United States: Two Ninth Circuit Decisions Reverse District Court And Find Removal Of Class Actions To Federal Court Appropriate

Defendants may remove an action from state court to federal court on the basis of information learned from their own investigations, outside of the 30-day removal periods triggered by receipt of a pleading or other "paper" from the plaintiffs, the Ninth Circuit held in Roth v. CHA Hollywood Medical Center. Roth was removed under the Class Action Fairness Act ("CAFA"), but the Ninth Circuit explicitly noted that its ruling applies to any diversity case.

The case was filed as a state law wage and hour class action in California state court in 2011. An amended complaint was filed on May 24, 2012, naming CHA Hollywood Medical Center ("CHA") as a defendant for the first time. On September 4, 2012, CHA filed a petition to remove the case to federal court, which it supported with a declaration from a would-be class member stating she was employed in California during the class period, but had moved to Nevada and intended to live there for the foreseeable future. CHA also provided a declaration stating that the amount in controversy exceeded $5 million.

The federal district court granted the plaintiff's motion to remand, holding that removal must be based on information received from plaintiffs establishing the case was removable under either diversity or federal question jurisdiction. The court cited 28 U.S.C. section 1446(b)(1) or (b)(3) as the basis for its decision. Those two provisions require, respectively, that a case be removed within 30 days after receipt by defendants of the initial pleading or service of summons, or within 30 days of receipt of an "amended pleading, motion, order or other paper, from which it may first be ascertained that the case is one which is or has become removable." The court held the defendants could not remove based on information they discovered from their own investigation because neither of the 30-day periods for removal had been triggered by information received from the plaintiffs.

On appeal, the Ninth Circuit agreed with defendant CHA, holding that the two 30-day removal provisions are not the only basis for removal. Rather, 28 U.S.C. section 1441(a) allows removal to federal court of any case that could have been filed there in the first place. Reading sections1441 and 1446 together, the court held the statutes "permit a defendant to remove outside the two thirty-day periods on the basis of its own information, provided that it has not run afoul of either of the thirty-day deadlines."

CHA had not violated the 30-day time limits because the plaintiffs had not provided any information from which CHA could determine the case was removable. It was not until CHA discovered the potential class member in Nevada that it had information establishing that the case was removable, and then it "promptly" sought to remove the case to federal court. Acknowledging there is no outer time limit for removal in a CAFA case, the court recognized the potential for defendants to wait to "remove only when it becomes strategically advantageous to do so." But, the court continued, "neither should a plaintiff be able to prevent or delay removal by failing to reveal information showing removability and then objecting to removal when the defendant has discovered that information on its own." The court pointed out that plaintiffs could protect themselves from strategically delayed removals by disclosing information to trigger the 30-day removal period.

A week after its decision in Roth, in Watkins v Vital Pharmaceuticals, the Ninth Circuit reversed another trial court's remand decision – this time focusing on the evidence needed to establish the $5 million amount in controversy required for removal under CAFA. Watkins was a consumer class action, but its holding applies to employment cases as well. The plaintiffs in that case filed suit on behalf of a potential class of "thousands of consumers throughout the United States" and alleged that "the aggregate of damages sustained by the Class are likely in the millions of dollars." The company removed to federal court, filing two declarations stating that the amount in controversy was more than $5 million. The trial court, acting on its own, decided that the company did not have adequate evidence of the amount in controversy. Its notice of removal merely "averred" its sales exceeded $5 million and a declaration by its counsel only "vaguely and conclusorily" alleged that the required amount was in controversy.

On appeal, the Ninth Circuit explicitly confirmed that the right to appellate review of decisions remanding CAFA cases applied to remand decisions made on the court's own motion ("sua sponte") as well as to rulings on motions made by one of the parties. The Ninth Circuit also agreed with the district court that a defendant is required to prove the amount in controversy by a "preponderance of the evidence."

Moving to the merits, the Ninth Circuit determined that the controller's declaration that the company's total sales exceeded $5 million over the class period, which the district court did not reference, was sufficient to establish the amount in controversy. Noting that the declaration was "undisputed in the district court," the Ninth Circuit remanded the case to the district court with instructions to exercise jurisdiction in the case.

The Watkins decision establishes a seemingly low bar for the evidence needed to prove the amount in controversy to establish removal jurisdiction. Further litigation may reveal whether similar proof will suffice in situations where plaintiffs challenge the sufficiency of the evidence or attempt to dispute its veracity in the district courts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.