F I L E D

United States Court of Appeals

Tenth Circuit

May 12, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PRIME CARE OF NORTHEAST

KANSAS, LLC; NEW CENTURY

HEALTH QUALITY ALLIANCE,

INC.; JAMES MIRABILE, M.D.,

P.A.; PAINCARE, P.A.; KANSAS

CITY UROLOGY CARE, PA; THE

DRAKE INSTITUTE, PA; MIDWEST

NEUROSURGERY ASSOCIATES,

PA; COLLEGE PARK FAMILY

CARE CENTER, PA; UNITED

MEDICAL GROUP, LLC; KANZA

MULTISPECIALITY GROUP, PA;

STATLAND CLINIC LTD, PA;

HEARTLAND PRIMARY CARE, PA;

KANSAS CITY ALLERGY AND

ASTHMA ASSOCIATES, PA;

NELSON HARMON AND KAPLAN,

M.D.S., CHTD; HEAD & NECK

SURGERY OF KANSAS CITY, PA;

CONTEMPORARY WOMEN’S

CENTRE, LLC; CYNTHIA ROMITO,

MD; ASSOCIATED ORTHOPEDICS,

PA; DICKSON-DIVELY MIDWEST

ORTHOPEDIC CLINIC, INC.,

Plaintiffs-Appellees,

v.

HUMANA INSURANCE COMPANY;

UNITED HEALTHCARE

INSURANCE COMPANY, INC.;

COVENTRY HEALTH & LIFE

INSURANCE COMPANY,

No. 06-3024
* After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

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Defendants-Appellants,

and

BLUE CROSS AND BLUE SHIELD

OF KANSAS CITY, INC.; BLUE

CROSS AND BLUE SHIELD OF

KANSAS, INC.; GOOD HEALTH

HMO, INC; PREMIER HEALTH,

INC.; TOTAL HEALTH CARE, INC.;

COVENTRY SERVICES

CORPORATION, doing business as

Coventry Health Care, Inc.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 05-CV-2227-KHV)

Submitted on the briefs:*

Douglas M. Weems, Barry L. Pickens, Spencer Fane Britt & Browne, LLP,

Jeffrey J. Simon, Leonard L. Wagner, Husch & Eppenberger, LLC, Kansas City,

Missouri, H. Reed Walker, Law Offices of H. Reed Walker, P.A., Overland Park,

Kansas, for Appellants.

R. Frederick Walters, Walters Bender Strohbehn & Vaughn, P.C., Kansas City,

Missouri, for Appellees.
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Before BRISCOE, McKAY, and BRORBY, Circuit Judges.

BRISCOE, Circuit Judge.

The Class Action Fairness Act of 2005 (CAFA), Pub. L. No. 109-2,

119 Stat. 4, amended 28 U.S.C. § 1332(d) to confer federal jurisdiction over class

actions involving at least 100 members and over $5 million in controversy when

minimal diversity (between any defendant and any plaintiff class member) is met.

CAFA also added its own removal statute, permitting any defendant to remove a

qualifying action without regard to the residence or consent of other defendants,

see 28 U.S.C. § 1453(b), and providing discretionary appellate review of rulings

on motions for remand notwithstanding the extant bar in 28 U.S.C. § 1447(d) to

appeals from remand orders, see 28 U.S.C. § 1453(c)(1). CAFA applies “to any

civil action commenced on or after [February 18, 2005].” 119 Stat. at 14. The

question raised here is whether CAFA permits the removal of a class action filed

before the Act’s effective date if the removing defendant was first added by

amendment after the effective date. The district court held CAFA does not apply

in these circumstances and remanded the case to state court. On de novo review,

see, e.g., Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005); see also
1 This court granted defendants-appellants’ application for appeal by order

dated January 20, 2006. The sixty-day deadline for disposition of such an appeal

specified in § 1453(c)(2) was extended, on agreement of the parties, until May 18,

2006, pursuant to § 1453(c)(3)(A).

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Dallis v. Martin, 929 F.2d 587, 589 (10th Cir. 1991), we vacate the district

court’s order and remand for further proceedings.

Plaintiffs filed this class action in Kansas state court on February 14, 2005.

