Sunday, August 25, 2013
Ind. Decisions - 7th Circuit decided two Indiana case Friday
LARRY BUTLER, et al., individually and on behalf of all others similarly situated v. SEARS, ROEBUCK AND CO. - [unfortunately, the 7th Circuit website appears to be down this morning]
In HUBERT E. WALKER, on behalf of himself and all others similarly situated, Plaintiff-Petitioner v. TRAILER TRANSIT, INC. (SD Ind., Pratt), a 13-page opinion, Judge Sykes writes:
Hubert Walker petitions for permission to appeal the district court’s denial of his motion to remand this case to state court. See 28 U.S.C. § 1453(c)(1). Representing a class of truck owner-operators, Walker sued Trailer Transit, Inc., a broker of trucking services, for breach of contract in Indiana state court. Trailer Transit removed the suit to federal court under the Class Action Fairness Act (“CAFA”), id. § 1332(d)(2). Walker moved to remand, contending that the removal was untimely.
The rules of procedure provide two different removal windows. First, a defendant has 30 days after receiving the plaintiff’s initial pleading to file a notice of removal (or 30 days after receiving the summons if the initial pleading is not required to be served). Id. § 1446(b)(1). However,if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt … of … an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.Id. § 1446(b)(3). Under CAFA federal courts have original jurisdiction over class actions on behalf of more than 100 class members if the parties are minimally diverse and the amount in controversy exceeds $5 million. Id. § 1332(d)(2), (d)(5)(B). Walker argued that the notice of removal was untimely because it was filed more than 30 days after Trailer Transit “first ascertained” that the class’s theory of damages could result in recovery of more than $5 million. The district judge disagreed and denied the motion to remand. Walker petitioned for permission to appeal.
We have never addressed the standard for determining when the 30-day time period for removal begins to run. Accordingly, we grant Walker’s petition to appeal. On the merits we affirm the district court’s ruling. The 30-day removal clock is triggered by the defendant’s receipt of a pleading or other paper that affirmatively and unambiguously reveals that the case is or has become removable. Here, Trailer Transit never received a pleading or other paper from Walker specifically disclosing the damages demand. Trailer Transit based its notice of removal on its own estimate of damages after Walker introduced a new theory of damages into the case in response to requests for admission. Because the removal clock never started to run, the district court properly denied the motion to remand.
Posted by Marcia Oddi on August 25, 2013 10:16 AM
Posted to Ind. (7th Cir.) Decisions