Zuleski v. Hartford Accident & Indemnity Company, 2005 WL 2739076 (S.D. W.Va. October 24, 2005).
The U. S. District Court for the Southern District of West Virginia recently issued an order in which it held that the Class Action Fairness Act of 2005 does not apply to this class action relating to unfair settlement practices in asbestos litigation and settlements filed in state court on February 17, 2005, the day before CAFA’s enactment date of February 18, 2005, but removed to federal court after CAFA. In this case, like a number of others, the court rejected the defendant’s argument that the date of removal is the appropriate date to determine when a case is “commenced” for the purposes of determining whether CAFA is applicable.

The court noted that the Fourth Circuit had not ruled on this precise issue, but that every other court which had addressed the issue had concluded that “commenced” means the date an action was filed.
The court cited those decisions, which included cases from the Tenth, Seventh, and Ninth circuits, and agreed with their conclusions. Accordingly, the court determined that CAFA was inapplicable, and, after disposing of the defendant’s fraudulent joinder claims, held that remand was appropriate.