In Blockbuster, Inc. v. Galeno, ___ F.3d ___ (2d Cir. Dec. 26, 2006), the Second Circuit held that CAFA did not change the ordinary rule that the removing party bears the burden of proving federal jurisdiction:
An old proverb teaches that "Heaven suits the back to the burden." The Concise Oxford Dictionary of Proverbs 94 (J.A. Simpson ed., 1982). It is well-settled that the party asserting federal jurisdiction bears the burden of establishing jurisdiction. R. G. Barry Corp. v. Mushroom Makers, Inc., 612 F.2d 651, 655 (2d Cir. 1979). So in this case we may correctly say that the law suits the back to the burden. Under this rule, Blockbuster ought to shoulder the burden because it removed the action to federal court from state court. See DiTolla v. Doral Dental IPA of New York, No. 06-2324, 2006 WL 3335125, *3-4 (2d Cir. Nov. 17, 2006) (ruling simply that CAFA has not changed the traditional rule that the party asserting federal jurisdiction bears the burden of establishing jurisdiction).
.... Blockbuster must show that it appears to a "reasonable probability" that the aggregate claims of the plaintiff class are in excess of $5 million. Mehlenbacher v. Akzo Nobel Salt, Inc., 216 F.3d 291, 296 (2d Cir. 2000); 28 U.S.C. § 1332(d)(2), (6).
Slip op. at 10-11, 13. [Via Consumer Law & Policy Blog.]