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Burden of Proof on Defendants Removing Under CAFA

By Gregg A. Farley and Christopher K. Pelham
November 28, 2006

When Congress passed the Class Action Fairness Act ('CAFA') in 2005, committee reports showed that several legislators believed the Act would shift from defendant to plaintiff the burden of proof with respect to the existence of federal removal jurisdiction. CAFA's legislative history contains statements from several members of Congress indicating that a plaintiff opposing removal under the Act would have the burden of establishing the absence of federal jurisdiction. For a short period following CAFA's passage, certain federal district courts found this legislative history controlling and held that CAFA shifted the burden of proof.

Since then, however, several federal circuit courts have held that CAFA, in spite of its overall 'pro-removal' tenor, did not shift the burden of proof in removal determinations. These circuit courts have uniformly held that CAFA did not change the traditional rule that the defendant, and not the plaintiff, bears the burden of proof with respect to the existence of jurisdiction for removal purposes.

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