needed

So back to state court is where these cases went

Because without the help of CAFA, federal jurisdiction was absent

And now without further ado

We introduce the cases that were not worthy to you:

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Leon Brinston v. Koppers Industries, Inc., No. A-07-CA-902-SS (W.D. Tex. Jan. 31, 2008).

I am Leon

I speak for the trees

For the trees have no tongues

And I’m asking you sir,

At the top of my lungs.

Oh please don’t cut down another one. . .

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

McGee v. Continental Tire North America, Inc. 2007 WL 2462624 (D.N.J. 2007).

We all learned in grade school that the wheels on the bus go “round and round, round and round” all through town, but when Continental’s wheels are defective, defective, defective, a class action under the Magnunson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§ 2301 et seq., is sure to follow. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Palisades Collections, LLC v. Shorts, No. 5:07-cv-098, 2008 WL 249083 (N.D.W.Va. Jan. 29, 2008).

Maybe AT&T should have been wearing boxing Shorts for this fight. It certainly was not prepared for the West Virginia butt-kicking it took!

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (1)

Toller v. Sagamore Ins. Co., 2008 WL 927703 (E.D. Arkansas April 4, 2008).

Just the other week, in a galaxy far, far way (a/k/a/ Arkansas)

Insurance Wars: Episode II The Decider Strikes Back

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Cram v. Electronic Data Systems Corp., 2007 WL 2904250 (S.D.Cal. 2007).

You’d think in Southern California there be something more interesting than the minimum amount of controversy in a CAFA removal case. But the editors of CAFA Law Blog love nothing more than a good ‘ole pre-remand discovery dispute. Sick, isn’t it?

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Arabian v. Sony Electronics, Inc., 05cv1741 WQH (NLS) (S.D. CA September 13, 2007).

On September 13, 2007, United States District Judge William Q. Hayes handed down an opinion for the Southern District of California dismissing a single plaintiff for lack of subject matter jurisdiction.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Phillips v. Severn Trent Environmental Services, Inc., 2007 WL 2757131 (E.D. La. 2007)

Why is Plaquemines Parish, Louisiana, so cosmopolitan? We can’t figure it out, and we’re less than two hours away. Nevertheless, the court determined in this CAFA remand case that the plaintiff could not meet its burden of proving a local controversy exception to CAFA because he presented no evidence that the class members, all residents of Plaquemines Parish between May 15 and May 20, 2007, were domiciled in Louisiana. Obviously, it must have been the week of the big “Hey we’re not just for locals, y’all all come down and shrimp wit us” festival. But we digress.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Bennett v. Board of Commissioners for East Jefferson Levee Dist., No. 07-3130, 07-3131, 2007 WL 2571942 (E.D. La. 2007).

If it keeps on rainin, levees goin to break,
If it keeps on rainin, levees goin to break,
When the levee breaks Ill have no place to stay.¹

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

McCalley v. Samsung Electronics America, Inc., Civil Action No. 07-2141, 2008 WL 878402   (D.N.J. March 31, 2008).

The TVs were defective, not the plaintiffs. This case holds that CAFA confers federal court jurisdiction over a class action containing claims brought under the Magnuson-Moss Warranty Act (“MMWA”), 15 U.S.C. §§2301-2312, even if the claims do not meet MMWA’s own requirements for federal court jurisdiction.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Smith v. Nationwide Property and Cas. Ins. Co., ----F.3d---- (6^th Cir. 2007), 2007 WL 2819875.

Although a beautiful woman receiving a sponge bath in a hospital by a female nurse caused George Costanza to lose in The Contest, in this case from the U.S. 6th Circuit, the plaintiff remains the Master of his Domain.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Dunham v. Coffeyville Resources, LLC No. 07-1186-JTM, 2007 WL 3283774 (D. Kansas Nov. 6, 2007),

The United States District Court for the District of Kansas considered the defendant’s Motion to Dismiss for lack of subject matter jurisdiction. The sole issue was whether the court had jurisdiction to hear the case under CAFA. 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Pisciotta v. Old Nat. Bankcorp, 499F. 3d 629 ( 7^th Cir. (Ind.) August 23, 2007).

The plaintiffs filed suit in federal district court under CAFA against Old National Bankcorp (ONB) when it was discovered that personal information of customers and potential customers of ONB was “compromised” by a third-party hacker. It seems you can’t read the newspaper without running across an article about someone’s personal information being “compromised.” The plaintiffs filed suit against ONB, not for actual damages suffered as a result of the security breach, but for potential damages, including the cost of monitoring their credit in the future. Importantly, the plaintiffs did not allege any direct loss as a result of the breach of security.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Kessler v. American Resorts International’s Holiday Network, Ltd., Case Nos. 05 C 5844, 07 C 2439, 2007 WL 4105204 (N.D. Ill. Nov. 14, 2007).

This case concerns the management of a time share program operated by American Resorts International’s Holiday Network and its parent company, American Resorts International, Ltd. (collectively, “American Resorts”). 

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (3)

Larsen v. Pioneer Hi-Bred International, Inc., 4:06 cv -0077, Southern District of Iowa, Central Division (November 9, 2007).

Yet another stunning scoop uncovered by our diligent CAFA Bloggers. Your’s truly was standing on the floor of the commodities exchange (it was really the U.S. District Court for Iowa, but just follow us along so that the analogy works) to witness the fallout.

Posted By McGlinchey Stafford at 07:30 AM | Comments / Questions (0)

Levine v. BIC USA, Inc., No. 07-cv-1096-LAB, 2007 WL 2406897 (S.D.Cal. Aug. 20, 2007).

Ahhh, romance. The heat of the summer is melting us, but we are day dreaming of the Fall. Autumn will be upon us in just a few more hot, humid, sticky months; and you know what that means. Fall colors of red, brown, and orange will blanket the rolling countryside. Fireplaces will soon crackle with warm flames, and young romantics will snuggle under cozy blankets. Picture this, an eager young fellow, subdued by the scenery and time of year, pens his girl a short but detailed poem. He has imagined the perfect scene, and planned a lovers’ retreat to re-create his vision. As he carries out his plan, he brings his love to a secluded cabin in New England, bends down on one knee, and reads his poem aloud. He rises, expects to be overcome with sheer emotion from his partner, and then …

Posted By McGlinchey Stafford at 07:04 AM | Comments / Questions (0)

Spivey v. Vertrue, Inc., No. 07-CV-0779, United States District Court, S.D. Illinois, April 8, 2008.

Remember those “choose your own adventure books” from childhood?  If not, click here to remind yourself.   Here at the CAFA blog, we think of them with a fond wistfulness. Apparently, so does the defendant in this case. And who doesn’t, really? Wouldn’t it be nice if, when presented with a class you didn’t like, you could just choose another option? “If you want to go to federal court, turn to page 14. If you want to stay in state court, turn to page 4.” 

Posted By McGlinchey Stafford at 07:40 AM | Comments / Questions (0)

King v. Safeway, Inc., No. C-08-0999, United States District Court, N.D. California, April 22, 2008.

In this case, the Defendant, Safeway, Inc., successfully removed the case under CAFA where the class was not limited to California citizens. Organic milk drinkers from adjoining states, the court determined, may have come to California stores to purchase the milk produced by those famous happy cows.

Posted By McGlinchey Stafford at 07:39 AM | Comments / Questions (0)

Kaufman v. American Express Travel Related Services Co., Inc., United States District Court, No. 07 C 1707, 2008 WL 687224 (March 7, 2008).

You know the spot: some famous star of stage and screen walks you through one of his or her crazy days, explaining to you at the end that what gets them through all this is their trusty American Express card. Ellen in a meeting full of animals, Tina Fey choosing which flute is funnier (all enviable tasks, though not as exciting as CAFA). Let us let Wes Anderson set the tone for this one: 

Posted By McGlinchey Stafford at 07:36 AM | Comments / Questions (0)

Bass v. Carmax Auto Superstores, Inc., 07-883, 2008 WL 441962 (W.D. Mo. Feb. 14, 2008)

In a scene eerily reminiscent of perhaps the greatest single movie clip of all time, the Salsa Shark,

,

our poor plaintiff, who once dreamt of swimming blissfully in the warm and fertile waters of state court, suddenly finds herself ripped from safety and trapped in the cold, murky, and oh-so frightening waters of federal court, never to return again. (Editors' Note:  Ok,  so there’s really no similarities here, but how could we pass on such a great opportunity for a gratuitous Salsa Shark reference, particulary at the start of summer?)

Posted By McGlinchey Stafford at 06:47 AM | Comments / Questions (0)

Springman v. AIG Marketing, Inc., et al., No. 08-1019, Seventh Circuit Court of Appeals, April 15, 2008.

The hot neon blinked outside and the buzz from the light could be heard at the counter. It had been one of those days for the Big Tall Army Guy and the last thing he wanted to hear or talk about was CAFA. But Juan Billborn would have none of it! Juan ambled up to the diner, reached for the nearest ash tray, cocked a crooked glance at BTAG, took a long slow drag from his Virginia Slim, and opened a dialogue with the normally stoic BTAG.

Posted By McGlinchey Stafford at 05:29 PM | Comments / Questions (0)

Hendrick v. Georgia Gulf Lake Charles, LLC, 2008 WL 65264 (W.D. La.).

I bet you are thinking, oh boy, here comes another Katrina case. Well, contrary to public opinion, there are things that happen in Louisiana that are not a direct result of Katrina. This case is one of many filed in Louisiana state court arising from a spill of ethylene dichloride from the Georgia Gulf Lake Charles, LLC (“Georgia Gulf”) facility on September 17, 2006. These cases were not filed as class actions in state court. Instead, multiple cases with multiple plaintiffs were filed. 

Posted By McGlinchey Stafford at 04:34 PM | Comments / Questions (0)

State of Louisiana etc. et al. v. AAA Insurance, et al ., 08-30145, 2008 WL 1118176 (5^th Cir. Apr. 11 , 2008).

And now ladies and gentlemen, from the lovely Soul Queen of New Orleans Irma Thomas, “Drip drop, drip drop, drip drop, drip drop. It’s raining so hard, looks like its going to rain all night…” Inspired by the Fifth Circuit’s affirmance last week of the denial of remand in Louisiana’s putative class action suit against hundreds of insurers, your CAFA Law Blog editors collectively close our eyes, lean back in our chairs and imagine the Louisiana state court singing to the state’s lawsuit (we know it is a stretch to think of a court singing to a lawsuit, but it is even more of a test to imagine a state court judge singing to new Louisiana Attorney General Buddy Caldwell): “I guess I’ll have to accept the fact that you are not here.”

Posted By McGlinchey Stafford at 04:18 PM | Comments / Questions (0)

Korn v. Polo Ralph Lauren Corp., ____ F. Supp. 2d ____, 2008 WL 544564 (E.D. Cal.)

An unprecedented clash of cultural titans. One, the fan club of the nu metal[1]. pioneer Ko?n.[2] The other, he of the over tanned skin and the white hair, fashion god and prepster idol Ralph Lauren. The plaintiff, the fans of a band who made such phrases as “Freak on a Leash”,  “Rumbutly boo”, and Ghost Pirates (brownie points for the first reader to post a comment identifying that cultural reference) common lingo amongst generation Y (which comes after generation X, which comes after the baby boomers for you geezers out there). The defendant, he of shirts with horses (that cost too much), fancy sheets (that cost way too much), madras shorts (that cost too much). These titans clashed in the only Federal District Court where two such unlikely opponents could meet, the Eastern District of California which includes Bakersfield, California. The birthplace of Ko?n.

