In the
United States Court of Appeals
For the Seventh Circuit
No. 09-8023
IN RE:
B URLINGTON N ORTHERN S ANTA F E R AILWAY C OMPANY,
B URLINGTON N ORTHERN S ANTA F E C ORPORATION,
W ILLIAM B ARBEE, and F RANCIS W EBER,
Petitioners.
Petition for Leave to Appeal
from the United States District Court
for the Western District of Wisconsin.
No. 08-cv-469— Barbara B. Crabb, Judge.
S UBMITTED JANUARY 22, 2010—D ECIDED M AY 19, 2010
Before K ANNE, W OOD , and SYKES, Circuit Judges.
P ER C URIAM. The defendants removed this class action
suit to federal court under the Class Action Fairness
Act (“CAFA”), but when the plaintiffs amended their
complaint to omit the class allegations, the district court
found jurisdiction lacking and remanded the case to
state court. The defendants petitioned for leave to appeal
the order of remand under 28 U.S.C. § 1453(c). We
accept the appeal and reverse.
This case began when Allen Moore and other residents of
Bagley, Wisconsin, acting as representatives of a class
2 No. 09-8023
of local property owners, filed a complaint in Wisconsin
state court against Burlington Northern Santa Fe Railway
Company, Burlington Northern Santa Fe Corporation,
and some of its employees (collectively, “BNSF”). They
alleged that BNSF’s failure to inspect and maintain a
railroad trestle caused the town to flood in July 2007,
damaging their property.
BNSF removed the case to federal court, where the
parties battled extensively over jurisdiction. BNSF first
asserted that there was diversity jurisdiction, arguing that
the only non-diverse defendants, two employees from
Wisconsin, were joined fraudulently. The district court
found the joinder tactical rather than fraudulent, but
it accepted BNSF’s second ground for jurisdiction: the
Class Action Fairness Act, which provides federal
jurisdiction over certain class action lawsuits. See 28 U.S.C.
§ 1332(d)(2), (d)(5). The plaintiffs moved to remand. After
the district court denied that motion, they instead asked
for leave to amend their complaint to omit the class
allegations. The district court allowed the amendment,
noting that it would streamline the litigation. The
court also construed the plaintiffs’ motion as an implied
motion to remand the case, which it granted. The district
court explained that its jurisdictional analysis now was
based on the amended complaint, and that since the new
complaint did not contain class allegations, it did
not provide jurisdiction under CAFA.
BNSF filed a timely motion to reconsider. Before the
district court ruled on that motion, but within 30 days
of the original remand order, BNSF also filed this petition
under 28 U.S.C. § 1453(c) requesting leave to appeal the
No. 09-8023 3
district court’s order of remand. While the petition was
pending, the district court granted the motion to
reconsider but reiterated its decision to remand the case to
state court. This court then treated BNSF’s initially
premature petition as timely filed, permitting BNSF to file
a supplement addressing the district court’s order on
reconsideration and asking Moore to respond.
On reconsideration, the district court noted that there are
exceptions to the general rule that removal jurisdiction is
determined at the time of removal. It treated the
amendment of the complaint to eliminate class allegations
as analogous to the denial of class certification and
explained that district courts were divided on whether
the denial of class certification affects CAFA jurisdiction.
Compare, e.g., Genenbacher v. CenturyTel Fiber Co. II, LLC, 500
F. Supp. 2d 1014, 1016 (C.D. Ill. 2007) (reasoning that the
denial of class certification does not destroy CAFA
jurisdiction because jurisdiction continues even if the
parties cannot prove the jurisdictional facts alleged), with
Muehlbauer v. General Motors Corp., No. 05 C 2676, 2009 WL
874511, at *9-10 (N.D. Ill. Mar. 31, 2009) (reasoning that the
denial of class certification destroys jurisdiction because
it means the case is not and never was a class action).
Given this disagreement, the court concluded that it
did not err in remanding the case.
