## Facts

- More than 1,000 Panamanian banana plantation workers alleged personal injuries, including sterility, from exposure to DBCP, a pesticide manufactured by Dow and Shell and used on plantations in Panama.
- Plaintiffs sued in California state court asserting tort claims based on alleged injuries from DBCP exposure.
- After enactment of the Class Action Fairness Act of 2005 (CAFA), defendants removed the case to federal court as a CAFA “mass action,” alleging minimal diversity, at least 100 plaintiffs, and more than $5 million in aggregate amount in controversy.
- The federal district court ordered defendants to show cause why the case should not be remanded for lack of subject-matter jurisdiction.
- The district court concluded defendants did not establish the $5 million jurisdictional threshold and remanded to state court.
- Defendants sought interlocutory review of the remand order under CAFA’s appeal provision.

## Issues

1. Whether CAFA shifts the burden of establishing federal removal jurisdiction from the removing defendant to the plaintiff.
2. Whether defendants proved, by a preponderance of the evidence, that the aggregate amount in controversy exceeded $5 million as required for CAFA mass-action jurisdiction.
3. Whether the district court was required to permit jurisdictional discovery on the amount in controversy before remanding.

## Decision

- The Ninth Circuit affirmed the remand order.
- CAFA did not shift the burden of establishing removal jurisdiction; the removing defendant retains that burden.
- Defendants failed to prove by a preponderance of the evidence that the aggregate amount in controversy exceeded $5 million.
- The district court was not required to allow jurisdictional discovery on amount in controversy before remanding on an inadequate removal showing.
- The court declined to resolve broader interpretive questions about CAFA’s “mass action” provisions because the amount-in-controversy failure was dispositive.

## Legal Principles

- The party invoking federal removal jurisdiction bears the burden of establishing that removal is proper, absent a clear statutory change.
- CAFA expands certain bases for federal jurisdiction but does not, without explicit text, alter ordinary removal burdens or other basic jurisdictional constraints.
- For CAFA’s $5 million aggregate amount-in-controversy requirement, the removing defendant must prove the threshold by a preponderance of the evidence using concrete, non-speculative support; mere assumptions based on plaintiff count and alleged injury types are insufficient.
- Jurisdictional discovery on amount in controversy is discretionary; CAFA does not mandate discovery to cure an unsupported removal notice.

## Conclusion

The Ninth Circuit held that CAFA did not reallocate the burden of proof in removal cases and that defendants failed to establish the $5 million amount in controversy by a preponderance of the evidence; remand to state court was therefore affirmed, without reaching unresolved questions about CAFA mass-action mechanics.


Abrego Abrego v. Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006)