Posted By McGlinchey Stafford at 04:44 PM | Comments / Questions (2)

Hendrick v. Georgia Gulf Lake Charles, LLC, 2008 WL 65264 (W.D. La.).

Posted By McGlinchey Stafford at 03:14 PM | Comments / Questions (0)

Apodaca v. Allstate Ins. Co., No. 07-cv-00937-EWN-MEH, 2008 WL 113844 (D. Colo. Jan. 8, 2008).

There was Allstate and the plaintiffs, waiting to place their orders with the Judge. While the parties chatted in line together, surely talking about the issues of the day (you know, the Dollar, the election, the Yankees-Red Sox feud), their conversation soon centered on the lightning rod issue captivating coffee houses, cigar bars, and little league bleachers country wide. You got it, CAFA jurisdiction. As most of these conversations in lunch lines do, this conversation impacted what Allstate and the plaintiffs would order.  

Posted By McGlinchey Stafford at 03:12 AM | Comments / Questions (0)

Thorpe v. Abbott Laboratories, Inc., 07-5672, 2008 WL 383319 (N.D. Cal., Feb 12, 2008).

Have you ever wondered what might happen if federal court judges were more like Randy, Paula, and Simon on American Idol?...Using the same wiretaps that caught Governor Spitzer, We secretly recorded the American Idol trio of judges discussing this recent CAFA decision.

Posted By McGlinchey Stafford at 03:13 PM | Comments / Questions (0)

Alicea v. Circuit City Stores, Inc.,  2008 WL 344695 (S.D.N.Y.)

So you “buy” a high-def TV to watch the Masters and return it on Monday claiming it did not fit in your living room, and Circuit City hits you with a whopping 15% restocking fee. Ouch. No matter how much you beg and plead, Circuit City will not refund the fee. Well, Ada Alicea of New York showed Circuit City. She filed a class action in the Supreme Court of the State of New York, Bronx County. Hey, there are golf fans in the Bronx, apparently.

Posted By McGlinchey Stafford at 03:17 AM | Comments / Questions (0)

Paz v. Playtex Products, Inc., 07cv2133 JM(BLM) (S.D.Cal. January 10, 2008)

Posted By McGlinchey Stafford at 03:27 PM | Comments / Questions (0)

Faltaous v. Johnson & Johnson, No. 07-1572, 2007 WL 3256833 (D.N.J. Nov. 5, 2007).

Congrats go out to Magistrate Judge Falk of the District of New Jersey because he sure can write a a long opinion on amount in controversy under CAFA. With every other remand issue conceded in this state law overtime class action, in a 23 page opinion Magistrate Judge Falk takes us through the majestic world of amount in controversy in the Third Circuit and me to the medicine cabinet for some of J&J’s Extra Strength Tylenol®. The good news, for those of you who favor federal court litigation over state court litigation, is that Magistrate Judge Falk recommended that remand be denied and the district court judge agreed. That should cut off any windfall cash flow in this case like a good dose of IMODIUM®.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Wilbur Fuller, individually and on behalf of all others similarly situated v. Home Depot Services, LLC, Home Depot U.S.A., Inc., The Home Depot, Inc., and John Does 1 & 2, Civ. Action No. 1:07-CV-1268, U.S.D.C., N.D. Ga. Aug. 14 2007.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

In Re: High Sulfur Content Gasoline Products Liability Litigation, No 07-30384, 2008 WL 287347 (5^th Cir. Feb 4, 2008).

To show our readers how diverse the Editors’ tastes are, we present today a post that is NOT about a CAFA case. However, it is about a subject sure to stimulate the hearts and minds of all of you in the blawgosphere…attorney fees in class action litigation. You’d have to reside on the Dark Side of the Moon not to want to read this.

Posted By McGlinchey Stafford at 02:09 PM | Comments / Questions (1)

Weber ex rel Estate of Ruble v. Mobil Oil Corp., No. 06-6337, 2007 WL 3317680 (10th Cir. Nov. 9, 2007).

The defendants must have felt like Sam Drucker's pig and the plaintiffs must have felt Lisa Douglas when this decision was handed down. This case began in May 2001 when J.C. Dobbins, filed a class action petition in an Oklahoma state court against Mobil Oil Corporation, Inc. (whose name was subsequently changed to ExxonMobil Oil Corporation) and Mobil Exploration & Producing, North America on behalf of owners of a royalty interest in the oil and gas underlying Oklahoma land where ExxonMobil Oil Corporation operates oil and gas wells. The class sought damages for a variety of causes of action and also sought an accounting and constructive trust.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Babasa v. LensCrafters, Inc., No. 07-55880 (9th Cir. August 16, 2007)

LensCrafters failed to remove this California case within thirty days notice of CAFA jurisdiction. There is an important practice pointer here…Can you find it? Do you need your glasses?

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Moll v. Hasbro, Inc., 2007 WL 2229001 (S.D. Ill. August 2, 2007)

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Toller v. Sagamore Ins. Co., 514 F. Supp. 2d 1111 (E.D. Arkansas 2007).

The plaintiff, Gwendolyn Toller, filed suit against Sagamore Insurance Company following an automobile accident that caused damages, including medical expenses, in excess of Ms. Toller’s liability coverage. Ms. Toller alleged that at the time she applied for insurance she was not made aware of the availability of no-fault coverages, such uninsured motorist coverage, underinsured motorist coverage, medical benefits and income benefits, in violation of Arkansas law. You know insurance companies, they HATE to sell insurance policies with additional coverages for which they can charge even more premiums.

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (1)

Elaine: "Yeah. I met this lawyer, we went out to dinner, he told me about these cases and articles that discussed CAFA, I had the lobster bisque, we went back to my place, yada yada yada, I never heard from him again."

George: "But you yada yada'd over the best part."

Elaine: "No, I mentioned the bisque."

Posted By McGlinchey Stafford at 02:30 AM | Comments / Questions (0)

Silberblatt v. Morgan Stanley, No. 05-7569, 2007 WL 4145403 (S.D.N.Y. November 19, 2007).

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Thorne v. Wyeth, Slip Copy, Case No. 06-3123, 2007 WL 2122158 (D. Minn. July 19, 2007).

“bueller….bueller….bueller” Don’t cut class and listen up, this case gives us a great teaching point regarding CAFA and MDL. 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Coy Chiropractic Health Center, Inc.  v. Travelers Casualty & Surety Company, No. 06-678-DRH, 2007 WL 2122420 (S.D. Ill. July 20, 2007).

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Raspa v. The Home Depot, Civil No. 07-cv-1893 (D.N.J., December 21, 2007).

Raspa says: “Watch out for that raccoon!” This is not really a CAFA case, but its lesson is two-fold: 1) stay away from raccoons, no matter how cute and cuddly they may appear; 2) when practicing in the Third Circuit regarding removal and remand be sure to look at Fredrico, Samuel-Bassett and Morgan v. Gay. 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Ford Motor Credit Co. v. Frederick Jones, et al., No. 1:07 CV 728, 2007 WL 2236618 (N.D. Ohio July 31, 2007)

Jonesing for federal court CAFA jurisdiction on removal? Then, you better be the defendant! The Northern District of Ohio remanded this class action removed from state court by a third-party defendant under CAFA, holding that, under Sixth Circuit law interpreting 28 U.S.C. § 1441(c), a cross-claim defendant cannot remove a case.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Engh v. SmithKline Beecham Corporation d/b/a GlaxoSmithKline, Civil No. 07-3483 (D. Minn. November 20, 2007).

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Jepson v. Ticor Title Ins. Co., 2007 WL 3171442 (W.D. Wash. 2007) (Slip Copy).

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Pittman v. Chase Home Finance, LLC, 2007 WL 2156395 (N.D. Ohio 2007).

Do you remember your first day at the University when your professor started class with “Welcome to Advanced Radiation Transport Theory” and you were suppose to be in History 101? I imagine that is how Chase felt when the court told it relied on the wrong class in its CAFA removal.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Ortiz v. Menu Foods, Inc., Civil No. 07-00323 DAE-LEK (D.C. Hawaii November 13, 2007).

Do pets go to heaven?  Well, thanks to the Chinese and their tainted wheat gluten, those of you who go to heaven may find out the answer.  You know that the CAFA Law Blog loves animals…the facts of this one really tugs at our heartstrings. On November 13, 2007, United States District Judge David Allen Ezra, entered an order adopting a magistrate judge’s findings remanding this pet food products case back to Hawaiian state court. 

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Nowak v. Innovative Aftermarket Systems, Inc., 2007 WL 2454118 (E.D. Mo. Aug. 23, 2007)

Size does matter when it comes to the amount in controversy. In this case out of the Eastern District of Missouri, the district court remanded a class action because it found the defendants failed to establish that the case satisfied the amount of controversy requirement under CAFA.

Posted By McGlinchey Stafford at 01:30 AM | Comments / Questions (0)

Kocienda v. U-Haul Intern., Inc., No. 3:07CV9542007 WL 2572269 (D.Conn., Sep 04, 2007)

For all you movers (and shakers) out there, this one is for you. Plaintiff Kocienda brought a class action lawsuit against U-Haul, seeking compensatory and punitive damages for breach of contract and violation of the Connecticut Unfair Trade Practice Act based on U-Haul’s practice of charging a $50 cancellation fee. U-Haul removed under CAFA. However, there was an issue of whether the $5 million amount in controversy was satisfied. U-Haul asserted that the threshold amount was met based on compensatory and punitive damages for a worldwide class. Survey says? Yes. Punitive damages are considered when determining jurisdictional amount. 

Move on, plaintiff.

Posted By McGlinchey Stafford at 01:31 AM | Comments / Questions (0)

Wexler v. United Air Lines, Inc., 496 F. Supp. 2d 150 (D.D.C. 2007).

Posted By McGlinchey Stafford at 01:24 AM | Comments / Questions (0)

Perez v. Asurion Corporation, 2007 WL 2591180 (S.D. Fla. 2007).

Posted By McGlinchey Stafford at 01:10 AM | Comments / Questions (0)

Anthony v. Small Tube Manufacturing Corp., No. 07-CV-0164-MJR, 2007 WL 2746847 (S.D. Ill. Sep 19, 2007).

It was a game-changing play when the plaintiffs in this mass tort action failed to offer any evidence in support of their motion to remand seeking application of CAFA’s home-state controversy exception. The chief official called a major penalty on the home team when it (1) relied on mere allegations that 2/3 of the proposed class members were citizens of Pennsylvania; and (2) claimed that the “primary defendant” was necessarily the single defendant with the largest alleged exposure in the case.

Posted By McGlinchey Stafford at 01:57 PM | Comments / Questions (0)

Smith v. G. Joannou Cycle Co., Inc., no. 06-1577, (D. S.C. 2007)

Michael Smith wanted what every other Tour de France enthusiast (do those really exist?) wanted: (1) a bicycle that performed and was in good working order; (2) a crisp clear day for riding; and (3) a song in his head to pass the time while he engaged in his biking experience. Surely Smith believed he could realize this Armstrong-esque dream by purchasing a $279 bicycle from the G. Joannou Cycle Co., right? Apparently not! 