In its petition and supplement, BNSF identifies three
alternative grounds for federal jurisdiction, but we need
reach only one: jurisdiction under CAFA is secure
even though, after removal, the plaintiffs amended their
complaint to eliminate the class allegations. The well-
established general rule is that jurisdiction is determined
4 No. 09-8023
at the time of removal, and nothing filed after removal
affects jurisdiction. St. Paul Mercury Indemnity Co. v. Red
Cab Co., 303 U.S. 283, 293 (1938); In re Shell Oil, 970 F.2d
355, 356 (7th Cir. 1992) (per curiam); see also Bullard
v. Burlington Northern Sante Fe Ry. Co., 535 F.3d 759, 762
(7th Cir. 2008) (noting, in a case removed under CAFA,
that “we doubt that anything filed after a notice of removal
can affect federal jurisdiction”). CAFA is, at base,
an extension of diversity jurisdiction. Even in cases filed
originally in federal court, later changes that compromise
diversity do not destroy jurisdiction. Freeport-McMoRan,
Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991) (per
curiam); see also 13E C HARLES A LAN W RIGHT, A RTHUR R.
M ILLER, & E DWARD H. C OOPER , F EDERAL P RACTICE
& P ROCEDURE § 3608, at 364-67 (3d ed. 2009). And though it
is sometimes possible for a plaintiff who sues in federal
court to amend away jurisdiction, removal cases present
concerns about forum manipulation that counsel against
allowing a plaintiff’s post-removal amendments to affect
jurisdiction. See Rockwell Int’l Corp. v. United States, 549 U.S.
457, 473-74 & n.6 (2007).
This court recently concluded that the general rule—that
nothing filed after a notice of removal affects
jurisdiction—governed a similar situation in Cunningham
Charter Corp. v. Learjet, Inc., 592 F.3d 805 (7th Cir. 2010).
There we held that in a case removed under CAFA,
jurisdiction survives even if the district court denies
class certification. Id. at 806-07; see also United Steel, Paper
& Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv.
Workers Int’l Union, AFL-CIO, CLC v. Shell Oil Co., __ F.3d
__, No. 10-55269, 2010 WL 1571190, at *3-4 (9th Cir. Apr.
No. 09-8023 5
21, 2010) (following Cunningham). We reasoned that CAFA
jurisdiction attaches when a case is filed as a class action,
see 28 U.S.C. § 1332(d)(1)(b), and that even if the class is not
certified, jurisdiction continues. Cunningham, 592 F.3d at
806-07. We further explained that the policies behind the
general rule support this result, noting that keeping the
case minimizes the expense and delay caused by shuttling
a case from court to court and furthers CAFA’s purpose of
allowing putative class actions to be litigated in federal
court. Id. at 807.
Given our decision in Cunningham, the limited question
this appeal presents is whether CAFA jurisdiction also
continues when the post-removal change is not the district
court’s denial of class certification but is instead
the plaintiffs’ decision not to pursue class certification.
The district court treated the two situations as
indistinguishable, and we agree. There are compelling
reasons to conclude that such a post-removal amendment
also does not destroy CAFA jurisdiction. The same
considerations of expense and delay apply, and in
addition, allowing plaintiffs to amend away CAFA
jurisdiction after removal would present a significant
risk of forum manipulation. CAFA’s legislative history
reflects an awareness of the latter concern, citing the
existing rule that “jurisdiction cannot be ‘ousted’ by
later events,” and explaining that if the rule were
otherwise, “plaintiffs who believed the tide was
turning against them could simply always amend their
complaint months (or even years) into the litigation to
require remand to state court.” See S. Rep. No. 109-14,
at 70-71 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 66. As we
6 No. 09-8023
noted in Cunningham, a case “should not be shunted
between court systems.” 592 F.3d at 807.
Accordingly, we V ACATE the district court’s remand
order and R EMAND to the district court for further
proceedings.
5-19-10