1 BOOK FEDERAL JURISDICTION BASED ON REMOVAL: A 50-STATE SURVEY A Report of the Pharmaceutical Subcommittee of the Products Liability Committee KARA T. STUBBS EDITOR AMERICAN BAR ASSOCIATION
2 The materials contained herein represent the opinions of the authors and editors and should not be construed to be the action of the American Bar Association, First Chair Press, or the Section of Litigation unless adopted pursuant to the bylaws of the Association. Nothing contained in this book is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This book and any forms and agreements herein are intended for educational and informational purposes only by the American Bar Association. All rights reserved. No part of the publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the publisher. Permission requests should be sent to the American Bar Association Copyrights & Contracts Department via at or via fax at (312) Printed in the United States of America. ISBN 13: ISBN 10: Library of Congress Cataloging-in-Publication Data Discounts are available for books ordered in bulk. Special consideration is given to state and local bars, CLE programs, and other bar-related organizations. Inquire at ABA Publishing, American Bar Association, 321 North Clark Street, Chicago, Illinois For a complete list of ABA publications, visit
3 TABLE OF CONTENTS 1 st Circuit Maine... Massachusetts... New Hampshire... Rhode Island... 2 nd Circuit Connecticut... New York... Vermont... 3 rd Circuit Delaware... New Jersey... Pennsylvania... 4 th Circuit Maryland... North Carolina... South Carolina... Virginia... West Virginia... 5 th Circuit Louisiana... Mississippi... Texas... 6 th Circuit Kentucky... Michigan... Ohio... Tennessee... 7 th Circuit Illinois... Indiana...
4 Wisconsin... 8 th Circuit Arkansas... Iowa... Minnesota... Missouri... Nebraska... North Dakota... South Dakota... 9 th Circuit Alaska... Arizona... California... Hawaii... Idaho... Montana... Nevada... Oregon... Washington th Circuit Colorado... Kansas... New Mexico... Oklahoma... Utah... Wyoming th Circuit Alabama... Florida... Georgia...
5 INTRODUCTION It has long been recognized that there is no other phase of American jurisprudence with so many refinements and subtleties as removal and remand. 1 Familiarity with the timing, grounds, and procedural steps of removal is essential, as a party s failure to follow the appropriate procedures may have long-standing effects. If the substantive requirements for removal are not satisfied, or if the procedural rules are not met, a party can readily find its case being tried in a different forum and before a different judge than originally anticipated. The singular purpose of this survey, FEDERAL JURISDICTION BASED ON REMOVAL: 50-State Survey, is to assist the practitioner in navigating successfully between state and federal courts. The survey comprises submissions for each of the fifty states and is organized alphabetically by circuit. Lawyers from across the country contributed their time and talent to highlight not only the fundamental concepts of removal jurisdiction, but also the unique nuances within their jurisdictions. At first blush, one might assume that removing a case is simple. After all, how difficult can it be to determine whether complete diversity exists and whether or not the amount in controversy is in excess of the jurisdictional amount? In practice, however, it is not that simple. Numerous pitfalls for the unwary abound. Important considerations come into play in determining the parties in interest and the amount in controversy. For example, what happens when the Complaint asserts claims against a Doe defendant or seeks neither money damages nor damages in a specific dollar amount? What if the case one wants to remove is a class action? This survey addresses each of these issues and related sub-issues in detail. The well-known maxim, Timing is everything, holds especially true in the removal context. Being able to recognize the event that triggers the 30-day period when an action is initially removable is critical. Equally important, is recognition of events that trigger the thirty-day removal period when a case in not initially removable. In either scenario, if the 30-day window closes, the case will remain in state court. The authors provide detailed analysis of the time of existence of the grounds for removal. No discussion of removal would be complete without addressing the subject of fraudulent joinder, the impact of the voluntary/involuntary rule, and waiver of the right to remove. The case law on these subjects varies greatly by jurisdiction and continues to evolve. For the lawyer whose practice includes litigation involving pharmaceutical products, these subjects are of particular importance. In closing, I want to extend my deep thanks to all of the authors for their contribution. Their efforts identify some common themes and highlight the lack 1 Hagerla v. Miss. River Power Co., 202 F. 771, 773 (S.D. Iowa 1912).