Smith’s “Steel Wheels” dream failed when his bicycle malfunctioned, leaving him with “Mixed Emotions.” He felt betrayed, and a little like a Crash Test Dummy. Then, when the folks at Joannou refused to honor a purported warranty to fix the bike, Smith gave them the ultimate “Badmotorfinger” and took their banana seats (not this kind of banana seat, but this kind,

 to Court. In fact, Smith filed his suit in federal court based on diversity.

Posted By McGlinchey Stafford at 01:47 AM | Comments / Questions (0)

As we here at the CAFA Law Blog paused from the hustle and bustle to reflect on what the holiday season means to us and what we’re looking forward to in the year ahead, we thought you might enjoy (or at least endure) our take on an old classic. Consider the cases at the end like that fruitcake your neighbor brings you every year--you might not really want it, but you know you’d miss it if we didn’t deliver it.

Posted By McGlinchey Stafford at 12:28 AM | Comments / Questions (0)

Springman v. AIG Marketing, Inc., No. 07-737-GPM, 2007 WL 3406927 (S.D. Ill. Nov. 14, 2007)

Come on, you know the dance from the Rocky Horror Picture Show:

It’s just a jump to the left
And then a step to the right
With your hands on your hips
You bring your knees in tight
But it’s the pelvic thrust that really drives you insane,
Let’s do the Time Warp again!

For all you readers who may be RHPS virgins or need a refresher, not to worry; we’ve got you covered. Just check out http://www.rockyhorror.com/participation/virgins.php and you’ll be ready to read this post in no time. We’ll wait…

Posted By McGlinchey Stafford at 12:44 PM | Comments / Questions (0)

Thompson v. Jiffy Lube International, Inc., et al., 505 F. Supp.2d 907 (D. Kan. April 23, 2007)

This one’s a journey down the yellow brick road to dismissal of the plaintiffs’ claims against one defendant and partial dismissal against two others. The wizard, the court that is, had a lot to address in the opinion. No, not whether the tin man deserved a brain. There were a number of motions to dismiss on various Rule 12(b) grounds. The defendants moved to dismiss under Rules 12(b)(2), (6) and (7), but we’ll do our best to boil it down to the nitty gritty and help you ease on down the road.

(Editors' Note:  Yes, we realize that we have used a similar title before, but it is hard to come up with something clever regarding Kansas, other than to taunt its overrated football team.  Also, we were worried that if we went with the Jiffy Lube angle, the post would be rated NC-17)

Posted By McGlinchey Stafford at 11:03 PM | Comments / Questions (0)

Sundy v. Renewable Environmental Solutions, LLC, et al., No. 07-5069, 2007 WL 2994348 (W.D. Mo. October 10, 2007).

This case stinks like....turkey guts!  The plaintiff, on behalf of herself and a putative class of owners/renters of residential property near the defendant Renewable Environmental Solutions’ (“RES”) facility from April 31, 2003 to the date of class certification, originally filed this suit in a Missouri state court. According to her complaint, the defendant’s facility emits noxious and offensive odors due to its daily receipt and use of hundreds of tons of turkey offal. For those agriculturally challenged readers (which should include all of our readers), offal is the entrails and internal organs of a butchered animal. (Of course, you are reading this with a belly full of turkey from yesterday’s Thanksgiving feast.  Our timing is impeccable.)   Also made defendants were the RES’ facility manager and fictitious defendants, known as AA through ZZ, identified as individuals, entities, etc. who may have contributed to the contamination. As defendants are known to do, the defendants removed the case to federal court alleging jurisdiction under CAFA.

Posted By McGlinchey Stafford at 11:56 AM | Comments / Questions (0)

Figueroa v. Sharper Image Corp., case no. 05-21251, Southern District of Florida, Miami Division, United States District Court

Who hasn’t sat in one of Sharper Image’s Body Massage Loungers when you browsed through its store? If you say you haven’t, then you are either a liar or just don’t get out enough. In this class action lawsuit over alleged bogus air purifiers, U.S. District Judge Cecilia M. Altonaga issued a sharply worded 61-page ruling rejecting the proposed settlement agreement between the plaintiffs and Sharper Image. (By the way, if you are interested in buying one of Sharper Image’s Air Purifers for Christmas, they are still available. Click here). Needless to say, both sides were stunned by the Judge’s decision, although students of CAFA should not be.

Posted By McGlinchey Stafford at 11:36 AM | Comments / Questions (0)

Kaltenbronn v. Liberty Mutual Insurance Co., 07-0052-MJR (S.D. Ill. September 24, 2007).

Posted By McGlinchey Stafford at 11:24 AM | Comments / Questions (0)

Citifinancial Inc. v. Lightner, No. 5:06CV145, 2007 WL 3088087 (N.D.W.Va. Oct. 22, 2007).

Never fear! None of the CAFA Law Blog case analysts are members of the Writers Guild of America (some of us are even true blue union-bustin’ management lawyers in our day jobs), and we are bringing you our own brand of Not Quite Ready for Prime Time entertainment with this sketch about a CAFA issue brewing in the Fourth Circuit:

Posted By McGlinchey Stafford at 11:18 AM | Comments / Questions (1)

Guglielmino v McKee Foods Corporation, No. 05-16144 (9th Cir. October 9, 2007). 

This case touches on a subject that is near and dear to the hearts, and stomachs, of the CAFA Law Blog editors – Twinkies. All those late nights slaving away for your CAFA reading pleasure lends itself to the occasional twinkie or three. In this case, the Ninth Circuit examines the burden of proof for certain types of cases removed under CAFA depending on how the damages were requested in the plaintiff’s Complaint.

Posted By McGlinchey Stafford at 11:18 AM | Comments / Questions (1)

Cleveland v. Ark-La-Tex Financial Services, LLC, No. 07-0444-CG-M, 2007 WL  2460753 (S.D. Ala., Aug. 24, 2007).

Posted By McGlinchey Stafford at 10:45 AM | Comments / Questions (0)

Edward & Marjorie Austin Unitrust v. U.S. Mort. Corp., No. 2:06-cv-01235, 2007 WL 2886036 (D.Nev. Sept. 27, 2007).

Well, we’re not real sure if this all went down at Binnion’s, at the Rio, or at Caesars, but that’s not what is important, now is it? (No, we are not talking about Britney Spears flashing her private parts…not that they are all that private anymore.  Besides, she hangs out at The Palms.) What is important is that the CAFA law blog had representatives who did witness the “all-in” bet that went terribly “all wrong.” Take it away gentlemen:

Posted By McGlinchey Stafford at 10:55 AM | Comments / Questions (0)

Hall v. Triad Financial Services, Inc., NO. 07-CV-0184-MJR, 2007 WL 2948405 (S.D. Ill. Oct 10, 2007).

In stark juxtaposition to his presidential namesake, Judge Reagan of the Southern District of Illinois rejected Voodoo Economics, and, in so doing, took defendant Triad Financial Services behind one of its repo’d trailers for a good ole CAFA butt whoopin’.

Posted By McGlinchey Stafford at 10:52 AM | Comments / Questions (0)

Greetings, CAFA trick or treaters! (Personally, we prefer tricks). Were you hoping for something special for Halloween this year? Perhaps a full-sized candy bar full of creamy-cafa-nougatty goodness? Well keep walking kid, cause all we’ve got today is handful of the cafa equivalent of those peanut butter chew-things in the orange and black wrappers and Charlie Brown’s rock. They might not be much, but at least they’ll fill up your bag.  And isn’t that all that really matters? Enjoy.

Posted By McGlinchey Stafford at 10:22 AM | Comments / Questions (0)

Gerstenecker v. Terminix International Inc. and Servicemaster Company, No. 07-CV-0164-MJR, 2007 WL 2746847 (S.D. Ill. Sep 19, 2007).

Posted By McGlinchey Stafford at 10:36 AM | Comments / Questions (0)

Hirschbach v. NVE Bank, et al, 496 F.Supp.2d 451 (D.N.J. 2007)

Here at CAFA Law Blog, we try to maintain a neutral approach to the courts’ treatment of CAFA, trying our hardest to love all CAFA decisions and treat them as God’s precious little creatures. We admire them, classify them zoologically, and generally accept them for all of their differences and occasional imperfections.   But every so often we discover a new demon-spawn of a case that, well, just makes us say WTF?   

Posted By McGlinchey Stafford at 10:00 AM | Comments / Questions (0)

Grillasca v. Hess Corp., ___ F.Supp.3d ____,2007 WL 2121726 (M.D.Fla., Jul 24, 2007)

District courts seem to be THE happening hotspot these days. But the bouncer guarding the door ain’t your average no-neck, it’s Judge Kovachevich of the Middle District of Florida. In her recent order, she denies Plaintiffs’ motion to certify the class. No proof of CAFA requirements, no entry.

Posted By McGlinchey Stafford at 08:34 AM | Comments / Questions (0)

McMorris vs. The TJX Companies, Inc., et al, 2007 WL 1885137 (D.Mass. 2007).

Posted By McGlinchey Stafford at 08:59 AM | Comments / Questions (0)

Vanyo v. CitiFinancial, Inc., ____ F. 3d ____, 2007 WL 1795959, No. 1:06CV2943 (N.D. Ohio June 20, 2007).

Posted By McGlinchey Stafford at 08:44 AM | Comments / Questions (0)

Nelson v. PeoplePC Inc., ____ F. 3d ____, 2007 WL 1574765 No. C 07-1386 PJH, (N.D. Cal. May 30, 2007).

In a decision providing little factual detail regarding the underlying class action, Judge Phyllis J. Hamilton of the Northern District of California remanded a class action case to California state court that had been removed under the Class Action Fairness Act. In fact, the lack of detail regarding the “peoples” claims seem to be the reason PeoplePC’s removal of the class action under CAFA failed.

Posted By McGlinchey Stafford at 08:47 AM | Comments / Questions (0)

Gay v. Morgan, In the Supreme Court of the United States, No. 06-1470, On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit

The Chamber of Commerce of the United States recently cited a fantastic law review article analyzing the burden of proof under CAFA’s minimal diversity standard authored by none other than our very own CAFA Law Blog Editors H. Hunter Twiford, III, Anthony Rollo, and John Rouse in its amicus curiae brief in support of the petitioners in a case appealed to the Supreme Court of the United States from the Third Circuit. We gave you a sneak peak of the article back on May 5, 2006 before it was published in the Mississippi College Law Review.

Posted By McGlinchey Stafford at 08:06 AM | Comments / Questions (0)

Progressive West Ins. Co. v. Preciado, No. 06-17367, 2007 WL 725717 (9^th Cir. March 6, 2007)

Shamrocks were not needed for luck in this decision handed down in March, but Shamrock did help Simon Preciado keep his class action in state court.  Editors' Query:  If Chicago can dye the river green on St. Patrick's Day, why can't it dye it blue the other 364 days of the year?

Posted By McGlinchey Stafford at 08:09 AM | Comments / Questions (0)

Kendrick v. Standard Fire Insurance Company, 2:06-cv-00141-DLB (E.D. Ky. March 31, 2007)

Calvin Borel was not the winning jockey in this Race for the Roses in Kentucky.  The Eastern District of Kentucky handed down an unpublished opinion discussing CAFA’s discretionary exception, but side stepping burden of proof issues.

