PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 14-3406 & 14-4099

_____________

FRANCINE JUDON, 

INDIVIDUALLY AND ON BEHALF OF A CLASS 

OF SIMILARLY SITUATED PERSONS

v.

TRAVELERS PROPERTY CASUALTY COMPANY 

OF AMERICA,

 Appellant

 _____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-14-cv-01291

District Judge: The Honorable Stewart Dalzell

Argued November 5, 2014

Before: SMITH, HARDIMAN, and KRAUSE, 

Circuit Judges

(Filed: December 12, 2014)
2

James C. Haggerty, Esq.

Suzanne T. Tighe, Esq. [ARGUED]

Haggerty, Goldberg, Schleifer & Kupersmith

1835 Market Street

Suite 2700

Philadelphia, PA 19103

Counsel for Appellee

Matthew A. Goldberg, Esq.

Joseph Kernen, Esq. [ARGUED]

Brian M. Robinson, Esq.

DLA Piper

1650 Market Street

One Liberty Place, Suite 4900

Philadelphia, PA 19103

Counsel for Appellant

________________

OPINION

________________
3

SMITH, Circuit Judge.

This case concerns the applicable burdens of proof 

for establishing jurisdiction in a removal action under the 

Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. 

§§ 1332(d), 1453. Defendant in this action, Travelers 

Property Casualty Co. of America (“Travelers”), 

removed the case to the United States District Court for 

the Eastern District of Pennsylvania. Plaintiff Francine 

Judon (“Judon”) timely sought remand. The District 

Court found CAFA’s numerosity and amount-incontroversy requirements to be in dispute and placed the 

burden of proof on Travelers to establish jurisdiction 

under CAFA by a preponderance of the evidence. 

Concluding that Travelers failed to meet its burden, the 

District Court issued an order remanding the case to state 

court. Travelers appealed.

As Judon’s complaint unambiguously pleaded that 

the numerosity requirement was satisfied, the District 

Court should have placed the burden of proof on Judon to 

show, to a legal certainty, that the numerosity 

requirement was not satisfied. But the District Court 

correctly applied the preponderance of the evidence 

standard to the amount-in-controversy requirement.

Accordingly, we will affirm in part, vacate in part, and 

remand to the District Court for further proceedings. 

I.
4

On December 12, 2010, Judon was injured while 

riding in a passenger vehicle capable of transporting 

fewer than 16 passengers owned by Keystone Quality 

Transport Company and insured by Travelers. After the 

accident, Judon sought first-party medical benefits under 

the Travelers insurance policy of $7,636.40. Travelers 

paid Judon $5,000, up to the first-party medical benefits 

limit in the policy, but declined to pay Judon $2,636.40 

for her claims over the policy limit. 

On January 24, 2014, Judon filed a class-action 

complaint in the Court of Common Pleas of Philadelphia 

County. The primary basis of Judon’s complaint was 

that Pennsylvania law required that the Travelers policy 

held by Keystone offer up to $25,000 in first-party 

medical benefits. Judon’s complaint alleged two counts: 

(1) that Travelers’ refusal to pay first-party medical 

benefits beyond $5,000 constituted breach of contract;

and (2) that Travelers’ denial of Judon’s and other 

putative class members’ claims was done in bad faith and 

in violation of 42 Pa. C.S.A. § 8371. Judon also asserted 

a claim on behalf of the following class members:

individuals injured in motor vehicle 

accidents who were occupants of common 

or contract carriers for motor vehicles 

capable of transporting fewer than 16 

passengers insured under policies of 

insurance by the defendant, Travelers, and 

for whom first party medical expense 
5

benefits were not made available in an 

amount up to $25,000.00 but only in an 

amount up to $5,000.00.

Judon further alleged that “there are hundreds of 

members of the class” who were “wrongfully and 

illegally denied payment” of first-party benefits by 

Travelers. 

Judon sought a court order requiring Travelers to 

“make payment of first-party medical expense benefits in 

an amount up to $25,000” to Judon and class members in 

connection with injuries sustained in motor vehicle 

accidents that were covered by Travelers’ policies of 

insurance. Further, Judon requested that the court award, 

to Judon and class members, first-party benefits, interest, 

fees, costs, treble damages, and punitive damages for 

acting in bad faith pursuant to 42 Pa. C.S.A. § 8371. 

On February 28, 2014, Travelers timely filed a 

notice of removal under CAFA. Travelers argued that 

the proposed class met the three requirements for CAFA 

removal under 28 U.S.C. § 1332(d). Travelers asserted, 

and Judon did not contest, that the parties were 

minimally diverse. Travelers also contended that Judon’s 

reference to “hundreds of members” must mean at least 

200, such that the proposed class consisted of at least 100 

putative class members pursuant to § 1332(d)(5). 

Travelers also argued that the amount in controversy

exceeded $5,000,000 pursuant to § 1332(d)(2). In order 
6

to reach that figure, Travelers asserted that the value of 

each putative class member’s damages could amount to 

$20,000 (consisting of $25,000 in allegedly required 

first-party medical benefits minus the $5,000 in firstparty medical benefits actually paid). The minimum total 

number of class members, 200, multiplied by the total 

amount each class member could be entitled to, $20,000, 

would yield $4,000,000 in potential compensatory 

damages. Trebling this amount as demanded by Judon, 

Travelers contended, yields an amount in controversy 

exceeding $5,000,000. 

