In my July 9, 2013 blog post, I wrote about a Ninth Circuit decision allowing removals under the Class Action Fairness Act (“CAFA”) more than 30 days after service of the complaint, where the complaint and other documents received from the plaintiff did not demonstrate on their face that the case was removable.
In Cutrone v. Mortgage Electronic Registration Systems, Inc., No. 14-455-cv, 2014 U.S. App. LEXIS 7350 (2d Cir. Apr. 17, 2014), the Second Circuit recently agreed with the Ninth Circuit. The Second Circuit explained that:
We agree with [other] circuits and hold that, in CAFA cases, the removal clocks of 28 U.S.C. § 1446(b) are not triggered until the plaintiff serves the defendant with an initial pleading or other document that explicitly specifies the amount of monetary damages sought or sets forth facts from which an amount in controversy in excess of $5,000,000 can be ascertained. While a defendant must still apply a “reasonable amount of intelligence” to its reading of a plaintiff’s complaint, we do not require a defendant to perform an independent investigation into a plaintiff’s indeterminate allegations to determine removability and comply with the 30-day periods of 28 U.S.C. §§ 1446(b)(1) and (b)(3). Thus, a defendant is not required to consider material outside of the complaint or other applicable documents for facts giving rise to removability, and the removal periods of 28 U.S.C. §§ 1446(b)(1) and (b)(3) are not triggered until the plaintiff provides facts explicitly establishing removability or alleges sufficient information for the defendant to ascertain removability.
Id. at *20-21 (citations omitted).
This ruling provides some welcome flexibility to defendants when they are unable to readily ascertain information necessary for removal, typically the amount in controversy. I agree with the court’s observation, however, that “in most cases, defendants will likely remove as soon as the existence of federal jurisdictional predicates becomes apparent.” Id. *29.