Litigating California Wage & Hour and Labor Code Class Actions
Litigating California Wage & Hour and Labor Code Class Actions
Litigating California Wage & Hour and Labor Code Class Actions
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E. Waiver<br />
A defendant may be considered to have waived the right to remove to federal court when,<br />
after it is apparent that the case is removable, it takes actions in state court that manifest<br />
an intent to have the matter adjudicated there. 328<br />
The Ninth Circuit has held that “a waiver of the right of removal must be clear <strong>and</strong><br />
unequivocal.” 329 In Carvalho v. Equifax Info. Serv., LLC, the plaintiffs argued that<br />
defendant’s removal was untimely because defendant filed a demurrer in state court <strong>and</strong><br />
then waited a year after the complaint was filed to remove. 330 The district court held that<br />
because the complaint did not specify an amount of damages, the defendant’s filing of a<br />
demurrer did not waive its right to remove. 331 The court stressed that the defendant did not<br />
engage in “any conduct that manifested its intent to stay in state court” after removability<br />
was first ascertained, <strong>and</strong> therefore did not waive its right. 332<br />
F. After Removal <strong>and</strong> Effect of Denial of <strong>Class</strong> Certification<br />
A long-st<strong>and</strong>ing rule set out by the United States Supreme Court (the “Red Cab rule”) is<br />
that “events occurring subsequent to removal which reduce the amount recoverable,<br />
whether beyond the plaintiff’s control or the result of his volition, do not oust the district<br />
court’s jurisdiction once it has attached.” 333 Although courts have disagreed over whether<br />
denial of class certification affects federal jurisdiction, the trend is to apply the Red Cab rule<br />
in this context as well.<br />
A number of courts have held that denial of class certification eliminates CAFA jurisdiction<br />
as to that federal court, especially if it is not “reasonably foreseeable” that a class will be<br />
certified in the future. 334 Other courts have held that denial of class certification does not<br />
destroy CAFA jurisdiction, because jurisdiction is determined at the moment the case was<br />
removed <strong>and</strong> thus any subsequent changes do not affect the court’s continued<br />
jurisdiction. 335<br />
328<br />
329<br />
330<br />
331<br />
332<br />
333<br />
334<br />
335<br />
Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1995).<br />
Id.<br />
Carvalho v. Equifax Info. Serv. LLC., 2008 WL 2693625, at *4 (N.D. Cal. 2008).<br />
Id.<br />
Id.<br />
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293 (1938).<br />
McGaughey v. Treistman, 2007 WL 24935, at *3-4 (S.D.N.Y. 2007); Gonzalez v. Pepsico, Inc., 2007 WL 1100204, at *4<br />
(D. Kan. 2007).<br />
Vega v. T-Mobile, USA, Inc., 564 F.3d 1256, 1268 at n. 12 (11th Cir. 2009); Cunningham Charter Corp. V. Learjet, Inc.,<br />
592 F.3d 805, 806 (7th Cir. 2010); Falcon v. Phillips Electronics North Americas, Corp., 489 F. Supp 2d 367 (S.D.N.Y.<br />
2007); In re HP Inkjet Printer Litig., 2009 U.S. Dist. LEXIS 12271 (N.D. Cal. Feb. 5, 2009); Giannini v. Schering-Plough<br />
Seyfarth Shaw LLP | www.seyfarth.com <strong>Litigating</strong> <strong>California</strong> <strong>Wage</strong> & <strong>Hour</strong> <strong>Class</strong> <strong>Actions</strong> (12th Edition) 72