Removing a Barrier: The Supreme Court Holds That, Under CAFA, Notices of Removal Need Not Include Evidence Supporting the Amount in Controversy

By: Irene C. Freidel, Ryan M. Tosi, Matthew N. Lowe

On December 15, 2014, the United States Supreme Court held in Dart Cherokee Basin Operating Co., LLC v. Owens that a class action defendant need only allege the requisite amount of controversy “plausibly” in the notice of removal and need not provide evidence supporting the amount in controversy unless challenged by the plaintiff or questioned by the court.[1]The Court’s holding is consistent with the requirement that a notice of removal contain only a “short and plain” statement setting forth the bases for removal. The decision resolves a significant circuit split regarding the pleading requirements imposed on removing defendants under the Class Action Fairness Act (“CAFA”).

Prior to Dart Cherokee,[2] the majority of the circuits had either expressly held that a defendant need not present evidence of the amount in controversy with its notice of removal[3] or that evidence of the amount in controversy submitted in opposition to a motion to remand would be considered even if it had been not presented in the notice of removal.[4] The Tenth Circuit, however, declined Dart Cherokee’s petition for review of the district court’s decision, which had refused to consider evidence Dart Cherokee offered in response to a motion to remand based upon its holding that a defendant is required to submit evidence in support of removal at the time a notice of removal is filed.

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