Burdens of Jurisdictional Proof Lonny Sheinkopf Hoffman Abstract



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Zahn”).

61 538 U.S. 691 (2003).

62 Evans, 449 F.3d 1149 1164.

63 538 U.S. 691, 697.

64 Lao, 455 F. Supp. 2d at 1054 (citations omitted).

65 29 U.S.C. §216(b).

66 538 U.S. at 694.

67 Johnson v. Butler Bros., 162 F.2d 87 (1947).

68  I ended up getting involved in Breuer because of my recent, prior involvement in another case before the Court that also dealt with removal issues. That case was Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2003). For a discussion of the case see Syngenta, Stephenson and the Federal Judicial Injunctive Power, in Symposium on Complex Litigation, 37 Akr. L. Rev. 605 (2004). The only thing I really did in Breuer was review a draft of the respondent’s brief and made some modest suggestions which, in any event, seemed largely unnecessary since the legal arguments were already so lopsided.

69 Breuer, 538 U.S. at 697 (determining that “[w]hen Congress has ‘wished to give plaintiffs an absolute choice of forum, it has shown itself capable of doing so in unmistakable terms.’ It has not done so here.”) (citation omitted).

70 Id. at 694 (observing that “[r]emoval of FLSA actions is thus prohibited under §1441(a) only if Congress expressly provided as much”).

71 Id. at 696-97 (detailing the handful of statutes where an express limitation on removal has been set forth).

72 28 U.S.C. §1441(a).

73 28 U.S.C. §1453.

74 See, e.g., Roche v. Country Mut. Ins. Co., 2007 WL 2003092 (S.D. Ill., July 6, 2007) (observing that the “local controversy” and “home state exception” “provide for abstention, which means that they presuppose the existence of subject matter jurisdiction”). For a good discussion of this case law, see generally Anthony Rollo, Hunter Twiford and Gabriel Crowson, Practitioners Review “Abstention” Procedure Under Sections 1332(d)(3) and (4), 9 Cons. Fin. Serv. L. Rep., (June 15, 2005), at 3.

75 See England v. Louisiana State Bd. Of Medical Examiners, 375 U.S. 411, 415-16 (1964) (observing that abstention “accord[s] appropriate deference to the respective competence of the state and federal court systems” while “recogniz[ing] that abstention does not, of course, involve the abdication of federal jurisdiction”).

76 Lao, 455 F. Supp. 2d at 1058. Another, even less convincing analogy that some courts have tried to draw has been to compare §1332(d)(3) and the two parts of § 1332(d)(4) to cases concerning state actions involving the Federal Deposit Insurance Corporation that had been removed to federal court, where the statute requires that the opponent of removal must prove the “state action” exception to federal jurisdiction.. These courts have reasoned that when the FDIC removes a case filed in state court, after it satisfies its burden of showing federal jurisdiction is proper, the burden of proving an exception exists is borne by the party objecting to removal. Whatever problems exist with trying to divine congressional intent as to §§1332(d)(3) and (d)(4) by reference to its passage of an unrelated statute composed of different jurisdiction granting- and limiting-language, other courts have declined to follow this reasoning. See Hart, 457 F.3d at 680.

77 See, e.g., Allapattah, 545 U.S. at 568 (“As we have repeatedly held, the authoritative statement is the statutory text, not the legislative history or any other extrinsic material. Extrinsic materials have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms.”).

78 Evans, 449 F. 3d at 1164; Frazier, 455 F.3d at 546.

79 457 F.3d 675 (7th Cir. 2006).

80 478 F.3d 1018 (9th Cir. 2007).

81 Hart, 457 F.3d at 680-81; Serrano, 478 F.3d at 1023.

82 Hart, 457 F.3d at 680 (Although the match is not perfect, the relation between subparts (d)(2) and (d)(4) of CAFA is analogous to the structure of 28 U.S.C. §1441(a), which the Supreme Court examined in Breuer.”).

83 Hart, 457 F.3d at 680-81; Serrano, 478 F.3d at 1023.

84 See supra text accompanying notes __ - __.

85 See supra text accompanying notes __ - __.

86 28 U.S.C. §1453(d).

