[00:00:00] Speaker 02:
The next two cases core your warriors versus bondi and alvarado corneio versus bondi have been submitted on the briefs.

[00:00:07] Speaker 02:
The next case on calendar for argument is cores versus swift transportation.

[00:00:28] Speaker 01:
Good morning, your honors.

[00:00:29] Speaker 02:
Good morning.

[00:00:30] Speaker 01:
May it please the court, John Ellis for Appellant Swift Transportation.

[00:00:34] Speaker 01:
I'd like to reserve four minutes for rebuttal.

[00:00:37] Speaker 01:
All right.

[00:00:38] Speaker 01:
Your honors, there are two mechanisms by which this court should reverse the trial court's two remand orders remanding this case to state court.

[00:00:47] Speaker 01:
First, the court should find that the district court had no authority to order remand on a ground that plaintiff never raised and is inconsistent with the grounds that plaintiff did raise.

[00:00:59] Speaker 01:
In such a situation, the district court has no authority to remand.

[00:01:02] Speaker 01:
And when a district court remands without authority, for example here, when it's on a non-procedural ground that is not raised by the plaintiff, the bar on reviewing remand orders that's in 28 USC 1447D does not apply.

[00:01:17] Speaker 03:
Mr. Ellis, I guess at least in other contexts, we distinguish between

[00:01:23] Speaker 03:
presentation of arguments and presentation of issues and the issue here was was it timely or not?

[00:01:32] Speaker 03:
Why isn't the reason why it wasn't timely an argument rather than an issue?

[00:01:38] Speaker 01:
I think the reason it's an issue and not an argument is because the way this court's precedents treat the timeliness issue is that there has to be some in order for the defendant to have a 30-day window to remove there has to be

[00:01:53] Speaker 01:
that the defendant is free to remove at any time.

[00:02:06] Speaker 01:
So when the plaintiff comes forward with a motion and says this is not timely because there is a triggering event, which was the plaintiff's view was that our own investigation could be the triggering event.

[00:02:17] Speaker 01:
That was the position they took in the trial court.

[00:02:21] Speaker 01:
they said our own investigations, the triggering event, uh, which we knew by a date certain and that we had until April, I think it was, uh, they, they had a date in April, 2024 in which we had to remove, you know, that's, that's, that's the, the ground for removal that we did not re or the ground for remand that we did not remove within 30 days of wasn't timely.

[00:02:46] Speaker 01:
Yes, your honor.

[00:02:47] Speaker 01:
But because of a very specific, um,

[00:02:50] Speaker 01:
a very specific thing that happened.

[00:02:52] Speaker 01:
It was you were 30 days after X, and then what the trial court did is came up with its own rationale and said, well, actually, no, you were 30 days after Y. But if we ever held that that makes a difference, you seem to rely, I don't hear you relying on it now, that it was somehow suespante.

[00:03:12] Speaker 03:
This wasn't suespante.

[00:03:14] Speaker 01:
Our argument is that it is effectively suespante when the district court revans.

[00:03:18] Speaker 01:
Well, there's a motion that it was untimely.

[00:03:21] Speaker 01:
And so... Yes, but there was no motion by the plaintiff that argued that defendant failed to remove within 30 days of service of the complaint.

[00:03:31] Speaker 01:
And plaintiff agreed that the complaint did not put us on notice of subject matter jurisdiction.

[00:03:36] Speaker 01:
That was in their briefing.

[00:03:39] Speaker 01:
They agreed with us on that.

[00:03:41] Speaker 01:
And they said we had until April 2024 to remove, which is well more than 30 days after service of the complaint.

[00:03:47] Speaker 01:
But if your honors are concerned about this

[00:03:50] Speaker 01:
Jurisdictional point your honors authority to hear this appeal We do have separately filed a petition for permission to appeal under CAFA We we filed that actually before we filed our direct appeal and and there's no restrictions on your honors reviewing The remand order at issue here if you grant the petition for permission to appeal And why is this under the factors for the petition?

[00:04:14] Speaker 03:
Why is this distinctly?

