United States: Tenth Circuit Joins Split Over Removal Trigger for Post-CAFA Amendments

Well over a year has passed since President Bush signed the Class Action Fairness Act (CAFA) into law in February 2005. As reported in the first issue of In re Products Liability, defendants are seizing on post-CAFA pleading amendments by plaintiffs to argue for removal, generating litigation over the character of amendments that can be said to trigger the "commencement" of a new action for CAFA removal purposes.

In resolving the question "whether CAFA permits the removal of a class action filed before the Act’s effective date if the removing defendant was first added by amendment after the effective date," Prime Care began with a survey of the three different analytical camps around which the CAFA removal wagons are being circled in the federal courts.

The Absolute Position. Some, like the district court in Prime Care, have taken an absolute position rooted in the view that since an action can be commenced but once, class actions predating CAFA cannot ever be removed -- regardless of the nature of any post-CAFA pleading amendment. Id. at *1 (collecting cases). The Tenth Circuit recoiled from this approach, however, noting that "[m]ost courts . . . concede that the addition of a new claim sufficiently distinct from prior pleadings may commence a new action removable under CAFA by the affected parties." Id.

The "Relation-Back" Camp. In another category altogether are those courts allowing removal for amendments that do not relate back to pre-CAFA pleadings, but which divide over "the treatment of amendments that add new defendants to a case." Id. at *2. In this regard, some courts, like the Eighth Circuit, hold that "the relation-back analysis controls the commencement question for all amendments, no distinction being made for amendments adding new defendants." Id. (citing Plubell v. Merck & Co., 434 F.3d 1070, 1071-72 (8th Cir. 2006)).

The "New Defendant" Exception. Others, including the Fifth and Seventh Circuits, hold that "the relation-back analysis controls for all amendments except those adding defendants, which are categorically treated as commencing a new case as to the added defendants." Id. (citing Braud v. Transp. Serv. Co., 445 F.3d 801, 804-809 (5th Cir. 2006); Schillinger v. Union Pac. R.R., 425 F.3d 330, 333 (7th Cir. 2005)).

Prime Care chose to adopt the Eighth Circuit’s "relationback" approach to the post-CAFA addition of new defendants. On the reach to this tack, it expressly rejected the "absolute" position that a civil action is "commenced" only once (regardless of the nature of an amendment), noting that "‘a party brought into court by an amendment, and who has, for the first time, an opportunity to make defense to the action, has a right to treat the proceeding, as to him, as commenced by the process which brings him into court.’" Id. at *3 (quoting United States v. Martinez, 195 U.S. 469, 473 (1904)).

Addressing the Fifth and Seventh Circuit approach -- holding that a post-CAFA addition of new defendants "categorically" commences a new civil action for removal purposes, the Tenth Circuit found it inconsistent with Fed. R. Civ. P. 15(c), which determines when pleading amendments "relate back" to the original pleading date.

Especially telling here, [it said,] is the Advisory Committee’s pointed clarification that, when the addition of a defendant satisfies relation-back criteria, "characterization of the amendment as a new proceeding is not responsive to the realty [sic], but is merely question-begging; and to deny relation back is to defeat unjustly the claimant’s opportunity to prove his case."

Id. at *4 (quoting Advisory Committee’s 1966 Note on Rule 15(c)).

In the end, Prime Care held that "whether a post-CAFA amendment triggers a substantive right of removal under CAFA by the affected parties depends on whether the amendment relates back to the pre-CAFA pleading that is being amended," which the court characterized as the "fundamental underpinning" of the decisional analysis. Id. at *4-*5 (emphasis added).

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