Waitt v. Merck & Company, Inc., No. C05-0759L, 2005 WL 1799740 (W. D. Wash. July 27, 2005)
Relying on CAFA’s legislative history, Judge Robert S. Lasnik, of the United States District Court for the Western District of Washington, declared that plaintiffs bear the burden of demonstrating that a removal under the Class Action Fairness Act of 2005 is improper. Robert Waitt filed his class action claiming economic damages related to the recall of Vioxx in Washington state court on April 6, 2005 and Merck timely removed the matter to federal court.

Merck sought to stay the proceedings while waiting to hear whether the matter should be consolidated with the Vioxx litigation pending in the Eastern District of Louisiana. Waitt, on the other hand, unsurprisingly pushed for a remand to state court. Judge Lasnik turned both of them down. CAFA demands that plaintiffs, rather than defendants, bear the burden of showing that the federal court has no jurisdiction over the removed case, according to Judge Lasnik. Waitt was correct about the fact that CAFA does not spell out who has this burden of proof, Lasnik said, but even so, “Notwithstanding the absence of explicit statutory provisions, it is not difficult to divine Congressional intent from CAFA’s legislative history.” That legislative history, Judge Lasnik declared, reveals that Congress wanted the plaintiffs, rather than the defendants, to shoulder the burden of proof to demonstrate that a case removed to federal court should not stay there.