Kohrs v. Swift Transportation Company LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 3, 2025
• Docket: 24-4483
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHRISTOPHER KOHRS, an individual, No. 24-4483 No. 24-4872 Plaintiff-Appellee,

v. MEMORANDUM*

SWIFT TRANSPORTATION CO. OF AZ, LLC,

Defendant-Appellant.

Petition for Permission to Appeal, Case no. 24-4483

Appeal from the United States District Court for the Central District of California, Case no. 24-4872

Argued and Submitted October 8, 2025 Pasadena, California

Before: RAWLINSON, MILLER, and JOHNSTONE, Circuit Judges.

Christopher Kohrs, a former employee, brought a putative class action

against Swift Transportation Co. of Arizona, LLC, alleging various wage and labor

violations. On July 19, 2024, Swift filed a petition for permission to appeal under

28 U.S.C. § 1453(c) in this Court, which was assigned Case No. 24-4483. On

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. August 7, 2024, Swift filed a notice of appeal from the district court’s remand

order. That appeal was assigned Case No. 24-4872.

We “review the remand order de novo.” Reyes v. Dollar Tree Stores, Inc.,

781 F.3d 1185, 1188 (9th Cir. 2015). We may exercise our discretion to allow an

appeal under 28 U.S.C. § 1453(c)(1). See Coleman v. Estes Express Lines, Inc.,

627 F.3d 1096, 1100 (9th Cir. 2010) (per curiam).

Ordinarily, remand orders are not reviewable on appeal. See 28 U.S.C.

§1447(d). However, an exception set forth in 28 U.S.C. §1453(c)(1) “permits

courts of appeals to accept appeals from remand orders that are removed under this

section [of the Class Action Fairness Act (CAFA)].” Chan Healthcare Grp., PS v.

Liberty Mut. Fire Ins. Co., 844 F.3d 1133, 1134 (9th Cir. 2017) (internal quotation

marks omitted). Our decision to grant permission to appeal is discretionary, and

we are guided by factors articulated in Coleman, 627 F.3d at 1100, including

principally whether there exists “the presence of an important CAFA-related

question,” and if the question is likely to “evade effective review if left for

consideration only after final judgment.” Id. Another relevant factor is whether

the district court committed legal error. See id. Here, we grant the petition for

permission to appeal to decide whether the district court erred in finding that Kohrs

sufficiently pled the jurisdictional requirements on the face of his complaint to

place Swift on notice of removability, such that the time for filing the removal

2 notice began running.

Having granted the petition for permission to appeal in Case No. 24-4483,

we now address the appeal assigned Case No. 24-4872. “CAFA permits a

defendant to remove a class action to federal court if there is minimal diversity

between the parties, . . . if the class contains at least 100 members, and . . . if the

amount in controversy exceeds $5 million.” Perez v. Rose Hills Co., 131 F.4th

804, 807 (9th Cir. 2025) (citations omitted). 28 U.S.C. §1446(b) “identifies two

thirty-day periods for removing a case.” Kuxhausen v. BMW Fin. Servs. NA LLC,

707 F.3d 1136, 1140 (9th Cir. 2013). The first thirty-day removal period is

triggered if the “pleading affirmatively reveals on its face the facts necessary for

federal court jurisdiction.” Blumberger v. Tilly, 115 F.4th 1113, 1122 (9th Cir.

2024) (citation omitted) (emphasis in the original). A complaint is removable on

its face “only if removability is ascertainable from examination of the four corners

of the applicable pleadings, not through subjective knowledge or a duty to make

further inquiry.” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 886 (9th

Cir. 2010), as amended (citation and internal quotation marks omitted). The

second thirty-day removal period is triggered when a defendant receives “a copy of

an amended pleading, motion, order or other paper” from which removability is

apparent. Dietrich v. The Boeing Co., 14 F.4th 1089, 1090 (9th Cir. 2021).

Kohrs’s initial pleading did not provide an estimated class size sufficiently

3 specific that Swift could have determined from the face of the complaint that the

$5 million threshold had been met. See Roth v. CHA Hollywood Med. Ctr., L.P.,

720 F.3d 1121, 1125 (9th Cir. 2013) (observing that a defendant does not have a

duty to inquire further if the initial pleading is “indeterminate with respect to

removability”). Although Swift was required “to apply a reasonable amount of

intelligence in ascertaining removability,” including “[m]ultiplying figures clearly

stated in a complaint,” Kohrs’s complaint lacked the requisite clarity to allow Swift

to actually do the math. Kuxhausen, 707 F.3d at 1140. Kohrs alleged that the class

“exceed[s] several hundred persons” and that Kohrs and “other class members” are

owed $9,000. (emphasis added). “[S]everal hundred persons” could encompass as

few as three hundred. See Merriam-Webster Online, https://www.merriam-

webster.com/dictionary/several (last visited October 15, 2025) (“several” refers to

either “more than one” or “more than two but fewer than many”). Multiplying 300

persons by $9,000 amounts to only $2,700,000, which falls far short of CAFA’s

amount in controversy requirement of $5,000,000. See Perez, 131 F.4th at 807.

Although Kohrs also alleged “loss of wages and compensation,” these

allegations were not sufficiently specific to perform a calculation of asserted

damages. See Kuxhausen, 707 F.3d at 1140 (stating that “[m]ultiplying figures

clearly stated in a complaint” is part of the defendant’s duty in ascertaining

removability) (emphasis added).

4 Swift never received any “amended pleading, motion, order or other paper”

that made removability apparent. Harris v. Bankers Life and Cas. Co., 425 F.3d

689, 694 (9th Cir. 2005). Kohrs served Swift with requests for production of

documents and interrogatories “relat[ing] to the class size.” However, Kohrs

referenced nothing in these documents making removability apparent. See

Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (noting

that defendants are not charged with “notice of removability until they’ve received

a paper that gives them enough information to remove”).

Given that Swift was not placed on notice of removability from the face of

the complaint or by service of any other document, neither thirty-day removal

period was triggered. Thus, Swift’s notice of removal was timely. See Rea v.

Michaels Stores Inc., 742 F.3d 1234, 1238 (9th Cir. 2014) (observing that a

defendant “may remove at any time” if the thirty-day removal period is not

triggered). Accordingly, the district court erred in granting Kohrs’s motion for

remand.

CASE NUMBER 24-4483: PETITION FOR PERMISSION TO APPEAL GRANTED.

CASE NUMBER 24-4872: REVERSED.