[00:04:17] Speaker 03:
CAFA

[00:04:19] Speaker 03:
Problem, I mean this is I think this is a rather ordinary Case of how you decide whether it's removal or not on the four corners of the complaint.

[00:04:30] Speaker 03:
That's true of all Civil cases that are removed.

[00:04:34] Speaker 01:
It's not a CAFA specific issue that the statute seems to be addressing sure so Coleman which is the case that sets forth the factors for considering one of these petitions for permission to appeal States that the four factors are a set of guidelines.

[00:04:47] Speaker 01:
They're not

[00:04:48] Speaker 01:
They're not elements.

[00:04:49] Speaker 01:
You don't have to hit one, two, three, four, and five in order for this court to grant the petition for permission to appeal.

[00:04:55] Speaker 01:
There are a set of guidelines, and one of those is that it presents an important CAFA-related question.

[00:05:01] Speaker 01:
But there are others, such as does the district court's order appear erroneous, which I think it very clearly does here for the reasons we briefed and I'll get into in a minute.

[00:05:12] Speaker 01:
If the order appears erroneous,

[00:05:13] Speaker 01:
That is a factor in which the court should consider in granting the petition for permission to appeal.

[00:05:18] Speaker 01:
Whether the record has developed to extent that permits intelligible review, that's clearly satisfied here.

[00:05:26] Speaker 01:
We've pretty much briefed the issue in full, both here and at the trial court.

[00:05:32] Speaker 01:
Whether this can be reviewed later is a factor.

[00:05:35] Speaker 01:
That's not going to be the case if the remand order is upheld.

[00:05:42] Speaker 03:
And then yeah, I guess remand remand is kind of Famously unreviewable.

[00:05:50] Speaker 03:
There's there's just you're just not going to see as many cases Addressing issues such as this but again.

[00:05:56] Speaker 03:
That's a general problem.

[00:05:58] Speaker 03:
We've got a statute that's created a special discretionary procedure for us to grant permission to to review but to permission to review for CAFA purposes not for

[00:06:08] Speaker 03:
general removal purposes.

[00:06:10] Speaker 01:
Sure.

[00:06:10] Speaker 01:
And Coleman does say that is one factor, whether the case presents an important CAFA-related question.

[00:06:16] Speaker 01:
And I think it does, because this timing issue tends to come up an awful lot in CAFA cases, because they are class actions, right?

[00:06:25] Speaker 01:
And you have this 5 million in controversy element, which is almost always going to require

[00:06:33] Speaker 01:
Some estimation of the class size right and I wouldn't if we could turn to that.

[00:06:39] Speaker 03:
I think that's Why wouldn't under?

[00:06:42] Speaker 03:
Cox house and and and in other cases Swift be to be expected to kind of do the math.

[00:06:49] Speaker 03:
I mean so even if I get that perhaps it was There's a little bit of art and pleading several hundred given that the nine thousand dollar figure was the most prominent but of course it also cites

[00:07:02] Speaker 03:
California law that provides for statutory damages, which don't even seem to make it a close question if you've got a few hundred possible class members, which I think everyone agrees you had here.

[00:07:12] Speaker 03:
So why wouldn't you be required to not look, not do investigation into your own employee workforce or the class size, the sorts of things we've said you don't have to do, but just to look up the statutes and say, oh, these are California claims with statutory damages, and it's not going to take more than a few hundred, which is all they allege.

[00:07:31] Speaker 01:
to do.

[00:07:43] Speaker 01:
There was some sort of $1,000 per person.

[00:07:47] Speaker 01:
I think wage statement damages cap out at $4,000 per person.

[00:07:54] Speaker 01:
Labor code section 203 penalties, they provide for 30 days of wages, but it depends on how many people have been let go, how many people are former employees.

[00:08:05] Speaker 01:
in the last year.

[00:08:06] Speaker 03:
Well 9,000 gets them close and that's on the face of the complaint and then it's a question of whether a few hundred there a few thousand there adds up to real CAFMA.

[00:08:14] Speaker 01:
Yes and and what so I would I would point to the case Harris versus Baker's life which points which points out there are three types of pleadings.

