The Second Circuit affirms denial of remand in a CAFA case where the plaintiff failed to raise a procedural defect in the notice of removal in a timely manner
In Law Offices of K.C. Okoli, P.C. v. BNB Bank, N.A., No. 11-904, 2012 U.S. App. Lexis 9384 (2nd Cir. May 9, 2012), the Second Circuit affirmed the district court’s denial of plaintiff’s motion to remand a case removed pursuant to CAFA. The plaintiff alleged multiple state law claims based on the defendant bank’s alleged failure to make funds from a deposited check available for withdrawal in a timely manner. Both the original complaint and the amended complaint alleged that the putative class consisted of hundreds of persons. The defendant’s notice of removal, however, failed to assert that CAFA’s numerosity requirement of at least 100 class members had been met. The Second Circuit concluded that regardless of whether the notice of removal contained such an assertion, the pleadings established the putative class size. Consequently, the district court did not err in ruling that it had jurisdiction under CAFA. Since federal subject matter jurisdiction was established on the face of the original and amended complaints, the failure to assert the numerosity requirement in the Notice of Removal was a procedural defect and not a jurisdictional defect. Pursuant to 28 U.S.C. §1447(c), the plaintiff waived the procedural defect by failing to raise it within thirty days after the filing of the Notice of Removal.