On March 7, 2014, Travelers filed a motion to 

dismiss Judon’s class-action complaint arguing, inter 

alia, that Travelers’ denial of Judon’s medical expenses

was proper under applicable Pennsylvania law. In the 

alternative, Travelers argued that it had an objectively 

reasonable basis for refusing to make payment of Judon’s 

medical expenses and, as a result, punitive damages were 

not warranted. 

On March 24, 2014, Judon timely filed a motion to 

remand, contending that as the removing party, Travelers 

bore the burden of establishing jurisdiction under CAFA. 

According to Judon, Travelers did not meet that burden 

because it failed to show to a legal certainty both that: 

(i) the amount in controversy exceeded the statutory 

minimum of $5,000,000; and (ii) there were more than 

100 class members. In order to do so, Judon argued, 

Travelers must submit proof regarding the actual number 
7

of class members and the actual amount of those putative 

class members’ damages. Judon also argued that the 

potential for punitive or treble damages could not count 

towards the $5,000,000 amount-in-controversy 

requirement both because such potential damages would 

need to be actually translated into monetary sums for 

each putative class member and because Travelers had 

challenged the availability of punitive damages in its 

motion to dismiss.

The District Court granted Judon’s motion to 

remand on June 30, 2014. The District Court reasoned 

that because Judon “vigorously contest[ed]” the facts 

Travelers relied on to establish jurisdiction, the 

“preponderance of the evidence standard [was] 

appropriate for resolving the dispute.” Because the 

District Court reasoned that Travelers was required to 

“put forward proof to a reasonable probability” that 

jurisdiction existed under 28 U.S.C. § 1332(d), and 

because Travelers provided no such extrinsic evidence, 

the District Court remanded the case to the Court of 

Common Pleas of Philadelphia County. Travelers timely 

petitioned for review of the remand order pursuant to 28 

U.S.C. § 1453(c)(1). On October 3, 2014, we granted 

Travelers’ petition.1

 

1 CAFA requires a court of appeals to “complete all 

action” on an appeal, “including rendering judgment not 

later than 60 days after the date on which such appeal 
8

II.

The District Court exercised jurisdiction pursuant 

to 28 U.S.C. § 1332(d). We exercise jurisdiction 

pursuant to 28 U.S.C. § 1453(c). A party asserting 

federal jurisdiction in a removal case bears the burden of 

showing “that the case is properly before the federal 

court.” Frederico v. Home Depot, 507 F.3d 188, 193 (3d 

Cir. 2007); see also Morgan v. Gay, 471 F.3d 469, 473 

(3d Cir. 2006). Our review of issues of subject matter 

jurisdiction is de novo. Kaufman v. Allstate N.J. Ins. Co., 

561 F.3d 144, 151 (3d Cir. 2009).

III.

 

was filed.” 28 U.S.C. § 1453(c)(2). Under this 60-day 

deadline, our judgment should be filed no later than 

December 2, 2014. See Morgan v. Gay, 471 F.3d 

469, 472 (3d Cir. 2006) (establishing that the 60-day 

CAFA deadline commences once the Court grants the 

petition for permission to appeal under § 1453(c)(2)). 

However, a court of appeals may “for good cause shown 

and in the interest of justice” extend this filing date for 

ten days. Id. at § 1453(c)(3)(B). After hearing oral 

argument on November 5, 2014, we concluded that 

giving detailed attention to the issues presented in this 

case in order to better instruct litigants and district courts 

constituted good cause to invoke the ten-day extension. 
9

At the core of this jurisdictional challenge is the 

nature of the burden of proof and evidentiary standards 

applicable in a case removed under CAFA. CAFA 

confers on district courts “original jurisdiction of any 

civil action” in which three requirements are met: (1) an 

amount in controversy that exceeds $5,000,000, as 

aggregated across all individual claims; (2) minimally 

diverse parties; and (3) that the class consist of at least 

100 or more members (“numerosity requirement”). 28 

U.S.C. § 1332(d)(2), (5)(B), (6); Standard Fire Ins. Co. 

v. Knowles, 133 S. Ct. 1345, 1347 (2013). 

In order to determine whether the CAFA 

jurisdictional requirements are satisfied, a court evaluates 

allegations in the complaint and a defendant’s notice of 

removal. Frederico, 507 F.3d at 197; Morgan, 471 F.3d 

at 474.2 The proper test in a CAFA removal action

 

2 Frederico v. Home Depot provided that “a defendant’s 

notice of removal serves the same function as the 

complaint would if filed in the district court.” 507 F.3d 

at 197 (citing Morgan, 471 F.3d at 474). In Morgan, we 

noted that “[b]ecause ‘the complaint may be silent or 

ambiguous on one or more of the ingredients needed to 

calculate the amount in controversy,’ ‘[a] defendant’s 

notice of removal then serves the same function as the 

complaint would in a suit filed in federal court.’” 471 

F.3d at 474 (quoting Brill v. Countrywide Home Loans, 

Inc., 427 F.3d 446, 449 (7th Cir. 2005)). Although it is 
10

depends on the nature of the jurisdictional facts alleged 

and whether they are in dispute. 

A.

We begin by demarcating the various jurisdictional 

tests applicable in a CAFA removal action. In SamuelBassett v. Kia Motors America, Inc., we closely analyzed 

the burden of proof for establishing the amount-incontroversy requirement under 28 U.S.C. § 1441—the 

general removal statute. 357 F.3d 392, 396 (3d Cir. 

2004). This pre-CAFA decision reconciled two Supreme 

Court cases that established distinct burdens of proof to 

be applied depending on the nature of a party’s 

jurisdictional challenge. Id. at 397–98 (reconciling St. 

Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283 

(1938) with McNutt v. Gen. Motors Acceptance Corp. of 

Ind., 298 U.S. 178 (1936)). 

In McNutt v. General Motors Acceptance Corp. of 

Indiana, “a challenge to the amount in controversy had 

been raised in the pleadings [specifically the answer],” 

but “no evidence or findings in the trial court addressed 

that issue.” Samuel-Bassett, 357 F.3d at 397; McNutt, 

 

possible that someone reading Frederico out of context 

might assume that this statement alters the jurisdictional 

burdens, the quotation from Morgan makes clear the 

manner in which a defendant’s notice of removal is 

relevant. 
11

298 U.S. at 179–80. The Supreme Court held that “the 

party alleging jurisdiction [must] justify his allegations 

by a preponderance of the evidence.” McNutt, 298 U.S. 

at 189. Accordingly, if the jurisdictional facts are 

challenged “in any appropriate manner,” the party 

alleging jurisdiction “must support them by competent 

proof.” Id. Because the jurisdictional amount was in 

dispute and there were no adequate findings as to that 

issue of fact, the Supreme Court held that the district 

court lacked jurisdiction and the case should be 

dismissed for want of jurisdiction. Id. at 190. 

By contrast, in St. Paul Mercury Indemnity Co. v. 

Red Cab Co., after the defendant removed the case to 

federal court, the plaintiff amended the complaint to 

allege damages less than the amount necessary to create 

jurisdiction. 303 U.S. at 285. Thereafter, the district 

court conducted a bench trial and made factual findings, 

stated its conclusions, and entered judgment for the 

plaintiff. Id. The defendants appealed. Id. The Seventh 

Circuit “refused to decide the merits on the ground that[,]

as the record showed[,] respondent’s claim did not equal 

the amount necessary to give the District Court 

jurisdiction.” Id. 

The Supreme Court held that the relevant test to 

establish jurisdiction was whether “from the face of the 

pleadings, it is apparent, to a legal certainty, that the 

plaintiff cannot recover the amount claimed or if, from 

the proofs, the court is satisfied to a like certainty that the 
12

plaintiff never was entitled to recover that amount.” Id.

at 289. This rule from Red Cab “‘does not require the 

removing defendant to prove to a legal certainty the 

plaintiff can recover [the amount in controversy]—a 

substantially different standard.’” Frederico, 507 F.3d 

at 195 (quoting Valley v. State Farm Fire and Cas. Co., 

504 F. Supp. 2d 1, 3–4 (E.D. Pa. 2006)). Instead, under 

the legal certainty test, “the challenger to subject matter 

jurisdiction [must] prove, to a legal certainty, that the 

amount in controversy could not exceed the statutory 

threshold.” Id. at 195.

After distinguishing these cases, the SamuelBassett panel analyzed an amount in controversy that was 

not based on specific damages alleged in the complaint 

but, instead, on an ad damnum clause3that stated 

 

3 An “ad damnum” clause is a “clause in a prayer for 

relief stating the amount of damages claimed.” Black’s 

Law Dictionary 40 (8th ed. 2004). This is a “customary 

reference point to ascertain the amount in controversy.” 

Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 

214, 217 (3d Cir. 1999) abrogated on other grounds by 

Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 

546 (2005). State courts often place limits on the amount 

of damages that may be recited in such a clause. Id. In 

particular, Pennsylvania civil pleading rules provide that 

a complaint may not claim a specific amount of damages 

if the pleading seeks to recover unliquidated damages, 
13

damages in terms of categories. 357 F.3d at 398–99. 

The panel applied the legal certainty test because the 

categories of damages, a legal question, only needed to 

be translated into monetary sums.4 Id. at 399. The Court 

found, however, insufficient facts to support a conclusion

that the amount in controversy was satisfied (specifically 

the “actual damages” plaintiff could recover under 

Pennsylvania law). Id. at 400. Because of this, the Court

remanded the case for fact finding on the amount in 

controversy. Id. at 403. In determining which test to 

apply, we explained that the critical distinction between 

Red Cab and McNutt is whether the district court has 

made factual findings or instead, whether the district 

court is faced with “disputes over factual matters.” Id. at 

397, 398–99. 

Travelers erroneously contends that such a dispute 

is created only where the challenging party puts forth 

 

Pa. R. Civ. P. 1021(b), but must state whether the 

damages sought “exceed the jurisdictional amount 

requiring arbitration referral by local rule,” Pa. R. Civ. P. 

1021(c). 

4 The Samuel-Bassett panel treated the task of translating 

categories of damages into monetary sums as a legal 

question. In that case, the parties did not dispute the 

underlying damages calculations. 357 F.3d at 398. 

Where there is such a dispute, our jurisprudence dictates 

that McNutt’s preponderance of the evidence test applies. 
14

admissible evidence.

5

 At the removal stage of an action, 

a jurisdictional fact in question may be “disputed” or 

“contested” in the pleadings. McNutt, 298 U.S. at 189–

90. For example, the contested jurisdictional facts in 

McNutt were established by “the allegation in the bill of 

complaint as to [the] jurisdictional amount [being] 

traversed by the answer.” Id. at 190. Because the district 

court “made no adequate finding upon that issue of fact, 

and the record contain[ed] no evidence to support the 

allegation of the bill,” the Supreme Court concluded that 

the burden rested on the party seeking removal to prove 

that the jurisdictional amount in controversy was 

 

5 Travelers argues that Judon’s challenge in her motion to 

remand was insufficient to create a dispute of fact. 