[00:08:23] Speaker 01:
There's a determinant complaint where it's clear and obvious that there's over five million in controversy or I should rather say that the case is removable.

[00:08:30] Speaker 01:
There's one there's a complaint where it is

[00:08:33] Speaker 01:
very clear that the case is not removable.

[00:08:35] Speaker 01:
And then there's an indeterminate complaint where it could be removable based on what's in the complaint, or it could not be.

[00:08:42] Speaker 01:
And I think that's what we have here.

[00:08:43] Speaker 01:
It could be removable if every class member was subject to this $9,000 training fee and that there's over 556 class members, but it could not be.

[00:08:56] Speaker 01:
And you have to look at what they've alleged, which is that it said that other class members

[00:09:01] Speaker 01:
incurred this $9,000 training fee.

[00:09:03] Speaker 01:
It doesn't say every class member.

[00:09:04] Speaker 01:
It says other class members, and that's different than other language in the complaint that says each class member, you know, hadn't been paid all minimum wages.

[00:09:12] Speaker 01:
For the $9,000 training fee, it just says other class members.

[00:09:15] Speaker 01:
And we know just from common sense, knowing what this training fee refers to is what it's referring to is a program that SWIFT has to allow people to obtain a commercial driver's license at a driver's school

[00:09:26] Speaker 01:
that only people who don't already have a commercial driver's license go to.

[00:09:31] Speaker 01:
And there's nothing in the complaint that indicates how many class members went to driving school, how many didn't.

[00:09:36] Speaker 01:
That's something we have to investigate.

[00:09:38] Speaker 01:
That's something we have to look at.

[00:09:40] Speaker 01:
It also, the allegation and the theory is that Swift terminated people within one year of their employment

[00:09:47] Speaker 01:
And that somehow, that makes SWIFT then liable for the $9,000 training fee because I think the theory is they said they would forgive it, but then they fired people in bad faith so it was not forgiven, I think is the theory.

[00:09:59] Speaker 01:
But it's very clear that it's dependent on class members being terminated within a year of employment.

[00:10:05] Speaker 01:
And there's nothing on the complaint that indicates how many of these

[00:10:08] Speaker 01:
hundreds of class members were terminated within a year of employment, or how many plaintiff alleges were terminated the year of the employment.

[00:10:14] Speaker 01:
We need to do our own investigation to figure that out.

[00:10:17] Speaker 01:
So this is at best an indeterminate case, a complaint, and going back to Harris versus Baker's life, the court clearly held that an indeterminate complaint does not start the 30 days to remove.

[00:10:28] Speaker 01:
Only the first type of complaint, only the complaint from which it is clear that the case is removable, will start the 30 days to remove.

[00:10:38] Speaker 02:
Council, how do you calculate the allegation regarding the four-year period of lost wages?

[00:10:44] Speaker 02:
How do you think that figures into the analysis of potential damages?

[00:10:50] Speaker 01:
Yes, Your Honor.

[00:10:51] Speaker 01:
So after SWIFT looked into it and saw how many class members there are and how many work weeks were at issue, at that point it became very apparent that the

[00:11:04] Speaker 01:
the amount in controversy is well in excess of $5 million.

[00:11:08] Speaker 01:
But none of that information is the complaint.

[00:11:10] Speaker 01:
And what Harris says in other cases like Roth versus CHA and Rea versus Michael Storks is that you have to determine notice of removability from the face of the complaint, from the four corners of the complaint, not on the defendant's own knowledge, not on any duty to make inquiry, but what's in the actual complaint.

[00:11:31] Speaker 01:
And there's no allegation of

[00:11:34] Speaker 01:
how many work weeks are at issue.

[00:11:37] Speaker 02:
There's no allegation of how many- But say for a four-year period, there was a failure to pay minimum wage.

[00:11:43] Speaker 02:
Do you agree that's the allegation?

[00:11:46] Speaker 01:
I do agree that they allege for a four-year period, for an indeterminate number of class members who worked an indeterminate amount of work weeks, there was a failure to pay wages.

