18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 689 such office.” Id . The Eighth Circuit noted that Defendant was not itself a federal officer or agency, and therefore § 1442(a)(1) permitted “removal only if [3M], in carrying out the acts that are the subject of the petitioner’s complaint, was acting under any agency or officer of the United States." Id . at *21. As to Plaintiffs who acquired CAEv2 earplugs in the commercial marketplace, the Eighth Circuit concluded that Defendant failed to demonstrate that the government had any control over the instructions or warnings such that Defendant could establish it was "acting under" an officer or agency of the United States in developing and disseminating warnings and instructions for its commercial CAEv2 earplugs. Id . at *24-25. Accordingly, the Eighth Circuit affirmed the District Court’s ruling granting the motions to remand the claims of Plaintiffs who acquired CAEv2 earplugs in the commercial marketplace. As to Plaintiffs who worked for defense contractors and received CAEv2 earplugs from the military, the Eighth Circuit found that Defendant presented undisputed evidence that the military required its purchases of CAEv2 earplugs to be sent without instructions/warnings, and that the military developed its own instructions issued on wallet cards to service members, which was sufficient to satisfy the "acting under" and "causal connection" elements of removal under § 1442(a)(1). Id . at *30. The Eighth Circuit determined that Defendant made the requisite showing of a colorable federal contractor defense in the military contractor cases, as the government required Defendant to package CAEv2 earplugs provided to the military in bulk, and the military developed and produced its own instructions that it provided military users on a wallet card. Id . at *31. For these reasons, the Eighth Circuit affirmed in part and reversed and remanded in part the District Court’s ruling denying the motion to remand. Harris, et al. v. Travel Resorts Of America, Inc., Case No. 20-CV-14368 (S.D. Fla. March 31, 2021) . Plaintiff filed a class action alleging that she received approximately 20 unsolicited, prerecorded telephone calls from Defendant without Plaintiff’s consent in violation of the Telephone Consumer Protection Act (“TCPA”). Prior to the present action, Plaintiff filed a separate lawsuit against Defendant in Florida asserting identical claims under the TCPA. Defendant twice moved to dismiss Plaintiff’s prior action on the grounds that Plaintiff failed to allege a cognizable injury-in-fact as required by Article III, and the Court granted both of Defendant’s motions to dismiss. After the second dismissal, Plaintiff voluntarily dismissed her case and refiled the present action in Florida state court. Defendant then removed the case to and Plaintiff subsequently filed a motion to remand, which the Court granted. In her motion, Plaintiff contended that Defendant failed to carry its burden of demonstrating the Court’s subject-matter jurisdiction over Plaintiff’s claims. Plaintiff supported this argument by pointing to Defendant’s previous position seeking dismissal for lack of an Article III injury. Conversely, Defendant stated that it abandoned its position challenging the adequacy of the harm pled by Plaintiff and instead urged the Court to exercise jurisdiction over the case pursuant to the Class Action Fairness Act (“CAFA”). Id. at 3. The Court addressed Plaintiff’s purported Article III standing, which Defendant asserted was required to establish as the removing party. The Court reasoned that Plaintiff’s allegations were clearly insufficient to establish standing, as she omitted key details regarding the alleged harm caused by the unsolicited calls and abandoned the position that she had Article III standing to pursue a case in a federal forum. Since it opined that the CAFA did “nothing to relieve the removing party of establishing federal subject-matter jurisdiction,” the Court held that Defendant failed to sustain its burden of demonstrating subject-matter jurisdiction over Plaintiff’s case. Id. at 6. Moreover, given that Defendant “lacked any reasonable basis for removal” and contradicted its own arguments in Plaintiff’s identical prior action, the Court found that an award of attorneys’ fees was appropriate to compensate Plaintiff for her costs incurred in seeking remand. Id. at 6-7. Accordingly, the Court granted Plaintiff’s motion to remand. Jackson, et al. v. Home Depot U.S.A., 2021 U.S. Dist. LEXIS 29143 (E.D. Penn. Feb. 17, 2021). Plaintiffs, a group of employees, filed a state court class action alleging that Defendant violated various state wage & hour law provisions. Defendant removed the action on the basis of diversity jurisdiction. Plaintiffs filed a motion to remand, arguing that Defendant failed to remove the case under diversity jurisdiction within the required 30 days. The Court denied the motion. The Court explained that the key question was when Defendant received qualifying notice of the monetary demand to start the 30-day clock. Id . at *1. Plaintiffs contended that a "pre- complaint demand letter" provided notice. Id . Defendant argued that it did not receive the notice required under the removal statute until after the complaint was filed, which alleged $50,000 in damages. The Court noted that the pre-demand letter was sent on October 4, 2019, and the complaint was filed on November 15, 2020. On December 10, 2020, Plaintiffs confirmed they would be seeking over $75,000 in damages. Defendant thereafter filed its notice of removal on December 30, 2020. The Court reasoned that removal must occur within 30 days of the complaint or, if the complaint does not set forth the basis for federal jurisdiction "within 30 days after receipt