United States District Court, E.D. Arkansas, Western Division
ROY WILSON UNITED STATES DISTRICT JUDGE.
is Plaintiffs' Motion to Remand to State Court (Doc. No.
10). Defendants have responded and Plaintiffs have replied.
For the reasons set out below, the Motion is
removed this case based on jurisdiction under the Class
Action Fairness Act (“CAFA”). Plaintiffs argue
that “this case is not, and never has been, pled as a
class action lawsuit.” However, the Complaint repeatedly
noted that “Plaintiff [sic] and the other Class members
would not have purchased these products” and mentioned
“Plaintiffs and members of the National and Arkansas
Class.” Plaintiffs asserted that these references
to “class” were typographical
errors. Based on this assertion, I allowed
Plaintiffs to file an amended complaint to remove the
references to class, which they did on February 1,
contends that this case must be remanded because Defendant
failed to timely remove the case. Under 28 U.S.C. § 1332
a case must be removed within 30 days after the complaint is
served. If case was not removable based on the
initial pleading, a defendant has 30 days from the date of
receipt of the “amended pleading, motion, order, or
other paper from which it may first be ascertained that the
case” is removable. “[I]n the CAFA context, the
thirty-day removal period set forth in § 1446(b)(3) does
not begin to run until the defendant receives from the
plaintiff an amended pleading, motion, order, or other paper
‘from which the defendant can unambiguously
ascertain' that the CAFA jurisdictional requirements have
case was filed on October 6, 2016. In a pending motion to
dismiss, Defendants assert that the summons was defectively
served on October 11, 2016. However, Plaintiffs (who dispute
Defendants' defective service claim) served Defendants
again on December 12, 2016.According to Defendants, it
first became clear that Plaintiffs were making class action
claims when Plaintiffs filed their opposition to
Defendant's Motion to Dismiss on December 13, 2016.
the issue of timeliness is in dispute, I do not have to
resolve it. I am convinced beyond peradventure that the
references to classes in the original complaint were
inadvertent errors, and that the amended complaint was
necessary to correct the errors. Importantly, the amended
complaint was not an attempt avoid federal jurisdiction. It
is obvious that Plaintiffs lifted their complaint (notably,
Defendants allege this in their brief supporting the motion
to dismiss) from another case. In fact, it appears that it
was cut and pasted from a similar case the same lawyers filed
in this district where they were requesting a
class. I recognize that the “general
rule” is that jurisdiction is determined at the time of
removal and that post-removal amendments to the complaint
that defeat jurisdiction should not be
permitted. However, this general rule is intended
to prevent parties from manipulating the system; that's
not the case here.
Plaintiffs played fast and loose with the complaint and,
arguably, their opposition to Defendants' motion to
dismiss. Though Plaintiffs' actions have caused
confusion, they are not strapped to a class action complaint
that they never intended to pursue. In fact, it was
Defendants who first started referring to Plaintiffs as
“Class Plaintiffs, ” and that was in their second
motion to dismiss, which was filed the same day Defendants
filed the notice of removal. So, the first time Plaintiffs
may have been aware that Defendants believed there were class
claims was when it was raised in Defendants' motion,
immediately before removing the case to federal court.
point out that the amended complaint still contains
references to products that Plaintiffs did not purchase.
However, that does not make it a class action complaint.
this is not a CAFA case, two issues prevent federal
jurisdiction -- the amount in controversy and complete
diversity. Plaintiffs' Amended Complaint alleges that
they “paid $1, 758.43 for the flooring and related
installation supplies, and $1, 000.00 for installation of the
flooring.” Plaintiffs also claim that they have
been unable to rent their home. Considering the facts of this
case, I find to a legal certainty that Plaintiffs' claims
do not satisfy the amount-in-controversy requirement of
subject matter jurisdiction.
there is not complete diversity between the parties. I
realize Defendant's have a pending motion to dismiss the
non-diverse Defendant, but even if this motion were granted,
the amount in controversy requirement is still not met.
on the findings of fact and conclusions of law above,
Plaintiff's Motion to Remand to State Court (Doc. No. 10)
is GRANTED. Accordingly the Clerk of the Court is directed to
immediately remand this case to ...