[00:11:54] Speaker 01:
But the point is that those numbers,

[00:11:58] Speaker 01:
which you need to plug into the formula to get to over five million are indeterminate from the complaint, and an indeterminate complaint does not start the time to remove.

[00:12:07] Speaker 01:
And I see I'm about three and a half minutes left, so I would like to reserve the rest for rebuttal.

[00:12:27] Speaker 00:
May it please the court, my name is Alfredo Torrijos and I represent the plaintiff appellee in this matter, Christopher Kors.

[00:12:35] Speaker 00:
This appeal should be dismissed for lack of jurisdiction.

[00:12:38] Speaker 00:
The district court's order remanding the case is unrevealable under section 1447D because the district court acted below on a timely motion filed by my client challenging a procedural defect, the untimeliness of Swift's removal.

[00:12:58] Speaker 00:
Swift argues that the court acted so espante, but the record is clear.

[00:13:04] Speaker 00:
The court granted our motion.

[00:13:07] Speaker 03:
Mr. Turios, I guess given that the district court took a position that you didn't even take, why isn't this sufficiently debatable that we should grant the petition?

[00:13:18] Speaker 03:
You haven't filed a response to the petition.

[00:13:20] Speaker 03:
What's your position?

[00:13:21] Speaker 00:
With regard to the petition, Your Honor,

[00:13:24] Speaker 00:
First of all, I don't believe the Coleman factors would weigh towards granting the petition here.

[00:13:30] Speaker 00:
I believe that, first of all, this is not an unsettled area of capital law.

[00:13:36] Speaker 00:
It is a simple question of timeliness and the application of that.

[00:13:42] Speaker 00:
Second of all, I think- One that you hadn't identified in the trial court.

[00:13:45] Speaker 00:
That is correct, Your Honor.

[00:13:46] Speaker 00:
We did not identify it.

[00:13:48] Speaker 00:
We proceeded under a different theory of timeliness.

[00:13:53] Speaker 00:
but a different theory that was not identified by us.

[00:13:56] Speaker 00:
But to touch on that point, Your Honor, the cases that my friend here is relying on, Kelton, Arms, Corona, Contreras, and Kenny, all of those cases, there was no motion filed.

[00:14:10] Speaker 00:
But importantly, this court, in deciding those cases, said effectively that the plaintiff

[00:14:17] Speaker 00:
had accepted federal jurisdiction by not raising an issue of timeliness and seeking a remand, the basis there was that the plaintiff effectively conceded that.

[00:14:34] Speaker 04:
If the plaintiff files a motion to remand on the ground that there's no federal jurisdiction and the district court remands on the ground that the removal was untimely,

[00:14:46] Speaker 04:
Do you think that is that barred from appeal under 1447 Yes, your honor, I believe it would be barred in that situation and

[00:14:57] Speaker 04:
the case cited by Defendants in their briefing the the northern district let me see if I can get it here So you use as long as there is some motion like doesn't matter what the motion says District court can go off and do something totally different That's enough to trigger the bar on appeal.

[00:15:19] Speaker 00:
I apologize your honor may have been spoken I agreed with the with the court's hypothetical there that the court

[00:15:25] Speaker 00:
That that would not be the court acting with it in reaction to the so we could review that that could be reviewed So then so then what we have here.

[00:15:36] Speaker 04:
I mean you did make a motion for a defect in based on a defect and removal procedure But it's it's a totally different theory that they're set out in different provisions of the statute right that the statute has the

[00:15:50] Speaker 04:
30 days from the complaint in B2A and then 30 days from the filing of another paper in B3.

[00:16:01] Speaker 04:
Why isn't that different enough for us to say, effectively you did not file a motion for remand on the basis of, flip it around, what the district court did was not on the basis of a motion that you filed.

[00:16:18] Speaker 00:
Well, again, Your Honor, and this might be pedantic, but the court granted our motion, right?

[00:16:25] Speaker 00:
And the notice of our motion was based on section 1446.

[00:16:29] Speaker 00:
We didn't, you know, we didn't determine and specifically state which section.

