Abrego v. the Dow Chemical Company

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTONIO ABREGO ABREGO, et al. 

Plaintiffs-Appellees,

v. No. 06-55109

THE DOW CHEMICAL CO, et al.;  D.C. No.

CV-05-03608-RGK

SHELL OIL COMPANY, d/b/a SHELL

CHEMICAL COMPANY, and SHELL OPINION

AGRICULTURAL CHEMICAL COMPANY,

Defendants-Appellants.



Appeal from the United States District Court

for the Central District of California

R. Gary Klausner, District Judge, Presiding

Argued and Submitted

March 7, 2006—Pasadena, California

Filed April 4, 2006

Before: M. Margaret McKeown and Marsha S. Berzon,

Circuit Judges, and Samuel P. King,* Senior District Judge.

Per Curiam Opinion

*The Honorable Samuel P. King, Senior United States District Judge

for the District of Hawaii, sitting by designation.

3979

ABREGO v. THE DOW CHEMICAL CO. 3983

COUNSEL

Michael L. Brem, Shirrmeister Diaz-Arrastia Brem LLP,

Houston, Texas, argued and was on the briefs for the appel-

lants. Gennaro A. Filice, Nicholas D. Kayhan, Richard H.

Poulson, Filice Brown Wassa & Mcleod LLP, Oakland, Cali-

fornia, were also on the briefs for the appellants.

Howard B. Miller, Girardi & Keese, Los Angeles, California,

argued and was on the briefs for the appellees. Walter J. Lack

and Elizabeth Lane Crooke, Engstrom Lipscomb & Lack, Los

Angeles, California; Thomas V. Girardi, Girardi & Keese,

Los Angeles, California; Joe J. Fisher, II, Mark Sparks, and

Scott C. Kinsel, Provost Umphrey Law Firm, Beaumont,

Texas; and Benton Musslewhite, Law Offices of Benton

Musslewhite, Houston, Texas, were also on the briefs for the

appellees.

OPINION

PER CURIAM:

The recently enacted Class Action Fairness Act of 2005

(“CAFA”), Pub. L. No. 109-2, 119 Stat. 4, alters the land-

scape for federal court jurisdiction over class actions. In addi-

tion to traditional class actions, CAFA covers certain other

cases involving large numbers of plaintiffs, denominated

“mass actions.” Dow Chemical Company (“Dow”) brings this

interlocutory appeal,1 pursuant to 28 U.S.C. § 1453(c)(1),2

1

CAFA provides that “a court of appeals may accept an appeal from an

order of a district court granting or denying a motion to remand a class

3984 ABREGO v. THE DOW CHEMICAL CO.

from the district court’s order remanding this purported “mass

action.”

Dow maintains that under CAFA and contrary to preexist-

ing removal jurisdiction law: (1) plaintiffs bear the burden of

refuting the district court’s removal jurisdiction; (2) a “mass

action” is removable regardless of whether there is jurisdic-

tion over all plaintiffs whose claims are necessary to qualify

the action as a mass action; and (3) the district court must

allow jurisdictional discovery to determine the amount in con-

troversy. The disputes between the parties on these discrete

issues reflect a larger disagreement over whether the changes

wrought by CAFA generally are limited to those enunciated

in CAFA’s text, or whether courts should infer a broader

transformation of jurisdictional principles than the statutory

language indicates.

We hold that CAFA did not shift to the plaintiff the burden

of establishing that there is no removal jurisdiction in federal

court and that Dow did not meet its burden. We therefore

affirm the district court’s remand of this action to state court.

We save for a later day detailed consideration of CAFA’s

muddled “mass action” provisions.

I.

One thousand one hundred and sixty Panamanian banana

plantation workers (“the workers”) filed a complaint asserting

claims stemming from their alleged exposure to 1, 2-dibromo-

3-chloropropane (“DBCP”), a chemical pesticide sold under

action to the State court from which it was removed if application is made

to the court of appeals not less than 7 days after entry of the order.”

§ 1453(c)(1). Dow’s petition, made on the seventh day following the entry

of the district court’s order, was timely and we accepted the appeal. See

Bush v. Cheaptickets, Inc., 425 F.3d 683, 685 (9th Cir. 2005) (appeal filed

on the seventh day timely under § 1453(c)(1)).

2

All statutory citations henceforward are to title 28, unless otherwise

indicated.

ABREGO v. THE DOW CHEMICAL CO. 3985

the brand names “Nemagon” and “Fumazone.” The operative

complaint alleges that although the Environmental Protection

Agency banned almost all DBCP use in the United States in

1979, the defendants continued to distribute and use the pesti-

cide on plantations in Panama. The workers allege that they

suffered “sterility and other serious injuries” as a result of

exposure to the pesticide and seek an unspecified amount of

special, general, and punitive damages, pre- and post-

judgment interest, and attorneys’ fees and costs.

On May 13, 2005, three weeks after the state court suit

commenced, Dow filed a notice of removal with the district

court and, ten days later, an amended notice of removal, both

pursuant to CAFA. Dow invoked § 1332(d)(11), which pro-

vides for federal jurisdiction over “mass actions.” For the pur-

poses of CAFA, a “mass action” is “any civil action . . . in

which monetary relief claims of 100 or more persons are pro-

posed to be tried jointly on the ground that the plaintiffs’

claims involve common questions of law or fact, except that

jurisdiction shall exist only over those plaintiffs whose claims

in a mass action satisfy the jurisdictional amount requirements

under” § 1332(a). § 1332(d)(11)(B). Section 1332(a), in turn,

requires that the amount in controversy exceed $75,000.

Under subsection (d)(11)(A), an action that qualifies as a

mass action will be “deemed to be a class action removable

under . . . [§ 1332(d)(2)-(10)] if it otherwise meets the provi-

sions of those paragraphs.” § 1332(d)(11)(A). Prominent

among the requirements in these specified paragraphs are that

the aggregate amount in controversy must exceed $5,000,000,

and that the action must satisfy CAFA’s new minimal diver-

sity requirements between plaintiffs and defendants.

§ 1332(d)(2).

The district court ordered Dow to show cause as to whether

“[t]he amount in controversy does not exceed $5,000,000,

exclusive of interest and costs, and/or the amount in contro-

versy for each plaintiff does not exceed $75,000.” Dow

responded, arguing that: (1) CAFA shifted the burden of

3986 ABREGO v. THE DOW CHEMICAL CO.

establishing whether jurisdiction is proper from the removing

defendants to the plaintiffs seeking remand; (2) as long as the

action prior to removal involved the claims of more than 100

plaintiffs and more than $5,000,000 in the aggregate, the

“mass action” subsection provides for removal jurisdiction

and calls for subsequent remand only of the claims of those

plaintiffs who do not meet the $75,000 jurisdictional amount

requirement; and (3) there should be limited discovery related

to the amount in controversy, as “contemplated by Congress

in enacting CAFA.”

