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?

The plaintiff sued Learjet claiming it failed to meet the terms of its warranty. (That sucks. My Learjet is just fine. I haven’t had any complaints whatsoever about it). The plaintiff filed a class action on behalf of all others similarly situated. 

In discovery, the plaintiff defined those similarly situated as those with a similar warranty. In answers to interrogatories, Learjet identified 70 similar warranties issued. 

The plaintiff filed a motion to remand claiming no CAFA jurisdiction because at most there could only be 70 plaintiffs. Learjet filed a response with an affidavit by the Director of Warranty for Learjet claiming that upon a review of documents there was a minimum of 126 plaintiffs. Learjet attached no documents to its affidavit.

Wait a minute, said the plaintiff. I took evidence in law school. You can’t just talk about documents in an affidavit without attaching verified copies. Plus, Rule 56(e)(1) of the Federal Rules of Civil Procedure says you have to attach documents referred to in an affidavit. 

“Nu, uh,” says the defendant. Rule 56(e)(1) only applies to summary judgment. “I don’t have to admit the documents in a motion to remand.”

“Sorry, Learjet,” says Judge. “You really do. The initial inquiry establishing subject matter jurisdiction is no less important than a motion for summary judgment. Amend your affidavit and let’s see the documents.” 

BTW, a peak at Pacer revealed that the Court subsequently denied the motion to remand and Learjet is flying in federal court.