[00:16:36] Speaker 00:
Now, I completely concede that in our memorandum, we focused on 1446, the subsequent paper to the complaint section.

[00:16:48] Speaker 00:
But in addition to that, you know, one thing that defendants... You specifically cited B3, right?

[00:16:56] Speaker 00:
Within the... Yes.

[00:16:58] Speaker 02:
May I ask you, you said Appellate Review is foreclosed under Section 1447?

[00:17:05] Speaker 02:
Yes, Your Honor.

[00:17:06] Speaker 02:
But the court ruled under 1446, didn't it?

[00:17:09] Speaker 00:
Yes, Your Honor, 1447 paragraph D is the paragraph that provides that a remand order based on a procedural defect is not revealable.

[00:17:23] Speaker 02:
Well, but that's in that statute, 1447.

[00:17:28] Speaker 02:
And if the court relied on 1446, how can we say 1447?

[00:17:35] Speaker 02:
Yes, your honor.

[00:17:41] Speaker 00:
I think that the District Court didn't rely on 1447 the District Court relied on 1446 and then 1447 addresses I'm trying to pull up the statute your honor 1447 addresses specifically the when a an order of remand is issued for a procedural defect so there

[00:18:04] Speaker 00:
They're separate statutes, but 1447 doesn't provide the basis.

[00:18:08] Speaker 00:
The basis is under 1446C, where the court has the authority to issue this in light of our motion.

[00:18:18] Speaker 04:
So to go back to the question Judge Johnstone asked you at the beginning, we have this petition under 1453.

[00:18:26] Speaker 04:
You don't dispute that we have jurisdiction

[00:18:31] Speaker 04:
to grant that and review this.

[00:18:33] Speaker 04:
I mean, you dispute whether we should under the Coleman factors, but we have the authority to do it, right?

[00:18:38] Speaker 00:
Yes.

[00:18:42] Speaker 00:
You definitely have the discretion to review this.

[00:18:45] Speaker 00:
I would point out that here, because both a petition and appeal were filed and this court issued an OSC, where the response by plaintiff was,

[00:19:00] Speaker 00:
Just look at the petition.

[00:19:01] Speaker 00:
That is broader, and it would give the court here everything it needs.

[00:19:07] Speaker 00:
The court discharged that OSC based on the Swift's arguments that, in fact, the district court here acted suespante.

[00:19:16] Speaker 00:
So because of that, Your Honor, 1453,

[00:19:25] Speaker 00:
The discretionary appeal there for CAFA has a very tight timeline right there that once the petition is approved There has to be an order within 60 days with an optional 10-day Extension there The expectation there of course is that this will be resolved quickly

[00:19:45] Speaker 00:
We have an appeal which has progressed as a matter of normal course, as an appeal.

[00:19:53] Speaker 00:
So one of the common factors is prejudice.

[00:19:56] Speaker 00:
And here, plaintiffs and the class members have been prejudiced by that continued delay here.

[00:20:03] Speaker 04:
That's the sunk cost.

[00:20:06] Speaker 00:
It is a sunk cost policy, Your Honor.

[00:20:08] Speaker 00:
It's done.

[00:20:08] Speaker 00:
And here we are.

[00:20:11] Speaker 00:
But I feel that at least the rationale or the spirit

[00:20:15] Speaker 00:
1453 is to resolve it quickly as a petition and that simply wasn't done here so Whether the court has authority I can see that does it clearly does but with regard to Whether the Coleman factors should be playing applied here.

[00:20:37] Speaker 03:
I do think it's it would one of those factors is why shouldn't we view this as a involving

[00:20:45] Speaker 03:
particularly CAFA related concern CAFA has a much higher jurisdictional threshold and then ordinary diversity jurisdiction or some of the other areas where we'd be looking at this it's only going to occur in class actions and The problem here arises under you know where it's a little Alice in Wonderland where each side is taking exact opposite position they would have taken about where the court the case should end up but

[00:21:15] Speaker 03:
You'd pleaded several hundred.

[00:21:18] Speaker 03:
You probably knew that if you'd pleaded $9,000 of damages over 600 class members, where you'd end up.

