The Ninth Circuit has handed down three CAFA decisions since March 2, 2007. I've already discussed one of the three, Progressive West Ins. Co. v. Preciado, ___ F.3d ___, 2007 WL 725717 (9th Cir. Mar. 6, 2007), at this post. Here are the two others:
In Lowdermilk v. United States Bank, NA, ___ F.3d ___ (9th Cir. Mar. 2, 2007), the court addressed the burden of proof that applies when the plaintiff's complaint expressly pleads less than the CAFA jurisdictional amount, yet the defendant removes anyway, asserting that the amount-in-controversy requisite has been met. The court preserved the rule that the plaintiff is the master of his or her complaint, and held that "the party seeking removal must prove 'with legal certainty' that the amount in controvery is satisfied, notwithstanding the prayer for relief in the complaint." Slip op. at 2. Judge Kleinfeld filed a dissenting opinion.
In McAtee v. Capital One, F.S.B., ___ F.3d ___ (9th Cir. Mar. 16, 2007), the court addressed an issue very similar to the one raised in Progressive West. Both cases addressed what kinds of amendments to the complaint "commence" a new action for CAFA purposes. In McAtee, the court held that amending the complaint to substitute a named defendant in place of a "Doe" defendant under California Code of Civil Procedure section 474 does not "commence" a new action under CAFA. The McAtee opinion spends a lot of time explaining Progressive West, decided ten days earlier. This is a good thing, because Progressive West was very unclear in my opinion, especially its analysis of the "relation back" doctrine. Essentially, McAtee explains that under Progressive West, an action filed in California state court is "commenced" for CAFA purposes when the original complaint is filed, regardless of any subsequent amendment and regardless of whether the subsequent amendment "relates back" under California law or not. This holding creates a split among the Circuits. The earliest Circuit court opinions to address this question held that a new action is "commenced" only if the amendment in question does not "relate back" under the law of the state where the action was filed. See, e.g., Phillips v. Ford Motor Co., 435 F.3d 785 (7th Cir. 2006) (discussed in this post); Knudsen v. Liberty Mut. Ins. Co., 435 F.3d 755 (7th Cir. 2006) (discussed in this post). In the Ninth Circuit, under McAtee and Progressive West, the "relation back" doctrine is wholly irrelevant.
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