Citing Thornton v. United States, 493 F.2d 164, 167 (3d 

Cir. 1974), Travelers contends that like a motion for 

summary judgment, “[a] statement in a brief or in oral 

argument does not constitute evidence” that would create 

a dispute of fact. Not only does Travelers’ argument on 

this point incorrectly apply our jurisprudence on the 

burden of proof in a CAFA removal action, it also 

attempts to import the detailed burden-shifting applicable 

to a motion for summary judgment, which generally 

occurs later in the course of litigation and is meant to 

decide whether “there is no genuine dispute as to any 

material fact and [that] the movant is entitled to judgment 

as a matter of law.” See Fed. R. Civ. P. 56. 
15

satisfied. Id. The Supreme Court took the same 

approach in Wilson v. Republic Iron & Steel Co.:

“If a removal is effected, the plaintiff may, 

by a motion to remand, plea, or answer, take 

issue with the statements in the petition [for 

removal]. If he does, the issue so arising 

must be heard and determined by the 

District Court, and at the hearing the 

petitioning defendant must take and carry 

the burden of proof, he being the actor in the 

removal proceeding.” 

257 U.S. 92, 97–98 (1921) (emphasis added) (citations 

omitted). In distilling these cases, we make clear that a 

jurisdictional challenge, which creates a dispute of fact, 

can be raised in the pleadings (such as the answer) or on 

a motion for remand. Cf. Kaufman, 561 F.3d at 151 

(explaining that there was no fact in dispute regarding 

CAFA jurisdiction where the plaintiffs did “not dispute 

that the amount in controversy exceed[ed] $5,000,000”).

Frederico v. Home Depot provides an example of 

undisputed facts in a CAFA removal action. In that case, 

the defendant relied on the facts alleged in the plaintiff’s 

complaint to establish the amount in controversy.6 

 

6 Although not explicitly addressed as such in Frederico, 

the jurisdictional facts pleaded in the complaint 

functioned as judicial admissions. A fact asserted in a 
16

Frederico, 507 F.3d at 197. The plaintiff’s response to 

 

pleading, which is both unequivocal and which would 

normally require evidentiary proof, constitutes a judicial 

admission. In re Teleglobe Commc’ns Corp., 493 F.3d 

345, 377 (3d Cir. 2007), as amended (Oct. 12, 2007); 

Parilla v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 

275 (3d Cir. 2004) (facts “expressly conceded” in a 

complaint constitute judicial admissions). Judicial 

admissions, however, “may be withdrawn by 

amendment.” W. Run Student Hous. Assocs., LLC v. 

Huntington Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 

2013). If a party does not withdraw an admission, that 

party remains bound. Sovereign Bank v. BJ’s Wholesale 

Club, Inc., 533 F.3d 162, 181 (3d Cir. 2008) (holding that 

a claim was foreclosed based on an admission in the 

plaintiff’s complaint). Because the plaintiff in Frederico 

never withdrew the jurisdictional facts alleged in her 

complaint, those facts functioned as admissions and were 

properly relied upon by the Court. See 507 F.3d at 198. 

It is worth noting, however, that if the district court had 

made findings of fact, the plaintiff’s subsequent 

amendment to her complaint would not necessarily 

justify application of the preponderance of the evidence 

standard. See Red Cab, 303 U.S. at 285 (applying the 

legal certainty test despite the plaintiff’s amending its 

complaint alleging an amount in controversy below the 

jurisdictional threshold because the district court had 

made findings of fact). 
17

the defendant’s allegations in its notice of removal 

“neither agree[d] with the facts alleged in the removal 

notice nor contest[ed] them.” Id. at 198. Because the 

defendant’s “argument for jurisdiction [was] based on 

allegations made initially by” the plaintiff, we 

determined that the “relevant facts [were] not expressly 

in dispute between the parties.” Id. We further 

concluded that the case did not present a situation where 

the court should “‘still insist that the jurisdictional facts 

be established or the case be dismissed’” and “‘demand 

that the party alleging jurisdiction justify his allegations 

by a preponderance of the evidence.’” Id. (quoting 

McNutt, 298 U.S. at 189).

Therefore, we applied Red Cab’s legal certainty 

test to the facts alleged by the plaintiff in her complaint 

and incorporated by the defendant in its notice of 

removal. Id. We found that the plaintiff’s compensatory 

and punitive damages totaled $1,722.84, and that the 

applicable attorney’s fees, using the Federal Judicial 

Center’s median percentage recovery, could amount to 

$516.85, bringing the plaintiff’s “total damages to 

$2,239.69.” Id. at 199. The plaintiff had alleged that 

there were “tens of hundreds of thousands” of class 

members. Using these two figures, we divided 

$5,000,000 by $2,239.69 that produced “a requisite class 

size of 2,233,” which was well within the plaintiff’s 

allegations regarding the number of class members. Id. 
18

This analysis left us satisfied that the Red Cab legal 

certainty test was met. Id.

Thus where there are contested facts related to 

jurisdiction the preponderance of the evidence standard 

from McNutt applies, unless a district court has 

previously evaluated evidence and made factual findings. 

Samuel-Bassett, 357 F.3d at 398. “Once findings of fact 

have been made, the court may determine whether Red 

Cab’s ‘legal certainty’ test for jurisdiction has been met.” 

Id. at 398; see also Frederico, 507 F.3d at 194.7 And, in 

turn, Red Cab’s legal certainty test also applies where the 

 

7 After our decision in Frederico, Congress enacted the 

Federal Courts Jurisdiction and Venue Clarification Act 

of 2011. Pub. L. 112–63, 125 Stat. 758 (Dec. 7, 2011). 

