Here's one to watch. The Supreme Court agreed earlier this week to consider whether defendants seeking removal of a proposed class suit to federal court under the Class Action Fairness Act must provide additional evidence supporting jurisdiction or just a short and plain statement of the grounds for removal. See Dart Cherokee Basin Operating Co., LLC v. Owens, No. 13-719 (U.S., cert. granted 4/7/14).
The case came to the Court in an unusual posture. The Tenth Circuit denied defendant's petition for panel review, and the appeals court divided 4-4 on whether to hear the case en banc. Judge Hartz wrote a dissent, see 730 F.3d 1234 (10th Cir. 2013).
A defendant seeking removal of a case to federal court must file a notice of removal containing “a short and plain statement of the grounds for removal” and attach only the state court filings served on such defendant. 28 U.S.C. § 1446(a). Consistent with that statutory pleading requirement, the First, Fourth, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits require only that a notice of removal contain allegations of the jurisdictional facts supporting removal; those courts do not require the defendant to attach evidence supporting federal jurisdiction to the notice of removal. District courts in those Circuits may consider evidence supporting removal if it comes later in response to a motion to remand.
Here, the Tenth Circuit let stand an order remanding a class action to state court based upon the district court’s refusal to consider evidence establishing federal jurisdiction under CAFA because that evidence was not attached to the original notice of removal.
This case presents an important question of federal removal procedure and federal jurisdiction that potentially affects all litigants and district courts involved in a removal proceeding. More than 30,000 cases are removed to federal court each year.