Thus, because these exceptions are not part of the prima facie case for establishing minimal diversity jurisdictional under CAFA, but, instead, are exceptions to jurisdiction; the party seeking remand bears the burden of proof as to such exceptions.The Ninth Circuit then relied on Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 698 (2003), where the Supreme Court addressed the burden of proof under §1441(a), and stated that “since 1948 amendment, which introduced exceptions for removal, there has been no question that whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception.” Similarly, the Ninth Circuit pointed that here, CAFA confers subject matter jurisdiction and provides express ‘exceptions’ to the exercise of that jurisdiction.
Judge Wood, however, disagreed with those courts’ analyses explaining that the Eleventh Circuit in Evans did not discuss the language of CAFA itself. The Judge stated that the language of CAFA coupled with the United States Supreme Court’s opinion in Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691 (2003)(recognizing that the opponent of removal under 28 U.S.C. § 1441(a) must prove the existence of an express exception) directs the conclusion that the party seeking to take advantage of the home-state or local controversy exception has the burden to show they apply. The Breuer court stated that “since 1948 . . . there has been no question that whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception.”
Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 123 S. Ct. 1882 (2003)Phillip T. Breuer sued Jim’s Concrete, his former employer, in Florida state court for unpaid wages, liquidated damages, interest and attorney’s fees under the federal Fair Labor Standards Act (FLSA), which provides that such an action “may be maintained… in any Federal or State court of competent jurisdiction.” Jim’s Concrete removed the case to federal court, and in response, Breuer filed a motion to remand the action to state court on the theory that the FLSA is an exception to the general rule that actions arising under federal statutes may be removed to federal court.