Posted By McGlinchey Stafford at 07:39 AM | Comments / Questions (0)

Lowdermilk v. United States Bank National Association, No. 06-36085 (March 2, 2007)

Another burden of proof case from the Ninth Circuit. This time the Ninth takes its burden of proof precedent and identifies different standards of proof depending on how the plaintiff defines damages in their complaint.

Posted By McGlinchey Stafford at 07:26 AM | Comments / Questions (0)

Garcia v. Boyar & Miller, P.C. et al., No. 3:06-CV-1936-D (N.D. Tex. May 30, 2007)

“Hey man I thought he was dead!” For all you Dead Heads out there, sorry it’s not Jerry, its Claudia. The United States District Court for the Northern Division of Texas, handed down an opinion examining CAFA as a basis for removal jurisdiction and holds that the plaintiffs bear the burden as to CAFA’s exceptions. 

Posted By McGlinchey Stafford at 07:56 AM | Comments / Questions (0)

Waldman v. Cingular Wireless LLC, 07-80081-CIV, 2007 WL 1970858 (S.D. Fla. Jul. 3, 2007).

Cingular Wireless proves the wisdom of the old adage “if at first you don’t succeed, try, try again” after receiving a favorable ruling from the USDC for the Southern District of Florida in their second shot at federal jurisdiction. After having tried and failed in 2004 to move a class action against it to federal court, Cingular took a second bite at the apple when the plaintiffs amended their complaint after the effective date of CAFA. The federal experience was much sweeter the second time around for Cingular Wireless, because this time the federal court denied the plaintiffs’ motion to remand the case.

Posted By McGlinchey Stafford at 07:25 AM | Comments / Questions (0)

McAtee v. Capital One, F.S.B., 07-55065 (9^th Cir. 3/14/07), 2007 WL 840370.

Pre-game Warm-up

In California, an amended complaint does not commence a new action for purposes of CAFA removal. The United States Court of Appeal, Ninth Circuit, followed its recent decision in Progressive West v. Preciado, 06-17367, 2007 WL 725717 (9^th Cir. March 6, 2007), and held that adding a new defendant after CAFA’s enactment does not commence a new action. (Editors' Note:  See the CAFA Law Blog analysis of Preciado posted on August 1, 2007).

Posted By McGlinchey Stafford at 07:00 AM | Comments / Questions (0)

Roche v. Country Mutual Ins. Co., No. 07-367-GPM, 2007 WL 2003092 (S.D. Ill. July 6, 2007).

Jojo is a loner after all.  In this case, the Southern District of Illinois sent Jojo home and remanded a class action removed under CAFA.  The remand was based on the theory that mandatory joinder required the addition of an additional defendant, a company whose citizenship would create diversity, but because it lacked subject matter jurisdiction over the matter, the case was sent back to state court (which was not located in Tucson, Arizona.) It was undisputed that both named parties were non-diverse and that the proposed class included only non-diverse members, so the sole issue was whether the diverse party was required to be joined.

Posted By McGlinchey Stafford at 07:29 AM | Comments / Questions (0)

Lott v. Pfizer, __ F.3d __, No. 06-3372, 2007 WL 1804261 (7th Cir. June 25, 2007).

We all remember Rocky Balboa, the Italian Stallion, the Philly blue-collar boy clawing his way to the top. Can't you picture the attorneys for the Lott plaintiffs and Pfizer similarly running up the steps of the Philadelphia Museum of Art? Their collars ripped open, their cuff-links glistening with sweat, the soles of their wing tips burning. Can't you hear the music, and the chorus of voices singing in unison in the background ... "getting stronger ... getting stronger." Can't you see Burgess Meredith belittling those lawyers as they struggle to make it to the apex. I can ... but I'm not quite sure if the kids from the neighborhood are running after the "heroes" this time. In fact, we here at the CAFA law blog aren't real sure at this point who is Rocky, who is Apollo Creed, or just where Clubber Lang is just yet because Lott and Pfizer appear unwilling to stop this fight! Or maybe we are just watching Rocky 2 for the second time, who knows? (And by the way, just where is Cousin Paulie in this whole mess?)

Posted By McGlinchey Stafford at 07:05 PM | Comments / Questions (0)

Lamond v. Pepsico, Inc., No. 06-3043 (D.N.J. June 8, 2007).

Just in time for the Sopranos finale: the New Jersey District Court has a sit down with Pepsico. “What can you do?” Pepsico tried to get out of New Jersey state court by removing the case to federal court under CAFA. The district court, however, examined the jurisdictional issue sua sponte and sent them back to New Jersey state court. “Che peccato.” Check out the Sopranos website for their list of mobspeak.

Posted By McGlinchey Stafford at 06:22 AM | Comments / Questions (0)

Weems v. Touro Infirmary and SHONO, Inc., No. 07-30160, 2007 WL 1206984 (5th Cir. Apr.25, 2007).

If only Weems and Touro had given the court more than billing addresses for the 299 patients at Touro Infirmary in New Orleans immediately before, during, and after Hurricane Katrina, they might have had a chance to take the road home to Louisiana state court. Instead, they failed to prove that 2/3 of the putative class members are citizens of Louisiana, and could not support application of the local controversy exception to federal jurisdiction under CAFA. But hey, you can't spend your whole life worrying about your mistakes-make the best of it-maybe we can help. Federal court is not so bad. Try not to think to much about the fact that Preston v. Tenet was sent back to state court under almost the same fact scenario by the same panel on the same day. (Editors' Note: See the CAFA Law Blog analyses of Preston posted on June 5, 2007 and January 24, 2007).  While the appellate court yelled "Road Trip" to Preston, it kept Weems.  As we were taught at Faber College, let's analyze why.

Posted By McGlinchey Stafford at 06:35 AM | Comments / Questions (0)

Preston v. Tenet Healthsystem Memorial Medical Center, Inc., No. 07-30132 (5^th Cir. April 30, 2007)

The Fifth Circuit handed down an important opinion examining CAFA’s exceptions, the burden of proof under the exceptions, and evidence presented by the parties in this Hurricane Katrina related case.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

The following conversation between CAFA Law Blog employees Will and Greg was recorded, pursuant to normal meeting minute recordation practices, and has been released as public record:

Posted By McGlinchey Stafford at 05:50 PM | Comments / Questions (0)

Constant v. IHOP, case no. 07-0072 (N.D. Ala. 2007)

You remember those nights don't you? You and a few buddies drinking multiple pots of coffee, chain smoking, discussing the burning issues of the day in that booth at IHOP. Well, the members of the CAFA Law Blog editorial staff still have those late night IHOP round table chats, and what burning issues do you think are discussed? You guessed it, CAFA jurisprudence. So it should come as no surprise to any of our loyal readers that when we recently sat down for our weekly CAFA-biscuits and gravy coffee chat, the discussion regarding the recent memorandum opinion issued by the Northern District of Alabama, Southern Division in Constant v. International House of Pancakes, Inc. was one hot hash brown! Ironically, the sound of the carefully mixed pancake batter smacking the searing griddle, slowly spreading to the farthest recesses of the pan struck the biscuits and gravy crew as a perfect segue into the implications of Constant.

Posted By McGlinchey Stafford at 05:23 AM | Comments / Questions (0)

Sanchez v. Wal-Mart, Inc., 2007 WL 1345706 (E.D. Cal. 2007).

A $20 baby stroller equals CAFA removal in this amount in controversy fight between America's largest retailer and a putative class.  Our guess is that the people at Wal-Mart Watch are not happy with this decision.

Posted By McGlinchey Stafford at 05:45 AM | Comments / Questions (0)

Lowery v. Alabama Power Company, Nos. 06-16324 and 06-16325 (11^th Cir. April 11, 2007)

Want to know about mass actions, jurisdictional burden of proof, and discovery for the amount in controversy?  Boy, oh, boy!  We have the case for you.  The Eleventh Circuit handed down a 77 page opinion regarding multiple CAFA issues. Aren’t you glad we are here to do the heavy lifting? We have done an outstanding job of summarizing several CAFA issues for you. 

Posted By McGlinchey Stafford at 05:16 AM | Comments / Questions (0)

Tate v. U.S. Bank National Association, 06-1204 (D.Or. 4/17/07), 2007 WL 1170608.

You don’t have to remember playing the “Oregon Trail” computer game from your youth to know that if you don’t have enough money to buy supplies, you cannot proceed. In Tate v. U.S. Bank National Association, the plaintiffs admitted their claims were less than the $5 million CAFA threshold, thus the Bank could not force them to proceed in the Oregon District Court. 

Posted By McGlinchey Stafford at 05:20 AM | Comments / Questions (0)

Kavu, Inc. v Omnipak, Corporation, ____ F. 3d ____, 2007 WL 201093, No. C06-109RSL (W.D. Dist. Wash., Jan. 23, 2007).

In a case citing the 7^th Circuit Court’s decision in Brill v. Countrywide Home Loans, Inc., the District Court for the Western District of Washington found that claims under the Telephone Consumer Protection Act of 1991 (TCPA) are subject to the jurisdiction of CAFA. (Editors' Note: See the CAFA Law Blog analysis of Brill posted on November 2, 2005).  While this case is not very interesting from a CAFA perspective, we wanted to make sure that our loyal readers who have TCPA cases are aware of it. 

Posted By McGlinchey Stafford at 04:18 AM | Comments / Questions (0)

IUE-CWA v. General Motors Corp., ___ F.R.D. ___, 2006 WL 3147739 (E.D. Mich. 2006.).

Posted By McGlinchey Stafford at 03:32 AM | Comments / Questions (0)

Hall v. State Farm Mutual Automobile Insurance Company, 2007 WL 215662, No. 05-2530 (6 Cir. January 29, 2007).

If you’ve got a class action removed under CAFA in Michigan with a commencement issue, you should take a look at this one. The Sixth Circuit handed down a per curiam opinion regarding the commencement issue under CAFA when a new party is added.

Posted By McGlinchey Stafford at 03:27 AM | Comments / Questions (0)

Martin v. Lafon Nursing Facility of the Holy Family, Inc., 2007 WL 162813, No. 06-5108 (E.D. La. January 18, 2007).

Posted By McGlinchey Stafford at 03:39 AM | Comments / Questions (0)

Kasem Adoure v. The Gillette Company, 2007 WL 128846, MDL Docket No. 1704 (D.Mass. January 11, 2007).

Posted By McGlinchey Stafford at 03:51 AM | Comments / Questions (0)

Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., ____ F. 3d ____, 2007 WL 92756 Nos. 06-12419, 06-12420, 2007 WL 92756 (11^th Cir. Jan. 16, 2007).

In a decision discussing the Federal Rules of Appellate Procedure’s application to the Class Action Fairness Act, the 11^th Circuit held that the filing of a notice of appeal in the district court did not comply with the requirements of Federal Rule of Appellate Procedure 5 governing permissive appeals.

