The First Circuit Court of Appeals recently held that the thirty-day time period for removal under CAFA is triggered when the plaintiffs’ complaint or plaintiffs’ subsequent other papers provide defendants with sufficient information to easily determine that the matter is removable, even if based on information provided by or previously available to defendants, and that “other paper” is defined broadly to include correspondence from the plaintiffs or plaintiffs’ counsel  to defendant concerning damages.

Plaintiffs, on behalf of themselves and other shift supervisors at CVS stores in Massachusetts, filed a class action complaint against CVS in state court on August 31, 2011, and alleged that CVS failed to pay them for breaks during which CVS required to remain in their stores. They alleged that hundreds if not thousands of workers were affected, but did not provide the number of breaks at issue, or the amount of damages they sought.

CVS timely removed within thirty days of service, based on a series of its own estimates used to calculate damages sufficient for CAFA removal jurisdiction.  The district court rejected CVS's calculation and remanded the case.

During discovery in state court, CVS provided plaintiffs with electronic time and attendance data, which the plaintiffs used to calculate that their claims involved 116,499 breaks.  Plaintiffs’ counsel informed CVS of this number by email on January 18, 2013, and within thirty days, CVS again removed on February 15, 2013, based on a “a reasonable probability that the amount in controversy exceeds $5,000,000,” which it calculated by using the plaintiffs’ estimate of the number of breaks.

The district court again rejected CVS’s calculation, but also determined that the second removal was untimely, reasoning that plaintiffs’ counsel’s January 18 email did not constitute “other paper” and, even if it did, “provided no new information regarding removability that could not have been previously ascertained by [CVS] in light of the allegations in the complaint and its own knowledge.”  The district court noted that the information relied upon for removal jurisdiction came from data CVS had possessed from the beginning of litigation, and provided to plaintiffs in discovery, and found that CVS had violated a duty to make a reasonable inquiry into its own records.

The First Circuit reversed, and held that (a) the thirty-day time period to remove in 28 U.S.C. 1446(b) is triggered only when plaintiffs’ complaint or plaintiffs’ subsequent other papers provide defendants with sufficient information to easily determine that the matter is removable, and (b) the term “other paper” in 28 U.S.C. 1446(b)(3) is defined broadly to include correspondence from plaintiffs or plaintiffs’ counsel concerning damages, if it is the first information from plaintiffs to put defendants on notice of the amount in controversy.  The First Circuit rejected plaintiffs’ argument that because it was based on information provided by the defendant, the January 18 email did not qualify as “other paper.”

The Court further held that defendants have no duty to investigate or to supply facts outside of those provided by plaintiffs.  It noted that determining what the defendant should have investigated, or what the defendant should have discovered through that investigation, rather than analyzing what was apparent on (or easily ascertainable from) the face of the plaintiffs’ pleadings (or other paper), will not be efficient, but will result in fact-intensive mini-trials.

Romulus v. CVS Pharmacy, Inc., No. 14-1937 (1st Cir. October 24, 2014)