Shanna Kuxhausen v. Bmw Financial Services Na Llc
2013 U.S. App. LEXIS 3858
| 9th Cir. | 2013Background
- Kuxhausen filed a CAFA-based removal to federal court to cover a proposed class action against Crevier Motors and BMW Financial Services regarding RISCs issued by the dealership.
- The original RISC contained an N/A line for registration/titling fees and an arbitration clause; a new RISC was executed with the same N/A and arbitration terms but dated December 30, 2008.
- BMW removed the case on March 9, 2012, asserting CAFA jurisdiction due to a large Class Three and potential >$10M in controversy.
- The district court remanded, finding the original complaint did not reveal CAFA jurisdiction; BMW appealed the remand order under CAFA.
- Kuxhausen later added a third class with California BMW purchasers; the appeal panel was asked to determine timeliness of removal under §1446(b) and related provisions.
- The panel ultimately held BMW timely removed under §1446(b), reversing and remanding to state court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether March removal was timely under §1446(b) | Kuxhausen argues removal was untimely. | BMW contends the first thirty days began with the initial pleading’s removability. | Timely under §1446(b) despite indeterminate initial pleading. |
| Whether the initial pleading stated CAFA numerosity and amount in controversy | Complaint indicated hundreds of class members, implying >100; damages could exceed $5M. | Initial pleading did not conclusively show >$5M or >100 members. | Initial pleading did not reveal removability; need for reasonable calculation. |
| Whether the ‘other paper’ provision triggers a second 30-day window | Demand letter and later statements could start the clock. | Letters prior to filing cannot trigger the second window; not the initial pleading. | Demand letter cannot trigger second window; pre-pleading paper insufficient. |
| Whether omission of the original complaint attachments to removal is curable | Omission violates §1446(a) and requires remand. | Omission is curable; records located in record upon request. | Procedural defect curable; not a remand-ground independent of removal timing. |
| Whether CAFA elements or local/home-state exceptions affect remand | IFCA exceptions apply, remand could be required. | CAFA exceptions require independent showing by remanding party; not raised sua sponte. | Question left for potential future consideration; not necessary to decide here. |
Key Cases Cited
- Carvalho v. Equifax Info. Services, LLC, 629 F.3d 876 (9th Cir. 2010) (timing of removal under CAFA; initial pleading and 30-day clock)
- Harris v. Bankers Life & Cas. Co., 425 F.3d 689 (9th Cir. 2005) (indeterminacy of removability; no external pre-pleading facts start clock)
- Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006) (discussion of removability timing standard)
- Lewis v. Verizon Commc’ns, Inc., 627 F.3d 395 (9th Cir. 2010) (amount in controversy estimation in CAFA context)
- Rosen v. Chrysler Corp., 205 F.3d 918 (6th Cir. 2000) (context for rescission and amount in controversy)
- Fristoe v. Reynolds Metals Co., 615 F.2d 1209 (9th Cir. 1980) (mandatory time limit for removal under §1446(b))
- Seaton v. Jabe, 992 F.2d 79 (6th Cir. 1993) (principle on timing and removal)