Thomas v. Bank of America Corporation, et al, 09-11143 (11th Cir. June 12, 2009).

In Thomas v. Bank of America Corp., the Eleventh Circuit found a case does not become removable as a CAFA case until a document is received by the defendant from the plaintiff that unambiguously establishes federal jurisdiction.

The plaintiff, Rosa Thomas, filed a class action against Bank of America and a wholly-owned subsidiary of Bank of America in the Superior Court of Clarke County, Georgia. Thomas alleged Bank of America committed unfair and deceptive acts in violation of Georgia state law with regard to the sale of an insurance product. The complaint defined a putative class and an alternative putative class but did not indicate the number of individuals in either of the proposed classes or the monetary amount of the recovery they were seeking. We are sure that was just an oversight by the plaintiffs’ counsel.

Bank of America filed a Notice of Removal to the United States District Court for the Middle District of Georgia, contending that jurisdiction was appropriate because the action qualified as a “mass action” under the CAFA.[1] Bank of America supplemented its Notice of Removal with a declaration there were 77,787 customers of the of the product at issue and that Bank of America collected a total of $4,825,809 in fees from the customers and Bank of America argued that because Thomas sought treble damages and attorneys’ fees, the amount in controversy exceeded $5,000,000.

Thomas argued jurisdiction under CAFA was lacking and moved the district court to remand the case to the state court on the ground that Bank of America had not shown by a preponderance of the evidence that the amount in controversy exceeded $5,000,000. The district court agreed, finding that the $4.8 million figure did not accurately identify the amount in controversy because Thomas’ complaint did not allege that all of the customers were entitled to relief for the entire amount of their fees and that there was “great uncertainty regarding the amount in controversy and the class size.”

The Eleventh Circuit noted Bank of America, as the party removing the case to the district court, bore the burden of establishing federal subject matter jurisdiction and that a case does not become removable as a CAFA case until a document is received by the defendant from the plaintiff that unambiguously establishes federal jurisdiction. The Eleventh Circuit held a defendant may not simply file a notice of removal thirty days after the filing of the complaint unless that document shows that the CAFA’s jurisdictional requirements for an action to be deemed a mass action are met and found Thomas’ complaint provided no information indicating the amount in controversy or the number of individuals in the alternative classes and Bank of America did not show the amount in controversy and the sizes of the alternative classes by a preponderance of the evidence.