[00:21:31] Speaker 03:
It would be removable.

[00:21:33] Speaker 03:
So you didn't.

[00:21:34] Speaker 03:
But you didn't.

[00:21:36] Speaker 03:
Why isn't this something that we ought to try to sort out on the petition in terms of how to deal with this?

[00:21:43] Speaker 03:
This is always going to arise, and it seems to arise a lot, when you've got a few hundred class members seeking a few thousand dollars of damages.

[00:21:51] Speaker 03:
That seems quite common in class actions, hovering right around the 5 million point.

[00:21:57] Speaker 03:
Why can't we just use this opportunity to iron that out?

[00:22:00] Speaker 00:
Your Honor, I don't think there would be any expansion of the law on CAFA.

[00:22:04] Speaker 00:
Here, Cuckhausen directly addresses this issue.

[00:22:07] Speaker 03:
Well, Cuckhausen is yes.

[00:22:10] Speaker 03:
In some ways it says you don't have to investigate, but you do have to do math.

[00:22:15] Speaker 03:
And your friend is saying that they didn't have to investigate.

[00:22:19] Speaker 03:
And you're saying now, as the district court said, but they do have to do math.

[00:22:25] Speaker 03:
The math wasn't

[00:22:27] Speaker 03:
Apparent they did have to do a little legal research in that first 30 days.

[00:22:31] Speaker 03:
They did have to make some inferences Why is that enough to put them on notice in this quick CAFA window?

[00:22:40] Speaker 00:
That they got a remand right so the you know kakas and taught us that that defendants have to use reasonable intelligence in ascertaining remove ability and this case is distinguished from Kaukos and or the more recent decision by this court the Morton versus Twitter where

[00:22:57] Speaker 00:
Which is not a CAFA decision explicitly but but was recently submitted to the court by?

[00:23:04] Speaker 00:
Defendant in those cases there is no number right here.

[00:23:10] Speaker 03:
We have numbers and as The court was intimated numbers calculated to be ambiguous Perhaps I mean you have a few hundred I mean the only numbers there as I under let me know if I'm missing something setting aside what might be a

[00:23:24] Speaker 03:
Incorporated by reference in the California claims are there any other numbers here than nine thousand and What was it several hundred several hundred?

[00:23:36] Speaker 03:
No, those are the those are the two explicit numbers, okay, so in in In a large number of instances that doesn't add up to five million not not the majority I mean several hundred could be what three hundred four hundred five hundred six hundred seven hundred so maybe a slight majority, but

[00:23:54] Speaker 03:
Why is that enough if you didn't plead that?

[00:23:56] Speaker 03:
It seems like you're trying to get the benefit now of an ambiguity that you created in your pleading.

[00:24:02] Speaker 00:
It wasn't a strategic decision, Your Honor, but that makes no difference for the course decision here.

[00:24:07] Speaker 00:
So it is what it is.

[00:24:09] Speaker 00:
The reason it doesn't is because several, even if you take several at the definition supplied by defendant, 300,

[00:24:20] Speaker 00:
Take the violation rate as Judge Miller here authored the Perez versus Rose Bank case, where it says, violation rates, as long as it's reasonable, then we can apply it here.

[00:24:32] Speaker 00:
They're now saying, well, there's all these reasons why it wouldn't apply, but the violation rate might be a lot lower.

[00:24:37] Speaker 00:
But even 300 times 9,000 times the statutory penalties

[00:24:43] Speaker 00:
times minimum wages.

[00:24:45] Speaker 03:
Do you think they should be charged with notice on the statutory penalties just by pleading the statute and not pleading the amounts?

[00:24:53] Speaker 00:
Yes.

[00:24:54] Speaker 00:
I mean, there is no investigation of their own records there.

[00:24:58] Speaker 00:
I mean, to hold otherwise would say, you know, they don't need to know what the CAFA time is.

[00:25:04] Speaker 00:
I mean, that is a law that exists.

[00:25:07] Speaker 03:
I guess we also have the four years.

[00:25:09] Speaker 03:
But we don't know how many weeks that is we don't know is I mean do we know whether full-time how many weeks are there hints?

