We all know that defendants have the burden of establishing CAFA jurisdiction – i.e. minimal diversity, an amount-in-controversy exceeding $5 million, and at least 100 class members.  And we also know that the complaint, affidavits, declarations, discovery responses, or “other paper” may be used as evidence.

But what about discovery responses filed in another case?  May a defendant use a plaintiff’s discovery responses from a similar case to demonstrate more than $5 million is in controversy in the case at hand?

No, at least where the discovery responses involve a different defendant and only one of two named plaintiffs.

In three separate Missouri class actions, Mr. Dalton sued Walgreens, Staples and Target, alleging statutory and common-law claims based on defendants’ practice of placing tracking files on plaintiffs’ computers and harvesting information about their web-browsing, without being detected, for the purpose of tracking consumers’ internet history and activities.

In the cases against Walgreens and Staples, the named defendants contended that written discovery responses from Dalton in a related case, Dalton v. Target, constituted receipt of “other papers” and consequently began a new thirty-day period in which the defendants could file a notice of removal.

The Eighth Circuit rejected that argument and held that discovery responses involving a different defendant and only one of two named plaintiffs were not “other paper” under section 1446(b)(3) as a matter of law.  Dalton v. Walgreen Co., 2013 WL 3480930 (8th Cir. July 12, 2013); see Dalton v. Staples, Inc., 2013 WL 3990792, at *4 (E.D. Mo., Aug. 2, 2013) (same).

The Eight Circuit left open the possiblity that removal might be “removable in the future due to Walgreens’s receipt of discovery responses in this case or of other documents specified in section 1446(b)(3).”  Id. at *2 n.2.