On October 11, 2005, the district court issued a brief

remand order:

[T]he Court finds that Defendant has failed to meet

its burden of showing that the action constitutes a

“mass action,” as defined by the applicable statute

(i.e., there are 100 or more plaintiffs over which this

court has jurisdiction that can be proposed to be tried

jointly). As such, the Court determines that it lacks

subject matter jurisdiction over this case, and

remands the action to state court.

Dow appeals this order, reasserting the same arguments pre-

sented to the district court.

We review a district court’s remand order de novo. Emrich

v. Touche Ross & Co., 846 F.2d 1190, 1194 (9th Cir. 1988);

Ansley v. Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th

Cir. 2003). Our standard of review regarding requests for

jurisdictional discovery related to removed cases is discussed

below. See infra section II.D.

II.

A.

A little over a year ago, CAFA became law, amending,

inter alia, § 1332 and adding § 1453 to title 28 of the United

ABREGO v. THE DOW CHEMICAL CO. 3987

States Code. These new provisions govern this case. To

understand them, however, one must first understand the stat-

utory scheme to which they were added. We therefore begin

with a review of those background principles and then pro-

ceed to describe the amendments.

1.

[1] Section 1332(a), a preexisting section, vests the district

courts with “original jurisdiction of all civil actions where the

matter in controversy exceeds the sum or value of $75,000,

exclusive of interest and costs, and is between” diverse parties

as defined by subsections (a)(1)-(4). § 1332(a).3 Although the

statute does not so require explicitly, the Supreme Court has

repeatedly held, and recently reiterated, that § 1332(a)

requires complete diversity, whereby “[i]n a case with multi-

ple plaintiffs and multiple defendants, the presence in the

action of a single plaintiff from the same State as a single

defendant deprives the district court of original diversity juris-

diction over the entire action.” Exxon Mobil Corp. v. Allapat-

tah Servs., Inc., ___ U.S. ___, 125 S. Ct. 2611, 2617 (2005)

(citing Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806);

Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 375

(1978)).

3

Section 1332(a) provides, in relevant part:

The district courts shall have original jurisdiction of all civil

actions where the matter in controversy exceeds the sum or value

of $75,000, exclusive of interest and costs, and is between —

(1) citizens of different States;

(2) citizens of a State and citizens or subjects of a foreign

state;

(3) citizens of different States and in which citizens or sub-

jects of a foreign state are additional parties; and

(4) a foreign state, defined in section 1603(a) of this title, as

plaintiff and citizens of a State or of different States

§ 1332(a)(1)-(4).

3988 ABREGO v. THE DOW CHEMICAL CO.

Under § 1441, another preexisting section, “civil action[s]

brought in a State court of which the district courts of the

United States have original jurisdiction,” may be removed by

the defendant or defendants to federal district court. § 1441(a);4

accord Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33

(2002) (“Under the plain terms of § 1441(a), in order properly

to remove [an] action pursuant to that provision, petitioners

must demonstrate that original subject-matter jurisdiction lies

in the federal courts.”). Cases removed from state court under

§ 1441 are ordinarily subject to a stricter diversity standard

than applies where original federal jurisdiction is invoked:

While § 1332 allows plaintiffs to invoke diversity

jurisdiction, § 1441 gives defendants a correspond-

ing opportunity. . . . The scales are not evenly bal-

anced, however. An in-state plaintiff may invoke

diversity jurisdiction, but § 1441(b) bars removal on

the basis of diversity if any “part[y] in interest prop-

erly joined and served as [a] defendan[t] is a citizen

of the State in which [the] action is brought.

4

More fully, § 1441 provides:

(a) Except as otherwise expressly provided by Act of Con-

gress, any civil action brought in a State court of which the dis-

trict courts of the United States have original jurisdiction, may be

removed by the defendant or the defendants, to the district court

of the United States for the district and division embracing the

place where such action is pending. For purposes of removal

under this chapter, the citizenship of defendants sued under ficti-

tious names shall be disregarded.

(b) Any civil action of which the district courts have original

jurisdiction founded on a claim or right arising under the Consti-

tution, treaties or laws of the United States shall be removable

without regard to the citizenship or residence of the parties. Any

other such action shall be removable only if none of the parties

in interest properly joined and served as defendants is a citizen

of the State in which such action is brought.”

§ 1441(a), (b).

ABREGO v. THE DOW CHEMICAL CO. 3989

Lincoln Property Co. v. Roche, ___ U.S. ___, 126 S. Ct. 606,

613 (2005) (alterations in original) (quoting § 1441(b)). In

addition, all defendants must agree to removal, see United

Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 762 (9th

Cir. 2002) (“[T]he usual rule is that all defendants in an action

in a state court must join in a petition for removal . . . .”), and

removal must occur within one year of the commencement of

the action, § 1446(b).

2.

[2] Section 1332(d), added by CAFA, vests the district

court with “original jurisdiction of any civil action in which

the matter in controversy exceeds the sum or value of

$5,000,000, exclusive of interest and costs, and is a class

action in which” the parties satisfy, among other require-

ments, minimal diversity.5 Section 1332(d) thus abandons the

complete diversity rule for covered class actions. See Bush v.

Cheaptickets, Inc., 425 F.3d 683, 684 (9th Cir. 2005) (noting

that § 1332(d) requires only “minimal diversity”).

Of particular import here, § 1332(d) does not apply only to

traditional class actions. Section 1332(d)(11)(A), provides

that “[f]or purposes of this subsection and section 1453, a

mass action shall be deemed to be a class action removable

under paragraphs (2) through (10) if it otherwise meets the

provisions of those paragraphs.”6 The wording of this subsec-

5

One way to satisfy minimal diversity is by demonstrating that “any

member of a class of plaintiffs is . . . a citizen or subject of a foreign state

and any defendant is a citizen of a State.” § 1332(d)(2), (d)(2)(B). The first

amended complaint alleges that each plaintiff is and was, at all relevant

times, a resident of Panama.

