Lussier v. Dollar Tree Stores ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN LUSSIER; MARY HAWKS, 
individually, and on behalf of all
other similarly situated, No. 06-35148
Plaintiffs-Appellants,
v.  D.C. No.
CV-05-00768-AJB
DOLLAR TREE STORES, INC., a OPINION
Foreign Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
February 6, 2008—Portland, Oregon
Filed March 7, 2008
Before: Pamela Ann Rymer and Richard A. Paez,
Circuit Judges, and Cormac J. Carney,* District Judge.
Opinion by Judge Rymer
*The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.
2201
LUSSIER v. DOLLAR TREE STORES 2203
COUNSEL
J. Dana Pinney, Bailey, Pinney & Associates LLC, Vancou-
ver, Washington, Jacqueline L. Koch, Vancouver, Washing-
ton (argued), for the plaintiffs-appellants.
Kevin H. Kono, Davis Wright Tremaine LLP, Portland, Ore-
gon, for the defendant-appellee.
2204 LUSSIER v. DOLLAR TREE STORES
OPINION
RYMER, Circuit Judge:
John Lussier and Mary Hawks, putative class representa-
tives in litigation against Dollar Tree Stores, Inc., appeal the
district court’s denial of their request for attorney’s fees fol-
lowing their successful motion to remand the underlying
action after it had been removed by Dollar Tree pursuant to
the recently enacted Class Action Fairness Act of 2005
(CAFA). 28 U.S.C. § 1332(d)(2) (2005). We conclude that the
district court did not abuse its discretion in finding that, given
the lack of clarity in the law at the time, Dollar Tree’s
removal arguments were not unreasonable. Accordingly, we
affirm.
I
In the underlying action, Lussier and Hawks sought to
recover unpaid wages, overtime wages, minimum wages and
penalty wages for Dollar Tree employees for a six year
period. The complaint was originally filed in the Circuit Court
of Oregon for the County of Multnomah on February 14,
2005. Dollar Tree was served on April 29, 2005.
Meanwhile, CAFA became effective on February 18, 2005.
Pub. L. No. 109-2, 119 Stat. 4 (2005). CAFA amended 28
U.S.C. § 1332, which provides for diversity jurisdiction, by
conferring original federal court jurisdiction over class actions
when there is minimal diversity and the amount in contro-
versy exceeds $5,000,000. 28 U.S.C. § 1332(d). Section 9 of
the Act provides that “[t]he amendments made by this Act
shall apply to any civil action commenced on or after the date
of enactment of this Act.” Pub. L. 109-2, § 9.
Dollar Tree removed the action to the federal District Court
for the District of Oregon on May 27, 2005. The Notice of
Removal asserted jurisdiction under § 1332(d) based on the
LUSSIER v. DOLLAR TREE STORES 2205
case being a civil class action between minimally diverse par-
ties in which the matter in controversy exceeds $5,000,000.
The Notice averred that removal was proper pursuant to 28
U.S.C. § 1441(a)-(b), and was timely under 28 U.S.C.
§ 1446(b) in that fewer than 30 days had elapsed since a copy
of the summons and complaint was first provided.
Lussier and Hawks moved to remand for lack of federal
jurisdiction, arguing that the suit was filed, and therefore
commenced, prior to CAFA’s effective date. Dollar Tree
argued in response that when an action is “commenced” for
purposes of CAFA is ambiguous, and that the term should be
interpreted broadly in accordance with the congressional
intent to expand federal court jurisdiction over class actions.
It agreed with Lussier and Hawks that the law of the state of
filing governs when an action is deemed “commenced” for
removal,1 but maintained that this action was not commenced
under Oregon law until the summons was served on April 29,
2005, after enactment of CAFA. For this it relied on Or. Rev.
Stat. § 12.020,2 and our opinion in Torre v. Brickey, where we
stated that “[u]nder Oregon law, summons must be served
1
As Dollar Tree’s papers acknowledged, the Tenth Circuit Court of
Appeals had so held in Pritchett v. Office Depot, Inc., 404 F.3d 1232,
1238 (10th Cir. 2005) amended by 420 F.3d 1090 (concluding that
removal to federal court does not “commence” (or recommence) an action
for purposes of CAFA).
2
Or. Rev. Stat. § 12.020 provides in pertinent part:
(1) Except as provided in subsection (2) of this section, for the
purpose of determining whether an action has been commenced
within the time limited, an action shall be deemed commenced as
to each defendant, when the complaint is filed, and the summons
served on the defendant . . . .
(2) If the first publication of summons or other service of sum-
mons in an action occurs before the expiration of 60 days after
the date on which the complaint in the action was filed, the action
against each person of whom the court by such service has
acquired jurisdiction shall be deemed to have been commenced
upon the date on which the complaint in the action was filed.
