By Brian Wolfman
In DiTolla v. Doral Dental, No. 06-2324 (Nov. 17, 2006), the Second Circuit established a couple precedents under the Class Action Fairness Act. First, it held that the burden of proving CAFA's jurisdictional prerequisites ($5 million in controversy, minimal diversity, etc.) rests on the party seeking the federal forum. (In DiTolla, as in most CAFA jurisdictional disputes, the party seeking the federal forum was the defendant who sought to remove the case from state court to federal court.) Second, under CAFA, the court has 60 days (with some exceptions) to decide a permissive appeal from a district court's decision granting or denying a motion to remand. If the court does not decide the appeal within the deadline, the appeal is deemed "denied." The Second Circuit held that the 60-day period begins to run from the day the court of appeals agrees to hear the appeal, not the day that the application to appeal is filed. The Second Circuit's decision in DiTolla follows the unanimous holdings of other circuits on both the burden-of-proof and appeal deadline issues.
The Second Circuit ended up affirming the district court's decision to remand the case for lack of $5 million in controversy. That analysis did not strike me as particularly important for future cases (though I'm sure it thrilled the plaintiffs).