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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)

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)

The Editors of the CAFA Law Blog are honored to bring you another Guest Post from Professor Lonny Hoffman, the George Butler Research Professor of Law of the University of Houston Law Center. 

Professor Hoffman has some very interesting thoughts about jurisdictional burden of proof and the burden of proof on CAFA's exceptions, some of which we agree with and some of which we do not. Now, class, we turn the podium over to Professor Hoffman...., excuse me, Professor Hoffman.  Mr. Seymour, please stop bothering Mr. Wilbourn about your favorite college football team.  Class, please be quiet and turn off your cell phones during Professor Hoffman's presentation.  Please proceed, Professor Hoffman.

Posted By McGlinchey Stafford at 08:02 AM | Comments / Questions (0)

Reiss, John B., et al., Your Business in Court—2006, 62 Food & Drug L.J. 305 (2007).

In its annual review of “Your Business in Court,” the Food and Drug Law Journal authors took note of three CAFA-related matters. 

Posted By McGlinchey Stafford at 08:51 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)

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)

Robert E. Bartkus, Defendants Removal Burden, New Jersey Law Journal (Feb. 19, 2007).

On February 19, 2007, Robert E. Bartkus, published a short article in the New Jersey Law Journal, regarding the burden of proof for removal cases under the new provisions of CAFA. Bartkus cites heavily the Third Circuit case of Morgan v. Gay and the Second Circuit case of Blockbuster v. Galeno throughout the article. Bartkus states that in recent cases where defendants have removed actions to federal court on the basis of CAFA, they have attempted to change the traditional rule that the party asserting federal subject matter jurisdiction has the burden of proving jurisdiction, with no success. (Editors' Note: See the CAFA Law Blog analysis of Blockbuster posted on January 24, 2007 along with our analysis of its holding posted on January 26, 2007. As for the three Morgan cases, the district court opinion was analyzed on October 24, 2006, the first Third Circuit opinion was analyzed on December 7, 2006, and the second Third Circuit opinion was analyzed on January 19, 2007. You avid readers already know our position on this issue.  But just in case you don’t, see our law review article on the subject). 

Posted By McGlinchey Stafford at 04:26 AM | Comments / Questions (0)

In its findings regarding burden of proof in Galeno v. Blockbuster, the Second Circuit conceded that Congress displayed an aim to broaden federal jurisdiction over interstate class actions. (Editors' Note:  See the CAFA Law Blog analysis of Blockbuster posted on January 24, 2007).  But the Court failed – as have most other courts looking at this issue – to consider Section 2 of CAFA. Section 2 – CAFA’s “Findings and Purposes” – articulates that the Congressional purpose behind the statute is to change the status quo to sweep more class actions into federal court, using minimal diversity, than was formerly possible under pre-CAFA complete diversity statutes and jurisprudence.

Posted By McGlinchey Stafford at 01:14 AM | Comments / Questions (0)

Download the MP3 file of this posting.

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)

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)

H. Hunter Twiford, III, Anthony Rollo & John T. Rouse, 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, 25 Miss. C. L. Rev. 7 (2005).

Over the sound of chestnuts roasting over an open fire, you can hear the sizzle of the blazing law review article that answers the hot question of who bears the burden of proving Minimal Diversity jurisdiction.  We gave you a sneak peek on this law review article back on May 5, 2006.  Now the article has been published.

The authors’ extensive analysis concludes that, correctly interpreted, the Class Action Fairness Act’s text, purposes, and legislative history create a presumption in favor of finding that Minimal Diversity Jurisdiction exists in interstate class actions, with the burden of proof on the party opposing jurisdiction

This in-depth article explains why Congress intended to switch the jurisdictional burden of proof standard for Minimal Diversity under CAFA from the pre-existing rule governing Complete Diversity – which is restrictive, and places the burden of proof on the proponent of federal jurisdiction – because the purposes behind these two jurisdictional enabling statutes are not only different, but are, in fact, opposite. While the courts have split on this question, the authors describe why they believe that Brill, Abrego and similar decisions which hold to the contrary are decided incorrectly. Among other things, each of these courts, the authors note, have completely overlooked Section 2 of CAFA’s text, “Findings and Purposes,” in their burden of proof analyses.

Bottom Line:  This is "the" discussion of jurisdictional burden of proof for Minimal Diversity under CAFA.  You will want to put down the eggnog to read this one.

Posted By McGlinchey Stafford at 12:46 AM | 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)

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)

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)

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)

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)

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)

Adams v. Ins. Co. of North America, 426 F. Supp. 2d 356, No. 2:05-0527, 2006 WL 897945 (S.D. W. Va. Mar. 30, 2006).