[00:25:16] Speaker 03:
I mean there is that all we have that is again your honor.

[00:25:19] Speaker 04:
Yes as far as numbers go All we have is several hundred and then the nine thousand dollar the training fee and what can you address the point that Mr.. Ellis made that the complaint doesn't say that everyone was subject to the nine thousand dollars and then he gave some reasons why I

[00:25:40] Speaker 04:
Consistent with the complaint maybe only some of them were so what's the answer to that?

[00:25:46] Speaker 00:
The the complaint doesn't but it but it doesn't need to Defendants could could take a violation rate as they did for the other Causes of action and it would be entirely reasonable say that a violation rate for several hundred You know would apply over a four-year period the the

[00:26:07] Speaker 00:
The question is whether the defendant can just hide his head in the sand.

[00:26:10] Speaker 00:
As Judge Johnston correctly noted, the ambiguity was created by plaintiff, absolutely, in his pleading.

[00:26:17] Speaker 00:
But at the same time, defendants, and that's what Cuckhausen taught us, is they can't stick their head in the sand and avoid

[00:26:26] Speaker 00:
making every presumption that they possibly could in order to say, well, no, we didn't know it was removable until some indefinite period.

[00:26:37] Speaker 00:
Roth basically says that regardless of their investigation, once they say it's not triggered by the complainer or another pleading, they can remove up until the point of judgment, honestly.

[00:26:55] Speaker 00:
That, to me, Your Honor, is really what addresses that decision.

[00:27:00] Speaker 00:
And one last point I'd like to make, because my friend argues in the papers that they were prejudiced by not being able to address the issue by the district court raised specifically, and that that would be an indication towards saying it's suespante.

[00:27:19] Speaker 00:
In this case, defendant's opposition

[00:27:25] Speaker 00:
Addresses both of the triggers.

[00:27:28] Speaker 00:
It says, you know, there was no trigger with the complaint.

[00:27:31] Speaker 00:
There was no trigger After with the subsequent pleading so that that I think shows that in fact, it's not so espante They were they were addressing the issues because we raised in general 1446 the timing removal question

[00:27:49] Speaker 00:
And with that, Your Honors, unless there's any questions, I thank you for your time and submit.

[00:27:53] Speaker 02:
Here is not rebuttal.

[00:27:57] Speaker 02:
Yes, Your Honor.

[00:27:58] Speaker 02:
Counsel, could you address the Section 1447 issue that Counsel raised and said that our appellate review is foreclosed under that statute?

[00:28:09] Speaker 01:
Yes, Your Honor.

[00:28:09] Speaker 01:
So that statute only bars review of appeals when the District Court remands on a ground that

[00:28:18] Speaker 01:
is a cognizable ground for remand under the statute.

[00:28:22] Speaker 01:
And the way the Supreme Court and this court has interpreted that is if the district court remands on a procedural ground that is not raised by the plaintiff, then that falls beyond the district court's authority and therefore is not captured by the 1447D bar on removal.

[00:28:44] Speaker 01:
And I think Justice Miller's point was a good one.

[00:28:47] Speaker 01:
which is that the plaintiff's motion for remand was very specifically based on the section of the statute that says a subsequent paper, subsequent pleadings or papers will trigger 30 days and never argued that a different section of the statute, the one that says a complaint that discloses removability will trigger the statute and in fact conceded that the complaint did not trigger

[00:29:15] Speaker 01:
Remove ability under those circumstances.

[00:29:17] Speaker 01:
I do believe that the district court's order was On a non procedural ground timeliness of removal that was not raised by the plaintiff on the Coleman issue on the Coleman factors I'm just going to read them real fast It's the likelihood that the question will evade review of left for consideration only after final judgment.

[00:29:36] Speaker 01:
I believe we have that here

[00:29:37] Speaker 01:
The question appears to be either incorrectly decided or at least fairly debatable.

[00:29:42] Speaker 01:
I think we've explained that the issue here was incorrectly decided.

[00:29:46] Speaker 01:
Whether the record is sufficiently developed and the order sufficiently final to permit intelligent review, I don't believe there's any dispute there.

