Almost before the ink was dry on the Supreme Court”?s decision in Dart Cherokee (TAA Looseleaf Release No. 661) the Eleventh Circuit Court of Appeals held that Dart did not apply because the plaintiff in this case contested the amount in controversy. In Dudley v. Eli Lilly & Company, ___ F.3d _____ (11th Cir. 2014) 2014 WL 7360016 the defendant removed the case pursuant to the Class Action Fairness Act (CAFA), attached an affidavit to the notice of removal and as subsequent affidavit in opposition to a motion to remand. The plaintiffs motion to remand said that defendant had failed to establish the threshold amount by a preponderance of the evidence and that the aggregate claims set forth in the complaint did not exceed $5 million. The district court agreed and remanded the case.
In upholding the remand the Eleventh Circuit commented on Dart Cherokee and noted that the plaintiff in that case did not challenge the amount claimed in the notice of removal. The Eleventh Circuit distinguished Dart on the basis that in the case before it the plaintiff contested the defendants amount in controversy and pointed out that the Dart opinion held that when that occurs the district court must find “by the preponderance of the evidence that the amount in controversy exceeds the jurisdictional threshold”. Since that is what the court did in this case the Court of Appeals upheld the remand because the district court did not clearly err in finding that Lilly had failed to meet its burden.
The Court said that the Dart court made it clear that no antiremoval presumption attends in codes invoking CAFA. While the Court said it therefore could no longer rely on such a presumption in CAFA jurisdictional questions, there was an indication that it might continue to rely on the presumption in non-CAFA removals.