The Ninth Circuit decided two cases permitting removal after learning, albeit relatively late in the cases, of the bases for removal. In Jordon v. Nationstar Mortgage LLC, 781 F.3d 1178 (9th Cir. 2015) (No. 14-35943), plaintiff sued under the Fair Debt Collection Practices Act (15 U.S.C. § 1692, et seq.). Defendants did not remove. In response to interrogatories served two years after the case was filed, however, plaintiff disclosed the amount of monetary damages was expected to exceed $25 million. Defendant then filed a notice of removal under CAFA, which the district court in Washington found untimely. On appeal, the Ninth Circuit disagreed. It found that defendants should be permitted to remove based on the newly-disclosed information. Because defendant timely removed the case when the CAFA basis for removal became known, jurisdiction in the federal courts was proper even though there may have been an opportunity to remover earlier in the case. In assessing whether a case is “removable,” the Ninth Circuit stated that it is proper to look at each ground for removal separately. A case becomes removable when a particular basis on which removal is sought becomes apparent.
In Reyes v. Dollar Tree Stores, Inc., 781 F.3d 1185 (9th Cir. 2015) (No. 15-55176), Dollar Tree removed a case from state court, invoking CAFA jurisdiction. The district court in California remanded the case to state court because the amount in controversy requirement was not satisfied. Two years later, the state court certified a class which presented more than $5 million in controversy. Defendant again removed, and the district court found the second removal untimely. The Ninth Circuit reversed. The second removal petition was timely because there was a change of circumstances, as the subsequent pleadings or events revealed a new or different ground for removal than had previously been rejected, and the petition was filed within 30 days after receipt of the order from which it could be ascertained that the case was now removable.