It provides that for a civil action with jurisdiction 

conferred by 28 U.S.C. § 1332(a) (diversity jurisdiction), 

“removal of the action is proper on the basis of an 

amount in controversy asserted under subparagraph (A) if 

the district court finds, by a preponderance of the 

evidence, that the amount in controversy exceeds the 

amount specified in section 1332(a).” 28 U.S.C. 

§ 1446(c)(2)(B) (emphasis added). This may limit the 

application of Red Cab in some traditional diversity 

actions. However, because CAFA jurisdiction is 

predicated on 28 U.S.C. § 1332(d), Frederico’s 

explanation of the preponderance of the evidence and 

legal certainty tests remain undisturbed. 
19

jurisdictional facts are not contested or the amount in 

controversy is “determined in whole or in part” by 

applicable law. Id. at 397–98. In applying Red Cab, “the 

preponderance of the evidence standard [has] no utility” 

and we ask whether it is clear to a legal certainty that the 

plaintiff cannot recover the amount claimed. Id. 

Thus, our jurisprudence establishes at least two

distinct tests potentially relevant here with regard to 

removal jurisdiction in a CAFA case, whose application 

is dependent on the nature of the challenge and the 

pertinent facts of the case.8 In summary: 

 

8

In Morgan v. Gay, we analyzed a novel scenario in a 

removal action under CAFA that gave rise to a third test: 

how does a defendant establish CAFA jurisdiction where 

a plaintiff expressly limits the amount in controversy 

below the $5,000,000 jurisdictional threshold? Our 

holding in Morgan was two-fold: First, we held that 

“[u]nder CAFA, the party seeking to remove the case to 

federal court bears the burden to establish that the 

amount in controversy requirement is satisfied.” 471 

F.3d at 473. Second, we stated that in order to remove an 

action to federal court where the amount in controversy is 

alleged to be below the $5,000,000 threshold, 

“defendants bear the burden to prove to a legal certainty 

that the complaint exceeds the statutory amount in 

controversy requirement.” Id. at 475. 
20

 

In 2013, the Supreme Court in Standard Fire 

Insurance Co. v. Knowles held that a stipulation by a 

named plaintiff in a putative class action, prior to 

certification of the class, that she and the class she seeks 

to represent will not seek damages that exceed 

$5,000,000, does not prevent removal of the case under 

CAFA. 133 S. Ct. at 1348–1350. In Knowles, the 

Supreme Court reversed the lower court’s conclusion that 

the proposed class representative’s stipulation was 

binding on the class yet to be certified, thereby 

foreclosing federal jurisdiction under CAFA, id. at 1348, 

and held that the District Court “should have ignored that 

stipulation” and “do[ne] what [a judge] must do in cases 

without a stipulation and what the statute requires, 

namely ‘aggregat[e]’ the ‘claims of the individual class 

members,’” id. at 1350. 

To this extent, Knowles is consistent with our 

instructions in Morgan that “[t]he party wishing to 

establish subject matter jurisdiction has the burden to 

prove to a legal certainty that the amount in controversy 

exceeds the statutory threshold;” and “[e]ven if a plaintiff 

states that her claims fall below the threshold, this Court 

must look to see if the plaintiff’s actual monetary 

demands in the aggregate exceed the threshold, 

irrespective of whether the plaintiff states that the 

demands do not.” Morgan, 471 F.3d at 474–75. What 

Knowles teaches on this point is that although a plaintiff 

may limit her monetary claims, any such limitation is not 
21

1. The McNutt/Samuel-Bassett framework 

applies where a challenge to the amount in controversy 

had been raised in the pleadings or the notice of removal, 

but “no evidence or findings in the trial court addressed 

that issue.” Samuel-Bassett, 357 F.3d at 397; McNutt, 

298 U.S. at 179–80. We require “the party alleging 

jurisdiction [to] justify his allegations by a preponderance 

of the evidence.” McNutt, 298 U.S. at 189.

2. The Red Cab/Samuel-Bassett framework 

applies where the jurisdictional facts are not contested 

 

binding on the class as a whole prior to class-action 

certification and does not relieve the district court of its 

obligation to conduct its own analysis of the amount in 

controversy. 133 S. Ct. at 1349. 

We are not presented with a CAFA removal 

subject to the Morgan test and therefore do not opine on 

the implications of Knowles for Morgan’s holding that 

“defendants bear the burden to prove to a legal certainty 

that the complaint exceeds the statutory amount in 

controversy requirement” where the amount in 

controversy is alleged to be below the $5,000,000 

threshold. Morgan, 471 F.3d at 475. However, 

consistent with both Knowles and Morgan, we emphasize 

for the sake of clarity that our instruction that a “Court 

must look to see if the plaintiff’s actual monetary 

damages in the aggregate exceed the threshold,” id. at 

474–75, remains important in the wake of Knowles.
22

and the amount in controversy is “determined in whole or 

in part” by applicable law. Samuel-Bassett, 357 F.3d at 

397–98. Here we ask whether it is clear to a legal 

certainty that the plaintiff cannot recover the amount 

claimed. Id. at 398. 

B.

CAFA jurisdiction is limited to cases where the 

proposed class has more than 100 members. 28 U.S.C. 

§ 1332(d)(5)(B). The District Court applied the SamuelBassett preponderance of the evidence test to Travelers’

CAFA numerosity allegations in its notice of removal. 