6

Section 1332(d) imposes a range of requirements for class action juris-

diction, see § 1332(d)(2)-(10), from excluding cases in which two-thirds

or more of the proposed plaintiffs and the primary defendant are citizens

of the state where the action is brought, § 1332(d)(4)(B), to the provision

that CAFA applies to class actions both before and after class certification,

§ 1332(d)(8). A “mass action” must satisfy each of these requirements and

3990 ABREGO v. THE DOW CHEMICAL CO.

tion is clumsy. On its face, § 1332(d)(2)-(10) vests the district

courts with original jurisdiction over certain class actions, see

§ 1332(d)(2) (“The district courts shall have original jurisdic-

tion . . . .”), but subsection (d)(11)(A) refers to actions “re-

movable under paragraphs (2) through (10)” (emphasis

added).

The confusion is not alleviated by the statutory reference to

“mass action,” which reads:

[A]ny civil action . . . in which monetary relief

claims of 100 or more persons are proposed to be

tried jointly on the ground that the plaintiffs’ claims

involve common questions of law or fact, except that

jurisdiction shall exist only over those plaintiffs

whose claims in a mass action satisfy the jurisdic-

tional amount requirements under subsection (a).

§ 1332(d)(11)(B)(i). To “otherwise meet[ ]” the provisions of

§ 1332(d) “paragraphs (2) through (10),” the amount placed

into controversy by a mass action must — when the “claims

of the individual class members [are] . . . aggregated” —

exceed $5,000,000, exclusive of interests and costs.

§ 1332(d)(2), (6). The statute does not explain the relationship

between the 100 or more persons and $5,000,000 aggregate

amount in controversy requirement on the one hand, and the

limitation of jurisdiction to “those plaintiffs whose claims in

a mass action satisfy [in excess of $75,000] jurisdictional

amount requirement,” on the other.

processes. Some of these provisions in § 1332(d)(2)-(10), however, make

no sense in the context of a mass action, which is not subject, for example,

to class certification requirements. For simplicity, the present discussion

focuses mainly on the most prominent requirements of § 1332(d)(2)-(10)

shared by both mass actions and class actions — the aggregate $5,000,000

amount in controversy and minimal diversity requirements set forth in

§ 1332(d)(2).

ABREGO v. THE DOW CHEMICAL CO. 3991

The final CAFA amendment relevant here is § 1453, which

addresses the removal of class actions. Section 1453(b)

exempts qualifying actions from the § 1446(b) prohibition of

removal “more than 1 year after commencement of the [state

court] action,”7 and overrides the judge-created requirement

that each defendant consent to removal, see Prize Frize, Inc.

v. Matrix (U.S.) Inc., 167 F.3d 1261, 1267 (9th Cir. 1999)

(holding that “[t]he case was improperly removed because not

all defendants consented to the removal” as required by

§ 1446); Parrino v. FHP, Inc., 146 F.3d 699, 703 (9th Cir.

1998) (“All defendants must join a notice of removal . . . .”).

Section 1453(b), moreover, unlike § 1441, allows for removal

of actions “without regard to whether any defendant is a citi-

zen of the State in which the action is brought.” Compare

§ 1453(b) with § 1441(b) (prohibiting removal based on

diversity in such instances).

3.

Meshing the existing jurisdiction and removal statutory

sections with the CAFA “mass action” amendments is far

from straightforward. The confusion revolves around the defi-

7

Section 1446(b), in relevant part, provides:

If the case stated by the initial pleading is not removable, a notice

of removal may be filed within thirty days after receipt by the

defendant, through service or otherwise, of a copy of an amended

pleading, motion, order or other paper from which it may first be

ascertained that the case is one which is or has become remov-

able, except that a case may not be removed on the basis of juris-

diction conferred by section 1332 of this title more than 1 year

after commencement of the action.

Section 1453(b), largely incorporating the procedure set out in § 1446,

provides:

A class action may be removed to a district court of the United

States in accordance with section 1446 (except that the 1-year

limitation under section 1446(b) shall not apply), without regard

to whether any defendant is a citizen of the State in which the

action is brought, except that such action may be removed by any

defendant without the consent of all defendants.

3992 ABREGO v. THE DOW CHEMICAL CO.

nition of a “mass action” and the relationship of the individual

jurisdictional requirement of § 1332(a) to that definition. The

problem is best illustrated by looking at the text of the statute:

[T]he term “mass action” means any civil action . . .

in which monetary relief claims of 100 or more per-

sons are proposed to be tried jointly on the ground

that the plaintiffs’ claims involve common questions

of law or fact, except that jurisdiction shall exist

only over those plaintiffs whose claims in a mass

action satisfy the jurisdictional amount requirements

under [§ 1332(a)].

§ 1332(d)(11)(B)(i) (emphases added). Is the proviso part of

the definition of “mass action” or an independent provision?

The mystery deepens when considering how the individual

jurisdictional requirement relates to § 1332(d)(2)-(10): What

happens if individual remands under the § 1332(a) proviso

bring the aggregate amount in controversy below $5,000,000,

or the number of plaintiffs below 100, or destroys minimal

diversity? The text of the statute does not specify whether

each of these requirements looks to “plaintiffs in a mass

action” or to “plaintiffs in a mass action over whom the dis-

trict court has jurisdiction.” Finally, Congress’s use of the

word “removable” in the text of § 1332, a statute establishing

original jurisdiction, blurs what had previously been a clear

distinction between jurisdiction and removal statutes, and thus

obscures the reach of jurisdiction over mass actions. Because

Congress did not refer to original jurisdiction in either the

mass action provision itself, or in § 1453, the text does not

answer the important question of when there is original fed-

eral jurisdiction over mass actions, and what the scope of that

original jurisdiction might be. This gap casts into doubt the

interaction between the mass action provision and a host of

other statutes that assume original jurisdiction as a starting

point. See, e.g., § 1367 (providing, “in any civil action of

which the district courts have original jurisdiction,” for sup-

plemental jurisdiction over related claims that do not indepen-

ABREGO v. THE DOW CHEMICAL CO. 3993

dently meet jurisdictional requirements); § 1441 (providing

for removal to federal court of “any civil action brought in a

State court of which the district courts of the United States

have original jurisdiction”).

It is against this complex background that Dow stakes out

its position that (1) CAFA shifted the burdens normally appli-

cable in the removal context; (2) under CAFA’s mass action

provisions, removed mass actions remain in federal court

even if the plaintiffs alleging claims in excess of $75,000 do

not meet the numerosity or aggregate total amount in contro-

versy requirement of § 1332(d); and (3) CAFA requires the

district court to allow post-removal jurisdictional discovery.

Because we disagree with Dow’s position on the first and

third issues, we have no reason, on the facts of this case, to

resolve the second, and thorniest, question, and do not do so.

B.