6 of uniformity on certain issues. We hope that this survey will assist you in your practice as this body of law continues to develop. Kara Trouslot Stubbs September 2008
7 About the Editor Kara Trouslot Stubbs is a member of Baker, Sterchi, Cowden & Rice, L.L.C., where her civil litigation practice is primarily focused on the defense of product liability matters, including the defense of manufacturers of medical devices, pharmaceutical products, construction equipment, children's products, and various consumer products. Her practice also includes general personal injury, commercial litigation, and consumer fraud. She has served as national and regional counsel to various clients in mass tort litigation. She is a member of the Kansas, Missouri, and American Bar Associations, International Association of Defense Counsel, and DRI. She is a frequent lecturer and author on issues related to product liability litigation. Ms. Stubbs received her B.A. from the University of Kansas in 1989 and her J.D. from the University of Kansas in Prior to joining the firm she served as law clerk to the Honorable Thomas C. Clark of the Circuit Court of Jackson County, Missouri.
8 1ST CIRCUIT
9 MAINE By: Steven J. Mogul, Esq. Joseph M. Bethony, Esq. GROSS, MINSKY & MOGUL, P.A. 23 Water Street, Suite 400 P.O. Box 917 Bangor, ME Telephone: (207) Facsimile: (207) I. POWER AND RIGHT TO REMOVE A. The Parties 1. Defining Parties in Interest The term parties in interest, as it appears in 28 U.S.C. 1441(b) has not been defined by the courts of the District of Maine. 1 Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. However, the case of Millett v. Atlantic Richfield Company, 2 sheds some light on how that term may be defined if that issue were to come before the District Court for the District of Maine. In Millett, Magistrate Judge David Cohen issued a Recommended Decision on Plaintiffs Motion to Remand which rejected the out-of-state Defendants argument that the court, in analyzing whether there was diversity of citizenship to support removal under 28 U.S.C. 1441, could not consider the citizenship of a Maine resident added as a defendant on the same day that Defendants motion for removal was filed. The magistrate held that even though the added defendant might not have been a 1 See 28 U.S.C. 1441(b) WL (D. Me. 1999). 1
10 proper party before the action was removed, this fact was not relevant to an analysis of the existence of diversity jurisdiction. In a footnote, the magistrate noted that the last sentence of section 1441(b) comes into play only when diversity jurisdiction on removal under section 1441(a) has been established. 3 Rather [section 1441(b)] provides that, even if there is complete diversity of citizenship, a case cannot be removed if a defendant, properly joined and served is a citizen of the state in which the action is brought. It would seem, therefore, that the courts of the District of Maine would read the term parties in interest to merely refer to a defendant that is properly before the court as a party before the motion for removal has been filed. 2. Presence of Doe Defendants In the First Circuit, the existence of fictitious or Doe defendants is to be ignored by the court in determining whether removal is proper under 28 U.S.C. 1441(a), even in cases where the plaintiffs pleadings suggest that the residency of these defendants might preclude the courts exercise of diversity jurisdiction. 4 If, however, after removal, the fictitious defendants are identified as nondiverse parties, then diversity jurisdiction is defeated. 5 B. The Amount in Controversy 1. Establishing the Amount in Controversy In the state courts of Maine, parties are prohibited from asking for a specific amount of money in their pleadings. 6 Thus, upon removal, courts in the District of Maine must look to the pleadings and evidence presented by the defendant to determine whether the defendant has met its burden of establishing by a preponderance of the evidence that the amount in controversy exceeds 3 Id. at *6 n.7 (citing Burke v. Humana Ins. Co., 932 F. Supp. 274, 275 (M.D. Ala. 1996). 4 Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668, 673 (1st Cir. 1994). 5 Id. at M.R.S.A
11 $75, Some factors that have been held to be important in undertaking this inquiry include: 1. the compensable damages suffered by the plaintiff, Doughty, supra. at 219); 2. other elements of recovery sought by the plaintiff, including, among other things, punitive damages, Bernier v. Unicco Service Co., 2005 WL *1 (D. Me. 2005); 3. amounts that plaintiffs in similar cases in the locality have recovered, id.; 4. when authorized by statute or contract, an estimate of the reasonable attorneys= fees that could be recovered, Waldron v. George Weston Bakeries Dist., Inc., 477 F. Supp.2d 295, 296 (D. Me. 2007); and 5. whether the plaintiff has stipulated or attempted to stipulate, before removal, that the amount she is seeking in the suit is less than $75,000, Satterfield v. F.W. Webb, 334 F. Supp.2d 1, 3-4 (D. Me. 2004). 