Plaintiff filed suit against a nursing home in State court alleging that Defendant failed to take necessary precautions to protect nursing home residents from Hurricane Katrina. The action was filed as a class action and Defendant removed it to federal court under the Class Action Fairness Act. The Act conveys federal jurisdiction where there is minimal diversity, at least one plaintiff and one defendant from different states, and the amount in controversy exceeds $5,000,000, exclusive of costs and interest. However, the court must decline jurisdiction where more than two-thirds of the members of the proposed plaintiff class are citizens of the original filing state and at least one defendant against whom significant relief is sought is from the original filing state, the injuries occurred in the original filing state, and no other class action asserting the same or similar facts has been filed against the defendants in the last three years. Plaintiffs moved to remand the case to State court, but provided no proof that two thirds of the plaintiffs were from Louisiana. They argued that the Defendants should be compelled to provide that information since they had the records. The Court disagreed, finding that Plaintiff had the burden of proof. The court denied the motion to remand, although in footnote thirteen, the court said “plaintiffs will still have the opportunity to file a motion to remand if later facts are discovered relevant to the Court’s jurisdiction.”

Note: When seeking remand based on an exception to the Class Action Fairness Act, do your discovery before you file the motion. One way to handle this might be by filing Requests to Admit since a frivolous denial of a request to admit would shift fees.