Ninth Circuit finds that BMW timely removed under CAFA

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In Kuxhausen v. BMW Financial Services (9th Cir. Feb. 25, 2013), the Ninth Circuit circuit granted leave to appeal a District Court's Order granting a motion to remand on the ground that removal was untimely under CAFA.  The case was originally filed on August 30, 2011, alleging various claims arising from Retail Installment Sales Contracts issued through one BMW dealership.  On February 9, 2012, the plaintiff amended to include a proposed class of all California-BMW purchasers affected by the same alleged RISC non-disclosures.  BMW removed on March 9, 2012.  The District Court granted a motion to remand on the ground that the motion to remand under CAFA was untimely.

The Court examined each element that must be established for CAFA jursidiction, focusing on the amount in controversy and the timing of the pleading that disclosd the amount:

In Harris, a non-CAFA case, the plaintiffs made a similar demand. They argued that the defendant “should have looked in its files within the first thirty days” to discover that a named defendant whose presence in the suit frustrated complete diversity of citizenship had died, and therefore should have recognized that the case was immediately removable under 28 U.S.C. § 1332(a). Harris, 425 F.3d at 696. Preferring a clear rule, and unwilling to embroil the courts in inquires “into the subjective knowledge of [a] defendant,” we declined to hold that materials outside the complaint start the thirty-day clock. Id. at 695 (quoting Lovern v. Gen. Motors Corp., 121 F.3d 160, 162 (4th Cir. 1997)). Applying that principle here, we conclude that BMW was not obligated to supply information which Kuxhausen had omitted.

However, that does not fully resolve whether the amount in controversy was “stated by the initial pleading.” 28 U.S.C. § 1446(b). The district court also was influenced by the fact that for a 200 member class, the average contract price per vehicle needed only to exceed $25,000 in order to put greater than five million dollars in controversy. Presumably, it thought that sum was a plausible-enough guess for a case involving German luxury automobiles, perhaps doubly so since Kuxhausen’s individual vehicle contract was more than twice that amount. The fact remains, however, that we “don’t charge defendants with notice of removability until they’ve received a paper that gives them enough information to remove.” Durham, 445 F.3d at 1251. This principle helps avoid a “Catch–22” for defendants desirous of a federal forum. By leaving the window for removal open, it forces plaintiffs to assume the costs associated with their own indeterminate pleadings. That is only fair after all, because—even under CAFA—“the burden is on the party removing the case from state court to show the exercise of federal jurisdiction is appropriate.” Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395, 399 (9th Cir. 2010). Thus, because nothing in Kuxhausen’s complaint “indicate[d] that the amount demanded by each putative class member exceed[ed] $25,000,” it fell short of triggering the removal clock under Section 1446(b). Carvalho, 629 F.3d at 886.

Slip op., at 10-11.  In this same discussion, the Court also held that the timing trigger of the 30-day removal period and a defendant's ability to go beyond the pleadings to show CAFA jurisdiction are not linked.  A defendant is not obligated to establish what is not included in the pleadings.