[00:29:54] Speaker 01:
The balance of harms, I think that weighs in favor of the defendant here, will have lost our right to a federal forum.

[00:30:01] Speaker 01:
And then the presence of an important CAFA rated question, as Judge Johnston stated,

[00:30:06] Speaker 01:
This is an issue that comes up frequently in CAFA cases specifically because you have to add up a bunch of small damages dispersed across potentially thousands of class members.

[00:30:21] Speaker 01:
It's not like a non-CAFA case where it's going to be pretty clear from the face of the complaint that over $75,000 is in controversy.

[00:30:31] Speaker 01:
It's often going to be more clear that there's over $75,000.

[00:30:35] Speaker 02:
If you only have to do the math, then that suffices, correct?

[00:30:39] Speaker 02:
If one only has to do the math to come to the conclusion that the monetary amount is met.

[00:30:46] Speaker 01:
That is correct, but we had to do more than do the math.

[00:30:49] Speaker 01:
We had to determine how many people were actually

[00:30:51] Speaker 01:
subject, but even potentially subject to this $9,000 training fee.

[00:30:55] Speaker 01:
We had determined how many people were even potentially terminated within a year of employment.

[00:31:01] Speaker 01:
We had to determine what several hundred means.

[00:31:02] Speaker 02:
Did that require investigation?

[00:31:04] Speaker 01:
It did.

[00:31:04] Speaker 01:
In order to figure out how many class members there actually are, that could not be figured out from the complaint.

[00:31:11] Speaker 01:
All we know is that there's several hundred, which is consistent with 300, it's consistent with 400, it's consistent with 500.

[00:31:16] Speaker 01:
And Harris says an indeterminate complaint that is consistent with removability,

[00:31:21] Speaker 01:
and non-removability does not start the clock.

[00:31:24] Speaker 01:
And I think Cukhausen is pretty directly on point here.

[00:31:27] Speaker 01:
Cukhausen, what was missing, what the defendant needed in order to remove that was not apparent from the complaint, was the value of these automobiles purchased from BMW.

[00:31:38] Speaker 01:
What the plaintiff had alleged

[00:31:39] Speaker 01:
was that the plaintiff's automobile was worth at least, I think it was $25,000.

[00:31:44] Speaker 01:
But he didn't allege what any of the other automobiles were worth.

[00:31:47] Speaker 01:
Even though BMW obviously knows what its cars are worth, even though they said it's a plausible enough guess that luxury German cars are going to cost more than $25,000, the point was it wasn't in the four corners of the complaint, so the defendant could not be charged with that knowledge for purposes of the timeline to remove.

[00:32:06] Speaker 01:
And I think the same is true here.

[00:32:08] Speaker 01:
with the class size, the number of work weeks at issue, the number of potentially unpaid hours at issue.

[00:32:13] Speaker 01:
And the last point I just want to address real quickly is that Roth versus CHS Hollywood Medical Center actually discusses this issue of how, you know, it's really on the plaintiff to put us on notice.

[00:32:26] Speaker 01:
If the plaintiff wants us to remove right away, it's on them to serve us with something

[00:32:30] Speaker 01:
that discloses the amount in controversy.

[00:32:33] Speaker 01:
They're in the position to protect themselves.

[00:32:36] Speaker 01:
As Judge Johnston mentioned, the plaintiff sort of created the problem here by serving an ambiguous complaint, and what this court says about that is, well, yeah, that's on the plaintiff, and it's on the plaintiff to fix it by serving a complaint that actually, you know, that will disclose subject matter jurisdiction and therefore put defendant on the clock.

[00:32:57] Speaker 02:
Counsel, you can see your time.

[00:32:58] Speaker 02:
Are there any questions?

[00:33:00] Speaker 02:
All right, thank you, counsel.

[00:33:01] Speaker 02:
Thank you to both counsel for your helpful arguments.

[00:33:03] Speaker 01:
Thank you, Your Honor.

[00:33:04] Speaker 02:
This just argued is submitted for a decision by the court.