Introduction

In Roth, et al. v. CHA Hollywood Medical Center, L.P., et al., No. 13-55771, -- F.3d --, 2013 WL 3214941 (9th Cir. June 27, 2013), the Ninth Circuit recently expanded the ability of defendants to remove cases to federal court. Significantly, the Ninth Circuit rejected the district court’s conclusion that a defendant can only remove within the two 30-day periods specified in 28 U.S.C. § 1446(b)(1) (notice of removal “shall be filed within 30 days after the receipt by the defendant … of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based”) and § 1446(b)(3) (if initial pleading is not removable, “a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable”). The court held that while these sections “specify that a defendant must remove a case within thirty days of receiving from the plaintiff either an initial pleading or some other document, if that pleading or document shows the case is removable,” these two periods “do not otherwise affect the time during which a defendant may remove.” Opinion, p. 1. Instead, a defendant “may remove to federal court when it discovers, based on its own investigation, that a case is removable.” Id., at p. 2 (emphasis added).

Summary of the Case

In Roth, defendants sought to remove a wage and hour class action, over a year after the initial complaint had been filed and months after the filing of an amended complaint naming a new defendant, based on, along with other grounds not at issue on appeal, diversity jurisdiction under the Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2), which provides that federal courts have jurisdiction in class actions where the amount in controversy exceeds US$5,000,000 and the minimal diversity requirements are satisfied (i.e., any member of the class is a citizen of a state different from any defendant).1 Plaintiffs moved to remand back to state court. In opposition to the motion to remand, defendants submitted declarations supporting federal jurisdiction. In particular, defendants consulted their own employment files to identify potential class members, obtained a declaration from a purported class member stating her citizenship, and submitted a declaration the vice president of human resources and the general counsel showing that the amount in controversy exceeded US$5,000,000.

Despite these submissions, the district court granted the motion to remand, finding that even if the jurisdictional requirements for removal had been satisfied, removal was improper because a matter must be removed within the 30-day periods specified in § 1446(b)(1) or § 1446(b)(3). The Ninth Circuit disagreed that § 1446(b)(1) and (b)(3) are the only periods during which a defendant may remove. Instead, the court concluded that “§§ 1441 and 1446, read together, permit a defendant to remove outside the two thirtyday periods based on its own information, provided that it does not run afoul of either of the thirty-day deadlines,” as those sections only “place strict limits on a defendant who is put on notice of removability by a plaintiff.” Opinion, p. 8 (emphasis added).

Significance

The Roth decision has significant implications for defendants who may want to remove an action to federal court, both in class actions and other matters. Roth makes clear that defendants may, even outside of the two 30-day periods set forth in § 1446(b)(1) and (b)(3), remove based on their own investigation into whether there is federal jurisdiction. Defendants, however, must continue to be aware that they can be barred from removal if they do not act within the 30-day periods specified in § 1446(b)(1) and (b)(3) – that is, as the Ninth Circuit explained: “A defendant should not be able to ignore pleadings or other documents from which removability may be ascertained and seek removal only when it becomes strategically advantageous for it to do so.” Opinion, p. 8.2

The Ninth Circuit recognized the potential for its decision in Roth to encourage gamesmanship and allow a defendant to delay filing a notice of removal until it is strategically advantageous to do so, for example, “wait[ing] until the state court has shown itself ill-disposed to defendant, or until the eve of trial in state court.” Opinion, p. 11. The court noted that while in non-CAFA cases the potential for such gamesmanship is limited by the fact that a notice of removal must be filed within one year of commencement of the action, see 28 U.S.C. § 1453(b), in CAFA cases there is no such time limit, see 28 U.S.C. § 1453(b). In response to this potential concern, the court explained that if plaintiffs believe their action may be removable and are concerned a defendant may delay, “they need only provide to the defendant a document from which removability may be ascertained,” which would then trigger the 30-day period to remove. Opinion, p. 11 (citing 28 U.S.C. § 1446(b)(3)). Thus, the court’s decision suggests that a plaintiff seeking to ensure a consistent venue may need to take steps early on to trigger the time for removal, and defendants will then need to act within the 30-day removal period.

In short, the Roth decision widens the opportunities for defendants named in actions within the Ninth Circuit to remove without, as they often had to in the past, having to rely on pleadings or documents supplied by a plaintiff.