(Editor's Note:  We read this case for you so you wouldn't have to.  You can thank us later.)  In this consolidated action involving four asbestos class actions, West Virginia federal District Judge John T. Copenhaver, Jr. issued a protracted opinion addressing, among other issues, all four plaintiffs’ motions for remand. Realizing the opinion’s potential for excessive length, Judge Copenhaver attempted to manage the task by treating the Adams case as the lead action, and mentioning the other actions when the difference in facts necessitated differentiation. However, despite acknowledging the potential for an unwieldy opinion, the court’s analysis of the action’s commencement (for CAFA purposes) and CAFA’s effect on the burden of proving federal jurisdiction consists largely of extended block quotes from various opinions, which, while not making for riveting reading, does permit a broad review of precedent applying the Class Action Fairness Act.

Posted By McGlinchey Stafford at 06:54 PM | Comments / Questions (0)

This Special Report, promised in the CAFA Law Blog summary of Evans v. Walter Industries, Inc., 449 F.3d 1159, 2006 WL 1374688, No. 06-11974 (11th Cir. May 22, 2006), addresses the jurisdictional burden of proof findings in Evans. 

Evans addresses the burden of proof issue under CAFA in two different respects.  First, Evans found (with no analysis) that CAFA does not change the traditional rule that the party seeking to remove a case bears the burden of establishing federal jurisdiction, at the threshold, citing as authority Brill v. Countrywide Home Loans, Inc., 427 F.3d 446 (7^th Cir. 2005) (See CAFA Law Blog's summary of Brill posted November 2, 2005) and Abrego v. Dow Chemical Co., 443 F.3d 676 (9^th Cir. 2006)(See CAFA Law Blog's summary of Abrego posted May 26, 2006).  Second, Evans held that the plaintiff bears the burden of proving the “local controversy” exception to CAFA jurisdiction under 28 USC § 1332(d)(4), once the removing defendant establishes the existence of minimal diversity jurisdiction under 28 USC § 1332(d)(2) at the threshold. 

As we explain in our 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,” we believe that Brill and Abrego are incorrectly decided, and that correctly interpreted, CAFA’s text, purposes, and legislative history create a presumption in favor of finding that minimal diversity jurisdiction under § 1332(d)(2) exists at the threshold, with the burden of proof on the party opposing jurisdiction.  Among other reasons why, the Brill and Abrego panels completely overlooked Section 2 of CAFA’s text (“Findings and Purposes”), and rejected consideration of CAFA’s legislative history in their § 1332(d)(2) burden of proof decisions. 

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

Evans v. Walter Industries, Inc., 449 F.3d 1159, 2006 WL 1374688, No. 06-11974 (11th Cir. May 22, 2006). 

On April 8, 2005, the plaintiffs filed a class action in the Circuit Court of Calhoun County, Alabama, alleging personal injuries and damage to theirAnniston, Alabama , property caused by waste produced over a period of 85 years by the defendants’ manufacturing facilities.  Walter Industries  removed the litigation to federal court under the “minimal diversity” jurisdictional provisions of the Class Action Fairness Act.  The plaintiffs did not dispute that minimal diversity existed at the threshold under 28 U.S.C. §1332(d)(2), but instead, sought remand under CAFA’s “local controversy” exception.  The plaintiffs, citing §1332(d)(4)(A), argued that the court must decline to exercise its undisputed minimal diversity jurisdiction under the exception since more than two-thirds of the class were Alabama citizens, and U.S. Pipe was a “significant” defendant under CAFA.  The district court agreed, applying  the local controversy exception, and remanded the case to the Alabama state court.  Subsequently, Walter Industries perfected its appeal to the Eleventh Circuit Court of Appeals.  

Posted By McGlinchey Stafford at 05:08 AM | Comments / Questions (0)

CAFA Law Blog Editors Hunter Twiford, Anthony Rollo and John Rouse have written a law review article scheduled for publication in the Spring 2006 edition of the Mississippi College Law Review entitled “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.” The entire article is now available to CAFA Law Blog readers, pre-publication, here. The authors’ extensive analysis concludes that, correctly interpreted, the Class Action Fairness Act’s text, purposes, and legislative history create a presumption in favor of finding that Minimal Diversity Jurisdiction exists in interstate class actions, with the burden of proof on the party opposing jurisdiction.

Posted By McGlinchey Stafford at 05:11 PM | Comments / Questions (0)