It is important to remember that when a putative class action is remanded to state court under the Class Action Fairness Act (“CAFA”), that may not be the end of the jurisdictional battle. Developments in the case, or in the applicable CAFA jurisprudence, may warrant another removal of the case to federal court, if those developments change the removal analysis.
The Ninth Circuit recently decided a case in which the district court had previously remanded the case to state court on the grounds that the amount in controversy under the CAFA was not satisfied. Without any amendment to the complaint, the state court later certified a broader class, resulting in an amount in controversy exceeding $5 million. The district court held that the removal was untimely because it was based on the same complaint. But the Ninth Circuit reversed, finding that a second removal was proper. It explained that “Of course, defendants are not entitled to more than one bite at the apple, but the superior court’s certification order substituted a new apple. . . . When the superior court later certified a broader class, it increased the amount in controversy, effectively amending the complaint.” Reyes v. Dollar Tree Stores, Inc., No. 15-55176, 2015 U.S. App. LEXIS 5222, *9 (9th Cir. Apr. 1, 2015). Because the second removal was accomplished within 30 days of the certification order, it was timely.
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