They subsequently amended the pleadings several times, to correct and clarify

party designations. On April 22, 2005, the state court granted them leave to file a

fifth amended petition, in which they first named Defendants Humana Insurance

Company, Coventry Health & Life Insurance Company, and United Healthcare

Insurance. The state court also specifically held that the amended petition related

back to the initial filing date. A month later, the newly added defendants

removed the case under § 1453(b). Plaintiffs moved for remand, arguing that

CAFA was not applicable because the case had been commenced prior to the

Act’s effective date. The removing defendants opposed the motion, contending

that as to them the action commenced a month after CAFA’s effective date, when

they were first added to the pleadings. The district court granted the motion for

remand, and the removing defendants appealed.1

In the short time since CAFA’s passage, courts have adopted at least three

distinct positions on the issue of commencement-by-amendment for purposes of
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removal under the Act. A few, like the district court here, insist that a “civil

action” can “commence” only once and, thus, take the absolute position that if an

action was commenced prior to CAFA’s effective date, no post-CAFA amendment

of the pleadings can bring the Act into play. See Comes v. Microsoft Corp.,

403 F. Supp. 2d 897, 903 (S.D. Iowa 2005) (following Weekley v. Guidant Corp.,

392 F. Supp. 2d 1066, 1067-68 (E.D. Ark. 2005)). Most courts, however, concede

that the addition of a new claim sufficiently distinct from prior pleadings may

commence a new action removable under CAFA by the affected parties.

The latter courts also generally agree that whether an amendment is distinct

enough to give rise to a new commencement date is properly gauged by the forum

state’s law governing the relation-back of pleading amendments. This broad

consensus splits into two opposing views, however, regarding the treatment of

amendments that add new defendants to a case. On one view, the relation-back

analysis controls the commencement question for all amendments, no distinction

being made for amendments adding new defendants (of course, the requirements

that must be met for amendments adding defendants to relate back are strict). 

See Plubell v. Merck & Co., 434 F.3d 1070, 1071-72 (8th Cir. 2006); see, e.g.,

Eufaula Drugs, Inc. v. ScripSolutions, 2005 WL 2465746, at *2-*4 (M.D. Ala.

Oct. 6, 2005) (holding CAFA inapplicable where amendment adding defendant

related back to pre-CAFA filing); New Century Health Quality Alliance, Inc. v.
2 We have held that a case commenced in state court prior to CAFA is not

“recommenced” post-CAFA by the act of removal itself. See Pritchett v. Office

Depot, Inc., 420 F.3d 1090, 1094-97 (10th Cir. 2005). 

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Blue Cross & Blue Shield of Kan. City, Inc., 2005 WL 2219827, at *3-*5

(W.D. Mo. Sept. 13, 2005) (same). On the other view, the relation-back analysis

controls for all amendments except those adding defendants, which are

categorically treated as commencing a new case as to the added defendants. 

See Braud v. Transp. Serv. Co., 2006 WL 880051, at *1-*4 (5th Cir. Apr. 6, 2006)

(following approach stated, but not yet dispositively applied, by Seventh Circuit

in such cases as Schillinger v. Union Pac. R.R., 425 F.3d 330, 333 (7th Cir. 2005)

and Knudsen v. Liberty Mut. Ins. Co., 411 F.3d 805, 807 (7th Cir. 2005));

Adams v. Fed. Materials Co., 2005 WL 1862378, at *3-4 (W.D. Ky. July 28,

2005) (same). 

In sum, courts addressing post-CAFA pleading amendments have held that

such amendments either (1) do not affect the pre-CAFA commencement date of

the case; (2) affect the commencement date only if they do not relate back; or

(3) affect the commencement date if they do not relate back or if they add new

defendants to the case. This circuit has not yet confronted this specific issue.2

For the reasons that follow, we now adopt the second position.

The view that post-CAFA amendments do not affect pre-CAFA

commencement dates turns on Congress’ use of the phrase “civil action” in
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CAFA’s effective date provision. Noting that “[a] civil action, viewed as the

whole case, the whole proceeding, can only be commenced once,” the courts

embracing this position concede that “new claims may dramatically change the

action” and “may or may not ‘relate back’ to the original complaint,” but they still

conclude that such proceedings cannot alter the fact that the civil action

“commenced when the initial complaint was filed.” Weekley, 392 F. Supp. 2d

1067-68; see Comes, 403 F. Supp. 2d at 903. For these courts, it is of controlling

significance that “Congress did not say [CAFA] would apply to actions in which

the complaint was amended after February 18, 2005 . . . unless the amendment

related back to the initial complaint.” Weekley, 392 F. Supp. 2d at 1068

(emphasis added); see Comes, 403 F. Supp. 2d at 903 (“If Congress had intended

the CAFA to apply to currently pending cases that were amended after the

enactment of the CAFA, it could have explicitly done so.”).

