Jury instructions seeking punitive damages deemed “other paper” for purposes of notice of removal
Plaintiff’s complaint alleged that Nissan’s dashboards were defective and sought only compensatory damages. Two years before trial, Plaintiff avoided removal under CAFA based on the amount in controversy; the amount in controversy was (at most) $2,858,000, thus falling short of CAFA’s $5,000,000 jurisdictional requirement.
Then, in December 2012, on the eve of trial, Plaintiff submitted jury instructions that sought punitive damages (even though the operative complaint neither expressly stated a claim for punitive damages, nor alleged facts that could have supported a punitive damages award).
Nissan filed a notice of removal based on those jury instructions. The district court held that the notice of removal was timely, but remanded the case because it was not removable: there was no claim for punitive damages in the operative complaint, and therefore it was legally impossible for the class to recover more than $5,000,000.
The Eighth Circuit affirmed the district court’s remand order, along with the notion that jury instructions seeking punitive damages constituted an “other paper” for purposes of notice of removal. See Hurst v. Nissan North America, Inc., 511 Fed. Appx. 584, 586 n.2 (8th Circuit May 31, 2013) (“The [district] court therefore properly held that Nissan’s removal seven days after Hurst proposed jury instructions for punitive damages was timely.”)