[3] In cases removed from state court, the removing defen-

dant has “always” borne the burden of establishing federal

jurisdiction, including any applicable amount in controversy

requirement. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.

1992). Where the complaint does not specify the amount of

damages sought, the removing defendant must prove by a pre-

ponderance of the evidence that the amount in controversy

requirement has been met. Id. at 566-67; Sanchez v. Monu-

mental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)

(“Under this burden, the defendant must provide evidence that

it is ‘more likely than not’ that the amount in controversy”

satisfies the federal diversity jurisdictional amount require-

ment.).8 The district court here followed this rule, stating in its

8

In this circuit, this standard applies only if the state court complaint

does not specify the amount sought as damages. If the complaint filed in

state court alleges damages in excess of the required federal jurisdictional

amount, remand is warranted only if it appears to a “legal certainty” that

the claim is actually for less than the jurisdictional minimum. See Sanchez,

3994 ABREGO v. THE DOW CHEMICAL CO.

remand order that “Defendant has failed to meet its burden.”

Dow maintains, as it did before the district court, that CAFA

reverses long-standing law by requiring the plaintiffs, as the

parties seeking remand, to refute the existence of jurisdiction.

Dow points to no language in CAFA to support its argu-

ment. That is not surprising for, as the Seventh Circuit noted

in rejecting the position Dow supports, there simply is no

such language in the statute regarding the burden as to

remand. See Brill v. Countrywide Home Loans, Inc., 427 F.3d

446, 448 (7th Cir. 2005) (noting that none of CAFA’s lan-

guage “is even arguably relevant” to this burden-shifting

argument).

[4] Instead, Dow relies on language from a Senate Judiciary

Committee Report (the “Committee Report”), issued ten days

after CAFA’s passage into law, which states: “If a purported

class action is removed pursuant to these jurisdictional provi-

sions, the named plaintiff(s) should bear the burden of demon-

strating that the removal was improvident (i.e., that the

applicable jurisdictional requirements are not satisfied).” S.

Rep. No. 109-14, at 42 (Feb. 28, 2005), as reprinted in 2005

U.S.C.C.A.N. 3, 40. Dow is correct that consideration of leg-

islative history is appropriate where statutory language is

ambiguous. Ambiguity, however, is at least a necessary con-

dition. See Exxon Mobil, 125 S. Ct. at 2626 (“Extrinsic mate-

102 F.3d at 402; see also St. Paul Mercury Indemnity Co. v. Red Cab Co.,

303 U.S. 283, 288-89 (1938) (stating that “the sum claimed by the plaintiff

controls if the claim is apparently made in good faith” and that “[i]t must

appear to a legal certainty that the claim is really for less than the jurisdic-

tional amount to justify dismissal”). If the complaint alleges damages of

less than the jurisdictional amount, “more difficult problems are pre-

sented,” 14C CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.

COOPER, FEDERAL PRACTICE & PROCEDURE § 3725 at 84 [hereinafter FED.

PRAC. & PROC.], as to which there is no binding precedent in this circuit.

As we are not presented with the question of the appropriate standard in

such a case, we reach no resolution here.

ABREGO v. THE DOW CHEMICAL CO. 3995

rials have a role in statutory interpretation only to the extent

they shed a reliable light on the enacting Legislature’s under-

standing of otherwise ambiguous terms.”); Garcia v. United

States, 469 U.S. 70, 76 n.3 (1984) (“ ‘Resort to legislative his-

tory is only justified where the face of the Act is inescapably

ambiguous . . . .’ ” (quoting Schwegmann Bros. v. Calvert

Distillers Corp., 341 U.S. 384, 395-96 (1951) (Jackson, J.,

concurring)).

[5] In this instance, the statute is not ambiguous. Instead,

it is entirely silent as to the burden of proof on removal. Faced

with statutory silence on the burden issue, we presume that

Congress is aware of the legal context in which it is legislat-

ing. See Cannon v. Univ. of Chi., 441 U.S. 677, 696-97 (1979)

(“It is always appropriate to assume that our elected represen-

tatives, like other citizens, know the law . . . .”); United States

v. LeCoe, 936 F.2d 398, 403 (9th Cir. 1991) (“Congress is, of

course, presumed to know existing law pertinent to any new

legislation it enacts.”).

In Cannon, the Supreme Court held that section 901 of

Title IX of the Education Amendments of 1972 authorized an

implied private right of action. 441 U.S. at 689. In reaching

its conclusion, the Court considered the nearly identical lan-

guage of Title VI, which had been construed by courts as cre-

ating a private right of action, although there was no express

language to that end, and noted that “it is not only appropriate

but also realistic to presume that Congress was throughly

familiar with these unusually important precedents from this

and other federal courts and that it expected its enactment to

be interpreted in conformity with them.” Id. at 696-99. The

observation in Cannon applies with equal force here.

[6] The legal context in which the 109th Congress passed

CAFA into law features a longstanding, near-canonical rule

that the burden on removal rests with the removing defendant.

See Gaus, 980 F.2d at 566-67; Sanchez, 102 F.3d at 402.

More generally, “[i]t is to be presumed that a cause lies out-

3996 ABREGO v. THE DOW CHEMICAL CO.

side [the] limited jurisdiction [of the federal courts] and the

burden of establishing the contrary rests upon the party assert-

ing jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994) (internal citations omitted).

[7] As we have noted, CAFA contains a series of modifica-

tions of existing principles of federal subject matter jurisdic-

tion, both statutory and judge-created. CAFA thus evidences

detailed appreciation of the background legal context. Given

the care taken in CAFA to reverse certain established princi-

ples but not others, the usual presumption that Congress legis-

lates against an understanding of pertinent legal principles has

particular force.

[8] Certain aspects of CAFA, it is true, evidence Con-

gress’s intent that the district courts’ jurisdiction vis-a-vis cer-

tain kinds of actions be broadened rather than restricted. For

example, under § 1332(d)(6), the claims of class members are

aggregated to determine whether the amount in controversy

exceeds $5,000,000; under § 1332(d)(2)(A) requires only

minimal diversity, not complete diversity; under

§ 1332(d)(10), “an unincorporated association [is] . . . deemed

to be a citizen of the State where it has its principal place of

business and the State under whose laws it is organized,”

which departs from the rule that frequently destroys diversity

jurisdiction, that “a limited partnership’s [or unincorporated

association’s] citizenship for diversity purposes can be deter-

mined only by reference to all of the entity’s members,”

Kuntz v. Lamar Corp., 385 F.3d 1177, 1182 (9th Cir. 2004)

(citing Carden v. Arkoma Assocs., 494 U.S. 185, 196-97

(1990)); and under § 1453(b), a class action may be removed

“without regard to whether any defendant is a citizen of the

State in which the action is brought [and] . . . such action may

be removed by any defendant without the consent of all

defendants,” and the one year time limit for removal set forth

in § 1446(b) does not apply. Rather than convincing us that

CAFA, by way of implication alone, shifted the burden of

proof on removal, we conclude that these broadening provi-

ABREGO v. THE DOW CHEMICAL CO. 3997

sions indicate that Congress carefully inserted into the legisla-

tion the changes it intended and did not mean otherwise to

alter the jurisdictional terrain.

