Stroock Special Bulletin
“Recent Ninth Circuit Development Under CAFA: Removing Defendant Sometimes Must Prove Amount in Controversy to a ‘Legal Certainty’”
In Lowdermilk v. United States Bank National Ass’n, No. 06-36085, 2007 U.S. App. LEXIS 5168 (9th Cir. Mar. 2, 2007), the Ninth Circuit held that, when a plaintiff affirmatively alleges an amount in controversy less than the CAFA minimum of $5,000,000, a removing defendant must prove to a “legal certainty” by the proffer of evidence that the amount-in-controversy requirement is met. The Ninth Circuit joined the Third Circuit in reaching this conclusion. See Morgan v. Gay, 471 F.3d 469 (3d Cir. 2006).