87 These textual differences have not been lost on everyone but their significance, oddly, has often been marginalized. For instance, Professor Stephen Shapiro provides an otherwise good account of how parties are to discharge their burdens of proof under the statute, but his acceptance of the characterization of §§1332(d)(3) and 1332(d)(4) and the perceived importance of Breuer leads him to treat the statutory text inadequately. See Stephen J. Shapiro, Applying the Jurisdictional Provisions of the Class Action Fairness Act of 2005: In Search for a Sensible Judicial Approach, 59 Baylor L. Rev. 77, 98-99 (2006) (observing that “[w]hile the language of these provisions is different than the language used for the other exceptions, there is nothing inherent in that language to indicate that the provisions were meant to be something other than exceptions to the general grant of jurisdiction”).

88 28 U.S.C. §1332(d)(11)(B)(i)

89 Although it did not reach the question whether a single plaintiff must be shown to have a claim worth at least $75,000 under §1332(d)(11), Lowery nevertheless suggests that, if such a requirement exists, it was favorably inclined to the view that the burden should rest with the party opposing federal jurisdiction to show which plaintiffs have claims in excess of $75,000.
We note in passing that the law of this circuit shifts the burden of proving the applicability of exceptions to CAFA's removal jurisdiction to the plaintiff seeking a remand. See Evans, 449 F.3d at 1164 (shifting the burden of proof onto the plaintiff where the plaintiff sought “to avail itself of an express statutory exception [i.e., the local controversy exception] to federal jurisdiction granted under CAFA”). The defendants urge us to read Evans as shifting the burden onto the plaintiffs to prove which, if any, of the plaintiffs do not have claims exceeding the $75,000 amount in controversy included in 28 U.S.C. §1332(d)(11)(B)(i). Although we find the argument quite compelling, we decline to address it here.
Lowery, 483 F.3d 1183, 1208 n.55. This reading, of course, would be inconsistent with the Ninth Circuit’s conclusion that the existence of at least one $75,000 claim is a threshold requirement to be borne by the party trying to demonstrate the existence of jurisdiction under d(11). Such inconsistent results—between circuits otherwise in agreement as to allocation of the burden of proof on §§1332(d)(3) and (d)(4)—does much to help illustrate the impact that the courts’ misreading of Breuer is having. Indeed, even courts that have correctly resisted the idea that Congress intended to place the burden of proof as to §§1332(d)(3) and (d)(4) on the party opposing federal jurisdiction nevertheless assume that as express exceptions §§1332(d)(5), (d)(9) and (d)(11) must be proven by the party opposing federal jurisdiction. See Lao, 455 F. Supp. 2d at 1059 (concluding that “[s]ubsections (d)(5) and (9) are therefore truly exceptions to (d)(2)'s removal provisions, while subsection (d)(4) forms a part and parcel of subsection (d)(2)'s definitional scope”).

90 Hart, 457 F.3d at 679.

91 Lao, 455 F. Supp. 2d at 1059.

92 Hart, 457 F.3d at 679.

93 Id. (citing to both §1332(d)(2) and §1332(d)(5) as jurisdiction-conferring rules in CAFA).

94 See Lowery, 483 F.3d 1183 (for a “mass action” to be deemed a “class action” within the meaning of the statute, it has to meet the provisions of §1332(d)(2) through (d)(11).

95 See supra text accompanying notes __ - __.

96 Lao, 455 F. Supp. 2d at 1059.

97 See Fed. R. Civ. P. 12(h)(3); see also Kontrick, 540 U.S. at 455.

98 Cf. Hirschbach v. NVE Bank, 2007 WL 2119414 (D.N.J., July 24, 2007) (observing that whatever the burden-bearing rule may be in this Circuit, it is the Court itself that is not satisfied that this case does not fall within the home state exception to CAFA jurisdiction” and remanding suit).

99 See supra text accompanying note __.

100 See supra text accompanying notes __ - __.

101 ___ U.S. ___, ___, 127 S.Ct. 2360, 2365 (2007).

102 See Abrego Abrego, 443 F.3d at 684 (noting that in construing CAFA courts should be mindful that, “[g]iven the care taken in CAFA to reverse certain established principles but not others, the usual presumption that Congress legislates against an understanding of pertinent legal principles has particular force”).

103 Miedema v. Maytag Corp., 450 F.3d 1332, 1329 (11th Cir. 2006) (quoting United States v. Baxter Int'l, Inc., 345 F.3d 866, 900 (11th Cir.2003)).