One district court that inferred that the burden had shifted

noted “with some irony, that [as with CAFA,] the original

diversity statute does not contain any reference to the burden

of proof” applicable to actions removed from state court.

Berry v. Am. Express Publ’g, Corp., 381 F. Supp. 2d 1118,

1123 (C.D. Cal. 2005). The observation is correct, but not the

inference drawn from it. It is the courts, not the legislature,

that have long imposed the burden of proof on the removing

party. See 14B FED. PRAC. & PROC. § 3721 at 324-31 (collect-

ing cases); see also Brill, 427 F.3d at 448 (“The rule that the

proponent of federal jurisdiction bears the risk of non-

persuasion has been around for a long time.”).

The traditional rule of burden allocation in determining

removal jurisdiction was meant to comport with what the

Supreme Court has termed “[t]he dominant note in the succes-

sive enactments of Congress relating to diversity jurisdiction,”

that is, “jealous restriction, of avoiding offense to state sensi-

tiveness, and of relieving the federal courts of the overwhelm-

ing burden of ‘business that intrinsically belongs to the state

courts’ in order to keep them free for their distinctive federal

business.” Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 76

(1941); see Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

100, 108 (1941) (noting that “[n]ot only does the language of

the Act of 1887 evidence the Congressional purpose to restrict

the jurisdiction of the federal courts on removal, but the pol-

icy of the successive acts of Congress regulating the jurisdic-

tion of federal courts is one calling for the strict construction

of such legislation”). This rule of restriction extends to

removal jurisdiction, especially insofar as it is based on the

diversity jurisdiction of the federal courts. See Syngenta Crop

Prot., 537 U.S. at 32 (“The right of removal is entirely a crea-

ture of statute and ‘a suit commenced in a state court must

remain there until cause is shown for its transfer under some

3998 ABREGO v. THE DOW CHEMICAL CO.

act of Congress.’ These statutory procedures for removal are

to be strictly construed.” (internal citation omitted)); Gaus,

980 F.2d at 566 (“The ‘strong presumption’ against removal

jurisdiction means that the defendant always has the burden

of establishing that removal is proper.”); see also Gould v.

Mutual Life Ins. Co. of N.Y., 790 F.2d 769, 773 (9th Cir.

1986) (“Removal jurisdiction is statutory and strictly con-

strued.”).

[9] We therefore hold that under CAFA the burden of

establishing removal jurisdiction remains, as before, on the

proponent of federal jurisdiction. In Brill, the Seventh Circuit

— the only circuit that has addressed the burden of proof

question under CAFA — came to the same conclusion. Brill

emphasized that the single passage of legislative history upon

which Dow now relies, “does not concern any text in the bill

that eventually became law.” 427 F.3d at 448. Speaking

through Judge Easterbrook, Brill explained:

[W]hen the legislative history stands by itself, as a

naked expression of “intent” unconnected to any

enacted text, it has no more force than an opinion

poll of legislators — less, really, as it speaks for

fewer. Thirteen Senators signed this report and five

voted not to send the proposal to the floor. Another

82 Senators did not express themselves on the ques-

tion; likewise 435 Members of the House and one

President kept their silence. . . . [N]aked legislative

history has no legal effect . . . . The rule that the pro-

ponent of federal jurisdiction bears the risk of non-

persuasion has been around for a long time. To

change such a rule, Congress must enact a statute

with the President’s signature (or by a two-thirds

majority to override a veto). A declaration by 13

Senators will not serve.

Id. at 448; see Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 617

(1991) (citing to Pub. Employees Ret. Sys. of Ohio v. Betts,

ABREGO v. THE DOW CHEMICAL CO. 3999

492 U.S. 158, 168 (1989), for the proposition that “legislative

history that cannot be tied to the enactment of specific statu-

tory language ordinarily carries little weight in judicial inter-

pretation of the statute”).

We join our sister circuit and hold that CAFA’s silence,

coupled with a sentence in a legislative committee report

untethered to any statutory language, does not alter the long-

standing rule that the party seeking federal jurisdiction on

removal bears the burden of establishing that jurisdiction.

C.

We now turn to the merits of the jurisdictional question —

that is, whether Dow has established that the workers’ action

is a “mass action” removable under §§ 1332 and 1453. We

conclude that under any formulation of the bewildering lan-

guage of § 1332(d)(11)(B)(i), remand was proper because

Dow has failed to meet its burden to establish jurisdiction

over even one plaintiff. We therefore need not and do not

endorse any particular construction of the mass action provi-

sions of § 1332(d)(11).

Dow maintains that “CAFA expands the district court’s

removal jurisdiction to include actions where the aggregate

amount in controversy exceeds $5,000,000, but leaves in

place the rule that the court’s subject matter jurisdiction

extends only to those individual plaintiffs who are seeking at

least $75,000.” On this view, a case in which the aggregate

amount in controversy is more than $5,000,000 and which

involves in state court more than 100 plaintiffs proposed to be

tried together may be removed as a mass action. The claims

of any plaintiffs with damages less than $75,000 would then

be subject to remand for want of subject matter jurisdiction.

Dow’s interpretation of the statute rests upon the conclu-

sion that the mass action provision is ambiguous and is part

of a statutory scheme that hardly qualifies as “coherent and

4000 ABREGO v. THE DOW CHEMICAL CO.

consistent,” Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997), alongside a “clearly expressed legislative intention”

that gives shape to key provisions in the statute, Consumer

Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102,

108 (1980). Under this view, the mass action provision falls

within the rule that “[e]xtrinsic materials have a role in statu-

tory interpretation only to the extent they shed a reliable light

on the enacting Legislature’s understanding of otherwise

ambiguous terms.” Exxon Mobil, 125 S. Ct. at 2626.

Dow urges that the Committee Report addresses the prob-

lematic clause directly.