2. Defeating Removal by Amending Relief Sought While a plaintiff may successfully defeat federal jurisdiction by asserting from the inception of the case that she will be seeking less than $75,000 in damages, the District of Maine, in dicta, has stated that cases holding that a post-removal attempt to so limit damages is ineffectual seem correct Amount in Controversy Where Equitable Relief Sought The question of how the court is to determine whether the amount in controversy requirement has been satisfied when the plaintiff seeks equitable relief is an open issue in this district and in the First Circuit. However, a fairly recent opinion from the First Circuit Court of Appeals may provide some insight into how the issue might be analyzed by the district courts in this circuit. In a case where the defendant challenged the district courts exercise of diversity jurisdiction over a the interpretation of an arbitration clause when the amount in controversy in the arbitration was just under $60,000, the First Circuit held that the $75,000 amount in controversy had 7 Doughty v. Hyster New England, Inc., 344 F. Supp.2d 217, 219 (D. Me. 2004); see also, Vradenburgh v. Wal-Mart Stores, Inc., 397 F. Supp.2d 76, 78 (D. Me. 2005). (In determining whether the amount in controversy element is satisfied, the Court considers whether, taking all reasonable inferences in favor of Plaintiffs Complaint, the Court is persuaded by a preponderance of the evidence that the litigation value of the case exceeds $75,000.). 8 Id. (citing Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 872 (6th Cir. 2000); In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992)). 3
12 nonetheless been met. 9 The court stated that the proper focus in analyzing the amount in controversy was not merely the monetary judgment which the plaintiff may recover, but more broadly what were the judgments pecuniary consequences to those involved in the litigation. 10 Thus, the extra costs that the plaintiff would have incurred if arbitration were held in one location versus another were properly included in the calculation of the amount in controversy. 11 C. Time of Existence of Grounds for Removal 1. Event Triggering Thirty-Day Period for Actions Initially Removable So long as the case is, on its face, removable on the initial pleading, the thirty-day removal period that is set forth in 28 U.S.C. 1446(b) is triggered from receipt or service of the complaint Event Triggering Thirty-Day Period for Actions Not Initially Removable If, however, the case cannot be removed based on the face of the initial complaint, then, pursuant to section 1446(b), an unremovable case may become removable within 30 days of receipt of an amended pleading, motion, or other paper from which it may first be ascertained that the case is one which is or has become removable; in other words, a once non-removable case is removable within the 30 days after the defendant discovers that the case is or has become removable. 13 While the receipt of an amended pleading or motion may trigger this latter 30-day removal period, so too may the receipt of some other paper. Other paper that has signified the newfound removability of a case and initiated the thirty-day period includes letters from opposing counsel, correspondence between parties, affidavits, proposed jury instructions, answers to interrogatories, 9 Richard C. Young & Co., Ltd. v. Leventhal, D.D.S., M.S., 389 F.3d 1, 3 (1st Cir. 2004). 10 Id. 11 Id. 12 Borgese v. American Lung Assn of Maine, 2005 WL * 1 (D. Me. 2005). 4
13 motions for summary judgment, and documents produced in discovery. 14 In Parker, the receipt by defendant of a letter enclosing a Stipulation of Dismissal of the non-consenting defendant was held to be an other paper giving rise to the 30-day period provided for in the second paragraph of section 1446(b). 15 It is worth pointing out that despite the fact that complete diversity may exist among the plaintiff and all the defendants, one defendant can block removal by failing to give consent since all defendants must consent to removal. 16 It was not until defendant received this other paper that it realized that the case had become removable, given that removal could not have gone forward while the non-consenting defendant was still involved in the litigation. 17 II. FRAUDULENT JOINDER A. Test for Fraudulent Joinder While the First Circuit has not defined how claims of fraudulent joinder should be analyzed, the District of Maine has held that to prove that a non-diverse defendant has been joined simply to defeat diversity jurisdiction, the burden is on the party challenging the jurisdiction-related allegations of the complaint to prove that they have no reasonable basis and to prove the pleaders objective bad faith in making those allegations. 18 The party challenging the joinder must prove to a legal certainty that, at the time of filing the complaint, no one familiar with the applicable law could reasonably have thought, based on the facts that the pleader knew or should have known at the time 13 Parker v. County of Oxford, 224 F. Supp.2d 292, 296 n.7 (D. Me. 2002). 14 Id. at Id. at Id. at Id. But see Borgese, 2005 WL * 2-3 (holding that letter sent by plaintiffs counsel in the course of settlement negotiations was not an other paper, even though letter made vague reference to possible federal claims that could be asserted by plaintiff since it did not give notice of a change in diversity between parties or amount in controversy, and was not related to filing with court). 18 In re Maine Asbestos Cases, 44 F. Supp.2d 368, 372 (D. Me. 1999). 5
