On May 6, 2013 the US District Court for the Eastern District of Missouri issued an opinion in Svoboda v. Smith & Nephew, Inc., holding that removal based on an amended pleading included in the plaintiffs' motion for leave to file an amended petition was premature, despite the fact that the proposed pleading included a federal claim. The defendant could not remove the action before the state court granted the plaintiffs' motion to amend the petition to state a federal claim.

The plaintiffs filed a products liability action in the Circuit Court of the City of St. Louis, Missouri, on April 19, 2010. After amending the petition a first time, the plaintiffs filed a motion for leave to file a second amended petition adding a class action claim. After the motion for leave was filed, but before it was granted, the defendant removed the action to federal court under CAFA, arguing that removal is proper because the plaintiffs' proposed petition now included a removable claim. The plaintiffs moved to remand the action, contending that the defendant filed the notice of removal prematurely because the state court had not yet granted the plaintiffs' motion for leave to amend the petition.

The court held that when leave is required to file the pleading on which removal jurisdiction is based, removal is improper until the state court grants leave to file the amended pleading that includes a federal claim. Accordingly, the court granted the plaintiffs' motion to remand the action.