Subsequent remands of individual claims not meet-

ing the section 1332 jurisdictional amount require-

ment may take the action below the 100-plaintiff

jurisdictional threshold or the $5 million aggregated

jurisdictional amount requirement. . . . [But,] so long

as the mass action met the various jurisdictional

requirements at the time of removal, it is the Com-

mittee’s view that those subsequent remands should

not extinguish federal diversity jurisdictional [sic]

over the action.

S. Rep. 109-14, at 47, 2005 U.S.C.C.A.N. at 44. This clarifi-

cation is consistent with a logical reading of the statute, as a

committee report is entitled to considerably greater weight

than comments made during floor debate. Cf. Garcia, 469

U.S. at 76 (eschewing reliance on “snippets” such as “passing

comments of one Member” and “casual statements from the

floor debates” in favor of committee reports on the bill, which

“represent the considered and collective understanding of

those Congressmen involved in drafting and studying pro-

posed legislation”); Hertzberg v. Dignity Partners, Inc., 191

F.3d 1076, 1082 (9th Cir. 1999) (“This circuit relies on offi-

cial committee reports when considering legislative history,

not stray comments by individuals or other materials unre-

lated to the statutory language or the committee reports.”).

ABREGO v. THE DOW CHEMICAL CO. 4001

In sum, relying on this legislative history, Dow urges that

a “mass action” be defined as “any civil action . . . in which

monetary relief claims of 100 or more persons are proposed

to be tried jointly on the ground that the plaintiffs’ claims

involve common questions of law or fact,”

§ 1332(d)(11)(B)(i), and removable from state court to federal

court if it “otherwise meets the provisions of” paragraphs

§ 1332(d)(2)-(10), including the $5,000,000 aggregate amount

in controversy requirement and minimal diversity.

§ 1332(d)(11)(A). Once in federal court, the court would

exercise jurisdiction only over those plaintiffs whose individ-

ual claims meet the $75,000 threshold. Remands of individual

claims under $75,000 might take the action below 100 plain-

tiffs and $5,000,000, but would not extinguish federal juris-

diction over the existing mass action.

The workers’ reading of § 1332(d)(11), in contrast, is

grounded in the understanding that § 1332(d) is, in general, a

grant of original jurisdiction to the district court, and stresses

that the “except” clause provides that “jurisdiction shall exist

only over those plaintiffs whose claims in a mass action sat-

isfy the [in excess of $75,000] jurisdictional amount.”

§ 1332(d)(11)(B)(i) (emphasis added). On this view, the juris-

dictional limitation to plaintiffs asserting claims in excess of

$75,000 is applicable at the time of removal and to the action

as a whole. Both original and removal jurisdiction, then,

would depend on establishing § 1332(a) jurisdiction over each

plaintiff’s claims, as well as on meeting the “mass action”

requirements with regard to the plaintiffs over whom there is

original jurisdiction. See § 1441(a); Syngenta Crop Prot., 537

U.S. at 33; Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th

Cir. 1977) (“[I]n the absence of a specific statutory exception,

a federal court can exercise removal jurisdiction over a case

only if it would have had jurisdiction over it as originally

brought by the plaintiff.”), superseded on other grounds by

§ 1332(d)(6). This position acknowledges the ambiguity of

the statutory language. It stresses, however, that the legisla-

tive history Dow relies upon is entitled to exceptionally little

4002 ABREGO v. THE DOW CHEMICAL CO.

weight, because it was, as noted by the minority views in the

Committee Report, S. Rep. No. 109-14, at 79, 2005

U.S.C.C.A.N. at 73, not available for consideration or discus-

sion before enactment of CAFA.9

The workers also urge that Dow’s interpretation of the stat-

ute disregards the purposes of the “mass action” provision.

Dow’s interpretation, the workers maintain, could leave in

federal court an action with very few plaintiffs, while remand-

ing the “mass” part of the mass action. This result, the work-

ers argue, conflicts with the reason “mass actions” were added

to the statute — that they closely resemble the large class

actions of national importance to which the statute otherwise

applies. See CAFA, § 2(b)(2), Pub. L. 109-14 at 5 (noting that

CAFA was intended to “restore the intent of the framers of

the United States Constitution by providing for Federal court

consideration of interstate cases of national importance under

diversity jurisdiction”).

Resolving which of these two positions is correct is not

necessary in this case. To paraphrase the Supreme Court:

[CAFA] has made some radical changes in the law

regulating [jurisdiction and] removals. Important

questions of practice are likely to arise under it,

which, until the statute has been longer in operation,

it will not be easy to decide in advance. For the pres-

9

There is some history, from a previous Congress, indicating that the

except clause was added as a compromise after the failure of a cloture

vote, see S. Rep. No. 109-14, at 2, 2005 U.S.C.C.A.N at 4, to make the

mass actions operate more like individual actions, presumably by impos-

ing, as in individual actions, a $75,000 jurisdictional amount requirement

for each individual claim making up the mass action. See 149 Cong. Rec.

S16102, 16102-03 (Dec. 9, 2003) (statement of Sen. Dodd & Ex. 1) (not-

ing that “S. 1751 would have treated all mass actions involving over 100

claimants as if they were class actions. . . [,] [but that] [t]he compromise

makes several changes to treat mass actions more like individual cases

than like class actions when appropriate.”).

ABREGO v. THE DOW CHEMICAL CO. 4003

ent, therefore, we think it best to confine ourselves

to the determination of the precise question pre-

sented in any particular case, and not to anticipate

any that may arise in the future.

Gold Washing & Water Co. v. Keyes, 96 U.S. 199, 204 (1877)

(discussing an 1875 statute providing for removal of cases

“arising under the Constitution or laws of the United States”).

Regardless of the correct construction of the “mass action”

provisions, we conclude, Dow has not carried its burden of

establishing jurisdiction on removal.

[10] We start with the pleadings filed in state court. The

operative complaint prays for pre- and post-judgment interest,

attorney’s fees and costs, and relief in the form of special,

general, punitive, and exemplary damages,

due and awardable pursuant to the actions of Defen-

dants . . . including fraud and deceit, wanton and

reckless acts of commission and omission, and outra-

geous malicious conduct, in an amount in favor of

each Plaintiff, as a multiple of each Plaintiff’s com-

pensatory damages, all totaled to an amount suffi-

cient to punish said Defendants so as to deter it and

others like it from similar wrongdoing.

