Yescavage v. Wyeth, Inc., No. 2:05-cv-294-FtM-33SPc (M.D. Fla. Aug. 30, 2005).
This case is yet another example of a now familiar scenario: a federal judge declares that the date on which the plaintiff originally files the case in state court, rather than the date on which the defendant removes the case to federal court, is the date of the “commencement” of the action for the purpose of determining whether the federal court has jurisdiction under the Class Action Fairness Act of 2005. In this case, the plaintiff filed her class action suit in a Florida state court on February 11, 2005, shortly before CAFA’s February 18th effective date, claiming violations of the Florida Deceptive and Unfair Trade Practices Act and the Deceptive and Unfair Trade Practices Acts of all other states in the nation except Massachusetts, based on the defendants’ distribution, marketing and sale of allegedly ineffective children’s cough syrup. The defendants then removed on June 27, 2005, claiming federal diversity jurisdiction under CAFA, which triggered a timely motion to remand by the plaintiff.

U. S. District Judge Virginia M. Hernandez Covington continued on the path set by virtually all of the cases considering the date of commencement issue, finding that the date of filing, not the date of removal, was the “date of commencement” of the action. Judge Covington remanded the case back to state court, relying on a series of decisions capped by the Tenth Circuit’s decision in Pritchett v. Office Depot Inc., 404 F.3d 1232 (10th Cir. 2005). (see CAFA Law Blog summary of Pritchett II posted on October 23, 2005).
Judge Covington also recognized CAFA may have changed the burden of proof in removals from the defendant removing the case to the plaintiff challenging federal jurisdiction, citing the Natale v. Pfizer decision (Editor’s Note: the court cited the district court decision in Natale, and the link here is to that decision. Subsequently, the First Circuit considered the district court’s decision on appeal and issued its opinion on the the date of commencement issue. See CAFA Law Blog summary posted on September 23, 2005 for the 1st Circuit decision). However, the court held here that since CAFA was not applicable to the case based on the commencement date issue, the defendant would bear the burden of proof.