A pointed rebuttal to this rationale for adopting the first position, i.e., that

post-CAFA amendments do not affect pre-CAFA commencement dates, has been

given by one of the courts adopting the third position, i.e., that post-CAFA

amendments that do not relate back or that add defendants give rise to new

commencement dates. In Braud, the district court held that an amendment adding

a defendant did not commence a new action, relying on the same basic point cited

above from Weekley and Comes. The Fifth Circuit reversed, noting that the
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existence of established legal principles relating commencement to amendment (in

this instance, amendments adding defendants) belied the idea that Congress’

general reference to commencement of a civil action without an explicit direction

for the treatment of pleading amendments must render pleading amendments

categorically irrelevant:

[T]he district court’s remark that “there’s no specific language in the

CAFA legislation itself . . . that would support that position that if a

new party was added [post-CAFA to a pre-CAFA case then] CAFA

would apply” misses the mark. Precisely because CAFA does not

define “commencement” of an action, it is obvious that CAFA is not

intended to replace caselaw deciding when a lawsuit is considered

“commenced” as to a new defendant.

The caselaw holds that generally “a party brought into court by

an amendment, and who has, for the first time, an opportunity to

make defense to the action, has a right to treat the proceeding, as to

him, as commenced by the process which brings him into court. 

United States v. Martinez, 195 U.S. 469, 473 . . . (1904) (citing

Miller v. M’Intyre, 31 U.S. (6 Pet.) 61, 8 L.Ed. 320 (1832)). As the

Miller Court explained, this is because it “would be a novel and

unjust principle to make the defendants responsible for a proceeding

of which they had no notice.” Miller, 61 U.S. at 64. 

Braud, 2006 WL 880051, at *2. 

There is, however, a broader point to be made here that reinforces Braud’s

contextual/historical criticism of the absolute position reflected in Weekley and

Comes but at the same time brings some of the same criticism to bear on the

position espoused in Braud and the Seventh Circuit cases. Underlying Braud’s

reliance on the Martinez and M’Intyre cases in the quoted passage is the principle,
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repeatedly invoked by the Supreme Court, that “Congress is presumed to enact

legislation with knowledge of the law and a newly-enacted statute is presumed to

be harmonious with existing law and judicial concepts.” Garcia v. Dep’t of

Homeland Sec., 437 F.3d 1322, 1336 (Fed. Cir. 2006) (collecting Supreme Court

cases); see Bd. of County Comm’rs v. U.S. E.E.O.C., 405 F.3d 840, 845 (10th Cir.

2005). Braud fails to acknowledge, however, that the relevant law and judicial

concepts in the pleading-amendment context have developed significantly since

the Martinez case was decided in 1904. 

With the issuance of the Federal Rules of Civil Procedure in 1938, pleading

amendments were controlled by Rule 15(c), which did not maintain the simple

equation of amendment and commencement reflected in the old law cited by

Braud, but looked instead to more recent relation-back principles. Indeed, when

courts failed to heed this move from automatic recognition of a new proceeding to

a nuanced relation-back analysis, the Rule was amended in 1966 “to state more

clearly when an amendment of a pleading changing [defendants] shall ‘relate

back’ to the date of the original pleading.” Advisory Committee’s 1966 Note on

Subd. (c) (“Analyses in terms of ‘new proceedings’ is traceable to [cases that]

antedate the adoption of the Rules which import different criteria for determining

when an amendment is to ‘relate back.’ As lower courts have continued to rely on

[outdated] cases despite the contrary intent of the Rules, clarification of Rule
3 We do not gainsay the equitable appeal of allowing a defendant added to a

suit by a post-CAFA amendment to remove the case that has just been asserted

“against it.” Schillinger, 425 F.3d at 333 (quotation omitted). But this appeal

quickly diminishes once it is recognized that the relation-back analysis prescribed

by both Rule 15(c) and its Kansas counterpart, Kan. Stat. Ann. § 60-215(c)(2),

already accounts for the “new case against this defendant” idea: these rules

specify that an amendment adding a defendant relates back to the original

pleading only if the defendant “received such notice of the institution of the

(continued...)

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15(c) is considered advisable.”). Especially telling here is the Advisory

Committee’s pointed clarification that, when the addition of a defendant satisfies

relation-back criteria, “characterization of the amendment as a new proceeding is

not responsive to the realty [sic], but is merely question-begging; and to deny

relation back is to defeat unjustly the claimant’s opportunity to prove his case.” 

Id. We note that, as the Kansas rule applied in this case reflects, state

relation-back doctrines have largely tracked the federal rule. Steven S. Sparling,

Note, Relation Back of “John Doe” Complaints in Federal Court: What You

Don’t Know Can Hurt You, 19 Cardozo L. Rev. 1235, 1266 & nn.250, 251

(Dec. 1997). 