2206 LUSSIER v. DOLLAR TREE STORES
within 60 days of filing the complaint in order for the action
to commence as of the date the complaint is filed.” 278 F.3d
917, 918 (9th Cir. 2002). Based on Torre, Dollar Tree’s the-
ory was that Or. Rev. Stat. § 12.020 allows a grace period for
rolling back the date of commencement to the date of filing
when the statute of limitations is at issue. It further contended
that Or. R. Civ. P. 3, which provides that for purposes other
than statutes of limitations, an action is commenced by filing
a complaint,3 does not control because CAFA § 9 creates an
inverse type of statute of limitations for when an action may
be deemed timely commenced.
The district court granted the motion to remand. The court
observed that CAFA does not define the term “commenced,”
but assumed — as we subsequently held in Bush v. Cheap-
tickets, Inc., 425 F.3d 683, 686-88 (9th Cir. 2005) — that a
removed case is “commenced” for purposes of CAFA on the
date it is initially commenced in state court rather than the
date of removal. Turning to the procedural rules of Oregon,
the court held that Or. R. Civ. P. 3 determines when an action
in “commenced,” not Or. Rev. Stat. § 12.020, because Rule 3
sets forth when an action commences in Oregon for all pur-
poses other than the statute of limitations, whereas Or. Rev.
Stat. § 12.020 applies only when determining whether an
action has been commenced within a statute-of-limitations
period. It found that CAFA did not create a statute of limita-
tions for class actions, but merely expanded the scope of fed-
eral jurisdiction by relaxing diversity requirements and
allowing aggregation for the amount in controversy require-
ment. Thus, it concluded, Rule 3 is the applicable provision
for determining when a CAFA action commences in Oregon.
Finally, the district court declined Dollar Tree’s invitation to
construe the jurisdictional provisions broadly to include
3
Or. R. Civ. P. 3 states: “ Other than for purposes of statutes of limita-
tions, an action shall be commenced by filing a complaint with the clerk
of the court.”
LUSSIER v. DOLLAR TREE STORES 2207
actions filed but not served at the time of CAFA’s enactment,
as Congress could have said so had that been its intent.
Following remand, Lussier and Hawks sought attorney’s
fees under 28 U.S.C. § 1447(c).4 Observing that its task was
to assess the reasonableness of the attempted removal, the dis-
trict court found that Dollar Tree raised novel issues regarding
removal under CAFA. The court noted that the issue of when
an action is “commenced” under CAFA was one of first
impression, and that district courts were divided on the mean-
ing of “commenced” in other jurisdictional contexts.5 The
court concluded that Dollar Tree’s position was reasonable
and, in its discretion, denied the request for fees and costs
resulting from removal.
Lussier and Hawks timely appealed.
II
[1] The Supreme Court settled the standard for awarding
attorney’s fees when remanding a case to state court in Martin
v. Franklin Capital Corp., 546 U.S. 132 (2005).6 The Court
held that “the standard for awarding fees should turn on the
reasonableness of the removal.” Id. at 141. As the Court put
4
Section 1447(c) provides in pertinent part: “An order remanding the
case may require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.”
5
The court’s order referred to Kieffer v. Travelers Fire Ins. Co., 167
F. Supp. 398, 401 (D. Md. 1958), and Lorraine Motors, Inc. v. Aetna Cas.
& Sur. Co., 166 F. Supp. 319, 323-24 (E.D.N.Y. 1958), where the courts
reached opposite conclusions on whether “commenced” referred to the fil-
ing date of the complaint or to the date of removal for purposes of an
amendment to the diversity statute that raised the amount-in-controversy
requirement.
6
The district court’s decision was filed just after the decision in Martin
was rendered. The district court did not mention Martin in its order, but,
as we shall explain, its approach was not inconsistent with Martin’s analy-
sis.
2208 LUSSIER v. DOLLAR TREE STORES
it, “[a]bsent unusual circumstances, courts may award attor-
ney’s fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal.
Conversely, when an objectively reasonable basis exists, fees
should be denied.” Id.
We review the award of fees and costs for abuse of discre-
tion, and will overturn the district court’s decision if it is
based on an erroneous determination of law. Durham v. Lock-
heed Martin Corp., 445 F.3d 1247, 1250 (9th Cir. 2006);
Patel v. Del Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006).
Lussier and Hawks press for de novo review on the footing
that the district court made a legal error by applying an incor-
rect standard, but we disagree. The court recognized that its
decision turned on the reasonableness of the attempted
removal, which is the correct legal standard. Beyond this,
Lussier and Hawks suggest that Dollar Tree’s arguments in
support of removal were without legal merit, hence the court
erred when it found that the removal was reasonable. There
is no question that Dollar Tree’s arguments were losers. But
removal is not objectively unreasonable solely because the
removing party’s arguments lack merit, or else attorney’s fees
would always be awarded whenever remand is granted.
Resolving a circuit split on the issue, Martin explicitly
rejected the view that attorney’s fees should presumptively, or
automatically, be awarded on remand. 546 U.S. at 136-37.
