Lussier v. Dollar Tree Stores, Inc., 2005 WL 2211094 (D. Ore. Sept. 8, 2005).
This Oregon Federal District case echoes an increasing familiar theme in early removal battles under the Class Action Fairness Act of 2005 — absent unique circumstances, an action is “commenced” when it is originally filed in state court, rather than when it is removed to federal court. Here, the federal district judge declared that the court lacked federal jurisdiction over the matter and sent it back to Oregon state court where plaintiffs originally filed their class action suit on February 14, 2005, four days before CAFA became law.

The court was not swayed by defendants’ argument that CAFA justified removal because they were served with process after CAFA’s February 18, 2005 effective date. Oregon law provides that an action is commenced when it is filed with the clerk of court, noted U. S. District Judge Anna J. Brown. Nor did Judge Brown buy the defense argument that, under Oregon law for statute of limitations determination purposes, an action is commenced when the complaint is filed and summons served upon the defendant. Instead, the court turned to the state’s procedural provision which indicates that an action begins when filed with the clerk of court, not when process is served.
CAFA was not meant to cover actions filed but not served until after the February 18th trigger date, the court concluded. “If Congress had intended to include within the reach of federal jurisdiction actions filed but not served at the time CAFA was enacted despite state law governing the commencement of an action to the contrary, Congress would have said so.”