Thus, when Congress tied CAFA’s effective date to the legal concept of

commencement, it did so presumptively aware that – contrary to the principle

invoked by the Fifth and Seventh Circuit cases applying CAFA – an amendment

adding a defendant does not necessarily commence a new action as to that

defendant.3 Nor, contrary to Comes and Weekley, are commencement and
3

(...continued)

action that the party [will/would] not be prejudiced in maintaining a defense” and,

in fact, “knew or should have known that, but for a mistake concerning the

identity of the proper party, the action would have been brought against the

party.” In effect, an amendment adding defendants to a case will relate back, and

thus not commence a new case, only when it really is not a new case against those

defendants.

4

It is worth noting that the unqualified disregard of any post-CAFA pleading

amendments espoused by Comes and Weekley entails the practically untenable

result that once a pre-CAFA case is filed, the plaintiff can tack on new causes of

action so substantively independent of the original case that they would be

properly treated as filed after CAFA’s effective date for all legal purposes

controlled by Rule 15(c) except for CAFA.

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amendment properly seen as utterly unrelated matters.4 Rather, the relevant

landscape in which both of these legal concepts reside has for some time been

governed by the relation-back principle. This is the fundamental underpinning for

the position that the effect of post-CAFA amendments should be a function of

whether they relate back to the pre-CAFA filing. 

There is one other justification invoked for the position adopted by the

Fifth and Seventh Circuits that we should address. The argument notes that the

general removal statute grants newly served defendants (served with the initial

pleading if the case is removable or with an amended pleading if the amendment

makes the case removable) thirty days to remove, see 28 U.S.C. § 1446(b), and

from this concludes that a defendant added after CAFA’s effective date should be

able to remove because it has been given this procedural window in which to do

so. Knudsen, 411 F.3d at 807; see Braud, 2006 WL 880051, at *3 (following
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Knudsen rationale); Adams, 2005 WL 1862378, at *3 (same). The jump from

premise to conclusion here turns on a conflation of two concepts that should be

kept distinct: a substantive basis for removal (here the federal action created by

CAFA) and a procedural opportunity to effect removal on that substantive basis.

A procedural opportunity to assert a substantive right does not create the right to

be asserted; the opening of a window to seek removal under CAFA merely raises

the question of whether CAFA is applicable to the case at that time, it does not

answer it. Indeed, this particular conflation of substantive and procedural

removability is very much at odds with our holding in Pritchett, see supra at 6,

n.2, which took pains to clarify that CAFA’s substantive applicability to a case

did not turn on the procedural event of removal. 

Moreover, the confusion of a removal window with the substantive right to

remove would lead to absurd consequences, which can be illustrated by a simple

example. Because § 1446(b) grants the defendant thirty days to remove a case

following service of the complaint, if a removal window after CAFA’s effective

date is enough to trigger application of CAFA, then CAFA actually applies to all

civil actions commenced after or up to thirty days before its designated effective

date – a bizarre result contrary to the plain wording of the Act’s effective date.

For the reasons discussed above, we hold that whether a post-CAFA

amendment triggers a substantive right of removal under CAFA by the affected
5 We note the state court’s initial (ex parte) order holding that the operative

amendment related back is inherently non-final and subject to reconsideration in

federal court. See 16 James Wm. Moore, Moore’s Federal Practice § 107.31[3]

(3d ed. 2006); see also 28 U.S.C. § 1450.

6 As noted, the prevailing view is that this determination should be governed

by the law of the state in which the action was commenced. Given the essentially

identical text of Rule 15(c) and Kan. Stat. Ann. § 215(c), see supra at 10 n.3, it

appears unlikely that a choice between federal and state law is necessary to our

resolution of this case. At this juncture, however, we do not express an opinion

as to whether federal or state law should control. Of course, it is still possible

that federal and state case law applying the same language has diverged in some

material respect. We therefore do not foreclose the district court’s consideration

of the matter on remand in the event the parties develop opposing positions based

on a demonstrable divergence between federal and state law on the facts of this

case.

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parties depends on whether the amendment relates back to the pre-CAFA pleading

that is being amended. Because the district court followed the absolute approach

reflected in Comes and Weekley, under which no post-CAFA amendment would

grant removal rights under the Act, it did not consider whether the amendment at

issue properly related back to the commencement of the case when it remanded

the proceeding to state court.5

 We therefore vacate the district court’s order and

remand to the district court for further proceedings consistent with this opinion,

in particular for a determination whether the amendment adding the removing

defendants related back to the pre-CAFA commencement of this action.6

The order of the district court is VACATED and the cause REMANDED to

the district court for further proceedings.
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