Posted By McGlinchey Stafford at 03:39 AM | Comments / Questions (0)

The Southern District of Illinois denied a motion to remand a class action because a post-CAFA amendment of the Complaint “commenced” a new action. Dr. Richard Coy initially filed his nationwide class action against Country Mutual Insurance Company the week before CAFA was enacted. He claimed that Country Mutual wrongfully reduced payments to him and other similarly-situated health care providers through the use of a “silent PPO,” in which Country Mutual would pay reduced rates similar to those negotiated with other providers under preferred provider organization agreements, despite the fact that no such agreements existed between Country Mutual and the class claimants. He alleged that Country Mutual did not “prefer” the class claimants to its insureds. The claims included breach of contract, based on the contracts between Country Mutual and its insureds, and the theory that Country Mutual was not entitled to retain the amounts taken as discounts from the providers’ fees.

Posted By McGlinchey Stafford at 02:44 AM | Comments / Questions (0)

In re Zyprexa Products Liability Litigation, 04-MD-01596, Eastern District of New York, United States District Court (December 8, 2006).

In this case, the court dreamed a little dream on a solution to mass litigation before an MDL court.  Defendant Eli Lily & Company removed approximately a 1/4 of the country's Zyprexa (an anti psychotic drug often prescribed to schizophrenics, which I swear we have never taken) multi district litigation (MDL) docket. The plaintiffs filed a motion to remand over 2000 of those cases. The Court failed to get to the merits of the remand order, and, instead asked the parties for additional briefing on two issues: 1) The affect of recent statements by the FDA on the issue of federal preemption, and; 2) Whether Eli Lily was entitled to rely on federal preemption as a basis for removal when it did not refer to the issue in its removal pleadings.

Posted By McGlinchey Stafford at 02:38 AM | Comments / Questions (0)

Kitson v. Bank of Edwardsville,___ F. Supp.2d ___, 2006 WL 3392752, No. 06-528-GPM (S.D. Ill. Nov. 22, 2006).

The defendants' sojourn in the Southern District of Illinois was nice while it lasted in this commercial lending case.  The defendants removed the case after the plaintiffs added a new defendant in June 2006, well after CAFA became law.  In fact, the case was removed approximately 4 years after it was filed in Illinois state court.  Alas, this is not so much a commencement case, as it is a local controversy and home state exception case. The judge sent everyone back to state court, refusing to give any quarter to defendants based on CAFA’s legislative history.

Posted By McGlinchey Stafford at 02:08 AM | Comments / Questions (0)

Download the MP3 file of this posting.

Saab v. Home Depot U.S.A., WL0249463601, No. 06-8014 (8th Cir. November 22, 2006)

Automotive engineering versus mega home improvement? Nope, but this one might be just as interesting, in a perverse sort of way that only our brilliant CAFA aficionados would appreciate. The Eighth Circuit differentiates between traditional complete diversity jurisdiction and CAFA’s new minimal diversity jurisdiction in the context of appealing a remand related decision.

Posted By McGlinchey Stafford at 02:35 AM | Comments / Questions (0)

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Blockbuster v. Galeno, 2006 WL 3775326, Docket No. 05-8019 (2d Cir. Dec. 26, 2006).

On March 23, 2006, the United States Court of Appeals for the Second Circuit handed down a summary order remanding this case against Blockbuster back to state court, in order to meet CAFA’s 60 day time limit to render decision under 1453(c)(2). The summary order can be found at Galeno v. Blockbuster, Inc., 171 Fed. Appx. 904 (2d Cir. 2006). On December 26, 2006, Circuit Judge Cardamone, writing for the Second Circuit, handed down an opinion explaining its reasoning behind the summary order.

Posted By McGlinchey Stafford at 01:07 AM | Comments / Questions (0)

Preston v. Tenet Healthsystem Memorial Medical Center, ___ F. Supp. 2d ___, Civil Action No. 06-3179, 2006 WL 3396171 (E.D. La. November 21, 2006).

The Eastern District of Louisiana examines a Hurricane Katrina case surrounding stranded hospital patients that was removed to federal court pursuant to CAFA and remanded as a result of the local controversy and the home state exceptions.

Posted By McGlinchey Stafford at 01:58 AM | Comments / Questions (0)

Morgan v. Gay, 2006 WL 3692552, No. 06-4497 (3d Cir. December 15, 2006).

On December 15, 2006, Judge Smith writing for a three judge panel of the Third Circuit handed down another precedential opinion in Morgan v. Gay. This time the Third Circuit focused directly on the jurisdictional burden of proof under CAFA. (Editors' Note: The facts of the case and previous rulings can be found in our previous posts. The district court opinion was analyzed on October 24, 2006 and the first Third Circuit opinion was analyzed on December 7, 2006].

Posted By McGlinchey Stafford at 01:00 PM | Comments / Questions (0)

Gladstone Florist v. TTP, Inc., No.06-0713, CV-W-DW, 2006 WL 3827518 (December 28, 2006).

A dispute between local and a non-local florist regarding telephone directory listings has been delivered (via FTD, maybe) back to state court in Missouri.  A district court from within the Eighth Circuit recently granted a motion to remand to state court the claims of a putative class of Missouri florists who were allegedly damaged by directory listings placed by an out-of-state florist masquerading as a local florist.

Posted By McGlinchey Stafford at 01:42 AM | Comments / Questions (0)

Plaintiffs in a recent Louisiana putative class action apparently loaded too many 1970s disco remixes on their ipods when they led the defendants – and the federal court – on a circuitous “wild goose chase” in and out of three state court suits, simply to avoid CAFA jurisdiction.

“Moore, Moore, Moore,

              How Do You Like It,
              How Do You Like It . . . .”

Posted By McGlinchey Stafford at 01:49 AM | Comments / Questions (0)

Lowery v. Honeywell International, No. 06-AR-1370-S, (N.D. Ala. October 24, 2006).

Wow! Aren’t you glad you don’t have to read this whole case. That’s why we’re here. We do the work and serve it up to you hot and fresh.  The Northern District of Alabama handed down a lengthy opinion discussing a mass action filed before CAFA’s effective date that was removed by a defendant that was added in the third amended complaint. The court remanded the case back to state court with its twenty-nine page opinion.

Posted By McGlinchey Stafford at 01:33 AM | Comments / Questions (0)

DiTolla v. Doral Dental IPA of New York, LLC, No. 06-2324-cv (2d Cir. November 17, 2006).

A group of New York dentists challenge the administration of a New York state fund along with the jurisdictional requirements of the Class Action Fairness Act and come out shinning their pearly whites to the Second Circuit.   The makers of Trident must be very pleased.

Posted By McGlinchey Stafford at 12:27 AM | Comments / Questions (0)

Morgan v. Gay, Case No. 06-8045 (3d Cir. October 16, 2006).

On October 16, 2006, the United States Court of Appeals for the Third Circuit handed down a short opinion, labeled "Precedential",  written by Circuit Judge Smith regarding CAFA’s appeal period under 28 U.S.C. § 1453(c). The case was originally filed by New Jersey purchasers of the skin cream Stri Vectin-SD, not Captain Morgan's rum, in the Superior Court of New Jersey and removed to federal court by the defendants. The District Court remanded the case back to state court on the motion of the plaintiffs, concluding that it lacked removal jurisdiction over the matter. (Editor’s note: See the CAFA Law Blog analysis of the District Court case of Morgan posted on October 24, 2006).  Ready for round two of this saga?

Posted By McGlinchey Stafford at 12:48 PM | Comments / Questions (0)

Davis v. Chase Bank U.S.A., N.A., --- F.Supp.2d ----, 2006 WL 2812343 (C.D.Cal., Sep 20, 2006).

If you are reading the CAFA Law Blog you probably do not practice much, if any, criminal law.  But we have all watched enough Law & Order on television to be able to recite the Miranda warning.  This case reminds us of the portion of the Miranda warning that states, "Anything you say can and will be used against you in a court of law," because that is exactly what happened to the plaintiff in this case.

Posted By McGlinchey Stafford at 11:51 AM | Comments / Questions (0)

Everyone’s favorite whipping boy, the Ninth Circuit Court of Appeals, hasn’t exactly been complying with the spirit of the Class Action Fairness Act, at least according to Christina Imre and her blog, the Appellate Strategist. As evidenced in CAFA’s legislative history, Congress clearly intended a presumption in favor of federal jurisdiction over class actions. However, the district courts of the Ninth Circuit have repeatedly remanded class actions relying on case law creating a strong presumption against federal jurisdiction. (Christina is not alone. Check out George Will's column of Thursday, November 16, in the Washington Post entitled "Circuit Breaker" discussing the Ninth Circuit's disconnect with the Supreme Court.)

This was not lost on Ms. Imre as illustrated by her post of July 28th, 2006, in which she questions the accuracy of this position regarding the proper presumption to apply to federal jurisdiction issues under CAFA. You can check out her post here: http://www.appellatestrategist.com

Posted By McGlinchey Stafford at 11:42 AM | Comments / Questions (0)

Lao v. Wickes Furniture Co., No. EDCV 06-448 SGL OPX, 2006 WL 2879763 (C.D. Cal. Oct. 4. 2006).

A district judge declared that the Class Action Fairness Act is a statute that is a headache to construe.  We expect that these words will be quoted often by other judges and pundits of CAFA.  In fact, this could open up a whole new humanitarian purpose for our staff of eager bloggers. We can hear the ads now… “CAFA Law Blog: You can’t buy a more potent pain reliever without a prescription” or “CAFA Law Blog: The Headache Medicine” or “The More You Know, The More You Trust CAFA Law Blog.”

Posted By McGlinchey Stafford at 11:53 AM | Comments / Questions (0)

Santamarina v. Sears, Roebuck and Co., No. MDL 1703, 2006 WL 2979396 (7th Cir. Oct. 19, 2006)

How did a California state court action involving claims for alleged violations of the California unfair trade practices act end up in the Seventh Circuit? Well, it all started a long time ago in a far off place. This suit was originally filed in January 2005, alleging that Sears deceptively advertised that certain of its “Craftsman” tools were made exclusively in the USA, when, in fact, some of the tools are manufactured abroad. 

Posted By McGlinchey Stafford at 11:11 AM | Comments / Questions (0)

Bertino v. General Motors Corp., Civ. 05-10008-GPM, 2006 WL 2818773 (S.D. Ill. Sep. 27, 2006), associated with In re: General Motors Corporation Dex-Cool Products Liability Litigation, No. MDL-03-1562-GPM.

There is something comforting about the classics, so here we go spinning another Chuck Berry classic to analyze litigation connected with the GM Dex-Cool Products Liability Litigation on its continuing road trip, this time getting its kicks on Route 66 (well, almost). In Bertino v. General Motors Corp., the plaintiffs filed their putative class action case in San Joaquin County, California on February 17, 2005, a day before the effective date of the Class Action Fairness Act. They later filed an amended complaint on March 31, 2005, adding a new individual as proposed class representative.

Posted By McGlinchey Stafford at 10:53 AM | Comments / Questions (0)

Morgan v. Gay, 2006 WL 2265302, 06-1371 (D.N.J. August 7, 2006).

Captain Morgan vs. Mount Gay: In a blind taste test the District of New Jersey decided they didn’t even like rum and sent the case back to state court. Not really, but it sure sounds like fun.  Chief United States District Judge Garrett E. Brown, Jr. of the District of New Jersey examined the Class Action Fairness Act's threshold jurisdictional burden of proof issue, and without any original analysis, followed Brill, Abrego and Miedema, holding that the burden fell on the removing defendants to prove jurisdiction exists.    (Editors' Note:  See the CAFA Law Blog analysis of Brill posted on November 2, 2005, the CAFA Law Blog analysis of Abrego posted on May 25, 2006, and the CAFA Law Blog analysis of Miedema posted on August 22, 2006.  See also the CAFA Law Blog critique of the Miedema decision posted on August 22, 2006). 

