December 2014
Client Alert
Commercial Litigation
White&Case LLP
Southeast Financial Center
200 South Biscayne Boulevard
Suite 4900
Miami, Florida 33131-2352
UnitedStates
+ 1 305 371 2700
On December15,2014, the US Supreme Court issued its opinion in Dart Cherokee Basin
Operating Co., LLC, et al. v. Owens.1 Writing for the 5 – 4 majority, Justice Ginsberg held
that a defendant’s notice of removal pursuant to the Class Action Fairness Act of2005
(“CAFA”) “need include only a plausible allegation that the amount in controversy exceeds
the jurisdictional threshold.”2 Accordingly, defendants need not offer evidence in their notices
of removal establishing that the amount in controversy exceeds US$5million.3 Rather, just as
a “plaintiff’s amount-in-controversy allegation is accepted if made in good faith,” a defendant’s
amount-in-controversy allegation should also “be accepted when not contested by the plaintiff
or questioned by the court.”4 And since “a dispute about a defendant’s jurisdictional allegations
cannot arise until after the defendant files a notice of removal containing those allegations,”
evidence submitted by defendants after the notice of removal is timely.5 Thus, it was error
for the district court to remand the Dart Cherokee case to state court based on the lack of an
evidentiary submission in the notice of removal, and an abuse of discretion for the Tenth Circuit
to decline review of the remandorder.6
Writing for the fourdissenters, JusticeScalia argued that the Court should not have taken
the case since it did not know why the TenthCircuit refused to review the lower court
ruling.7 Justice Thomas, also in dissent, wrote that the Court lacked jurisdiction where
the Tenth Circuit declined review.8 None of the justices, however, challenged the majority’s
holdings that a notice of removal need not contain evidence to support its jurisdictional
allegations or that a defendant could supplement its allegations with evidence once its
jurisdictional allegations werechallenged.
The UnitedStates Supreme Court
Holds That a Defendant’s Notice
of Removal Need Only Include
a “Plausible Allegation” That the
Amount in Controversy Exceeds the
US$5Million Jurisdictional Threshold
1 No. 13-719, 574 U.S. __, slip op. (December 15, 2014) [hereinafter Dart Cherokee].
2 Id. at 7.
3 Id.
4 Id. at 5.
5 Id. at 7 (emphasis in original).
6 Id. at 7-8, 14.
7 Dart Cherokee, No. 13-719, 574 U.S. __, Scalia, J., dissenting, at 7-8.
8 Dart Cherokee, No. 13-719, 574 U.S. __, Thomas, J., dissenting, at 1-2.
Jaime A. Bianchi
Partner, Miami
+ 1 305 995 5 259
jbianchi@whitecase.com
