Thursday, November 17, 2005

D. Maine Holds that Late Service on Removing Defendants Resulted in Post-CAFA Commencement

A federal court in Maine (Dinkel v. General Motors Corp.,--- F.Supp.2d ----, 2005 WL 3006728 (D. Me. Nov. 09, 2005)) has applied state commencement rules to hold that late service on removing defendants resulted in post-CAFA commencement, thus rendering the entire state action removable:

The plaintiff initially "commenced" this class action in state court before the Class Action Fairness Act of 2005 ("CAFA") became effective. At first, therefore, it was not removable to federal court under CAFA. After CAFA became effective, however, the plaintiff "commenced" his class action against additional defendants.

. . .

Under Kansas Rules of Civil Procedure, however, filing the complaint alone does not necessarily "commence" the lawsuit. That filing "commences" the lawsuit only if process is served within 90 days thereafter. Otherwise (i.e., if more than 90 days passes), the lawsuit does not "commence" until service of process occurs.

. . .

If Dinkel had served all the defendants within ninety days, the entire lawsuit would have "commenced" on its filing date, February 17, 2005, one day before CAFA's effective date, and no defendant could have removed it; CAFA does not apply to state class actions pending when CAFA was signed. But Dinkel did not serve the Removing Defendants within the ninety days. As to them, the Kansas lawsuit was not "commenced" until they were actually served, K.S.A. ยง 60-203(a), which was after the effective date of CAFA. For them, "a new window of removal" was opened. [citations omitted]

. . .

Under removal practice, the entire lawsuit is removable or not removable, not merely the claims against particular defendants. Here, the late service upon the Removing Defendants, commencing the lawsuit as to them after CAFA became effective, made Dinkel's entire lawsuit properly removable under CAFA.


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