D. Kansas Discusses Ability of Defendant Joined after CAFA to Remove a Suit Filed Prior to CAFA

Per Prime Care of Northeast Kan., LLC v. Blue Cross & Blue Shield of Kan. City, 2006 WL 2734469 (D. Kan. Sept. 25, 2006):

Plaintiffs filed suit before the effective date of CAFA and at this juncture, the issue is whether defendants are nonetheless entitled to remove it because plaintiffs did not join them until after the effective date. In its previous order, the Court held that the new defendants could not remove because the case had commenced when plaintiffs filed the original petition, prior to CAFA . See Memorandum And Order (Doc. # 150) at 9-11. The Tenth Circuit disagreed, finding that the new defendants' right to remove depended on whether the amendment which added them as defendants related back to the date of a pre-CAFA pleading. See Prime Care of Northeast Kan., LLC v. Humana Ins. Co., 447 F.3d 1284, 1289 (10th Cir. 2006). Under the Tenth Circuit ruling, if the amendment relates back, plaintiffs commenced suit against the new defendants before the effective date of CAFA, and the Court lacks subject matter jurisdiction and must remand. If the amendment does not relate back, plaintiffs commenced suit against the new defendants after the effective date of CAFA and, subject to any potential exceptions to jurisdiction, the action is properly before the Court.

Defendants bear the burden to show federal jurisdiction, i.e. that plaintiffs commenced this case against them after CAFA became effective. [S]ee Werner v. KPMG LLP, 415 F.Supp.2d 688, 695 (S.D.Tex.2006). In other words, defendants must show that the amendments which added them do not relate back to the original petition. If defendants are correct, i.e. plaintiffs failed to name them in the original petition for reasons other than mistake, the amendment which added them as defendants would not relate back; the claims against them would be deemed to have been commenced after the effective date of CAFA and absent some express statutory exception to removal jurisdiction, removal would be proper.

On this record, the Court concludes that the amendment which added the removing defendants relates back to the date of the original petition under K.S.A. § 60-215(c). See, e.g., Fry v. Waste Mgmt., Inc., No. 94-6865, 1995 WL 481478, at *2 (E.D.Pa. Aug. 11, 1995) (courts generally allow broad reading of mistake element, especially where original and added party have close corporate relation); Franklin v. Norfolk & W. Ry. Co., 694 F.Supp. 196, 198 (S.D.W.Va.1988) (amendment adding subsidiary related back where same lawyers represented both companies and were fully aware of confusion over ownership of locomotive which injured plaintiff). As to these defendants, the case therefore commenced before the effective date of CAFA and must be remanded to state court.