In Springman v. AIG Marketing, Inc., ___ F.3d ___ (7th Cir. Apr. 15, 2008), the Seventh Circuit noted a split among the circuits respecting whether post-removal activity can re-"commence" a case for CAFA removal purposes. Slip op. at 3. This question frequently came up in cases filed before CAFA's effective date of February 18, 2005. According to the opinion, "[t]he outlier is the Ninth Circuit." Id. at 3 (citing McAtee v. Capital One, F.S.B., 479 F.3d 1143, 1145-48 (9th Cir.2007)) (see this post for more on McAtee).
On the Ninth Circuit's view, a plaintiff can defeat removal by first filing a complaint that does not include a claim or a defendant that would trigger the Act's right of removal and later substituting a claim or defendant that would have triggered the right. Suppose that with the Act's effective date looming, the plaintiff had not completed even a minimal pre-complaint investigation. Under the Ninth Circuit's view, the plaintiff could sue Donald Duck for violating a Chicago noise ordinance and then at his leisure amend the complaint to substitute a proper claim against a proper defendant, and the new defendant would not be able to remove.
But even the cases that reject the Ninth Circuit's position forbid removal if the new claim or defendant (new in the sense of having been added after the effective date of the Class Action Fairness Act) "relates back" to the original claim or the original defendant. It would not do so in the Donald Duck case, although that would not faze the Ninth Circuit, which considers relation back important only when necessary to avoid a statute of limitations defense, since, if successful, the defense kills the plaintiff's claim rather than just forcing it to be litigated in a different court system. McAtee v. Capital One, F.S.B., supra, 479 F.3d at 1147.
Id. at 4 (emphasis added). The tone of this passage evinces a remarkable lack of respect for the Ninth Circuit judges who authored the McAtee opinion. It makes you wonder whether briefs filed by lawyers in that court are read with any respect, if the published opinions of other federal appellate judges are not. I also do not think that an analogy that assumes a breach of counsel's professional ethical duties has any place in a federal appellate court opinion.
It is important to remember that in McAtee, the Ninth Circuit was considering the effect of substitutions of named defendants for "fictitious" defendants, which are permitted by California Code of Civil Procedure section 474. Fictitious defendants are usually named "Doe," but section 474 allows them to be "designated ... by any name," including, presumably, "Donald Duck." Defendants with fictitious names are included in virtually all civil complaints filed in California state courts. Fictitious names are particularly useful when the client just brought you the case, the statute of limitations is about to run, and you've had time to identify only one of several potentially liable defendants. California law does not give plaintiffs unlimited "leisure" to substitute the true name for the fictitious name, but the unique California "Doe" procedure certainly justifies the outcome in McAtee — even applying what the Seventh Circuit calls the "majority view." That is because, in McAtee, the plaintiff appears to have acted diligently in naming the "Doe" defendant.
In Springman, the Seventh Circuit held that amending the complaint to substitute one named defendant for another "commenced" a new action for CAFA purposes because, under either federal or state law (there, Illinois law), the amendment would not "relate back" to the original filing date. Id. at 4-10. The "relation back" doctrine would not apply because of the plaintiff's "protracted and inexplicable delay" — he waited three years after learning he had sued the wrong entity — "in changing defendants." Id. at 6-7. Hence, the new defendant may remove the action to federal court under CAFA and the district court correctly denied the remand motion. Id., passim.