Sixth Circuit Adopts Bright-Line Rule for When 30-Day Window for Removal Begins Under CAFA | Practical Law

Sixth Circuit Adopts Bright-Line Rule for When 30-Day Window for Removal Begins Under CAFA | Practical Law

In Graiser v. Visionworks, a case of first impression, the US Court of Appeals for the Sixth Circuit joined the First, Seventh, and Ninth Circuits in holding that the 30-day window for removal under the Class Action Fairness Act (CAFA) begins when the defendant receives a document from the plaintiff from which the defendant can unambiguously ascertain CAFA jurisdiction. The Sixth Circuit additionally held that a defendant may remove a case under CAFA even if the case was originally removable under a different theory.

Sixth Circuit Adopts Bright-Line Rule for When 30-Day Window for Removal Begins Under CAFA

by Practical Law Litigation
Published on 12 Apr 2016 • USA (National/Federal)
In Graiser v. Visionworks, a case of first impression, the US Court of Appeals for the Sixth Circuit joined the First, Seventh, and Ninth Circuits in holding that the 30-day window for removal under the Class Action Fairness Act (CAFA) begins when the defendant receives a document from the plaintiff from which the defendant can unambiguously ascertain CAFA jurisdiction. The Sixth Circuit additionally held that a defendant may remove a case under CAFA even if the case was originally removable under a different theory.
In Graiser v. Visionworks, a case of first impression, the US Court of Appeals for the Sixth Circuit joined the First, Seventh, and Ninth Circuits in holding that the 30-day window for removal under the Class Action Fairness Act (CAFA) begins when the defendant receives a document from the plaintiff from which the defendant can unambiguously ascertain CAFA jurisdiction ( (6th Circuit Apr. 6, 2016)). The Sixth Circuit additionally held that a defendant may remove a case under CAFA even if the case was originally removable under a different theory.
In June 2014, Elliott Graiser filed a proposed class action complaint against Visionworks, an eye care merchandise retailer, in Ohio state court. Graiser alleged that Visionworks' "Buy One, Get One Free" promotion violated Ohio's consumer protection statutes because the second pair of eyeglasses was merely discounted and not actually free. In April 2015, Graiser filed an amended complaint.
In September 2015, Graiser's attorneys wrote a letter to Visionworks seeking class-wide settlement. In the letter, Graiser's attorneys calculated a damage formula based upon sales figures provided by Visionworks. Graiser's attorneys estimated total damages of $3,940,042 as of January 31, 2015, with additional sales since January increasing the amount of damages by an unknown amount.
Because Visionworks' promotion was ongoing, Graiser's attorneys requested updated sales figures as of October 15, 2015. Visionworks provided updated sales data to Greiser but also applied Graiser's damage formula to the updated sales data, concluding that potential damages had risen to $5,011,055.60, meeting the $5 million amount in controversy requirement to remove the case under CAFA (28 U.S.C. § 1332(d)).
On November 10, 2015, Visionworks removed the case to the US District Court for the Northern District of Ohio, alleging CAFA jurisdiction. In its notice of removal, Visionworks noted that CAFA requires a defendant to remove within 30 days of ascertaining that a case is eligible for CAFA removal (28 U.S.C. § 1446(b)(3)). Visionworks claimed that it learned the case met the amount in controversy requirement only after reviewing its October 15, 2015 sales figures.
Graiser moved to remand the case back to the state court, arguing that Visionworks' notice of removal was untimely because:
  • Visionworks should have ascertained the case was removable under CAFA in April 2015, when Graiser filed his amended complaint.
  • Alternatively, Visionworks could have sought to remove under diversity jurisdiction once Graiser filed his amended complaint. Because the case became removable at that point, the 30-day window for CAFA removal should have started in April 2015.
The federal district court granted Graiser's motion to remand. Visionworks appealed.
The Sixth Circuit vacated the district court's order and remanded the case back to the US District Court for the Northern District of Ohio. The Sixth Circuit joined the First, Seventh, and Ninth Circuits in holding that the 30-day window for CAFA removal begins only at the point at which the defendant receives a document from the plaintiff from which the defendant can unambiguously ascertain CAFA jurisdiction. The Sixth Circuit explained that the bright-line rule for CAFA ascertainability:
  • Gives plaintiffs incentive to specify damages early in litigation.
  • Clarifies for defendants when a case becomes removable under CAFA, so that defendants will not need to search their own records to determine CAFA removability.
  • Allows the district court to determine CAFA removability from the face of documents provided, rather than inquiring when a defendant "should have discovered" that a case is removable.
Applying the rule, the Sixth Circuit held that, in this case, the 30-day window for removal never began because Graiser never served Visionworks with a pleading or other document from which Visionworks could unambiguously ascertain that CAFA jurisdiction existed, rendering Visionworks' removal timely.
The Sixth Circuit also joined the Ninth Circuit in holding that a defendant may remove a case under CAFA even if the case was originally removable under a different theory. The panel agreed with the Ninth Circuit in reasoning that:
  • Federal jurisdiction under CAFA serves a different policy purpose than diversity jurisdiction.
  • Congress intended CAFA to be read broadly and to substantially expand federal jurisdiction over class actions.
Accordingly, the Sixth Circuit held that Visionworks could still remove the case under CAFA, even though it could have been removed several months earlier due to diversity jurisdiction.
Counsel practicing in the Sixth Circuit should be aware that courts in this district will apply the bright-line 30-day rule to removals under CAFA, as well as that parties may remove under CAFA even if a window to remove under a different theory of federal jurisdiction has expired.