Posted By McGlinchey Stafford at 10:14 AM | Comments / Questions (0)

Charles Hooks, et al  v. American Medical Security Life Insurance Company, et al., United District Court for the Western District of North Carolina, No. 3:06-CV-00071 (Aug. 29, 2006).

Plaintiffs' counsel, John Gresham, could have entitled this case "The CAFA" or "The Removal" or "The Technicality" or some other catchy title that begins with "The."  After all, "The Client" has already been used.  This case, sure to be on the New York Times bestseller list, has all the right ingredients:  the South, big insurance companies, little plaintiffs, and the Class Action Fairness Act.  We can't wait for the movie.  (Our apologies to plaintiffs' counsel, John Gresham.  Your name is just too similar to a lawyer turned famous author for us to ignore.)

Posted By McGlinchey Stafford at 10:10 AM | Comments / Questions (0)

Briggs v. Geico General Insurance Co., 2006 WL 1897210, No. 06-CV-00550 (D.Colo. July 10, 2006).

We don't know if a gecko that loses its tail will grow its tail back.  You need to go to the Animal Planet website for that juicy tidbit of information.  In this case, however, Geico's gecko's tail was severed by the federal court, and it probably won't grow back.  

You have to give points to Geico for creativity.  After all, it did adopt a talking gecko as its mascot.  In this case, its lawyers made the innovative argument that an action “commenced” under CAFA when a Colorado state court judge ordered claims against Geico severed from those brought against other insurance companies. 

Posted By McGlinchey Stafford at 10:26 AM | Comments / Questions (0)

Keltner v. Krystle Towers, LLC,  No. 2:05-CV-1126, 2006 WL 1663547 (D. Nev. June 7, 2006).

Posted By McGlinchey Stafford at 10:06 AM | Comments / Questions (0)

The Home Depot v. Rickher, No. 06-8006, 2006 WL 1727749 (May 22, 2006).

A wood chipper came in mighty handy for Gaear Grimsrud to get rid of Carl Showalter's dead body in Fargo. As they say in North Dakota: oy veh, what a mess!   Home Depot rents stump grinders, not to mention sewer snakes, jack hammers, nail guns, and other intimidating tools, so it must have made their day when the Seventh Circuit U.S. Court of Appeals said Home Depot properly invoked CAFA to remove an action challenging damage waivers for rental tools.

Posted By McGlinchey Stafford at 09:27 AM | Comments / Questions (0)

Barden v. Hurd Millwork Company, No. 06-C-46, 2006 WL 2560109 (E.D. Wis. Sep. 5, 2006)

·  You have the right to remove a case over which the federal courts would have original jurisdiction. 

·   You have the right to remove a putative class action commenced on or after February 18, 2005. 

·   Anything your opponent adds to the lawsuit on or after this date can and will be used to confer jurisdiction under CAFA.

No doubt these words will be uttered by Horatio Caine on the next episode of CSI:  Miami.

Posted By McGlinchey Stafford at 09:40 AM | Comments / Questions (0)

Sweeney v. Federated Retail Holdings, Inc., No. 06-10887, 2006 WL 2521410 (E.D. Mich. Aug. 30, 2006).

Posted By McGlinchey Stafford at 09:26 AM | Comments / Questions (0)

In re Katrina Canal Breaches Litigation, No. 05-4182, 2006 WL 2256995, (E.D.La. July 19, 2006)(consolidated Katrina canal breach litigation decision pertaining to O’Dwyer, et al. v. The United States of America, et al.,  C.A. 05-4181).  Katrina wrought havoc with the Gulf South and let loose a flood of litigation.  These plaintiffs (none of whom are reported to look like Randy Newman or to hate short people) sued nearly everyone up and down the governmental ladder, but they were unable to use CAFA to get a toehold in federal court.  The district court held that this case should be washed out of federal court and "clear down to Plaquemines."

Posted By McGlinchey Stafford at 09:10 AM | Comments / Questions (0)

Lott v. Pfizer, No. 05-0230, 2006 WL 2224155 (S.D. Ill. Aug. 2, 2006).

If we were classic drama queens, we could call Pfizer the Hamlet of Bextra and Celebrex litigation, facing the “slings and arrows of outrageous fortune.”  Last August, the Seventh Circuit deep-sixed the company’s effort to remove a class action under the Class Action Fairness Act, and this district court ruling rejects Pfizer’s objections to the bill for plaintiffs’ removal costs.

Posted By McGlinchey Stafford at 09:43 AM | Comments / Questions (0)

G.M. Sign, Inc. v. Global Shop Solutions, Inc., No. 05 C 6591, 430 F. Supp. 2d 826 (N.D. Ill. May 9, 2006).

An indecisive CAFA defendant in a junk-faxing class action in the Northern District of Illinois recently got the clear message, “No Solicitation Allowed,” when it tried to remove the suit based on the Seventh Circuit’s now (in)famous Brill v. Countrywide decision.  No, the defendant was not torpedoed by “Big Brill’s” draconian “burden of proof” for CAFA removal.  That would be too obvious.  As odd as it may seem, the hapless defendant’s short visit to federal court was scuttled by “Little Brill,” the lower court decision reversed on appeal.

Posted By McGlinchey Stafford at 09:27 AM | Comments / Questions (0)

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Lanier v. Norfolk Southern Corporation, 2006 WL 1878984, No. 1:05-3476-MBS (D.S.C. July 6, 2006)

You could almost hear the district judge shout, "All aboard!"  The South Carolina District Court let the defendants ride the CAFA train into federal court, and then derailed the plaintiff’s case on a motion to dismiss, stopping only to address the burden of proof issue.  On July 6, 2006, United States District Judge Margaret B. Seymour issued an opinion and order not only retaining federal court jurisdiction under CAFA, but also dismissing the plaintiffs’ complaint.  

Posted By McGlinchey Stafford at 08:03 AM | Comments / Questions (0)

Whitehead v. The Nautilus Group, Inc., 428 F. Supp. 2d 923 (W.D. Ark. 2006).

Ahh…Another Class Action Fairness Act case involving the world of pumpitude… (Editors' Note:  As Hans and Franz say, "Hear me know and believe me later."  See the CAFA Law Blog analysis of Robinson v. Holiday Universal, Inc.,  posted on April 3, 2006). Citing the relation back standards of the Natural State—Arkansas—a federal court in the Western District of Arkansas, in Whitehead v. The Nautilus Group, Inc., remanded to state court a class action lawsuit filed by an Arkansas resident who must not have been too happy with his “natural state.” On February 9, 2005, Thomas Whitehead filed a putative class action suit against the manufacturers of the Bowflex home gym system because the manufacturer did not act quickly enough in sending repair kits after issuing product recalls.  Whitehead sought damages for unjust enrichment and fraud.

Posted By McGlinchey Stafford at 08:08 AM | Comments / Questions (0)

Seat v. Farmers Group, Inc., No. CIV-06-0309-F (W.D. Okla. May 5, 2006), 2006 WL 1285084

Comedian Will Rogers, himself a rich Okie immigrant to California, once quipped, “When the Okies left Oklahoma and moved to California, they raised the average intelligence level in both states.”

The plaintiff in this Oklahoma class action brought some truth to that wry observation, when she filed a motion to remand under CAFA’s mandatory and discretionary abstention provisions, 28 U.S.C. § 1332(d)(3) and (4), both of which require that at least one defendant be a citizen of the state in which the action was filed, i.e., the Sooner State. In her pithy remand motion, the plaintiff stated with nescient simplicity: “There is at least 1 Defendant . . . who is a citizen (a domesticated Insurance Carrier in the State of Oklahoma) of the State of Oklahoma.” This appears to be the first official sighting (citing?) of that rare Okie creature, the “domesticated” insurance carrier.  Apparently, “in the place where even squares can have a ball,” foreign insurers are considered savage wildebeests roaming the great plains.

Posted By McGlinchey Stafford at 08:44 AM | Comments / Questions (0)

Aquilino v. Home Depot U.S.A., Inc., No. 04-cv-4100 (D.N.J. July 18, 2006)

So you want to have your state law claims and be in federal court, too? Well, it may not be so simple, particularly in the context of a collective action brought under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. This case involved claims by Home Depot’s Merchandising Assistant Sales Managers that they were improperly classified as “exempt” employees under the FLSA and various state law equivalents. This group of employees argued that they functioned more as clerks than they did as managers or supervisors, and, thus, should be classified as non-exempt and eligible for overtime under the FLSA and state law. The Magistrate Judge granted conditional certification of an opt-in class under the FLSA. The plaintiffs then sought to certify twenty-five state law subclasses under Rule 23(b)(3). It was this issue that produced an insightful look back at the history of the FLSA and the ability to bootstrap state law claims onto an FLSA collective action. 

Posted By McGlinchey Stafford at 08:56 AM | Comments / Questions (0)

Schillinger v. 360Networks USA, Inc., No. 06-138-GPM, 2006 WL 1388876 (S.D. Ill. May 18, 2006). 

In a case that will surely cause a firestorm of controversy about the security of our border with Canada, relation back (and not national security) was the topic du jour in this Southern District of Illinois opinion denying a motion to remand.  Chief District Judge Murphy ruled that the addition of a new defendant after CAFA’s effective date “commenced” the litigation, so that removal pursuant to CAFA was proper, even though the lawsuit was first filed before CAFA’s effective date.

Posted By McGlinchey Stafford at 08:27 AM | Comments / Questions (0)

In Miedema v. Maytag Corporation the Eleventh Circuit upheld a lower court’s ruling that placed the threshold burden of establishing the existence of minimal diversity jurisdiction under §1332(d)(2) of CAFA upon the removing party, and found that all doubts are to be resolved in favor of remand.  (Editors' Note:  See the CAFA Law Blog analysis of Miedema posted on August 22, 2006). 

The Miedema court cited as support for these propositions three prior appellate decisions that reached the same result: Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7^th Circuit 2005); Abrego v. Dow Chemical Co., 443 F.2d 676 (9^th Cir. 2006); and Evans v. Walter Industries, Inc., 449 F.3d 1159 (11^th Cir. 2006).  (Editors' Note:  See the CAFA Law Blog analysis of Brill posted on November 2, 2005, the CAFA Law Blog analysis of Abrego posted on May 25, 2006; and the CAFA Law Blog analyses of Evans posted on May 25, 2006 and May 26, 2006). 

However, for the same reasons explained in our prior critique of Evans (Editors' Note:  See the CAFA Law Blog critique of Evans posted on May 26, 2006), and our law review article “CAFA’s New Minimal Diversity Standard For Interstate Class Actions Creates A Presumption That Jurisdiction Exists, With The Burden Of Proof Assigned To The Party Opposing Jurisdiction” (Editors' Note:  See the Law Review article here), we believe that Miedema - like Brill, Abrego, and Evans - is incorrectly decided.

