Tagged: Removal

Don’t Sleep on Service of Process: The Middle District of Pennsylvania Denies Motion to Remand Because Plaintiffs Could Not Justify Out-of-State Service via Certified Mail

A recent decision from the United States District Court for the Middle District of Pennsylvania emphasizes the importance of meticulous adherence to the rules governing service of process. In Fox v. Chipotle, the plaintiffs’ failure to properly serve an out-of-state corporation via certified mail – where the plaintiffs’ service of process did not utilize the restricted delivery option offered by the United States Postal Service – resulted in the denial of the plaintiffs’ motion to remand and the associated loss of any tactical advantage the plaintiffs may have believed to exist in litigating their class action in state court instead of federal court. The plaintiff filed a class action complaint against Chipotle in the Court of Common Pleas of Allegheny County of Pennsylvania asserting violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Cons. Stat. § 201-1, based on claims that Chipotle was “shortchanging” customers who made cash payments. Chipotle is a Delaware corporation with a principal place of business in California, and the plaintiffs’ motion to remand focused on the sufficiency of the plaintiffs’ attempts to serve Chipotle as an out-of-state defendant via certified mail, pursuant to Pennsylvania Rule of Civil Procedure 403. In particular, the plaintiffs claimed to have served Chipotle by certified mail at its corporate headquarters in...

Court Compels Arbitration of Lawsuit Filed by Employees Discharged After Discovery of Personal Text Messages About a Coworker on a Company-Issued iPad

A recent decision from the District of New Jersey granting a motion to compel arbitration not only reinforces the strong federal policy in favor of arbitration, but also highlights issues pertaining to company-issued devices and employees’ personal use of these devices. While employed by Anheuser-Busch, Victor Nascimento received a company-issued iPad. Nascimento and other employees exchanged text messages about a coworker over their personal cell phones outside of the work day, but the messages were received on Nascimento’s company-issued iPad because the iTunes account on his iPad was linked to his personal cell phone.

Wrap Up of United States Supreme Court’s 2014-2015 Term

With the close of the United States Supreme Court’s 2014-15 term, we offer this wrap up of the Court’s term, focusing on the Court’s most important business and commercial cases (excluding patent cases). Omnicare, Inc. v. Laborers Dist. Council Constr. Indus. Pension Fund: It is widely known that if the registration statement an issuer files with the SEC contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein not misleading, then a purchaser of securities sold pursuant to the registration statement may sue the issuer for damages.

Third Circuit Holds Non-Signatories May Be Bound By Forum Selection Clause

In Carlyle Investment Management LLC v. Moonmouth Co., the United States Court of Appeals for the Third Circuit concluded that a non-signatory to an agreement can be bound by a forum selection clause where the forum selection clause is valid, the non-signatory is a third-party beneficiary of the agreement or closely related to the agreement, and the claim arises from the non-signatory’s status related to the agreement.

Third Circuit Finds Proposed Dual Service as Class Counsel and Class Representative Does Not Preclude CAFA Removal

The Third Circuit recently considered whether the District Court properly denied a motion for remand brought by a pro se plaintiff, an attorney also seeking to serve as class counsel, who argued that since his “dual service” precluded class certification in federal court, the defendant could not aggregate the proposed class’s claims to satisfy the $5 million amount in controversy under the Class Action Fairness Act (“CAFA”). In affirming the denial of the plaintiff’s remand motion, the Third Circuit built upon recent Supreme Court precedent confirming that a plaintiff cannot stipulate to less than $5 million in damages to avoid the federal court’s subject matter jurisdiction under CAFA.

Supreme Court to Address Evidentiary Requirements for Determining Removal Jurisdiction in Class Actions

The Supreme Court of the United States granted certiorari in Dart Cherokee Basin Operating Company, LLC v. Owens, to resolve a circuit split over the evidentiary standard for determining removal jurisdiction pursuant to the Class Action Fairness Act (“CAFA”). Specifically, the Court will consider “[w]hether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required ‘short and plain statement of the grounds for removal’ enough?”

Eleventh Circuit Holds That Complaint for Declaratory Relief is “Up to the Task” of Satisfying the $5 Million Jurisdictional Amount for CAFA Removal

Recently, in South Florida Wellness, Inc. v. Allstate Insurance Co., the Court of Appeals for the Eleventh Circuit held that a class action complaint seeking only declaratory relief may be removed to federal court under the Class Action Fairness Act (“CAFA”), because the class members would be eligible to recover more than $5 million — the “amount in controversy” threshold for federal jurisdiction under CAFA — if such relief were granted. Central to the court’s holding was that the “amount in controversy” is an estimate of the value of what is at stake in the litigation, and not a precise measurement of plaintiffs’ likely recovery. In affirming the removal of a complaint seeking only declaratory relief under CAFA, the Eleventh Circuit offered useful insight on the burden of proof for “amount in controversy” purposes.

Supreme Court Says Unnamed Interested Parties Insufficient for Mass Action Removal Under Class Action Fairness Act

In Mississippi v. AU Optronics, the United States Supreme Court recently held that consumer actions filed in state court by an attorney general on behalf of the state’s citizens cannot be removed to federal court as “mass actions” under the Class Action Fairness Act (“CAFA”). In the unanimous opinion, authored by Justice Sotomayor, the Supreme Court held that even though the State of Mississippi was suing in a representative capacity, the Mississippi attorney general was only one person and therefore did not satisfy the 100-person requirement for removal to federal court under CAFA. While AU Optronics involved an action by the state attorney general, the Supreme Court’s ruling is instructive on the standards for removal of a mass action under CAFA and is applicable to public and private actions alike.

Class Action Defendants Seeking to Eliminate Removal Uncertainty Get Assistance from Seventh Circuit Decision

In an opinion beneficial to class action defendants, the Seventh Circuit has taken some of the guesswork out of removal by holding that the 30-day period for removing a case to federal court only begins once the defendant has received a pleading or other litigation paper that includes a specific, unequivocal statement that the damages sought meet the jurisdictional amount.

Burden of Demonstrating CAFA Jurisdictional Amount Lowered for Ninth Circuit Defendants

Following the rule announced in Standard Fire Ins. Co. v. Knowles, the Ninth Circuit has reversed course on the burden borne by defendants seeking to remove under the Class Action Fairness Act (“CAFA”). Now, defendants need only establish the amount in controversy by a preponderance of the evidence. In Rodriguez v. AT&T Mobility Services, the Ninth Circuit was faced with a putative class representative’s waiver of all damages above $5 million. The waiver was designed to avoid removal under the Class Action Fairness Act (“CAFA”), but earlier this year, the Supreme Court held in Standard Fire that such waivers are ineffective. Therefore, the Ninth Circuit vacated the District Court’s order remanding the case to state court and remanded to the District Court for further proceedings.