The Editors of the CAFA Law Blog are honored to bring you another Guest Post from Professor Lonny Hoffman, the George Butler Research Professor of Law of the University of Houston Law Center.
Professor Hoffman has some very interesting thoughts about jurisdictional burden of proof and the burden of proof on CAFA’s exceptions, some of which we agree with and some of which we do not. Now, class, we turn the podium over to Professor Hoffman…., excuse me, Professor Hoffman. Mr. Seymour, please stop bothering Mr. Wilbourn about your favorite college football team. Class, please be quiet and turn off your cell phones during Professor Hoffman’s presentation. Please proceed, Professor Hoffman.
Professor Hoffman (a draft of Professor Hoffman’s article can be accessed by clicking here).
Having passed the most significant legislative reform of complex litigation in American history, advocates of the Class Action Fairness Act have now set their sights on more technical battles of statutory interpretation and application. One of the most important post-enactment questions with regard to CAFA concerns the burden of jurisdictional proof. In the broadest sense, the issue is who bears the burden of proving the existence (or nonexistence) of the federal district court’s subject matter jurisdiction under the new statute.
Traditionally, the party who desires to maintain the suit in federal court always has had the obligation of demonstrating the court’s authority to hear the case. Shifting the burden so that the other side (which, as a practical matter, means shifting the burden to the plaintiff, since a challenge to the federal court’s authority occurs most often after the defendant has removed the case from state court and the plaintiff has asked that it be moved back) to prove that federal jurisdiction is lacking constitutes a sea-change of enormous proportions. Yet, this is exactly what the vast majority of courts—and every circuit court to consider the question—has found Congress intended.
In this paper, I describe (in Part I) how a statute that is entirely silent on the question of jurisdictional proof under CAFA has come to spawn two different burden of proof debates, producing, most remarkably, two opposing answers.
In Part II, I then consider all of the arguments credited by courts that have adjudged Congress intended to shift the burden of proof onto the party opposing federal jurisdiction. I will endeavor to show that these arguments rest on a number of highly suspect doctrinal and empirical assumptions. Against the prevailing view, I argue that there are sound reasons to conclude that CAFA does not shift any of the burden of jurisdictional proof from the party who desires to maintain the suit in federal court.