Posted By McGlinchey Stafford at 08:58 AM | Comments / Questions (0)

Miedema v. Maytag Corp., No. 06-12430, (11th Cir. June 5, 2006).

Posted By McGlinchey Stafford at 08:52 AM | Comments / Questions (0)

Hart v. Fed Ex Ground Package System, Inc., 457 F.3d 675 (7th Cir. August 9, 2006) (No. 06-2903).

Posted By McGlinchey Stafford at 08:43 AM | Comments / Questions (0)

Weber v. Mobil Oil Corp., No. 5:05-cv-01175, 2006 WL 2045875 (W.D. Okla. July 20, 2006).

In this class action, filed in Oklahoma state court in 2001, the plaintiffs claim Mobil breached the parties' contract by deducting unspecified production expenses from class members’ royalty payments, and that this practice breached each members’ lease resulting in conversion and fraud. Shortly after filing, Mobil attempted to remove the action alleging diversity jurisdiction under 28 U.S.C. section 1332, but the court granted the plaintiffs' corresponding motion to remand in January of 2002. After an unexplained hiatus, the plaintiffs filed a motion for leave to amend their complaint in September of 2004, hoping to add six new representative plaintiffs, three new defendants, a few new claims, and a partridge and a pear tree to the mix. Against Mobil’s strenuous objection, the Oklahoma state court allowed the plaintiffs to add three new representative plaintiffs, and two new defendants, but denied the plaintiffs' attempts to include the partridge, and the new claims of conspiracy and breach of implied duty to market.  However, the amended petition included both new claims, prompting Mobil to file a motion to dismiss which was denied by the state court judge.

Posted By McGlinchey Stafford at 08:31 AM | Comments / Questions (0)

Frazier v. Pioneer Americas, LLC, 2006 WL 1843629, No. 06-30434 (5th Cir. July 6, 2006).

Defendants scored some traction in remand battles from the U.S. Fifth Circuit Court of Appeals, which declared that plaintiffs bear the burden of proving an exception to prima facie CAFA jurisdiction exists.  On July 6, 2006, Fifth Circuit Judge Patrick E. Higginbotham, handed down an opinion from the Fifth Circuit side stepping the burden of proof issue as to jurisdiction, but examining burden of proof as to CAFA’s exceptions and discussing the primary defendant exception and the local controversy exception.

Posted By McGlinchey Stafford at 08:11 AM | Comments / Questions (0)

Prime Care of Northeast Kansas, LLC v. Humana Ins. Co., No. 06-3024, (10th Cir. May 12, 2006).

When we last left Dorothy and Toto, the couple had just suffered a critical defeat in the form of a remand order at the hands of the Wizard, Judge Kathryn H. Vratil of the U. S. District Court of Kansas. (Editors' Note:  See the CAFA Law Blog analysis of Prime Care of Northeast Kansas, LLC v. Blue Cross and Blue Shield of Kansas City, Inc. posted on April 27, 2006). Claiming federal jurisdiction under CAFA, the various insurance companies (to which we, using our poetic license, collectively referred as "Dorothy and Toto") had attempted to remove this class action filed against them by physicians in Kansas state court, alleging price fixing and conspiracy to monopolize. However, Judge Vratil determined that the post-CAFA amendments to the complaint did not commence a new case and the defendants could not remove the action under CAFA.  But Dorothy, unsatisfied, shipped Toto back to Kansas and decided to appeal the Wizard’s conclusion to yet a higher authority – the Tenth Circuit Court of Appeals.

Posted By McGlinchey Stafford at 08:36 AM | Comments / Questions (0)

Duruaku v. BB & T Bank, 05-5285, 2006 WL 1805887 (D. N.J. June 29, 2006).

In this action originally filed in state court, twenty-six investors (rumor has it that one of the plaintiffs is named George Costanza, pronounced "Ca-stanz-a" or "Can't-stand-ya") sued BB&T Bank claiming that the bank’s "Signature Guarantee" notarizing a document convinced them to purchase securities from a third party.  The plaintiffs claimed to have interpreted the bank’s "Signature Guarantee" as proving that the third party actually owned the securities; rather than proving the third party actually signed the documents. Needless to say, and here is the punch line you were waiting for, there were no securities. 

Before the court was a motion to dismiss filed by one of the defendants.  However, Judge Hayden, on her own motion, decided to address whether CAFA jurisdiction existed. Noting that the Bank’s removal papers consisted of nothing more than naked allegations, the Court concluded that CAFA jurisdiction was missing as there were only twenty-six plaintiffs and $3.8 million dollars in controversy.  BB&T was told to clothe those claims by producing evidence of more than 100 plaintiffs and more than $5 million in controversy; otherwise the matter would be remanded.  We may see this case again once BB&T dresses up its allegations in the notice of removal. 

Posted By McGlinchey Stafford at 08:42 AM | Comments / Questions (0)

Natale v. General Motors Corp., No.: 06-8011, 2006 WL 1458585 (7^th Cir. 2006).

One of the interesting parts (and there are many) of providing up to date CAFA developments to our brilliant and extremely good-looking readers is following certain cases through the court system.  This particular body (car body, that is) of litigation has enjoyed quite a road trip. Beginning in Massachusetts state court, GM removed the case to the district court in Massachusetts where it was picked up by the MDL panel who drove it to the Southern District of Illinois. That’s where we picked up on the Illinois federal court’s decision to remand the case back to Massachusetts state court in a post referencing the Chuck Berry classic “Maybelline.” Take a look at our analysis of In re: General Motors Corp. Dex-Cool Products Liability Litigation posted April 26, 2006. So, when we picked up on the Seventh Circuit’s denial of GM’s petition for appeal of the remand order, we decided to bring Mr. Berry back for an encore.

Posted By McGlinchey Stafford at 08:44 AM | Comments / Questions (0)

Williams v. Texas Commerce Trust Company of New York, 2006 WL 1696681 (W.D. Mo. June 15, 2006)

While everything is bigger in Texas, Texas Commerce Trust Company of New York was litigating in Missouri, not in Texas.  Shouts of "Remember the Alamo" were not enough to keep United States District Judge Gary A. Fenner from remanding Texas Commerce back to state court.  

Posted By McGlinchey Stafford at 08:07 PM | Comments / Questions (0)

Musgrave v. The Aluminum Company of America, No.: 3:06-cv-0029, 2006 WL 1994840 (S.D. Ind. July 14, 2006).

In this class action filed in an Indiana Circuit Court, the plaintiffs alleged The Aluminum Company of America, owned by Alcoa Inc. and a producer of - you guessed it - aluminum products, negligently exposed them to toxic waste at a dump site known as the Squaw Creek Mine.  Although the Squaw Creek Mine sounds like a place where the indomitable Lucas McCain, played by Chuck Connors, might iron out a misunderstanding with some frontier justice, all the while teaching young Mark, his son, a valuable moral lesson, such excitement was not to be found.  Instead, District Judge Richard L. Young concisely denied the plaintiffs’ motion to remand concluding the defendants satisfied CAFA’s disputed amount in controversy and no exceptions applied to rob the defendants of federal jurisdiction.

Posted By McGlinchey Stafford at 08:54 AM | Comments / Questions (0)

In re: Intel corp. Microprocessor Antitrust Litigation, MDL 05-1717, No. 05-485 (D. Del. June 26, 2006), 2006 WL 1755948

CAFA - It just adds up!  In a Kansas antitrust class action claiming Intel overcharged for its microprocessors, Intel removed the case to federal court based upon CAFA jurisdiction.  Intel argued that more than $5 million was in controversy because the applicable Kansas law allowed the consumer to recover the entire purchase price of the computer. In their motion to remand, the plaintiffs countered that the amount in controversy was only the value of the microprocessors themselves, not the entire computer.  Judge Farnan gave the parties a quick review of one of the three Rs that every school student remembers:  rithmetic.

In some math wizardry, the Court noted that the “parties agree that 930,768 personal computers were sold in Kansas,” that “80% of them, or 744,614, contained Intel x86 microprocessors,” that 5.52% of the total population of Kansas lived in the class area and “the court calculates that 41,103 computers containing Intel x86 microprocessors” were sold in the class area.  Continuing the math lesson, the Court determined that in order to meet the $5 million jurisdictional limit, the price of the microprocessor would have to have been “less than $40.55”, an implausibly low number. Since the Court was convinced the amount in controversy was satisfied, the Court retained jurisdiction.  I guess our math teachers were right when they said we would use that stuff some day.

Posted By McGlinchey Stafford at 08:57 AM | Comments / Questions (0)

Lake County Convention and Visitors Bureau, Inc. v. Hotels.com, No. 06-207, 2006 WL 1793583 (N.D. Ind. June 27, 2006).

The defendants did not have any travel difficulties removing this case to federal court because the case was initially filed in federal court by the plaintiffs.  Defendants are usually the ones trying to remain in federal court, but here, the Lake County Convention and Visitors Bureau and Marshall County, invoked CAFA and traditional diversity jurisdiction when suing a host of defendants, including a long list of Internet travel sites. 

Posted By McGlinchey Stafford at 08:00 AM | Comments / Questions (0)

Jones v. Fort Dodge Animal Health, No. 1:06-cv-47-SPM/AK, 2006 WL 1877103 (N.D. Fla. July 5, 2006).

This plaintiff squeezed (like an orange) into Florida state court on February 17, 2005, the day before the Class Action Fairness Act became law.   Three court extensions and more than one year later, she got around to serving the defendant, who wasted no time and immediately juiced the case by removing it to federal court.  By then, however, the orange juice was no longer fresh.   Plaintiff’s slo-mo and defendant’s speed did not impress the federal district judge.  He bounced the case back to Alachua County, Florida, declaring that the Class Action Fairness Act did not apply.   Don't you hate it when the pulp gets caught in your teeth?

Posted By McGlinchey Stafford at 08:15 AM | Comments / Questions (0)

Tiffany v. Hometown Buffets, Inc., No.: 06-2524, 2006 WL 1749557 (C.D. Cal. June 22, 2006).

In this action originally filed in California state court, managers of a chain of undoubtedly fine culinary establishments known as Hometown Buffet Restaurants, brought a class action on behalf of all California salaried managers of the restaurant chain to recover unpaid overtime and other wages. The managerial employees claimed Hometown Buffet wrongfully classified them as exempt employees, thereby denying them overtime pay in violation of California law. The action, which asserted six different California state law claims, was filed in the Superior Court of San Francisco on November 12, 2004, naming Hometown Buffet and fifty fictitious parties as defendants. At the time of filing, the plaintiffs thought Hometown Buffet Incorporated operated all Hometown Buffet restaurants in California.  However, the plaintiffs later discovered a portion of the Hometown Buffet restaurants were actually owned and operated by OCB Restaurant Company, LLC. (OCB stands for Old Country Buffet, a sister subsidiary to Hometown Buffet…as a heads up, we hear the country fried steak at Old Country is much better than at Hometown.)  After several helpings of procedural jockeying, including a failed removal attempt by Hometown alleging jurisdiction under 28 U.S.C. 1332, the plaintiff managers amended their complaint to add Old Country as a defendant on March 15, 2006. 

Posted By McGlinchey Stafford at 07:15 PM | Comments / Questions (0)

Nicodemus v. Union Pacific Corp., Nos. 02-8016, 02-8017, 440 F.3d 1227 (10^th Cir. 2006).