14 that a cause of action against the resident defendant could ultimately be proven. 19 B. Evidence of Fraudulent Joinder The In re Maine Asbestos Cases test breaks down into two prongs: (1) facial invalidity, and (2) objective bad faith proven to a legal certainty. 20 Despite the fact that the District of Maine has announced the foregoing test, it has not been put into practice on more than a few occasions. Resort should be had to other district courts within this circuit, to the extent that they employ the same test, to further flesh out what constitutes evidence of fraudulent joinder. III. VOLUNTARY / INVOLUNTARY RULE A. Voluntary Dismissal In New England Explosives Corp. v. Maine Ledge Blasting Specialist, Inc., 21 the District of Maine opined in dictum that notwithstanding the entry of a default judgment against a non-diverse defendant, which, ostensibly, would have created complete diversity of citizenship among the remaining parties, the court could not exercise diversity jurisdiction. The court flatly held that the entry of a default judgment, being an act of the court, is not a voluntary act of the plaintiff that renders the once non-removable case removable. 22 The District of Maine subsequently held that New England Explosives does not create a bright-line rule that a court order creating diversity is never a plaintiff s voluntary act for purposes of the involuntary/voluntary exception to removal of diversity actions from state to federal court. Instead, seventeen years later, the District of Maine changed the focus slightly so that now the 19 Id.; see also Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 877 (1st Cir. 1983) (stating that a finding of fraudulent joinder bears an implicit finding that the plaintiff has failed to state a cause of action against the fraudulently joined defendant). 20 See Tardy v. Eli Lilly and Company, 308 F. Supp. 2d 18, (D. Me. 2004) F. Supp. 1343, 1347 (D. Me. 1982) 22 Id. at 1347 n. 7. 6
15 question is whether the court order that created diversity was the result of a voluntary act by the plaintiff. 23 The court there noted that if the order that issued as a result of a motion filed by plaintiff, it could be considered a manifestation of [p]laintiffs voluntary act. 24 However, since the order that issued in Maine Employers Mutual Ins. Co. was contrary to the request for relief sought by plaintiff, the court held that the order was not a voluntary act of the plaintiff, meaning that the case was still not removable. 25 The ruling now casts doubt on the dictum in New England Explosives, since default judgment is typically sought by the plaintiff as voluntary act. IV. WAIVER OF RIGHT TO REMOVE A. Waiver by Defending Cases arising from the First Circuit, suggest that waiver of the right of removal requires evidence of intent, which must be clear and unequivocal, and the defendant's actions must be inconsistent with the right to remove. 26 The actions from which intent is to be inferred must be clearly inconsistent with a purpose to pursue the right to remove. 27 It is well established in the district courts of this circuit that while conduct in state court which seeks affirmative relief or substantive disposition of a claim may constitute waiver, [n]either defensive pleadings nor motions to preserve the status quo ante waive the right to removal. 28 Filing an answer and asserting affirmative defenses did not constitute a waiver in F.D.I.C. v. Greenhouse Realty Associates. 29 Likewise, filing a motion for enlargement of time within which to answer the complaint is not a waiver, since such a rule would present a defendant with a Hobsons choice between answering the 23 Maine Employers Mutual Ins. Co. v. Yates Insurance Agency, 52 F. Supp. 2d 135, 138 (D. Me. 1999). 24 Id. 25 Id. 26 Hernandez-Lopez v. Com. of Puerto Rico, 30 F.Supp.2d 205, 209 (D. P.R.1998). 27 Davila v. Hilton Hotels Intern, 97 F.Supp. 32, 34 (D. P.R. 1951). 28 Id. See also, Houlton Sav. Bank v. American Laundry Machinery Co., 7 F.Supp. 858, 861 (D. Me. 1934). 7
