In the

United States Court of Appeals

For the Seventh Circuit

No. 09-8023

IN RE:

BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY,

BURLINGTON NORTHERN SANTA FE CORPORATION,

WILLIAM BARBEE, and FRANCIS WEBER, 

Petitioners.

Petition for Leave to Appeal 

from the United States District Court 

for the Western District of Wisconsin.

No. 08-cv-469—Barbara B. Crabb, Judge.

SUBMITTED JANUARY 22, 2010—DECIDED MAY 19, 2010

Before KANNE, WOOD, and SYKES, Circuit Judges.

PER CURIAM. The defendants removed this class action

suit to federal court under the Class Action Fairness

Act (“CAFA”), but when the plaintiffs amended their

complaint to omit the class allegations, the district court

found jurisdiction lacking and remanded the case to

state court. The defendants petitioned for leave to appeal

the order of remand under 28 U.S.C. § 1453(c). We

accept the appeal and reverse.

This case began when Allen Moore and other residents of

Bagley, Wisconsin, acting as representatives of a class
2 No. 09-8023

of local property owners, filed a complaint in Wisconsin

state court against Burlington Northern Santa Fe Railway

Company, Burlington Northern Santa Fe Corporation,

and some of its employees (collectively, “BNSF”). They

alleged that BNSF’s failure to inspect and maintain a

railroad trestle caused the town to flood in July 2007,

damaging their property. 

BNSF removed the case to federal court, where the

parties battled extensively over jurisdiction. BNSF first

asserted that there was diversity jurisdiction, arguing that

the only non-diverse defendants, two employees from

Wisconsin, were joined fraudulently. The district court

found the joinder tactical rather than fraudulent, but

it accepted BNSF’s second ground for jurisdiction: the

Class Action Fairness Act, which provides federal

jurisdiction over certain class action lawsuits. See 28 U.S.C.

§ 1332(d)(2), (d)(5). The plaintiffs moved to remand. After

the district court denied that motion, they instead asked

for leave to amend their complaint to omit the class

allegations. The district court allowed the amendment,

noting that it would streamline the litigation. The

court also construed the plaintiffs’ motion as an implied

motion to remand the case, which it granted. The district

court explained that its jurisdictional analysis now was

based on the amended complaint, and that since the new

complaint did not contain class allegations, it did

not provide jurisdiction under CAFA. 

BNSF filed a timely motion to reconsider. Before the

district court ruled on that motion, but within 30 days

of the original remand order, BNSF also filed this petition

under 28 U.S.C. § 1453(c) requesting leave to appeal the
No. 09-8023 3

district court’s order of remand. While the petition was

pending, the district court granted the motion to

reconsider but reiterated its decision to remand the case to

state court. This court then treated BNSF’s initially

premature petition as timely filed, permitting BNSF to file

a supplement addressing the district court’s order on

reconsideration and asking Moore to respond. 

On reconsideration, the district court noted that there are

exceptions to the general rule that removal jurisdiction is

determined at the time of removal. It treated the

amendment of the complaint to eliminate class allegations

as analogous to the denial of class certification and

explained that district courts were divided on whether

the denial of class certification affects CAFA jurisdiction.

Compare, e.g., Genenbacher v. CenturyTel Fiber Co. II, LLC, 500

F. Supp. 2d 1014, 1016 (C.D. Ill. 2007) (reasoning that the

denial of class certification does not destroy CAFA

jurisdiction because jurisdiction continues even if the

parties cannot prove the jurisdictional facts alleged), with

Muehlbauer v. General Motors Corp., No. 05 C 2676, 2009 WL

874511, at *9-10 (N.D. Ill. Mar. 31, 2009) (reasoning that the

denial of class certification destroys jurisdiction because

it means the case is not and never was a class action).

Given this disagreement, the court concluded that it

did not err in remanding the case.

In its petition and supplement, BNSF identifies three

alternative grounds for federal jurisdiction, but we need

reach only one: jurisdiction under CAFA is secure

even though, after removal, the plaintiffs amended their

complaint to eliminate the class allegations. The wellestablished general rule is that jurisdiction is determined
4 No. 09-8023

at the time of removal, and nothing filed after removal

affects jurisdiction. St. Paul Mercury Indemnity Co. v. Red

Cab Co., 303 U.S. 283, 293 (1938); In re Shell Oil, 970 F.2d

355, 356 (7th Cir. 1992) (per curiam); see also Bullard

v. Burlington Northern Sante Fe Ry. Co., 535 F.3d 759, 762

(7th Cir. 2008) (noting, in a case removed under CAFA,

that “we doubt that anything filed after a notice of removal

can affect federal jurisdiction”). CAFA is, at base,

an extension of diversity jurisdiction. Even in cases filed

originally in federal court, later changes that compromise

diversity do not destroy jurisdiction. Freeport-McMoRan,

Inc. v. K N Energy, Inc., 498 U.S. 426, 428 (1991) (per

curiam); see also 13E CHARLES ALAN WRIGHT, ARTHUR R.

MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE

& PROCEDURE § 3608, at 364-67 (3d ed. 2009). And though it

is sometimes possible for a plaintiff who sues in federal

court to amend away jurisdiction, removal cases present

concerns about forum manipulation that counsel against

allowing a plaintiff’s post-removal amendments to affect

jurisdiction. See Rockwell Int’l Corp. v. United States, 549 U.S.

457, 473-74 & n.6 (2007). 

This court recently concluded that the general rule—that

nothing filed after a notice of removal affects

jurisdiction—governed a similar situation in Cunningham

Charter Corp. v. Learjet, Inc., 592 F.3d 805 (7th Cir. 2010).

There we held that in a case removed under CAFA,

jurisdiction survives even if the district court denies

class certification. Id. at 806-07; see also United Steel, Paper

& Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv.

Workers Int’l Union, AFL-CIO, CLC v. Shell Oil Co., __ F.3d

__, No. 10-55269, 2010 WL 1571190, at *3-4 (9th Cir. Apr.
No. 09-8023 5

21, 2010) (following Cunningham). We reasoned that CAFA

jurisdiction attaches when a case is filed as a class action,

see 28 U.S.C. § 1332(d)(1)(b), and that even if the class is not

certified, jurisdiction continues. Cunningham, 592 F.3d at

806-07. We further explained that the policies behind the

general rule support this result, noting that keeping the

case minimizes the expense and delay caused by shuttling

a case from court to court and furthers CAFA’s purpose of

allowing putative class actions to be litigated in federal

court. Id. at 807.

Given our decision in Cunningham, the limited question

this appeal presents is whether CAFA jurisdiction also

continues when the post-removal change is not the district

court’s denial of class certification but is instead

the plaintiffs’ decision not to pursue class certification.

The district court treated the two situations as

indistinguishable, and we agree. There are compelling

reasons to conclude that such a post-removal amendment

also does not destroy CAFA jurisdiction. The same

considerations of expense and delay apply, and in

addition, allowing plaintiffs to amend away CAFA

jurisdiction after removal would present a significant

risk of forum manipulation. CAFA’s legislative history

reflects an awareness of the latter concern, citing the

existing rule that “jurisdiction cannot be ‘ousted’ by

later events,” and explaining that if the rule were

otherwise, “plaintiffs who believed the tide was

turning against them could simply always amend their

complaint months (or even years) into the litigation to

require remand to state court.” See S. Rep. No. 109-14,

at 70-71 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 66. As we
6 No. 09-8023

noted in Cunningham, a case “should not be shunted

between court systems.” 592 F.3d at 807. 

Accordingly, we VACATE the district court’s remand

order and REMAND to the district court for further

proceedings.

5-19-10