The District Court applied the wrong test because it 

improperly held that Judon “vigorously contest[ed]” all 

jurisdictional aspects of removal, when, in fact, Judon 

never claimed that the proposed class action involved 

less than 100 members. 

Travelers relied on Judon’s complaint in asserting 

that there were at least 200 members of the proposed 

class. Specifically, Judon alleged in paragraph 38 of her 

complaint: “It is believed, and therefore averred, that 

there are hundreds of members of the class where the 

defendant, Travelers, wrongfully and illegally denied 

payment of first party medical benefits.” Judon’s sole 

challenge to Travelers’ assertion that there were at least 

200 putative class members was that Travelers supplied 

“no basis for this [number] other than the allegation in 

the complaint.” Judon reasoned that “[s]ince Defendant 
23

has exclusive possession of the information necessary to 

determine the number of class members, Defendant’s 

omission of any proof on this speaks volumes.” There 

are two noteworthy aspects of Judon’s challenge: (1) 

Judon did not disavow her earlier allegation that there 

were “hundreds of members;”

9

and (2) Judon did not

amend her complaint to allege fewer class members.10 

Because Judon explicitly asserted in her complaint 

that there are “hundreds of members,” Travelers was 

entitled to rely on this fact as an admission in favor of 

jurisdiction. Parilla, 368 F.3d at 275 (addressing facts in 

a complaint that were judicial admissions); see also Glick 

 

9 At oral argument, counsel for Judon contended that the 

term “hundreds” could be read to mean less than 200. By 

way of example, counsel argued that “hundreds” could 

indicate 150 because it is “1.5 hundreds.” We do not 

recognize any semantic (or mathematic) principle that 

would justify fractionalizing the term “hundreds” and 

decline the invitation to read the word “hundreds” such 

that we may arrive at a number less than 100.

10 Were Judon to amend her complaint, her earlier 

statements would no longer be judicial admissions per se, 

but could have evidentiary weight. See W. Run Student 

Hous. Assocs., LLC, 712 F.3d at 171. Even further, a 

subsequent amendment alone would not necessarily 

divest the district court of jurisdiction. See Red Cab, 303 

U.S. at 285; supra note 4.
24

v. White Motor Co., 458 F.2d 1287, 1291 (3d Cir. 1972) 

(explaining judicial admissions are also binding in a case 

on appeal). And in alleging the number 200 in its notice 

of removal, Travelers simply relied on the smallest

number of potential class members consistent with 

Judon’s allegations. A plaintiff is the master of her own 

complaint, Morgan, 471 F.3d at 474, and here Judon 

pleaded information supporting the numerosity 

jurisdictional requirement.

Judon’s supposed challenge obscured the question 

of whether there was a dispute of fact by improperly 

asserting that Travelers bore the burden of proof as to 

numerosity. But Judon’s motion to remand did not even 

put Travelers’ CAFA numerosity allegation (which was 

really Judon’s own allegation) in dispute. In Frederico, 

we reasoned that because the defendant’s “argument for 

jurisdiction [was] based on allegations made initially by 

[the plaintiff] herself,” and was not challenged by the 

plaintiff, “Red Cab’s legal certainty test [applied] to the 

facts alleged by [the plaintiff] in her complaint and 

incorporated by [the defendant] into its Notice of 

Removal.” 507 F.3d at 198. In this case, our decision in 

Frederico guides us to apply the legal certainty test as to 

the number of putative class members at issue. Id. at 

195.

Accordingly, the District Court erred in failing to 

place the burden on Judon to prove to a legal certainty 

that there could not be 200 class members. See id. at 
25

195. As Judon did not even dispute the “at least 200 

members” representation, much less attempt to put forth 

any evidence to the contrary, the District Court should 

have found the numerosity requirement satisfied. 

C.

CAFA mandates that the “claims of the individual 

class members shall be aggregated” in order to determine 

if the “matter in controversy exceeds the sum or value of 

$5,000,000, exclusive of interest and costs.” 28 U.S.C. 

§ 1332(d)(2), (d)(6). The District Court reasoned that 

Judon also “vigorously contested” this jurisdictional 

element and placed the burden on Travelers to establish 

the amount-in-controversy requirement by a 

preponderance of the evidence. Because Travelers’ 

notice of removal and accompanying memorandum are 

based on an inconclusive assumption that Judon 

challenged in her motion to remand, the District Court 

properly applied the preponderance of the evidence 

standard.

As a starting point, Judon did put the amount-incontroversy requirement in dispute. Judon’s complaint 

was indeterminate regarding the amount in controversy. 

The individual damages claimed by Judon amounted to 

$2,636.40. The proposed class included individuals 

entitled to “first party medical expense benefits [and that] 

were not made available in an amount up to $25,000.00

but only in an amount up to $5,000.00.” The complaint 
26

did not explicitly allege the total class damages, or the 

damages suffered by individual class members. Thus, 

Judon’s allegations “[threw] no light upon [the] subject” 

of the total amount in controversy. See McNutt, 298 U.S. 

at 181. 

Travelers erroneously contends that the 

jurisdictional amount is not in dispute because its 

statement of the amount in controversy in its notice of 

removal is based on facts pled by Judon in the classaction complaint. In so arguing, Travelers stretches the 

phrase “up to $25,000” to mean that each putative class 

member has a claim for $20,000 ($25,000 minus the 

$5,000 policy limit). In her motion to remand, Judon 

contended that Travelers provided “no information about 

the actual stated limits of the policies covering the class 

members, which could be more than $5,000, nor any 

information about the actual claims of the class members, 

which may or may not reach the statutory limit of 

$25,000.” For example, Judon highlighted that her 

damages were “only $2636 as of the date of filing.” 

