August 25, 2019

Archives for June 29, 2012

Paul Karlsgodt: Tenth Circuit Holds that Mere Allegation by Plaintiff of Intent Not to Seek More than $4,999,999.99 in Damages Is Not Dispositive of CAFA Jurisdiction

Yesterday, the Tenth Circuit joined the majority of Circuit Courts of Appeals in holding that a plaintiff cannot conclusively avoid federal removal jurisdiction under the Class Action Fairness Act of 2005 (CAFA) by including in the complaint a statement of intention not to seek more than $4,999,999.99 in damages on behalf of the putative class.  In Frederick v. Hartford Underwriters Insurance Company, No. 12-1161 (10th Cir. June 28, 2012) the Tenth Circuit followed decisions from the First, Second, Fourth, Sixth, Seventh, Eighth, and Eleventh Circuits in holding that a Defendant may support jurisdiction by showing by a preponderance of the evidence that the amount in controversy exceeds $5 million, even if the plaintiff expressly pleads a lesser amount.  It rejected a more stringent “legal certainty” standard, which has been applied by the Ninth and Third Circuits.

The Frederick decision means that plaintiffs cannot foreclose federal jurisdiction in class actions through creative pleading in the Tenth Circuit.  However, the burden is still on the defendant to prove as a matter of fact that the amount at stake in the case exceeds $5 million.  Therefore, it also highlights the need for defense counsel to gather, plead, and be prepared to prove specific facts showing the amount at stake in the case.

It is always important to remember that proving the amount in controversy does not require the defendant to prove the damages that are likely to be awarded against it in the case (of course most defendants would say that this amount is zero).  Instead, it requires the defendant to establish the highest amount that the plaintiff class could conceivably win based on the legal claims presented, the relief sought (both damages and other relief sought expressly and damages that could legally flow from the claims presented), and the maximum potential value that the plaintiff could reasonably put on that relief.  The preponderance standard requires the defendant to prove facts that would cause more than $5 million to be awarded if the plaintiff proves the claims and potential theories of damages that flow from those claims.

Paul Karlsgodt is a partner at Baker Hostetler who focuses his practice on class action defense and other complex commercial litigation. He is editor and primary contributor to, where this post originally appeared on June 28, 2012.

Suzanne Carlson Appointed as Sixth Judicial District Court Judge

On Friday, June 29, 2012, Governor John Hickenlooper announced his appointment of Suzanne Carlson to serve as a district court judge in the Sixth Judicial District, which covers La Plata, Archuleta, and San Juan counties. Carlson will fill the judgeship created pursuant to HB12-1073. Her judicial appointment is effective July 1.

Carlson has served as a judge for the Southern Ute Indian Tribe since 2005. She currently practices at the law firm of Lisa Ward LLC with a focus on divorce and child custody matters. Previously, she practiced with the Deputy State Public Defender and has served as a Legal Research Attorney for the Sixth Judicial District.

Carlson earned her bachelor’s degree from the University of Colorado and her law degree from the University of Colorado Law School.

Stephanie Dunn Appointed as Colorado Court of Appeals Judge

On Friday, June 29, 2012, Governor John Hickenlooper announced his appointment of Stephanie Dunn to the Colorado Court of Appeals. Dunn will fill the vacancy created by the retirement of the Honorable Arthur P. Roy on November 23.

Dunn is currently a partner at Perkins Coie LLP in Denver, where she practices extensively in business and appellate litigation as well as white collar and government investigations. Previously, she worked as an associate at Dewy & LeBoeuf LLP, where she participated in the Denver City Attorney’s trial program and worked as a special prosecutor prosecuting criminal violations of the Denver Municipal Code. Dunn was also a law clerk to former Chief Justice Luis Rovira at the Colorado Supreme Court.

Dunn earned her bachelor’s degree from the University of Colorado at Boulder and her law degree from the University of Denver Sturm College of Law.

Finalists Selected to Fill Judgeships on Jefferson County Court

The First Judicial District Nominating Commission has nominated six candidates for two Jefferson County court judgeships. One was created pursuant to HB 12-1073, effective July 1, 2012, and the other by the retirement of the Honorable John A. DeVita II, effective August 31.

The nominees for the bench are Harold Sargent and Thomas Walsh, both of Lakewood, Joel Schaefer and AnnMarie Spain, both of Arvada, Ryan Stuart of Littleton, and Jean Woodford of unincorporated Jefferson County. All were selected by the Commission on June 27, 2012.

Under the Colorado Constitution, Governor Hickenlooper has until July 13 to appoint two of the nominees as county court judges for Jefferson County.

Tenth Circuit: Unpublished Opinions, 6/28/12

On Thursday, June 28, 2012, the Tenth Circuit Court of Appeals issued two published opinions and nine unpublished opinions.

United States v. Dell

LaRiviere, Grubman & Payne LLP v. Phillips

Atkinson v. Schmidt

United States v. Rios-Mendoza

Vandagriff v. CIR

Farrill v. Astrue

Marshall v. Rudek

United States v. Bland

United States v. Baker

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.