While the complaint seeks no specific amount in damages,10

it is pled as an “unlimited civil case,” for which the amount

in controversy exceeds $25,000. See CAL. CIV. PROC. CODE

§ 88 (“A civil action or proceeding other than a limited civil

case may be referred to as an unlimited civil case.”);

10

In this respect, the workers’ pleading is consistent with California

Code of Civil Procedure section 425.10, which provides that “where an

action is brought to recover actual or punitive damages for personal injury

or wrongful death, the amount demanded shall not be stated.” CAL. CIV.

PROC. CODE § 425.10(b) (West 2006) (The current section 425.10 became

effective on January 1, 2006, but the quoted language was contained in the

prior version as well).

4004 ABREGO v. THE DOW CHEMICAL CO.

§ 422.30(b) (“In a limited civil case, the caption shall state

that the case is a limited civil case . . . .”); Stern v. Superior

Court, 105 Cal. App. 4th 223, 233 (2003) (noting that to

reclassify an unlimited civil case as a civil case, “[t]he trial

court must reasonably determine that the verdict will ‘neces-

sarily’ fall short of the $25,001 required for an unlimited civil

case”). Moreover, the first amended complaint alleges that

“[w]ithout reference to punitive damages, the amount in con-

troversy in compensatory damages for each plaintiff exceeds

the minimum jurisdictional limits of this Court, exclusive of

interests and costs” (emphasis added). The amount in contro-

versy, therefore, is at least $25,000 per plaintiff or, given

1,160 plaintiffs, at least $29,000,000, an amount which

clearly satisfies the jurisdictional amount requirement of

§ 1332(d)(2). Dow is thus correct that it is “more likely than

not” that, aggregated, the workers seek an amount in excess

of $5,000,000, as required by § 1332(d)(2).

[11] Dow, however, has not established that even one

plaintiff satisfies the $75,000 jurisdictional amount require-

ment of § 1332(a), applicable to mass actions by virtue of

§ 1332(d)(11)(B)(i). Although, as noted, we do not decide

whether this case could go forward if only one or a few plain-

tiffs are within the category over whom “jurisdiction shall

exist,” we do conclude — as should be obvious — that the

case cannot go forward unless there is at least one plaintiff

whose claims can remain in federal court.

Dow’s Amended Notice of Removal alleges:

A review of plaintiffs’ complaint indicates that the

total “matter in controversy [at the time of removal]

exceeds the sum or value of $5,000,000, exclusive of

interests and costs,” 28 U.S.C. § 1332(d)(2), and fur-

ther indicates that the matter in controversy at the

time of removal for each plaintiff “exceeds the sum

or value of $75,000.”

ABREGO v. THE DOW CHEMICAL CO. 4005

...

v. Given the nature of the injuries claimed by

Plaintiffs and the request for punitive damages as a

multiple of each plaintiff’s compensatory damages,

this Court has jurisdiction over each and every plain-

tiff because each plaintiff satisfies the “jurisdictional

amount requirements under subsection(a).” 28

U.S.C. § 1332(d)(11)(B)(i).

(emphasis added) (alteration in original).

As we stated in Gaus, such allegations, “although attempt-

ing to recite some ‘magical incantation,’ neither overcome[ ]

the ‘strong presumption’ against removal jurisdiction, nor

satisf[y] [Dow]’s burden of setting forth, in the removal peti-

tion itself, the underlying facts supporting its assertion that the

amount in controversy exceeds” $75,000. 980 F.2d at 567; see

also Singer v. State Farm Mut. Auto. Ins. Co., 116 F.3d 373,

377 (9th Cir. 1997) (“[R]emoval ‘cannot be based simply

upon conclusory allegations’ where the ad damnum is silent.”

(quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335

(5th Cir. 1995)).11

Dow’s response to the district court’s order to show cause

offered the district court no further factual basis upon which

to determine that it was “more likely than not” that any plain-

tiff’s claim satisfies the $75,000 jurisdictional requirement.

See Sanchez, 102 F.3d at 404. Dow instead opted to argue that

“there is no requirement that the removing party has to show

that each of the workers’ claims exceeds $75,000,” asserting,

as they do here, that “CAFA expressly contemplates that,

after removal, some members of a mass action or putative

class may be remanded because they are not making claims

11

Dow’s original Notice of Removal contains a similar recitation of the

statutory requirements and is less illuminating than its successor.

4006 ABREGO v. THE DOW CHEMICAL CO.

of at least $75,000, while providing for jurisdiction over those

that do.”

[12] Resting on this theory, however, does not establish

that the district court properly has jurisdiction over this mat-

ter. If Dow’s reading of § 1332(d)(11) is correct, it has still

failed to establish that the claims made by any single plaintiff

satisfy § 1332(a); accordingly remand of each and every

plaintiff to state court was appropriate.12 Under the alternative

reading of the statute, it is equally apparent that the require-

ments of § 1332(d)(11) are not satisfied, as there are not 100

plaintiffs over whom the district court would have jurisdiction

pursuant to § 1332(a) and (d)(2) — indeed, there are not any

— and the district court properly remanded for lack of subject

matter jurisdiction. See Gaus, 980 F.2d at 566 (“Federal juris-

diction must be rejected if there is any doubt as to the right

of removal in the first instance.”).

D.

Dow argues, however, that the district court improperly

remanded the action to state court without allowing limited

jurisdictional discovery as contemplated by CAFA’s legisla-

tive history and the “well-settled law of this circuit.” In its

response to the order to show cause, Dow suggested that it be

allowed to “serve a single request for admission to each plain-

tiff asking simply: ‘Admit or deny that, in this lawsuit, you

are seeking at least $75,000 in damages.’ ”

In Singer, we described “the appropriate procedure for

determining the amount in controversy on removal” as fol-

lows:

The district court may consider whether it is “fa-

12

To the extent our analysis turns on the availability of post-removal

discovery regarding the jurisdictional amount, we resolve that issue in the

next section.

ABREGO v. THE DOW CHEMICAL CO. 4007

cially apparent” from the complaint that the jurisdic-

tional amount is in controversy. If not, the court may

consider facts in the removal petition, and may “re-

quire parties to submit summary-judgment-type evi-

dence relevant to the amount in controversy at the

time of removal.”

116 F.3d at 377 (quoting Allen, 63 F.3d at 1335-36); Kroske

v. U.S. Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005) (stating

the same principles and noting that “[i]n determining the

amount in controversy, the district court properly considered

[plaintiff’s] interrogatory answers and emotional distress

damage awards in similar age discrimination cases in Wash-

ington”).

The plaintiff in Singer had filed an action in state court that,

pursuant to California Code of Civil Procedure § 425.10(b),

did not state a specified sum in the claim for relief. Singer,

116 F.3d at 374. The action was removed. On the motion to

remand, the plaintiff “expressly conceded” that the amount in

controversy exceeded the jurisdictional requirement, then

$50,000. Id. The district court denied the motion to remand

and later issued judgment in favor of the defendant. Id. at 375.

