Litigating California Wage & Hour and Labor Code Class Actions

E. Waiver
A defendant may be considered to have waived the right to remove to federal court when,
after it is apparent that the case is removable, it takes actions in state court that manifest
an intent to have the matter adjudicated there. 328
The Ninth Circuit has held that “a waiver of the right of removal must be clear and
unequivocal.” 329 In Carvalho v. Equifax Info. Serv., LLC, the plaintiffs argued that
defendant’s removal was untimely because defendant filed a demurrer in state court and
then waited a year after the complaint was filed to remove. 330 The district court held that
because the complaint did not specify an amount of damages, the defendant’s filing of a
demurrer did not waive its right to remove. 331 The court stressed that the defendant did not
engage in “any conduct that manifested its intent to stay in state court” after removability
was first ascertained, and therefore did not waive its right. 332
F. After Removal and Effect of Denial of Class Certification
A long-standing rule set out by the United States Supreme Court (the “Red Cab rule”) is
that “events occurring subsequent to removal which reduce the amount recoverable,
whether beyond the plaintiff’s control or the result of his volition, do not oust the district
court’s jurisdiction once it has attached.” 333 Although courts have disagreed over whether
denial of class certification affects federal jurisdiction, the trend is to apply the Red Cab rule
in this context as well.
A number of courts have held that denial of class certification eliminates CAFA jurisdiction
as to that federal court, especially if it is not “reasonably foreseeable” that a class will be
certified in the future. 334 Other courts have held that denial of class certification does not
destroy CAFA jurisdiction, because jurisdiction is determined at the moment the case was
removed and thus any subsequent changes do not affect the court’s continued
jurisdiction. 335
328
329
330
331
332
333
334
335
Resolution Trust Corp. v. Bayside Developers, 43 F.3d 1230, 1240 (9th Cir. 1995).
Id.
Carvalho v. Equifax Info. Serv. LLC., 2008 WL 2693625, at *4 (N.D. Cal. 2008).
Id.
Id.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293 (1938).
McGaughey v. Treistman, 2007 WL 24935, at *3-4 (S.D.N.Y. 2007); Gonzalez v. Pepsico, Inc., 2007 WL 1100204, at *4
(D. Kan. 2007).
Vega v. T-Mobile, USA, Inc., 564 F.3d 1256, 1268 at n. 12 (11th Cir. 2009); Cunningham Charter Corp. V. Learjet, Inc.,
592 F.3d 805, 806 (7th Cir. 2010); Falcon v. Phillips Electronics North Americas, Corp., 489 F. Supp 2d 367 (S.D.N.Y.
2007); In re HP Inkjet Printer Litig., 2009 U.S. Dist. LEXIS 12271 (N.D. Cal. Feb. 5, 2009); Giannini v. Schering-Plough
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