Eagle U.S. 2, L.L.C. v. Abraham ( 2015 )

Case: 15-90024 Document: 00513304079 Page: 1 Date Filed: 12/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
___________________ December 11, 2015
No. 15-90024 Lyle W. Cayce
___________________ Clerk
Consolidated with Cases 15-90025; 15-90026; 15-90027; 15-90028; 15-90029;
15-90030; 15-90031; 15-90032; 15-90033; 15-90034; 15-90035; 15-90036;
15-90037; 15-90039; 15-90040; 15-90041; 15-90042; 15-90043; 15-90044;
15-90045; 15-90046; 15-90047; 15-90048; 15-90049; 15-90050; 15-90051;
15-90052; 15-90053; 15-90054; 15-90055; 15-90056; 15-90057; 15-90058;
15-90059; 15-90060; 15-90061; 15-90062; 15-90063; 15-90064; 15-90065;
15-90066; 15-90067; 15-90069; 15-90070; 15-90071; 15-90072; 15-90073;
15-90074; 15-90075; 15-90076; 15-90077; 15-90078; 15-90079; 15-90080;
15-90081; 15-90082; 15-90083; 15-90084; 15-90085; 15-90086; 15-90087;
15-90088; 15-90089; 15-90090; 15-90091; 15-90092; 15-90093; 15-90094;
15-90095; 15-90096; 15-90097; 15-90098; 15-90099; 15-90100; 15-90101;
15-90102.
EAGLE US 2, L.L.C.,
Defendant – Petitioner
v.
EVA D. ABRAHAM, et al.,
Plaintiffs – Respondents
_______________________
Motions for Leave to Appeal
Pursuant to 28 U.S.C. § 1453
_______________________
ON PETITION FOR REHEARING EN BANC
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
Case: 15-90024 Document: 00513304079 Page: 2 Date Filed: 12/11/2015
PER CURIAM: ∗
Treating the petition for rehearing en banc as a motion for
reconsideration, the motion for reconsideration is DENIED. No member of
the panel nor judge in regular active service of the court having requested
that the court be polled on rehearing en banc, FED R. APP. P. 35; 5th CIR. R.
35, the petition for rehearing en banc is DENIED.
Defendant-Petitioner Eagle US 2 L.L.C. (Eagle) removed this case to
federal district court, arguing that removal jurisdiction existed under 28
U.S.C. § 1332(d)(2) (governing “class actions”) and in the alternative under
§ 1332(d)(11) (governing “mass actions”). Rejecting both arguments, the
district court remanded the case back to Louisiana state court. Eagle sought
discretionary review before this court under 28 U.S.C. § 1453(c)(1), which
provides 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.” We declined review for lack of
appellate jurisdiction because § 1453(c)(1) allows review only of an order
remanding “a class action,” and this case is not a class action as defined in
§ 1332(d)(1)(B). We reasoned that § 1332(d)(1)(B)’s definition of a “class
action” does not encompass this case because the Louisiana cumulation
procedure employed by Plaintiffs-Respondents does not authorize
“representative” litigation. Eagle now seeks rehearing, arguing that we did
not address whether this case is a “mass action.” Even assuming arguendo
that § 1453(c)(1) allows review of orders remanding mass actions as well as
∗
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
Case: 15-90024 Document: 00513304079 Page: 3 Date Filed: 12/11/2015
class actions, 1 review is nevertheless foreclosed because this case is not a
mass action.
CAFA defines a “mass action” as “any civil action . . . in which
monetary relief claims of 100 or more persons are proposed to be tried jointly
on the ground that the plaintiffs’ claims involve common questions of law or
fact.” § 1332(d)(11)(B)(i). In remanding the case to state court for lack of
removal jurisdiction, the district court determined “that this lawsuit is not a
mass action as that term is defined in CAFA.” (citing a portion of Eagle’s
notice of removal that argued the 100-person requirement was met). Because
this case does not involve “100 or more persons,” we come to the same
conclusion.
This case was initially filed in Louisiana state court as a cumulated
action involving twenty-three named plaintiffs. Eagle asserts that the
complaint in this case “is one of 77 complaints filed by the same lawyers
making identical claims on behalf of more than 1,700 plaintiffs.” (emphasis
in original). In its notice of removal, Eagle argued that the ‘100-or-more-
persons’ requirement is satisfied because “[t]he fact that plaintiffs’ counsel
broke up their client base into multiple suits making identical allegations is
not a tactic that prevents the assertion of jurisdiction under CAFA.”
We disagree. The “mass action” definition requires “100 or more
persons” whose claims “are proposed to be tried jointly.” § 1332(d)(11)(B)(i).
The “100-or-more-persons” requirement cannot be satisfied by piercing the
1 28 U.S.C. § 1332(d)(11)(A) provides: “For purposes of this subsection and section
1453, a mass action shall be deemed to be a class action removable under paragraphs (2)
through (10) if it otherwise meets the provisions of those paragraphs.” We assume without
deciding that that language brings mass actions within not only § 1453’s removal provision,
§ 1453(b), but also its review provision, § 1453(c). We have previously invoked § 1453(c) to
review orders remanding mass actions to state court but have not addressed this issue.
See, e.g., Rainbow Gun Club, Inc. v. Denbury Onshore, L.L.C., 760 F.3d 405, 408 (5th Cir.
2014).
Case: 15-90024 Document: 00513304079 Page: 4 Date Filed: 12/11/2015
pleadings across multiple state court actions when the plaintiffs have not
proposed that those actions be tried jointly or otherwise consolidated. “Every
other court of appeals confronted with this question has come to the same
conclusion: that plaintiffs have the ability to avoid § 1332(d)(11)(B)(i)
jurisdiction by filing separate complaints naming less than 100 plaintiffs and
by not moving for or otherwise proposing joint trial in the state court.”
Parson v. Johnson & Johnson, 749 F.3d 879, 886–87 (10th Cir. 2014) (quoting
Scimone v. Carnival Corp., 720 F.3d 876, 884 (11th Cir. 2013)); accord
Anderson v. Bayer Corp., 610 F.3d 390, 393–94 (7th Cir. 2010); Tanoh v. Dow
Chem. Co., 561 F.3d 945, 952–53 (9th Cir. 2009). As the district court in this
case noted, “there has been no attempt to consolidate this lawsuit with any
other separately filed lawsuit(s) and Plaintiffs’ counsel has not proposed to
try any of the lawsuits jointly.”
Because this case does not involve “100 or more persons,” it is not a
“mass action” and we have no appellate jurisdiction under § 1453(c)(1),
regardless of whether that provision allows review of district court orders
remanding mass actions.