In the case of a putative class action, proceeding in state court under state rules of procedure and other local influences could have significant impact on how the case proceeds. As such, a defendant must first consider whether the claims are removable, and, if removable, what deadline applies to the notice of removal.In assessing the timeliness of removal, a defendant should first look to the statutory deadlines set forth in 28 U.S.C. §1446(b) (“Section 1446(b)”). [1]However, as the United States Court of Appeals for the Second Circuit recently explained in Cutrone v. Mortgage Electronic Registration Systems, Inc., [2] the provisions of Section 1446(b) do not provide all of the answers.

Joining other federal circuit courts of appeal to have addressed these issues, [1] on October 24, 2014, the First Circuit Court of Appeals provided its answers in Romulus v. CVS Pharmacy, Inc. [2]And, it may come as a surprise to some, the answers are largely dependent on the actions taken by the plaintiff.The Removal Deadlines In general, 28 U.S.C. § 1446(b) sets forth two time periods from which a defendant may remove an action to federal court, each of which is subject to a 30-day deadline from the triggering event. [3] First, a case can be removed if grounds exist in the original complaint to remove the matter from state court to federal court. If the case is removable on the face of the initial complaint, a defendant must file a notice of removal within 30 days of service of the complaint under Section 1446(b)(1). [4] Second, “if the case stated by the initial pleading is not removable,” Section 1446(b)(3) permits a defendant to file a notice of removal “within 30 days after receipt... of a copy 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.”

Here’s somemore inside baseball on grounds for removing cases from state to federal court. In brief, the issue is this: does the “bad faith” standard added to the removal statute (28 U.S.C. §1446(c)(1)) in 2011 approximate the fraudulent joinder standard so that fraudulent joinder becomes a form of “bad faith” not subject to the one-year limit otherwise imposed on removals by reason of diversity of citizenship? Fraudulent joinder is also an exception the “voluntary/involuntary” rule.

Henry v. Michaels Stores, Inc., 2013 WL 2208070 (N.D. Ohio May 20, 2013).The District Court held that the Supreme Court’s recent opinion in Standard Fire Insurance Co. v. Knowles, 133 S. Ct. 1345 (2013), is not an “other paper,” which could make a previously un-removable case removable under 28 U.S.C §1446(b)(3).The plaintiff alleged that, although the defendant advertised that its products were discounted, the defendant never actually gave the discount. The plaintiff claimed this was a violation of the Ohio Consumer Sales Practices Act, Ohio Revised Code, breach of contract, unjust enrichment, and fraud.

In this case, a District Court in California would say the same thing.The court held that although filing of notice of removal before service of pleadings is permitted under 28 U.S.C. § 1446(b)’s first thirty-day removal window, such early filing is not permitted under second thirty-day removal window, which requires that a defendant file a notice of removal after receiving an amended pleading, motion, order or other paper.The plaintiff filed a class action lawsuit against the defendant, Euromarket Designs, Inc. d/b/a Crate & Barrel, alleging that Euromarket requests its customers “to provide personal identifying information,” including their zip codes, as a “condition of using their credit card to receive merchandise,” in violation of the Song-Beverly Credit Card Act.On February 14, 2011, the plaintiff filed the case in California state court, and served Euromarket with the Complaint and Summons on February 16, 2011.

Plaintiffs brought a putative class action in state court alleging defendant CVS Pharmacy, Inc. maintained a policy requiring shift supervisors in certain instances to take on-premises meal breaks without pay. The complaint, served in 2011, sought to recover alleged unpaid wages but did not identify the number of breaks at issue or the amount of damages. CVS timely removed the action within 30 days under 28 U.S.C. § 1446 (b)(1), which governs removal based on receipt of the initial complaint. In opposing remand, CVS estimated damages in excess of $5 million by assuming the alleged policy affected all supervisors and shifts.

Crate & Barrel contended that it was not evident from the face of the complaint that the case was removable and Crate & Barrel did not discover that the case was removable until it examined its own records on March 22.On April 1, the plaintiff moved to remand the case to state court arguing that removal was improper and untimely.On June 9, the Court granted the plaintiff’s motion to remand, and noted that under 28 U.S.C. § 1446(b), the statute governing removal procedure, there are two time periods during which a case may be removed: First, a thirty-day window triggered by receipt of the initial pleading or summons if the case stated by the initial pleading is removable “on its face”, and second, a thirty-day window triggered by receipt of “a copy of an amended pleading, motion, order or other paper” from which removability may be first ascertained, if the initial pleading does not indicate, on its face, that the case is removable.The Court also found that removability was not ascertainable from the face of the complaint, and thus § 1446(b)’s first thirty-day window never opened.

MacKinnon v. IMVU, Inc., 2012 WL 95379 (N.D. Cal. Jan. 11, 2012).In this action, a District Court in California held that oral communications and statements are insufficient to qualify as “other papers” that trigger removal pursuant to 28 U.S.C. § 1446(b).The plaintiff filed a class action complaint against the defendant, IMVU, Inc., in Santa Clara Superior Court alleging violations of the Consumer Legal Remedies Act, breach of contract, conversion, misrepresentation, unfair trade practices and breach of warranty.IMVU develops and operates a popular Internet-based entertainment service known as the Instant Messaging Virtual Universe. In the Instant Messaging Virtual Universe, users (who do not have real lives and too much time on their hands) can create their own virtual characters, or “avatars,” and interact with other users’ avatars.

When defendants seek to remove later in the game, they may be surprised to encounter an argument by plaintiffs’ counsel that the time period for removal is limited to one year after the initial filing of the case. The federal statute governing removal, 28 U.S.C. § 1446, generally allows defendants thirty days to file their notice of removal following receipt of a pleading, order or other paper from which it may be ascertained that the case is removable. Although § 1446(b) of the removal statute imposes a one-year limitation on the time to remove certain cases, Congress exempted class actions from this one-year limitation as part of the Class Action Fairness Act of 2005 (CAFA).

Specifically, plaintiffs try to avoid removal to federal court by naming a non-diverse defendant, such as the prescribing physician or pharmacy. Yet, they have no intention of actually pursuing the non-diverse defendant and in many cases will dismiss that defendant shortly after the one-year limitation under 28 U.S.C. §1446(b) has expired. Not only is this tactic forum shopping, it also results in the same harm as fraudulent joinder.