Judon’s motion to remand effectively put at issue and 

challenged Travelers’ assumption regarding putative 

class members’ individual damages. 

Because a “challenge to the amount in controversy 

[was] raised” in Judon’s motion to remand, but “no 

evidence or findings in the trial court addressed” this 

issue, we require Travelers, as “the party alleging 

jurisdiction,” to justify its “allegations by a 
27

preponderance of the evidence.” See Samuel-Bassett, 

357 F.3d at 397; McNutt, 298 U.S. at 179–80.11 

Although Travelers could properly rely on an estimate of 

200 class members, this fact alone cannot support 

Travelers’ calculation of the amount in controversy. The 

multiplicand missing from this equation is some realistic 

estimate of the amount of damages per class member. 

See id. at 403. An estimate of the amount recoverable 

should be “objective and not based on fanciful, ‘pie-inthe-sky,’ or simply wishful amounts, because otherwise 

the policy to limit diversity jurisdiction will be 

frustrated.” Id. This estimate should also not be based 

on the “low end of an open-ended claim,” but rather on a 

“reasonable reading of the value of the rights being 

litigated.” Werwinski v. Ford Motor Co., 286 F.3d 661, 

666 (3d Cir. 2002) (quoting Angus v. Shiley Inc., 989 

F.2d 142, 146 (3d Cir. 1993) (internal quotation marks 

omitted)). 

Travelers’ estimate of the putative class members’ 

compensatory damages relies on Travelers’ maximum 

exposure per plaintiff in the amount of $20,000. Judon 

argues that a putative class member’s claim could be 

much smaller—in fact, Judon’s individual claim against 

 

11 Judon did not explicitly limit the amount in 

controversy to less than $5,000,000, making the 

framework set out under Morgan inapplicable. 

Frederico, 507 F.3d at 196–97.
28

Travelers is only $2,636.40. In a class action, the class 

representative’s claim(s) must be typical of the claims of 

the class. Pa. R. Civ. P. 1702(3) (Pennsylvania class 

action typicality requirement); Fed. R. Civ. P. 23(a)(3) 

(federal class action typicality requirement). It is, 

therefore, not unreasonable to assume that Judon, as the 

proposed class representative, has damages that are 

typical of the class. See Frederico, 507 F.3d at 197 

(accepting the defendant’s contentions in its notice of 

removal that the plaintiff’s damages reflected the

“average actual damages of each member of the putative 

class”). Even if we were to assume that Judon’s 

individual compensatory damages are on the low-end as 

compared to other putative class members, we are left 

with no evidence of what a reasonable claim against 

Travelers might be. 

Rather than present evidence or rely on an 

admitted fact from Judon’s complaint, Travelers admits 

that it is drawing inferences from the limited papers the 

parties have submitted. In its brief and at oral argument, 

Travelers attempted to bolster its assumption regarding 

damages by providing another calculation that would be 

sufficient to satisfy the amount-in-controversy 

requirement. Rather than assume maximum recovery of 

$20,000 per class member (as it did in the notice of 

removal and subsequent briefing), Travelers argued that 

even if each class member recovered “as little as $8,500 

(roughly 42% of the potential maximum),” CAFA’s 
29

jurisdictional threshold would be met. Travelers did not 

provide a principled reason to choose $8,500 as the 

appropriate delta for damages, as opposed to $2636.40 or 

even $20,000. The only explanation for Travelers’ two 

proposed damages calculations that we can divine is that 

both $8,500 and $20,000 satisfy the requisite amount-incontroversy requirement. 

Yet an assumption must be grounded on some 

reasonable inference that can be drawn from fact. 

Travelers chose—wishfully—the amount of $20,000 per 

putative class member, providing the putative class with 

total compensatory damages of $4,000,000 (200 class 

members multiplied by $20,000) combined with punitive 

and treble damages. These assumptions plainly make 

reaching the $5,000,000 threshold much easier. Missing 

from Travelers’ conjecture is any “proof to a reasonable 

probability” evidencing the damages suffered by 

individual class members. See Frederico, 507 F.3d at 

195 n.6. 

As a result, Travelers’ conjecture is nothing more 

than an optimistic estimate of its potential liability—at 

least for jurisdictional purposes.

12 By way of example, in 

 

12 Judon also challenged Travelers’ ability to establish the 

amount in controversy based on Judon’s request for 

punitive and treble damages. Travelers’ motion to 

dismiss Judon’s claim for punitive damages did not 

render consideration of punitive damages irrelevant to the 
30

Frederico, we relied on the named plaintiff’s actual 

injuries as the “average actual damages of each member 

of the putative class” to determine whether the CAFA 

amount-in-controversy requirement was satisfied. 507 

F.3d at 198–99. Here, Judon’s individual damages 

undermine a blind reliance on Travelers’ maximum risk 

 

amount-in-controversy calculation. See Red Cab, 303 

U.S. at 289. Accordingly, punitive damages, when 

available under applicable law, may be considered by a 

court in assessing federal jurisdiction. See Frederico, 

507 F.3d at 199. Travelers must “prove what possible 

exposure exist[s] with respect to punitive damages [in 

order] to satisfy any portion of the $5 million amount in 

controversy requirement.” Morgan, 471 F.3d at 475. 

