Maintain — continued from Page 26
under the FLSA together with an “opt- out” class action under state law. In most cases, CAFA will require both these suits to now be filed in state court. Though the enactment of CAFA has
made it easier for a defendant to remove a class action to federal court, the burden of establishing that federal jurisdiction is still on the removing defendant. (Abrego Abrego v. The Dow Chem. Co. (9th Cir. 2006) 443 F.3d 676, 685.) This notwith- standing, plaintiffs’ counsel can take sev- eral measures to avoid removal of their class action to federal court.
Keeping your class action in state court in light of CAFA
While a plaintiff remains master of his or her complaint, removal allows a
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defendant to override a plaintiff’s choice of forum. As discussed above, a variety of reasons exists that may cause plaintiffs and defendants to have a preference for a state versus a federal forum to resolve conflicts in employment cases. Both prior to and after CAFA’s enactment, class counsel could take the following general measures to avoid removal to federal court or to maintain a strong position supporting remand to state court, if the defendant seeks removal: • Avoid pleading claims that arise under federal law, including any citations to fed- eral statutes, the U.S. Constitution, or to rules or orders from federal agencies. • If possible, name only defendants from the same state as the plaintiff’s residence. • Ensure that each cause of action plead- ed in the complaint is adequately sup- ported by state sources of law and that such sources are clearly cited or identi- fied. • Be aware that plaintiff is precluded from filing federal claims related to the same transaction or series of transactions after the state case has been decided. Despite these precautionary meas-
ures, CAFA has expanded the procedure for defendants to remove class actions to state court and, consequently, broadened federal jurisdiction over class actions. However, class counsel can still keep a state court action in the state court forum
and avoid removal by (1) limiting the amount in controversy; (2) carefully defining the class; and (3) limiting the class size.
Amount in controversy Under section 1332(d)(2) of CAFA,
a federal court may exercise diversity jurisdiction if there is diversity of citizen- ship between any plaintiff and any defen- dant and only after it aggregates plaintiffs’ claims and finds alleged damages in excess of $5 million (exclusive of interest and costs). This proposition is relatively straightforward when plaintiffs seek a fed- eral forum because their complaint will likely contain allegations that, if proven at trial, would establish the amount in controversy. However, when plaintiffs pur- sue a state court forum, the complaint may be silent or ambiguous on one or more of the elements needed to calculate the $5 million amount in controversy, which then transfers to defendant the burden to prove this threshold amount. Whether the plaintiff has made the
requisite showing that the amount in con- troversy exceeds $5 million can be some- what of a challenge, and indeed, there is a jurisdictional split on this issue. However, the Ninth Circuit has firmly held that the standard to establish federal jurisdiction depends on the allegations of
See Maintain, Page 30
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