Monthly Archives May 2013

To remove a case under CAFA, we all know that a defendant must establish that the amount in controversy exceeds $5 million exclusive of interest and costs (plus there must be minimal diversity and at least 100 putative class members). What are some other tips for preparing the notice of removal under CAFA in the District of Kansas? Develop the necessary jurisdictional facts.  There are several methods for developing the factual allegations to include in the notice of removal, including: by contentions, interrogatories, or admissions obtained in state court prior to removal by calculation from the allegations in plaintiff's complaint by reference to plaintiff's informal estimates or settlement demands by introducing affidavits about how much it would cost to satisfy plaintiff's demands See Frederick v. Hartford Underwriters Ins. Co., 683 F. 3d 1242, 1247 (10th Cir. 2012). Put them in the notice of removal. The District of Kansas recently held that…

Judge Limbaugh's analysis in City of O'Fallon v. Centurylink, Inc., 2013 WL 1036514 (E.D. Mo., March 14, 2013), is interesting in two respects. First, it's interesting because the Court did not simply decline to exercise its jurisdiction as Judge Fleissig did in City of Maryland Heights v. Trafcone Wireless, Inc., 2013 WL 791866 (E.D. Mo., March 4, 2013), a similar class action composed of plaintiff municipalities seeking to recover business license taxes from defendant providers of telephone services. It's also interesting for its thorough discussion of what exactly constitutes a "significant defendant" for purposes of applying CAFA's Local Controversy Exception. This analysis was a bit of overkill because the Court had already determined that the removing defendants had failed to meet their burden of establishing both the requisite amount in controversy (defendants had pleaded only $4.2 million in controversy in their Notice of Removal and had inexplicably ignored attorneys' fees…

Judge Vratil's order in Gambrell v. Weber Carpet, Inc., 2013 WL 1659591 (D. Kan. April 17, 2013), stands in stark contrast to the Missouri Supreme Court's recent analysis on class counsel fees. In this case, Judge Vratil ultimately approved an award of fees to class counsel in this FLSA settlement, but did so in a manner likely to haunt class counsel for years. The Court had overruled the parties' first motion to approve the proposed FLSA settlement because the parties had submitted it in camera. The Court overruled the second attempt at approval for failing to provide sufficient information needed to support the key findings (such as whether the proposed settlement was fair, reasonable and adequate). At this point, class counsel was undeterred by the Court's stated skepticism of their request for $40,375.00 in fees for a $14,000 settlement. The third attempt at approval failed for lack of supporting information…

When a plaintiff moves to amend the complaint, when does the 30-day clock for removal begin?  There are a few possibilities: The majority rule: the clock begins when the state court grants plaintiff's motion for leave to file an amended complaint. The minority rule: the clock begins when plaintiff files said motion. After noting the absence of controlling Eighth Circuit authority on this issue, Judge Ross concluded that the Eastern District of Missouri follows the majority rule.  See Svoboda v. Smith & Nephew, Inc., 2013 WL 1883249 (E.D. Mo. May 6, 2013). The case also mentions in a footnote that the District of Kansas appears to follow a variation of the majority rule: the clock begins on the date of service of the amended pleading (which would necessarily be after the state court grants plaintiff's motion for leave).  Id. at *4 n.2 (citing Miller v. Stauffer Chemical Co., 527 F.Supp.…

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