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

Removal Untimely Where State Court Pleading Acknowledges Grounds For Removability Previously Ascertained

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Addison v. The Netherlands Ins. Co., 2015 WL 461958 (D. Mass. Feb. 4, 2015)

A district court in Massachusetts remanded a case to state court finding that a delay in filing a notice of removal unjustifiable when the complaint, the defendants’ prior filings, and underlying circumstances provided defendants with sufficient grounds to timely ascertain their basis for removal.

The defendants filed a notice of removal almost three years after the 30 day initial period of removability. They contended that the grounds for removability were only first ascertained by a state court order on their motion to dismiss that referenced a decision implying that this present action could be construed as a class action.

The Court noted, however, that the initial filing provided the defendants with information from which it could ascertain the basis for removability. Even though the complaint did not classify the matter as a class action, it specifically sought relief on behalf of the plaintiff “individually and as the representative of a class of similarly-situated persons.” It also attached and referred to a prior, related action, that was a class action, and that provided defendants with citizenship of the class members. The prior action also provided enough information to ascertain the amount in controversy.

Moreover, in their motion to dismiss, the defendants relied extensively on a decision that was directly on point and involved the same plaintiff. That decision held that the plaintiff only had standing to pursue its case as a class representative, which was the basis on which defendants sought dismissal of this present action. Asserting that position necessarily meant that the defendants had, by the time of filing the motion to dismiss, ascertained the basis for their removal of the action. However, rather than remove the action, defendants attempted to dismiss it. The Court noted that defendants’ attempt to remove the action came only after their unavailing effort at dismissing the case, stating: “Now that [defendants] strategy has not succeeded, they seek to rely on the one-sentence order [denying the motion to dismiss] to toll the clock for removal.” Because defendants had the ability to ascertain grounds for removability at the time of filing the complaint, and at latest at the time of filing their motion to dismiss, removal was untimely. Accordingly, the Court granted the plaintiff’s motion to remand.