16 complaint within the deadline to do so (for example, Maines deadline to file an answer is 20 from the date of service) and thus waiving the right to remove, or else risking default. 30 Similarly, opposing injunctive relief, or filing motions or memoranda as required by the court, do not constitute waivers of the right to remove. 31 On the other hand, actions in the state court, that indicate the defendant has invoked the jurisdiction of the state court or has taken actions that manifest the defendant's intent to have the case adjudicated in state court will constitute waiver of the right of removal. 32 Removal following such actions may be seen as nothing more than a veiled attempt to appeal from an adverse ruling in the state court. 33 In F.D.I.C. v. Greenhouse Realty Associates, the Court noted that actively seeking disposition on the merits, such as by filing a motion to dismiss, would constitute a waiver of the right to remove a case to federal court. B. Waiver by Consent State laws requiring corporations registered to conduct business in the state to submit or consent to the jurisdiction of the states courts, standing alone, do not deprive such companies of their right to remove actions to the federal court. 34 The same can be said of insurers who register in particular state and thereby consent to be sued in the states courts. 35 The reason offered for the rule is that it is intent to waive which determines waiver, and it is the intent of the party seeking removal which is examined, not the intent of third parties, such as a states legislature. 36 The pertinent F.Supp. 507, 511 (D. N.H.1993) 30 Malave v. Sun Life Assur. Co. of Canada, 392 F.Supp. 51, (D. P.R. 1975). 31 Hernandez-Lopez, supra. 32 Id. 33 Id. 34 Davila, supra. 35 CNA Cas. of Puerto Rico v. Fidelity and Cas. Co. of New York, 790 F.Supp. 45, 47 (D. P.R., 1992). 36 Id. 8
17 statutes requiring registration of a corporation or insurer doing business within the state is merely to assure personal jurisdiction within the state, not to dictate whether suit must be maintained in state versus federal court. 37 Furthermore, the decisions uniformly hold that it is beyond the power of the States to impair the right to remove a case on diversity grounds when the removal is timely and diversity does in fact exist. A statute which in terms purported to effect such a result would be unconstitutional. 38 The question may arise whether prior litigation by a party in state court may constitute consent to waive the right of removal in subsequent litigation, particularly where the parties to the two actions are the same and the transactions in litigation are closely related. 39 However, if it is true that waiver is always spelled out from occurrences after commencement of suit, 40 then conduct in prior litigation would have to be very closely related in order to constitute a waiver. The issue has not been further addressed in this circuit. C. Waiver by Contract The question of whether parties may agree by contract to waive the right of removal was last addressed in this circuit in Whether parties may stipulate in advance to restrict removal is highly doubtful, for such an understanding would run counter to the settled idea that bargains limiting parties to particular tribunals are illegal. 41 V. PRACTICE POINTERS In order to convince the court that the amount in controversy exceeds the jurisdictional limit, demand letters and other correspondence from plaintiff or its counsel, though often inflated, can 37 Id. at Davila, supra. at Demarkles v. Rudolph Wurlitzer Co., 132 F.Supp. 20, 21 (D. Mass. 1955). 40 Davila, supra. at 35 9
18 support a higher amount in dispute than a plaintiffs representations after removal is sought. The Maine Trial Lawyers Association publishes a report of jury verdicts in the state which provide information about each jury trial, pretrial settlement positions of the parties and the verdict amount. These may also provide evidence of the value of the claims at hand. Caution should be exercised, however, so as not to jeopardize settlement possibilities by inflating plaintiff s opinion of the value of its claim. To avoid waiver it is important when defending a state court complaint that defense counsel not take any action beyond what is necessary to protect against default or maintain the status quo. Faced with a motion for prejudgment attachment, the case law suggests that objecting should not constitute a waiver of the right to appeal. Likewise, opposition to injunctive relief such as a motion for temporary restraining order (TRO) and preliminary injunction would not constitute a waiver. However, hearings on a preliminary injunction are often consolidated with a hearing on the merits. M.R.Civ.P. 65(b)(2). It is not inconceivable that such a hearing might take place within the time limit to remove, since Rule 65(a) states that [i]n case a temporary restraining order is granted without notice, the motion for a preliminary injunction shall be set down for hearing at the earliest possible time. Whether participating in such a consolidated hearing constitutes a waiver of the right to remove the matter may be very fact dependant. Unfortunately, a TRO may so hinder a defendant that a prompt hearing on the preliminary injunction is critical. Better practice would be to object to a consolidated hearing so as to avoid the appearance of seeking a resolution on the merits only to then seek removal as an alternative to appeal of an adverse ruling. If a defendant potentially faces multiple similar suits between the same parties in state court, 41 General Phoenix Corporation v. Malyon, 88 F.Supp. 502, 503 (S.D. N.Y. 1949), quoted in Davila, supra. 10