In our review of cases addressing the Class Action Fairness Act, we stumble onto opinions that do not directly address CAFA, but are notable, and thus blogable, for their discussion of issues affecting federal practice – this well-written opinion from the Tenth Circuit is one of those cases.

In Nicodemus, (we refrained from any Biblical references – some things are sacred – but it was tough) the Tenth Circuit addressed an action by Wyoming landowners (we also refrained from any Brokeback Mountain references – extremely tough) against Union Pacific railroad for misuse of its railroad right-of-way granted by numerous federal land-grant statutes. The quarrel began when Union Pacific licensed Sprint the right to install and maintain fiber-optic cables over the plaintiffs' land. The landowners challenged Union Pacific’s actions, alleging it exceeded the scope of the access granted to the railroads by the federal statutes. Although the plaintiffs only alleged state law claims against Union Pacific, Judge Tacha clarified that “[a]ll of Plaintiffs’ claims hinge on whether Union Pacific’s use of the right-of-way has exceeded the purpose for which it was granted.” The Judge then embarked on a well reasoned and plain spoken analysis of whether the state action warranted consideration in a federal forum, incorporating the fresh Supreme Court dictates from Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 125 S.Ct. 2363 (2005). (Editors' Note:  See the CAFA Law Blog summary of Grable posted on October 25, 2005.) 

So, if you’re in need of a review on Grable’s effect on federal question jurisdiction, or just want to read a refreshingly well-written opinion, read on - No need to thank us for the heads up.

Posted By McGlinchey Stafford at 07:07 AM | Comments / Questions (0)

Kearns v. Ford Motor Co., No. 05-5644, 2005 WL 3967998 (C.D. Cal. Nov. 21, 2005).

Posted By McGlinchey Stafford at 07:00 PM | Comments / Questions (0)

Smith v. Collinsworth, No. 4:05-cv-01382, 2005 WL 3533133 (E.D. Ark. Dec. 21, 2005)

Federal judges from the Natural State seem to be reaching conclusions that other district court judges don’t find so natural when it comes to a CAFA commencement analysis. In this Eastern District of Arkansas opinion, Judge William R. Wilson, Jr. agreed with several other Arkansas district court decisions that “in view of the simple directive in §9 of CAFA, whether an amended complaint relates back is irrelevant” in determining when a case commenced for CAFA purposes. In reaching this conclusion, Judge Wilson specifically relied on fellow Eastern District of Arkansas Judge Leon Holmes’s opinion in Weekley v. Guidant Corp., wherein Judge Holmes found the explicit language of §9 renders a relation back analysis irrelevant. (Editors' Note:  See the CAFA Law Blog summary of Weekley posted October 6, 2005).  Section 9 of CAFA states, “[t]he amendments made by this Act shall apply to any civil action commenced on or after the date of enactment of this Act.” In Weekley, Judge Holmes reasoned, “Congress did not say the Class Action Fairness Act would apply to actions in which the complaint was amended after February 18, 2005, so as to make the action removable, unless the amendment related back to the initial complaint, which is what the statute would need to say for the discussion of whether the amendment relates back to become relevant.” This reasoning apparently appealed to his Arkansas brethren as Judge Howard followed it in Brown v. Lee, Judge Dawson subscribed to it in Hot Spring County Solid Waste Authority v. UnitedHealth Group, and Judge Wilson jumped on the band wagon in this opinion – all Arkansas district court cases.  (Editors' Note:  See the CAFA Law Blog summary of Brown v. Lee posted on December 7, 2005 and the CAFA Law Blog summary of Hot Springs County Solid Waste Authority posted on March 21, 2006.)

Posted By McGlinchey Stafford at 06:15 AM | Comments / Questions (0)

Santamarina v. Sears, Roebuck & Co., No. MDL-1703, 2006 WL 1517779 (N.D. Ill. May 24, 2006).

In this class action originating in California state court, patriotic tool consumers alleged Sears sold them foreign-made tools while deceptively advertising its Craftsman line of tools as being made exclusively in the USA. The plaintiffs, who are rumored to have spontaneously broken into Lee Greenwood’s patriotic anthem “Proud To Be An American” while filing the class complaint in January of 2005, asserted claims of consumer fraud violations against the retailer on behalf of “all person who purchased Craftsman tools in the State of California from January 6, 2001 through the present.” On March 24, 2005, the plaintiffs amended their complaint, asserting the same claims of consumer fraud, but also broadening the class definition to include “all persons who purchased Craftsman branded tools and products in the State of California from January 6, 2001 through the present.” Based on this modification, Sears (showing its softer side) removed the case alleging the amendment commenced a new action post-CAFA. (Editors Note: The plaintiffs’ symbolic statement of filing an amendment on March 24 was not missed by the astute editors of this blog - on March 24, 1898, Robert Allison of Port Carbon, Pennsylvania became the first person to buy an American-built automobile.)

Posted By McGlinchey Stafford at 06:01 AM | Comments / Questions (0)

In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, No. 1:00-1898, MDL 1358, 2006 WL 1004725 (S.D.N.Y. Apr. 17, 2006).

Methyl tertiary butyl ether (MTBE), a gasoline additive, is added to enhance gasoline combustion and reduce tailpipe emissions thereby resulting in less pollution, at least theoretically. However, MTBE readily dissolves in water, can move rapidly through soils and aquifers, and is resistant to microbial decomposition making it difficult to remove in water treatment. Further, the EPA has classified MTBE as a potential human carcinogen. Thus, it’s easy to understand how property owners abutting service stations would be skittish regarding their drinking water, especially if it originates in the ground water under their land. In this class action, the plaintiffs acted on their concerns, rational or not, and filed a class action against Shell Oil and Exxon Mobile alleging negligence, strict liability, and conspiracy claims. After the plaintiffs amended their complaint post-CAFA (for the fifth time), refined the class definition and brought in two plaintiff to replace those who had already settled, the defendants, thirsty for a federal forum, removed the action on five separate grounds, including CAFA and the Energy Policy Act of 2005 (allowing removal of MBTE cases). Like Samuel Taylor Coleridge's Ancient Mariner, the defendants’ thirst, however, must remain unquenched. 

Posted By McGlinchey Stafford at 06:01 AM | Comments / Questions (0)

Cima v. Wellpoint Healthcare Networks, Inc., No. 05-cv-4127 (S.D. Ill. Feb. 3, 2006).

In Cima, District Judge J. Phil Gilbert provides a thorough analysis of the relation back doctrine, specifically the relation back of parties to the original complaint, in discerning whether the addition of defendants post-CAFA allowed removal under CAFA. The newly added defendants were invited to the party by way of an amended complaint filed by the plaintiffs June 3, 2005, in Illinois state court. This amended complaint was filed after the state court dismissed or struck all the claims in the plaintiff’s original complaint filed in 2003. The defendants claimed that removal was proper under CAFA since the newly amended complaint added parties post-CAFA. In their motion to remand, the plaintiffs argued that the defendants failed to properly plead diversity jurisdiction in their notice of appeal and that several of CAFA’s exceptions applied precluding federal jurisdiction under the statute.

Posted By McGlinchey Stafford at 06:30 AM | Comments / Questions (0)

Fiore v. First American Title Ins. Co., No. 05-CV-474, 2005 WL 3434074 (S.D. Ill. Dec. 13, 2005).

In this good walk spoiled (at least for the plaintiff), the Southern District of Illinois issued an opinion denying Mr. Fiore’s motion for remand and holding that the $5 million amount in controversy requirement under the Class Action Fairness Act was satisfied. In this putative class action, plaintiff Peter Fiore filed suit in Illinois state court seeking to represent individuals from a number of states who received title insurance and loan closing services from First American Title Insurance Company. Fiore alleged that First American engaged in a common scheme to overcharge for various title services in violation of the Illinois Consumer Fraud and Deceptive Practices Act and other state consumer fraud statutes. In addition, Fiore claimed that the damages incurred by putative class members outside the State of Illinois were not greater than $5,000,000, and that each class member was entitled to an amount less than $75,000.

Posted By McGlinchey Stafford at 06:05 AM | Comments / Questions (0)

Bemis v. Allied Property & Cas. Ins. Co., No.: 05-cv-751, 2006 WL 1064067 (S.D. Ill. Apr. 20, 2006).

Defendants in this case were hoping CAFA would deliver them from the defendant-engulfing fires of the Circuit Court of Madison County, Illinois, where they faced a class action filed in 2004, alleging improper reduction of medical bills for services provided by licensed medical providers. Allied and the other defendant insurance companies (none of which were known by the acronym of “AC/DC”) made a break for higher ground when the plaintiffs amended their complaint to add a new plaintiff/class representative in September 2005, prompting Allied to remove the action to the federal district court for the Southern District of Illinois. Apparently, penitence had not been paid as David, District Judge David R. Herndon that is, stopped them at the gates, and sent them down the infamous highway.

Posted By McGlinchey Stafford at 06:03 AM | Comments / Questions (0)

In re Intel Corp. Microprocessor Antitrust Litigation, No. MDL 05-1717-JJF, Civ. A. 05-485-JJF, 2006 WL 1431214 (D. Del. May 22, 2006)

In these dual class actions asserting antitrust violations against Intel for its domination of the market for x86 microprocessors, the United States District Court of Delaware recognized the potential shift of the burden of establishing federal jurisdiction under CAFA, but decided to leave the difficult issue for another day given that the evidence easily proved two removed class actions were worth more than $5 million apiece.

Posted By McGlinchey Stafford at 06:57 PM | Comments / Questions (0)

Schemmer v. ChartONE, Inc., No. 1:05-cv-02923 (N.D. Ohio Feb. 1, 2006).

Apparently ChartONE’s brief in support of its removal petition was such an exceptional play that the defendant was awarded two (count 'um) Buckeyes for its headgear in the form of a two page opinion (including the fact summary) denying the plaintiffs' motion to remand this class action removed to federal court claiming jurisdiction under the Class Action Fairness Act. U. S. District Judge Ann Aldrich, writing for the Northern District of Ohio, wasted neither time nor ink in awarding the defendant's removal of this putative class action, which was initially filed in Ohio state court for allegedly knowingly overcharging the named plaintiffs for their medical records, claiming CAFA jurisdiction. Had the plaintiffs not thrown the "Hail Mary" of the amount in controversy, the opinion might have been even shorter.

Posted By McGlinchey Stafford at 06:21 PM | Comments / Questions (0)

 Given the high incidence of shark attacks along the Florida Panhandle last summer, Allstate may want to be careful splashing around in the warm waters of the Gulf, given its recent skinned knee -- a loss on a remand motion in Florida federal court. The last place the insurance company may want to try this dispute -- is it required to pay the full value of a homeowner’s insurance policy when the home has been totally destroyed? -- is in a state court before a jury of potentially hostile Floridians. If that wasn’t troublesome enough, according to a Florida statute referred to as the “Value Policy Law,” an insurance company is required to pay the face value of the policy to an insured who has suffered a total loss of any building. Not surprisingly, Allstate attempted to remove the class action to the Northern District of Florida to escape this potential feeding frenzy, but was unable to establish by a preponderance of the evidence that CAFA’s $5 million amount in controversy was satisfied.

Posted By McGlinchey Stafford at 06:06 PM | Comments / Questions (0)