On Wednesday, the Sixth Circuit decided two issues of first impression, both of which related to the Class Action Fairness Act (“CAFA”). Graiser v. Visionworks of America, Inc., the plaintiff alleged that the company’s “buy one get one free” advertisement was misleading. The plaintiff waited until six months after its complaint to tell the defendant they were seeking to create a class of all individuals affected by the advertisement. Within thirty days of that notice, Visionworks calculated potential damages to be over the $5 million threshold requirement for removal under CAFA. Visionworks then removed the case and the plaintiff argued that the 30 day window for removal had expired long before.
The Sixth Circuit identifies two questions of first impression from these facts: (1) what documents trigger § 1446(b)(3)’s thirty-day clock for removal under CAFA? and (2) whether there are multiple thirty-day removal clocks if there is justification for removal under CAFA? With respect to the first question, the Sixth Circuit took the position adopted by the First, Second, Seventh, and Ninth Circuits that “the thirty-day clock of § 1446(b) begin[s] to run only when the defendant receives a document from the plaintiff from which the defendant can unambiguously ascertain CAFA jurisdiction.” The court noted that this rule leaves open the chance that a defendant could ignore information in their possession that supports removability until it is determined that removal is the favorable option. To avoid this, the court points out that a Plaintiff would need only provide a defendant with a document indicating removability, and the clock would start. The court therefore found that the removal was timely based on the timing of the plaintiffs’ notice, regardless of when the defendant might have learned that removal was possible.
For the second question, the Sixth Circuit adopted the Ninth Circuit reasoning that “a defendant may remove a case from state court within thirty days of ascertaining that the action is removable under CAFA, even if an earlier pleading … revealed an alternative basis for federal jurisdiction.”
With this opinion, the Sixth Circuit joins other circuits to emphasize that CAFA was meant to encourage removal to federal court and to frustrate efforts by plaintiffs to avoid removal under CAFA by filing ambiguous or vague complaints hiding the full scope of their claims.