Morgan v. Gay ( 2006 )


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  •                                                                                                                            Opinions of the United
    2006 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    10-16-2006
    Morgan v. Gay
    Precedential or Non-Precedential: Precedential
    Docket No. 06-8045
    Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
    Recommended Citation
    "Morgan v. Gay" (2006). 2006 Decisions. Paper 261.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2006/261
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    PRECEDENTIAL
    THE UNITED STATES COURT OF APPEAL
    FOR THE THIRD CIRCUIT
    Case No: 06-8045
    SARAH MORGAN, on behalf of herself
    and all others similarly situated
    v.
    DENNIS W. GAY; GINA GAY; BASIC RESEARCH,
    L.L.C.;
    BAN, L.L.C.; KLEIN-BECKER, USA L.L.C.;
    COVAXIL LABORATORIES, L.L.C.; CARTER-REED
    COMPANY, L.L.C.,
    a/k/a THE CARTER-REED COMPANY; A.G.
    WATERHOUSE, L.L.C.;
    ALPHAGENBO TECH, L.L.C.; BODY FORUM, L.L.C.;
    BODY INNOVENTIONS, L.L.C.; COVARIX, L.L.C.;
    BYDEX MANAGEMENT, L.L.C.; NUTRASPORT, L.L.C;
    SOVAGE DERMALOGIC LABORATORIES, L.L.C.;
    WESTERN HOLDING, L.L.C.; GEORGE EVAN BYBEE;
    DANIEL B. MOWREY, Ph.D; NATHALIE CHEVREAU,
    Ph.D;
    MITCHELL K. FRIEDLANDER; MICAHEL MEADE,
    Petitioners
    On Appeal from the United States District Court
    for the District of New Jersey
    District Court No.-06-cv-01371
    District Judge: The Honorable Garrett E. Brown, Jr.
    Submitted September 7, 2006
    Before: BARRY, SMITH, and NYGAARD, Circuit Judges
    (Filed: October 16, 2006)
    Counsel:    Walter H. Swayze, III
    Christian H. Gannon
    Robert J. Kenney
    Maria C. Carlucci
    Segal McCambridge Singer & Mahoney, LTD.
    830 Third Ave., 4th Floor
    New York, NY 10022
    John M. Agnello
    Kerrie Heslin
    Carella, Byrne, Bain, Gilfillian, Cecchi, Stewart
    & Ostein
    5 Becker Farm Rd.
    Roseland, NJ 07068
    Counsel for Petitioner
    Jeffrey I. Carton
    Jill C. Owens
    2
    Barry B. Cepelewicz
    Meiselman, Denlea, Packman, Carton & Eberz,
    PC
    1311 Mamaroneck Ave.
    White Plains, NY 10605
    Counsel for Respondent
    OPINION
    SMITH, Circuit Judge.
    I.
    This appeal raises what is an issue of first impression in
    this Circuit: whether a statutory provision from the Class Action
    Fairness Act (CAFA), Pub.L. No. 109-2, 
    119 Stat. 4
     (2005)
    (codified in scattered sections of 28 U.S.C.), will be read
    according to the uncontested intent of Congress rather than as it
    is literally (but mistakenly) written.
    The underlying action was filed by New Jersey
    purchasers of the skin cream Stri Vectin-SD in the Superior
    Court of New Jersey, alleging false advertising and other claims.
    In March 2006, Defendants removed the action to federal court.
    Plaintiffs sought remand back to Superior Court and, in an order
    entered August 7, 2006, the District Court granted the motion
    3
    for remand to the state court, concluding that it lacked removal
    jurisdiction. On August 16, 2006, seven days later (excluding
    weekends and holidays1), Defendants filed the instant petition
    for leave to appeal under 
    28 U.S.C. § 1453
    (c). This provision
    of CAFA states that a court of appeals “may accept an appeal
    from an order of a district court granting or denying a motion to
    remand a class action to the State court from which it was
    removed if application is made to the court of appeals not less
    than 7 days after entry of the order.” 
    28 U.S.C. § 1453
    (c)(1)
    (emphasis added).
    II.
    Section 1453(c)(1), by using the phrase “may accept an
    appeal,” provides this Court discretion as to whether we should
    grant the petition. We therefore exercise jurisdiction pursuant
    to 
    28 U.S.C. § 1453
    . One of the key factors we examine to
    determine whether to grant the request is the seven day timing
    requirement. Because this issue involves a question of statutory
    interpretation, our review is plenary. See E.I. DuPont De
    1
    Fed. R. App. P. 26(a) applies to § 1453(c)(1), so that
    weekends and holidays are excluded when counting the seven
    days. See Miedema v. Maytag Corp., 
    450 F.3d 1322
    , 1326
    (11th Cir. 2006) (excluding the weekend); Amalgamated Transit
    Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 
    435 F.3d 1140
    , 1146 (9th Cir. 2006); Patterson v. Dean Morris,
    L.L.P., 
    444 F.3d 365
    , 368 n.1 (5th Cir. 2006) (citing
    Amalgamated).
    4
    Nemours and Co. v. United States, 
    460 F.3d 515
    , 528 (3d Cir.
    2006).
    III.
    The issue that we now address is whether 
    28 U.S.C. § 1453
    (c)(1), which states that a federal appellate court “may
    accept an appeal” from a remand order “if application is made
    to the court of appeals not less than 7 days after entry of the
    order,” should be interpreted by this Court to mean “not more
    than 7 days after entry of the order.” Because the uncontested
    legislative intent behind § 1453(c) was to impose a seven-day
    deadline for appeals, we conclude that the statute as written
    contains a typographical error and should be read to mean “not
    more than 7 days.”