Travelers argues that “once treble and/or punitive 

damages alleged by Judon are considered, it is evident 

that CAFA’s amount in controversy is satisfied.” 

Specifically, Travelers relies on a “3:1 punitive-to 

compensatory damages ratio,” (citing Luellen v. Luellen, 

No. 12:12-cv-496, 2013 WL 1182958, at *3 (W.D. Pa. 

Mar. 21, 2013)), and a statement that punitive damages 

can satisfy the amount-in-controversy requirement under 

the legal certainty test, (citing Graham Co. v. Griffing, 

No. 08-1394, 2009 WL 1407779, at *3 (E.D. Pa. May 19, 

2009)), to support its jurisdictional arguments. To 

calculate either treble or punitive damages, we must have 

a reasonable estimate of compensatory damages. Such 

evidence is decidedly lacking. 
31

of damages under Pennsylvania law. Accordingly, there 

are insufficient facts to establish by a preponderance of 

the evidence that the District Court had jurisdiction over 

the case.

D.

Although Travelers was loath to concede at oral 

argument the legal arguments we now reject, we are left 

with the question of whether to remand to the District 

Court for it to determine if jurisdictional discovery

should be permitted. Travelers contends that before 

filing its notice of removal, it searched for relevant 

jurisdictional facts but was apparently unable to complete 

its inquiry in time to include such facts in its notice of 

removal. Once in federal court, however, Travelers 

abandoned its alleged previous attempt to put forth any 

actual facts. Instead, Travelers relied solely on the 

proposition that the legal certainty test should apply to all 

jurisdictional questions in this case. 

Yet in a CAFA removal action there is generally 

greater flexibility afforded to a party seeking removal. 

Specifically, 28 U.S.C. § 1453 provides that the 1-year 

limitation for removal under § 1446(c)(1) does not apply 

to removal under CAFA. In a situation where the “case 

stated by the initial pleading is not removable, a notice of 

removal may be filed within 30 days after receipt by the 

defendant” of an “amended pleading, motion, or order or 

other paper from which it may be first ascertained that 
32

the case is one which is or has become removable.” 28 

U.S.C. § 1446(b)(3). Thus, a defendant may be able to 

remove an action under CAFA well into the course of the 

litigation once facts are discovered supporting removal. 

See Georgene M. Vairo, Moore’s Federal Practice: The 

Complete CAFA: Analysis and Developments Under the 

Class Action Fairness Act of 2005, p. 167 (Matthew 

Bender 2011); see also Farina v. Nokia Inc., 625 F.3d 97, 

101, 113 n.17 (3d Cir. 2010) (explaining that “CAFA 

operates as an expansion of diversity jurisdiction” and 

that although an action may not be initially removable, it 

is removable upon receipt of appropriate facts pursuant to 

28 U.S.C. § 1446(c) (citation omitted)).

Travelers concedes it has not completed a 

thorough review of evidence or requested jurisdictional 

discovery from the District Court. Because of this, we 

will affirm in part, vacate in part, and remand to the 

District Court. We will also direct the District Court to

remand the case to state court unless it determines that 

further jurisdictional proceedings are necessary, or

concludes that Travelers has established jurisdiction 

under CAFA. We note that the District Court “has 

considerable latitude in devising the procedures it will 

follow to ferret out the facts pertinent to jurisdiction.” 

Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 

742, 756 (3d Cir. 1995) (quoting Prakash v. American 

Univ., 727 F.2d 1174, 1179–80 (D.C. Cir. 1984)). In the 

event Travelers is unsuccessful in establishing CAFA 
33

jurisdiction during the early stages of this action, 

Travelers may still re-remove the case to federal court if 

new facts are discovered that establish jurisdiction. See 

28 U.S.C. § 1446(b)(3); A.S. ex rel. Miller v. SmithKline 

Beecham Corp., 769 F.3d 204, 210–11 (3d Cir. 2014).13

 

13 Because A.S. ex rel. Miller v. SmithKline Beecham 

Corp. involved an action commenced in 2011, the case 

does not address the current text of 28 U.S.C. § 1446(b) 

that applies to cases commenced after January 6, 2012. 

769 F.3d at 208 n.3. The current text of § 1446(b)(3), 

outlined above, applies to this case. This Court has yet to 

analyze, particularly in the context of an action brought 

under CAFA, whether a defendant has an independent 

duty to discover evidence that would establish removal 

jurisdiction that is not apparent from the face of a 

plaintiff’s complaint. We are not squarely presented with 

this question. The majority of our sister circuits have 

concluded that the “30-day removal clock does not begin 

to run until the defendant receives a pleading or other 

paper that affirmatively and unambiguously reveals that 

the predicates for removal are present.” Walker v. 

Trailer Transit, Inc., 727 F.3d 819, 824 (7th Cir. 2013) 

(collecting cases); see also Romulus v. CVS Pharmacy, 

Inc., 770 F.3d 67, 78 (1st Cir. 2014) (holding that an 

email correspondence from a plaintiff to a defendant, 

based on discovery produced by a defendant, was an 

“other paper” that provided the basis for removal under 
34

IV.

The District Court erred in concluding that the 

CAFA numerosity requirement was not satisfied, but 

correctly concluded that Travelers did not establish the 

CAFA amount-in-controversy requirement. 

Accordingly, we will affirm in part, vacate in part, and 

remand to the District Court. The District Court is to 

remand this case to state court unless the District Court, 

through further proceedings, determines that Travelers 

has established jurisdiction under CAFA.

 

CAFA). Resolution of this question must await an 

appropriate case.