We affirmed the district court’s decision, noting that the court

properly exercised its discretion in accepting the judicial

admission regarding the amount in controversy. Id. at 376.

We explained:

Where the plaintiff filed the case in state court, and

did not seek the federal forum, then the plaintiff’s

formal judicial admission . . . has the effect of

defeating the plaintiff’s choice of forum. In this con-

text, where state law prohibited plaintiff from stating

the amount in controversy in the complaint, the dis-

trict court has discretion to accept the admission as

establishing it. Otherwise we would be adopting the

illogical position that a plaintiff can establish the

amount in controversy by an ad damnum, but not by

4008 ABREGO v. THE DOW CHEMICAL CO.

a formal admission against the plaintiff’s interest in

choice of forum.

Id. (emphasis added).

Based on Singer, it is clearly appropriate for the district

courts, in their discretion, to accept certain post-removal

admissions as determinative of the amount in controversy. No

such admission, however, has been made here.

[13] In a more recent case, we observed that “some courts

have suggested that it may be appropriate to allow discovery

relevant to jurisdictional amount prior to remanding.” Gibson

v. Chrysler Corp., 261 F.3d 927, 948 (9th Cir. 2001) (citing

McCraw v. Lyons, 863 F. Supp. 430, 435 (W.D. Ky. 1994));

see also McCraw, 863 F. Supp. at 435 (“Interrogatories may

be propounded at the same time that the petition for removal

is filed. If Plaintiff seeks remand, Defendant may request that

the Court delay a decision pending completion of limited dis-

covery.”). Our decisions do not, however, indicate that such

discovery is required. Indeed, we have previously held that

“[a]n appellate court will not interfere with the trial court’s

refusal to grant [jurisdictional] discovery except upon the

clearest showing that the dismissal resulted in actual and sub-

stantial prejudice to the litigant . . . .” Wells Fargo & Co. v.

Wells Fargo Express Co., 566 F.2d 406, 430 n.24 (9th Cir.

1977).

The deference owed to district courts in managing jurisdic-

tional discovery is tempered by concern regarding the time

pressure imposed by the general removal provisions of

§ 1446(b). This concern does not plague us here, as the parties

in this case will not be prejudiced in their opportunity to

develop the record with regard to the amount in controversy

by return to state court. Under CAFA, class actions and mass

actions may be removed at any point during the pendency of

litigation in state court, so long as removal is initiated within

thirty days after the defendant is put on notice that a case

ABREGO v. THE DOW CHEMICAL CO. 4009

which was not removable based on the face of the complaint

has become removable. See § 1446(b) (setting forth the one-

year limitation); § 1453(b) (one-year time limitation of

§ 1446(b) does not apply to the removal of class actions);

§ 1332(d)(11)(A) (mass actions are to be treated as class

actions under § 1453).

Moreover, by lifting the one year bar, CAFA clearly con-

templates that state courts may be burdened, for longer than

was previously possible, with cases that ultimately will be

removed. Cf. Harris v. Bankers Life & Casualty Co., 425 F.3d

689, 697 (9th Cir. 2005) (“We are unpersuaded by the argu-

ment that a predictable rule will result in strategic delay in

removal, thereby burdening the state courts with a case that

will ultimately be removed.”). As a result, there is also suffi-

cient time to develop in state court the facts necessary to sup-

port federal jurisdiction. Also, as state court class action and

mass action plaintiffs now run the risk that their case can be

removed at any stage of the litigation, there is no longer an

incentive for them to remain cagey about the amount in con-

troversy until the one-year window of § 1446(b) has closed.

[14] Finally, in Harris, we emphasized the importance of

“guard[ing] against premature and protective removals and

minimiz[ing] the potential for a cottage industry of removal

litigation.” 425 F.3d at 698. Dow removed this action to dis-

trict court a mere seven days after the workers filed their First

Amended Complaint, and less than a month after the case was

filed. Once in federal court, Dow failed to present to the dis-

trict court any pleading, evidence, or admission that estab-

lishes that it is more likely than not that jurisdiction lies. On

these facts, it is well within the court’s discretion to remand

to state court rather than ordering jurisdictional discovery,

with the knowledge that later-discovered facts may prompt a

second attempt at removal. Doing so avoids encouraging the

sort of premature removal presented to us here. See Harris,

425 F.3d at 698 (“By assuring that removal occurs once the

jurisdictional facts supporting removal are evident, we also

4010 ABREGO v. THE DOW CHEMICAL CO.

ensure respect for the jurisdiction of state courts.”). We there-

fore hold that the district court did not abuse its discretion

under CAFA by declining to order jurisdictional discovery in

this case.

CAFA’s legislative history does not alter our conclusion. In

arguing that the district court must provide for jurisdictional

discovery, Dow points us to yet another portion of the same

Senate Judiciary Committee Report, which states:

The Committee understands that in assessing the

various criteria established in all these new jurisdic-

tional provisions, a federal court may have to engage

in some fact-finding, not unlike what is necessitated

by the existing jurisdictional statutes. The Commit-

tee further understands that in some instances, lim-

ited discovery may be necessary to make these

determinations. However, the Committee cautions

that these jurisdictional determinations should be

made largely on the basis of readily available infor-

mation. Allowing substantial, burdensome discovery

on jurisdictional issues would be contrary to the

intent of these provisions to encourage the exercise

of federal jurisdiction over class actions.

S. Rep. No. 109-14, at 44, 2005 U.S.C.C.A.N. at 42 (empha-

sis added). This statement is untethered to any statutory lan-

guage. Moreover, this passage confirms that any decision

regarding jurisdictional discovery is a discretionary one, and

is governed by existing principles regarding post-removal

jurisdictional discovery, including the disinclination to enter-

tain “substantial, burdensome discovery on jurisdictional

issues.” Applying those established principles, the district

court’s refusal to accept the proposal that 1,160 plaintiffs

located in and around Panama answer contention interrogato-

ries while the case is otherwise put on hold was not an abuse

of discretion.

ABREGO v. THE DOW CHEMICAL CO. 4011

III.

Nothing in CAFA’s language purports to shift the burdens

normally applied to removal of a state action to federal court.

Dow has failed to meet its burden in demonstrating that the

jurisdictional requirements of CAFA are satisfied. For these

reasons, we affirm the district court’s remand of this action to

state court.

AFFIRMED.