On April 7, 2014, the Supreme Court accepted certiorari review in Dart Cherokee Basin Operating Company LLC v. Owens, No. 13-719, to resolve a circuit split regarding whether the Class Action Fairness Act requires a removing defendant to submit evidence in support of removal at the time of the notice of removal or whether evidence can be submitted later in response to a motion to remand.

The United States District Court for the District of Kansas remanded a putative class action removed under CAFA because the defendant did not submit evidence supporting its calculation of the amount in controversy at the time of or with its notice of removal, even though the notice of removal included detailed allegations regarding the defendant’s damages calculation, and even though the defendant submitted sufficient supporting evidence in its subsequent response to the plaintiff’s motion to remand.  Owens v. Dart Cherokee Basin Op. Co. LLC, 2013 WL 2237740 (May 21, 2013).  A divided panel of the Tenth Circuit denied the defendant’s request to appeal and subsequent Petition for Rehearing En Banc.  

The First, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits have held that 28 U.S.C. § 1446(a) does not require submission of evidence with the notice of removal, but instead requires a short and plain statement of the jurisdictional allegations supporting removal – essentially a pleading requirement.  See Amoche v. Guarantee Trust Life Ins. Co., 556 F.3d 41 (1st Cir. 2009); Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192 (4th Cir. 2008); Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000); Spivey v. Vertrue, Inc., 528 F.3d 982 (7th Cir. 2008); Hartis v. Chicago Title Ins. Co., 694 F.3d 935 (8th Cir. 2012); Janis v. Health Net, Inc., 472 F. Appx. 533 (9th Cir. 2012); Sierminski v. Transouth Financial Corp., 216 F.3d 945 (11th Cir. 2000).