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Supreme Court Lowers the Bar for Class Action Removal

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Stuart M. GersonOn December 15, 2014, the Supreme Court of the United States decided Dart Cherokee Basin Operating Co. v. Owens, a class action removal case.

In short, the Dart case is welcome news to employers. Standards for removing a case from state to federal court have been an abiding point of concern for employers faced with “home town” class actions. In more recent times, this problem has become a point of interest to employers in health care and other industries that are beset by cybersecurity and data breach cases originating in state courts but calling for the application of federal privacy standards. Dart should help them substantially.

In the Dart decision, the Supreme Court held that a defendant seeking to remove a case from state to federal court – who must file in the federal forum a notice of removal “containing a short and plain statement of the grounds for removal”  pursuant to 28 U. S. C. §1446(a) – need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. The notice need not contain evidentiary submissions. Section 1446(a) thus tracks the general pleading requirement traditionally required by the Federal Rules of Civil Procedure.

The Dart decision also resolves a longstanding split among the Circuit Courts of Appeals, adopting the view of a majority of the lower courts while categorically rejecting the Tenth Circuit’s requirement that an evidentiary submission had to accompany the notice of removal under the Class Action Fairness Act.

Perhaps even more noteworthy than its rejection of any requirement to submit evidence in support of removal is the Supreme Court’s categorical refusal to imply any presumption against removal to federal court. Parties have been attempting to rely upon such a presumption, often with success, for years. The Supreme Court, however, has now made it clear that there is no basis in law for it and for that reason, coupled with the requirement that a party do no more than plausibly allege the jurisdictional amount in controversy, has substantially eased the burden on a defendant’s removal of a state court action to federal court.

For those who think that the judicial conservatives and liberals always vote in a bloc and that the conservatives are always pro-business, one notes that this arguably pro-business decision was authored by Justice Ginsburg, who was joined by the Chief Justice and by Justices Breyer, Alito, and Sotomayor.  Justices Scalia, Kennedy, Thomas, and Kagan were all in dissent. One also notes that the 5-4 split should not be taken as a sign of potential weakness in the majority opinion.  The four dissenters did not dwell on the merits; they simply believed that, for jurisdictional reasons, the issue decided was not properly before the Court.