Dinkel v. General Motors Corporation, No. CIV 05-190-PH, 2005 WL 3006728 (D.Me. Nov. 9, 2005).
In a suit against various automobile manufacturers and distributors alleging a conspiracy to restrict the importation of vehicles from Canada, a class of plaintiffs filed a complaint in Kansas state court on February 17, 2005, one day prior to the enactment of the Class Action Fairness Act of 2005. However, the plaintiffs failed to serve three of the defendants within the 90 days required under state law, and did not serve these forgotten defendants until June, 2005, well after the February 18th enactment date of CAFA. Pursuant the new and broader jurisdictional provisions provided by CAFA, The defendants removed the entire action to the U. S. District Court for the District of Kansas under the new and broader jurisdictional provisions of CAFA,. In an attempt to remedy their self-inflicted wound, the plaintiffs dismissed without prejudice all defendants who were served with process after the 90-day state deadline for service. The plaintiffs then filed a motion to remand, claiming lack of subject matter jurisdiction. Before the motion for remand could be considered, the Judicial Panel on Multidistrict Litigation consolidated the action to the United States District Court for the District of Maine.

Following Natale v. Pfizer (see CAFA Law Blog summary posted on September 23, 2005), which directs federal courts to abide by state law rules of procedure on commencement issues, U. S. District Judge D. Brock Hornby referenced the Kansas Rules of Civil Procedure for guidance, and concluded that the lawsuit was not “commenced” until service of process occurred. Thus, the defendants who were not served until after CAFA’s enactment had a “new window of removal.” And since only an entire lawsuit can be removed and not merely specific claims against certain parties, Judge Hornby found the entire suit to be removable under CAFA, including the defendants against whom the suit was commenced before February 18, 2005.
Despite the plaintiffs’ argument that the suit now lacked the requisite subject matter jurisdiction to be in federal court, Judge Hornby reasoned that the federal court had jurisdiction over the action due to the complaint’s allegations satisfying CAFA’s jurisdictional requirements. Therefore, the defendants served post-enactment properly removed the entire action to federal court, and the plaintiffs’ dismissal of these defendants did not “retroactively make the lawsuit improperly removed.” Judge Hornsby wrote, “Under removal practice, the entire lawsuit is removable or not removable, not merely the claims against particular defendants. Here the late service upon the Removing Defendants, commencing the lawsuit as to them after CAFA became effective, made Dinkel’s entire lawsuit properly removable under CAFA.”
Judge Hornby reinforced his conclusion by citing from the Senate Report of CAFA’s legislative history, effectively stating that plaintiffs lose power to avoid federal jurisdiction once a defendant has properly removed a class action to federal court. Judge Hornby concluded, “to remand it would be contrary to everything Congress thought it was accomplishing in enacting CAFA.”