Thomas M. Byrne & Valerie S. Sanders,Commentary, See No Removal, Hear no Removal: The 11th Circuit’s New Posture on Removal in Lowery v. Alabama Power Co., 25 No. 15 Andrew’s Toxic Torts Litig. Rep. 11 (August 2007).
Are you ready to rumble?! The state versus federal forum fight for class action lawsuits continues. The Eleventh Circuit weighs in and delivers a 1, 2 punch against removals. Affirming remand of a toxic tort mass action, the Court sets new ground rules that make removal more difficult in Lowery v. Alabama Power Co., 483 F.3d 1184 (11th Cir. 2007). Thomas M. Byrne and Valerie S. Sanders provide insightful commentary. (Editors’ Note: See the CAFA Law Blog analysis of Lowery posted on May 15, 2007).
In Lowery, nine plaintiffs brought an action against Alabama Power and other corporate defendants for pollution. The plaintiffs originally sought damages of $1.25 million per plaintiff but later amended to demand unspecified damages, while also adding roughly 400 more plaintiffs. Alabama Power attempted to remove but got placed in a jurisdictional headlock by the district court. Alabama Power failed to meet its burden in establishing CAFA’s requisite $5 million amount in controversy. Weak.
The Eleventh Circuit offered some tag team action and delivered some serious blows to defendants who prefer to fight in federal court. First, the Court seemed to ban all post-removal discovery concerning the jurisdictional amount. Pow!
Next, it prohibited consideration of most evidence of the amount in controversy that does not originate from the plaintiff. Ouch! Essentially, the defendant must prove that the removing documents themselves must “unambiguously establish” the existence of federal jurisdiction.
Based on the Court’s strict posture, authors Byrne and Sanders believe that defendants will face long odds for removal in the Eleventh Circuit. They criticize the Court’s approach as legal formalism that runs counter to the permissive nature of the Federal Rules of Civil Procedure on issues regarding post-removal discovery and the establishment of jurisdiction.
Do you agree? Is this a fair fight?