- within Insurance, Strategy and International Law topic(s)
You are a class action defense attorney. You timely remove to federal court under the Class Action Fairness Act (CAFA). You litigate in that forum for years and successfully defeat class certification. You are defending the case well. Then, the district court sua sponte remands the case to state court under the mistaken belief that its order denying class certification deprives the federal court of ongoing jurisdiction under CAFA. Many months later, the plaintiff takes another bite at the apple and moves for class certification in state court. You seek to remove to federal court again to defend the new class action briefing. What happens next? In a recent opinion, the Sixth Circuit Court of Appeals sympathetically but firmly held that, under such circumstances, CAFA removal jurisdiction no longer exists and the case must proceed in state court. No. 25-4015 (6th Cir. May 22, 2026).
That outcome may seem surprising. The defendant properly removed the case at the outset, it ostensibly defeated the class action in federal court prior to the initial remand, and it tried to remove the case a second time as soon as new class action matters were raised in the state court. The defendant also did not move for or contribute to the district court’s initial decision to remand the case. Rather, the district court made a unilateral decision to remand, and that decision was rendered in the face of substantial law mandating that the court retain federal jurisdiction.
The defendant was unfortunately not protected under those circumstances, at least not in the Sixth Circuit. According to the opinion, the 30-day removal deadline started when the plaintiff filed its initial class action complaint years earlier and could not be reset due to any later developments in the case. The district court was never divested of federal jurisdiction even after class certification was denied. The jurisdictional removal clock likewise never reset.
The district judge, to its credit, tried to fix the jurisdictional problem by equitably tolling the removal deadline, reasoning it should “not punish” the defendant for the court’s error. The Sixth Circuit acknowledged the district court’s admirable effort but nonetheless held that the Supreme Court’s recent decision in Enbridge Energy, LP v. Nessel, 146 S. Ct. 1074 (2026) now foreclosed equitable tolling of the removal deadline.
In acknowledging the strictness and relative unfairness of its decision, the Sixth Circuit panel opined on the importance of parties seeking certification of incorrect remand orders for interlocutory appeal under 28 U.S.C. § 1453(c)(1). That may be a good guidepost for litigants finding themselves in similar situations in future cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
[View Source]