The Ninth Circuit held that a state court’s certification order, under which CAFA’s amount in controversy would be met, created a new basis for defendant to remove the case to federal court. The plaintiff had filed a putative class action against Dollar Tree in California Superior Court alleging violations of the California Labor Code and California Business and Professions Code, Section 17200, based on Dollar Tree’s purported failure to provide required paid rest breaks to assistant managers. Dollar Tree initially removed the case in 2012, asserting CAFA jurisdiction. In arguing for remand, plaintiff asserted that the class only included assistant managers who had worked without another manager on duty, which took place on only one-third of the relevant shifts and placed less than $3 million in controversy. The district court agreed with the plaintiff, and remanded the action to California state court.

In state court, the plaintiff moved for class certification. The state court concluded that the proposed class of assistant managers who had worked without another manager on duty “would not be ascertainable” and, instead, certified a broader class “consisting of all assistant managers who did not receive proper breaks, regardless of whether they worked alone.”  Defendant removed the action again, asserting that the class actually certified placed over $5 million in controversy. The plaintiff again sought remand, and the district court held that the second removal “was untimely because it was based on the same class definition . . . that had been the subject of the first removal.” The defendant appealed under CAFA, 28 U.S.C. §1453(c).

On appeal, the plaintiff first argued that the second removal violated the prohibition against successive removals. Noting that successive removal petitions are permitted when the pleadings are amended to create federal subject matter jurisdiction for the first time, the Ninth Circuit held that, “[f]or removal purposes, the certification order is functionally indistinguishable from an order permitting the amendment of pleadings to alter the class definition, creating CAFA jurisdiction for the first time.” Thus, the court held that the defendant’s second removal based on the California Superior Court’s class certification order was permissible.

The court also rejected the plaintiff’s argument that the second removal was untimely. In so doing, the court explained that a defendant can properly remove an action within 30 days after receiving an “‘order or other paper from which it may first be ascertained that the case is one which is or has become removable.'” The court reasoned that, because the certification order “created a new amount in controversy not presented in the amended complaint,” the defendant’s receipt of that order started a new 30-day clock. The Ninth Circuit reversed the order remanding the case to state court and instructing the district court to assert jurisdiction.

Reyes v. Dollar Tree Stores, Inc., No. 15-55176 (9th Cir. Apr. 1, 2015).