In the last issue of The Insurance Class Action Reporter, we reported on the Seventh Circuit Court of Appeals’ decision in Knudsen v. Liberty Mut. Ins. Co., 435 F.3d 755 (7th Cir. 2006), addressing the issue of whether a state court complaint that is amended after the enactment date of CAFA effectively constitutes a “new action” triggering CAFA and allowing defendants to remove the action to federal court. Knudsen, 435 F.3d at 755-56. Since that time, there have been significant decisions rendered on this issue by three other federal circuit courts. See Prime Care of Ne. Kan., LLC v. Humana Ins. Co., 447 F.3d 1284, 1285 (10th Cir. 2006); Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 804 (5th Cir. 2006); Plubell v. Merck & Co., 434 F.3d 1070, 1071-74 (8th Cir. 2006).
In Braud, the Fifth Circuit followed the reasoning of the Knudsen court and held that a post-CAFA amendment will trigger a right of removal if the amendment does not relate back to the original pleading or if the amendment adds new defendants. Braud, 445 F.3d at 804-05.
The Tenth Circuit, on the other hand, has taken a different approach. In Prime Care, new defendants—joined as parties to a lawsuit after the enactment of CAFA—removed the case to federal court. On appeal from a district court order remanding the case, the Tenth Circuit held that a post- CAFA amendment triggers the right to remove to federal court only if the amendment does not relate back to the pre-CAFA pleading being amended. Prime Care, 447 F.3d at 1289. The Prime Care court criticized the Knudsen and Braud approach of treating the post-CAFA addition of defendants as a separate ground for triggering a right of removal under CAFA and, instead, employed a pure relation- back analysis. Id. at 1287-89.
Another issue that can arise in class actions is whether an amendment that expands class membership or joins new plaintiffs effectively constitutes a “new action” that triggers CAFA. In Plubell, the defendant removed to federal court after the plaintiff amended the complaint to replace the class representative. In affirming the district court’s remand to state court, the Eighth Circuit employed a pure relation-back analysis and concluded that the amended pleading related back to the original pleading because the replacement class representative was a member of the class in the original pleading and because the claims were the same. Plubell, 434 F.3d at 1071-74.