19 such as between a manufacturer and wholesaler or retailer, it may want to consider at the outset whether it prefers to litigate in state or federal court. If it is even considering litigation in federal court, it would be wise to remove the first action rather than wait to see how it turns out in state court and then find its removal of subsequent actions blocked by an implied consent to waive removal. Given the constitutional import of removal, it should be argued in favor of denying remand that there is no appeal from the grant of remand, while there is an appeal from the denial of remand. That right [of removal] is of sufficient value and gravity to be guarantied by the Constitution and the acts of Congress. If it exists, and the Circuit Court denies its existence, and remands or refuses to remove the suit, the error is remediless, and it deprives the petitioner of his constitutional right. If the right does not exist, and the court affirms its existence and retains the suit, the error may be corrected by the Supreme Court. An error that the aggrieved party may correct is less grievous than one that is without remedy Boatman's Bank v. Fritzlen 135 F. 650, 655 (8th Cir. 1905) quoted in Houlton Sav., supra. at
20 MASSACHUSETTS By: David L. Ferrera and Gabriella Kaplan Eisner NUTTER MCCLENNEN & FISH LLP World Trade Center West 155 Seaport Boulevard Boston, MA Telephone: (617) Facsimile: (617) I. POWER AND RIGHT TO REMOVE A. The Parties 1. Defining Parties in Interest The District Court of Massachusetts has provided minimal guidance about the definition of parties in interest. The Court has stated that third-party defendants cannot remove a case from state court to federal court. 1 Similarly, the Court has found that a defendant s relationship with other parties that may have an interest in the case does not defeat diversity. 2 Moreover, [f]or purposes of determining diversity, citizenship of a limited-liability corporation is that of each of its members Presence of Doe Defendants The District Court of Massachusetts found that original diversity jurisdiction did not exist in a case where there was only one defendant who was also a Doe defendant. 4 However, Massachusetts treats Doe defendants in removal cases as instructed: In 1988, Congress 1 Coren v. Jefferson et al., 139 F.R.D. 561, 564 (D. Mass. 1991). 2 Whittaker Corp. v. Am. Nuclear Insurers, 2007 WL at *1 (D. Mass. 2007) (unsuccessful argument that the court should consider the citizenship of all the members of ANI, an unincorporated association of member insurance companies that underwrote the insurance policy at issue, because they are the real parties in interest.) 3 Landworks Creations, LLC v. Fid. & Guar. Co., 2005 WL at *1 (D. Mass 2005). 4 McMann v. John Doe, 460 F. Supp. 2d 259, (D. Mass. 2006). 1
21 amended the removal statute, 28 U.S.C. 1441, by declaring that the presence of defendants sued under fictitious names does not defeat removal jurisdiction. 5 But when Doe defendants are ultimately named and diversity is destroyed, federal jurisdiction can only continue if the former Doe defendants are dispensable parties and are dismissed Diversity for Putative Class Actions The diversity determination in putative class actions is governed by the Class Action Fairness Act (CAFA), 7 which requires only minimal diversity. The District Court of Massachusetts found that residency and citizenship are not interchangeable when determining diversity jurisdiction under CAFA. 8 Instead, citizenship is equated with domicile. 9 Thus, a putative class that is composed entirely of residents of Massachusetts, does not, by definition, foreclose the inclusion of non-citizens as well. This suffices to support the assertion of federal jurisdiction in this case. 10 There has also been some debate about the definition of commencement in CAFA, which states that the Act applies to any case commenced on or after February 18, 2005, the date of enactment. The District Court of Massachusetts held that an action is commenced as of the date of filing with the state court, not on the date that it was removed to federal court. 11 Moreover, the Court set forth two types of amendments that generally do establish the commencement of a new action for the purposes of CAFA: 1) amendments that add new defendants and 2) amendments that assert a wholly distinct claim for relief into a pending suit Id. at Casas Office Machines v. Mita Copystar Am., 42 F.3d 668, 675 (1st Cir. 1994) U.S.C. 1332(d)(2). 8 McMorris v. TJX Companies, 493 F. Supp. 2d 158, 162 (D. Mass. 2007). 9 Id. 10 Id. at Natale v. Pfizer, 379 F. Supp. 2d 161, 176 (D. Mass. 2005). 12 Moniz v. Bayer A.G., 447 F. Supp. 2d 31, 37 (D. Mass. 2006). 2