The district court implicitly accepted this position as well; it
assessed the merits of Dollar Tree’s attempted removal for
reasonableness, even though it had remanded. Finally, Lussier
and Hawks fault as legally erroneous the district court’s refer-
ence to Kieffer and Lorraine Motors, both of which involved
the question whether a non-CAFA action was “commenced”
on the date of removal or on the date of filing. While we agree
that neither opinion is particularly useful, we do not read the
court as having relied on Kieffer or Lorraine Motors for any
reason other than to support its point that the meaning of
“commenced” under CAFA was novel, and existing law on its
meaning in other jurisdictional statutes was inconclusive.
LUSSIER v. DOLLAR TREE STORES 2209
Accordingly, we have no occasion to depart from the normal
standard of review for attorney’s fees on remand, informed by
the framework set out in Martin.
We have considered an award of attorney’s fees in three
cases since Martin. In Durham, we considered whether a
defendant who failed to remove within thirty days on diver-
sity or federal question grounds, could later remove once it
discovered the case was also removable on federal officer
grounds. Expressing no opinion on the merits of the removal
petition, we held that it was timely and so Lockheed had an
objectively reasonable basis for filing it. 445 F.3d at 1254. In
Patel, the plaintiffs had filed a complaint in federal district
court against Del Taco alleging various civil rights violations.
The complaint also sought to remove Del Taco’s pending
state court petition to confirm an arbitration award. The plain-
tiffs contended that the arbitration petition was removable
because the federal district court had supplemental jurisdic-
tion over the petition when it was joined with the civil rights
claims. This contention was frivolous, as the supplemental
jurisdiction statute is not a basis for removal and no other
ground for removal existed. Accordingly, we held that the dis-
trict court did not abuse its discretion in awarding attorney’s
fees. 446 F.3d at 999-1000. Finally, in Gardner v. UICI, 508
F.3d 559, 562 (9th Cir. 2007), we held that it was objectively
reasonable for an insurer to remove on the basis of fraudulent
joinder of an agent as a reasonable litigant in its position
could have concluded that the complaint failed to state a claim
against the only resident defendant.
[2] Dollar Tree argues that this case is more like Durham
than Patel. However, the situation here is different from both;
Dollar Tree sought removal under a new statute whose mean-
ing had not yet been fleshed out. Although Martin itself did
not explicate “objectively reasonable” because the reasonable-
ness of the removal arguments was not disputed, the Court of
Appeals for the Seventh Circuit discussed the question in a
somewhat similar context. In Lott v. Pfizer, Inc., Pfizer
2210 LUSSIER v. DOLLAR TREE STORES
removed an action under CAFA, arguing among other things
that the case “commenced” on the date that it was removed
to federal court, not the date on which it had been filed in
state court. 492 F.3d 789 (7th Cir. 2007). The district court
remanded the action, and awarded attorney’s fees under
§ 1447(c) without assessing the reasonableness of Pfizer’s
attempt to remove under CAFA. The court of appeals
reversed, holding that the test is whether the relevant case law
clearly foreclosed the defendant’s basis of removal. It rea-
soned that the Supreme Court in Martin had cited with
approval Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293
(5th Cir. 2000), which applied an objectively reasonable stan-
dard by looking to the clarity of the law at the time of
removal. Martin, 546 U.S. at 141. The court also pointed out
that courts are familiar with determining whether conduct is
objectively reasonable in contexts such as qualified immunity,
and that Martin’s objectively reasonable standard balances
competing interests in much the same way as the doctrine of
qualified immunity does. Applying this test, the court held
that Pfizer’s attempt to remove under CAFA was objectively
reasonable given that, at the time the notice of removal was
filed, no circuit court of appeals had rejected Pfizer’s argu-
ment that the word “commenced” means the date on which a
case is removed to federal court. Lott, 492 F.3d at 793.
[3] The situation here is analogous. When Dollar Tree
removed, the Tenth Circuit’s opinion in Pritchett was the only
circuit authority on the meaning of “commenced” in CAFA.
Dollar Tree’s removal arguments proceeded on the under-
standing that the action was commenced when it was brought
in state court instead of upon removal, in accord with Prit-
chett’s holding. Beyond this, as the district court stated, the
issue of when an action is “commenced” under CAFA was
one of first impression. While the court rejected Dollar Tree’s
novel arguments about the relationship among Or. Rev. Stat.
§ 12.020, Or. R. Civ. P. 3, and CAFA in light of CAFA’s
broadening of federal jurisdiction over class actions, it also
found that Dollar Tree’s position was reasonable. We cannot
LUSSIER v. DOLLAR TREE STORES 2211
say that the district court abused its discretion in this. Lussier
and Hawks point out that Dollar Tree offered no authority for
its “bar to actions in the inverse” theory, and submit that it
was wrong in distinguishing Pritchett because this case (like
Pritchett’s) commenced with the filing in state court. How-
ever, Pritchett said nothing about what any particular state’s
law provides in relation to CAFA. Dollar Tree’s arguments
were not otherwise clearly foreclosed. Consequently, we
affirm the district court’s denial of attorney’s fees and costs.
AFFIRMED.