104 See supra text accompanying notes __ - __.

105 See supra text accompanying notes __ - __.

106 The assumption that Congress was aware the jurisdictional burden has always rested with the party seeking to maintain suit in the federal forum calls to mind Einer Elhauge’s “preference-eliciting default” rule. See Einer Elhauge, Preference-Eliciting Statutory Default Rules, 102 Colum. L. Rev. 2162 (2002). Basically, Elhauge’s rule provides that if in doubt because the words of a statute are not clear, the court should reject the statutory interpretation that favors the most “politically powerful group with ready access to the legislative agenda.” The idea here is that, if it turns out the court’s reading of the statute was not what Congress had in mind, then such a group has a better chance of actually getting Congress to come back and be more explicit next time. Id. at 2165-66 (arguing, inter alia, that a “preference-eliciting default rule [] is more likely to provoke a legislative reaction that resolves the statutory indeterminacy and thus creates an ultimate statutory result that reflects enactable political preferences more accurately than any judicial estimate possibly could”). Given the success of the United States Chamber of Commerce and other business groups in shepherding CAFA through to passage in February 2005, Einer’s rule suggests it may be appropriate to favor the conclusion that Congress did not intend to shift the burden of jurisdictional proof from the place it has always rested. If that interpretation is wrong, those groups are in a far better position to try to correct it than the converse. On the other hand, one could argue that the political winds have already shifted and that the window of opportunity these groups possessed to influence public policy reform of complex litigation has now closed.

107 540 U. S. 443 (2004).

108 Kontrick, 540 U. S. at 455.

109 See also Arbaugh v. Y & H Corp., 546 U.S. 500 (2006); Eberhart v. U.S., 546 U.S. 12 (2005); Scarborough v. Principi, 541 U.S. 401 (2004).

110 ___ U.S. ___, 127 S.Ct. 2360 (2007).

111 Arbaugh, 546 U.S. at ___, 126 S. Ct. at 1238.

112  Cf. Arbaugh, 546 U.S. at *, 126 S. Ct. at 1245 (“If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue.”); Rockwell Intern. Corp. v U.S. 549 U.S. ___, ___, 127 S.Ct. 1397, 1405 (2007) (“a clear and explicit withdrawal of jurisdiction…undoubtedly withdraws jurisdiction”).

113 Preston v. Tenet Healthsystem Memorial Medical Center, Inc., 485 F.3d 793, 799 (5th Cir. 2007) (rejecting plaintiffs’ reading of a case as grounds for using a different method of determining domicile for purposes of applying one of the carve-out provisions in CAFA and observing that plaintiffs’ “proposed approach for determining citizenship gives undue attention to the naked statements of law as opposed to the substance of the relevant opinions”).

114 See Abrego Abrego, 443 F.3d at 684 (noting that in construing CAFA courts should be mindful that, “[g]iven the care taken in CAFA to reverse certain established principles but not others, the usual presumption that Congress legislates against an understanding of pertinent legal principles has particular force”).

115 Deborah R. Hensler, Revisiting the Monster: New Myths and Realities of Class Action and Other Large Scale Litigation, 11 Duke J. Comp. & Int’l. L. 179, 212 (2001) (“In the United States, many see the class action rule as the key to opening the monster's cage and setting it free. . . . The great question facing civil justice regimes in the United States and elsewhere is what the role of the judiciary should be in responding to large-scale harms.”) (referencing Arthur R. Miller, Of Frankenstein Monsters and Shining Knights: Myth, Reality, and the “Class Action,” 92 Harv. L. Rev. 644 (1979).

116 See Thomas E. Willging and Emery G. Lee, III, The Impact of the Class Action Fairness Act of 2005 on the Federal Courts: Third Interim Report to the Judicial Conference Advisory Committee on Civil Rules (April 2007). The report’s authors summarize their main findings as follows:
In the sixteen months since CAFA went into effect on February 18, 2005, [] we find a substantial increase in class action activity based on diversity of citizenship jurisdiction. Given that one of the legislation’s primary purposes was to expand the diversity jurisdiction of the federal courts, it is likely that much of this observed increase in diversity removals and, of particular interest, original proceedings in the federal courts is attributable to CAFA.
Id. at 2; see also Edward F. Sherman, Decline and Fall, 93 A.B.A. J. 51 (June 2007) (remarking that following CAFA’s passage “the consumer class action has reached a crucial juncture, and the direction that courts and legislatures take over the next few years will likely determine whether it has any kind of viable future”).

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