    A court’s primary purpose in statutory interpretation is to
    discern legislative intent. See Rosenberg v. XM Ventures, 
    274 F.3d 137
    , 141 (3d Cir. 2001) (“The role of the courts in
    interpreting a statute is to give effect to Congress’s intent.”).
    “The plain meaning of legislation should be conclusive, except
    in [] rare cases in which the literal application of a statute will
    produce a result demonstrably at odds with the intentions of its
    drafters. In such cases, the intention of the drafters, rather than
    the strict language, controls.” United States v. Ron Pair Enters.,
    Inc., 
    489 U.S. 235
    , 242 (1989) (citation and quotation omitted).
    At some point in the legislative process, legislative intent for a
    particular statute exists. As a point of fact, there can be multiple
    legislative intents because hundreds of men and women must
    5
    vote in favor of a bill in order for it to become a law. See Caleb
    Nelson, What is Textualism?, 91 VA. L. REV. 347, 370 (2005)
    (stating the textualist position that “the typical statute enacted by
    Congress does not authoritatively reflect any collective intent on
    policy goals that transcend its own terms”). For the vast
    majority of ambiguous statutory provisions, then, relying on
    legislative history to discern legislative intent should be done
    with caution, if at all. This principle becomes even stronger
    when the judiciary seeks to read an unambiguous statutory term
    as its own antonym. See United States v. One “Piper”' Aztec
    “F” De Luxe Model 
    250 PA 23
     Aircraft Bearing Serial No.
    XX-XXXXXXX, 
    321 F.3d 355
    , 359 (3d Cir. 2003) (stating that
    “[o]ur task is to give effect to the will of Congress, and where its
    will has been expressed in reasonably plain terms, that language
    must ordinarily be regarded as conclusive”) (quoting Negonsott
    v. Samuels, 
    507 U.S. 99
    , 104 (1993)). However, in that rare
    instance where it is uncontested that legislative intent is at odds
    with the literal terms of the statute, then a court’s primary role
    is to effectuate the intent of Congress even if a word in the
    statute instructs otherwise.
    Section 1453(c)(1) is one such rare instance. The only
    piece of legislative history to discuss this section at length states
    that:
    The purpose of this provision is to develop a body
    of appellate law interpreting the legislation
    without unduly delaying the litigation of class
    actions. As a general matter, appellate review of
    6
    orders remanding cases to state court is not
    permitted, as specified by 28 U.S.C. 1447(d).
    New subsection 1453(c) provides discretionary
    appellate review of remand orders under this
    legislation but also imposes time limits.
    Specifically, parties must file a notice of appeal
    within seven days after entry of a remand order.
    S. Rep. 109-14, at 49 (2005) (emphasis added). This intention
    to prevent undue delay can be seen not only in the statute’s
    legislative history, but also in § 1453(c)(2), which instructs an
    appellate court that it must dispose of the appeal within 60 days.
    In addition to legislative history, the deleterious
    implications of applying § 1453(c)(1) as written also provides
    evidence of a typographical error by Congress. As written, §
    1453(c)(1) would grant plaintiffs and defendants the ability to
    potentially abuse the litigation process because the party who
    loses on the district court’s remand ruling could strategically
    wait to appeal the remand decision at any time pre-trial.
    Because the pre-trial stage of class action cases usually lasts
    many months or even years, and because many pre-trial rulings
    set the stage for how the trial will play out, extending the §
    1453(c)(1) appeal through this entire process contravenes the
    uncontested intent of the statute.
    The Eleventh Circuit in Miedema v. Maytag Corp., 
    450 F.3d 1322
     (11th Cir. 2006), makes a similar point. If the statute
    is applied as written, “there would be a front-end waiting period
    7
    (an application filed 6 days after entry of a remand order would
    be premature), but there would be no back-end limit (an
    application filed 600 days after entry of a remand order would
    not be untimely).” 
    Id. at 1326
    . See also Amalgamated Transit
    Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 
    435 F.3d 1140
    , 1146 (9th Cir. 2006) (stating that the result would be
    “entirely illogical” if a court “requir[ed] a party to wait seven
    days before seeking to appeal an order granting or denying a
    motion to remand, and then allow[ed] that party to seek
    appellate review at any time in the future after the period has
    passed”).
    It should come as no surprise that all three circuits to
    have examined this question have also found that § 1453(c)(1)
    should not be literally applied. See Amalgamated, 435 F.3d at
    1146; Miedema, 
    450 F.3d at 1326
    ; Pritchett v. Office Depot,
    Inc., 
    420 F.3d 1090
    , 1093 n.2 (10th Cir. 2005) (“Given
    Congress’ stated intent to impose time limits on appeals of class
    action remand orders and the limited availability of appeals prior
    to the statute's enactment, we can think of no plausible reason
    why the text of [the] Act would instead impose a seven-day
    waiting period followed by a limitless window for appeal.”).
    This Court does not need to step into a statutory
    interpretation debate over the role of legislative history and
    congressional intent to conclude that § 1453(c)(1) needs
    common sense revision that accurately reflects the uncontested
    intent of Congress. Judge Harold Leventhal has been famously
    quoted as saying that citing legislative history is like “looking
    8
    over a crowd and picking out your friends.”2 In the case of §
    1453(c)(1), however, the crowd speaks with one voice. We
    therefore read “not less than” as “not more than” in accord with
    the intent of Congress.
    2
    Patricia M. Wald, Some Observations on the Use of
    Legislative History in the 1981 Supreme Court Term, 
    68 Iowa L. Rev. 195
    , 214 (1983) (attributing the quote).
    9