State of Nevada v. Bank of America Corporation ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF NEVADA, 
Plaintiff-Appellant,
v.
BANK OF AMERICA CORPORATION; No. 12-15005
BANK OF AMERICA NATIONAL D.C. No.
ASSOCIATION; BAC HOME LOANS  3:11-cv-00135-
SERVICING, LP; RECONSTRUCT RCJ-WGC
COMPANY, N.A.; COUNTRYWIDE
OPINION
FINANCIAL CORPORATION;
COUNTRYWIDE HOME LOANS, INC.;
FULL SPECTRUM LENDING, INC.,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
February 8, 2012—Pasadena, California
Filed March 2, 2012
Before: Stephen Reinhardt, Kim McLane Wardlaw, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Wardlaw
2721
STATE OF NEVADA v. BANK OF AMERICA 2725
COUNSEL
Catherine Cortez Masto, Binu Palal, Jeffrey Segal, Office of
the Nevada Attorney General, Las Vegas, Nevada, Linda
Singer, Cohen Milstein Sellers & Toll PLLC, Washington,
DC, for plaintiff-appellant State of Nevada.
Matthew W. Close, O’Melveny & Myers LLP, Los Angeles,
California, Leslie Bryan Hart, John D. Tennert, Lionel Saw-
yer & Collins, Reno, Nevada, for defendants-appellees Bank
of America Corporation et al.
Bernard A. Eskandari, Office of the California Attorney Gen-
eral, Los Angeles, for amici curiae State of California, State
of Oregon, and State of Arizona.
Nina F. Simon, Center for Responsible Lending, Washington,
DC, for amici curiae Center for Responsible Lending, AARP,
and Consumer Law Center.
OPINION
WARDLAW, Ciruit Judge:
The State of Nevada, through its Attorney General, Cather-
ine Cortez Masto, filed this parens patriae lawsuit against
Bank of America Corporation and several related entities (col-
lectively, “Bank of America”) in Clark County District Court.
Nevada alleges that Bank of America misled Nevada consum-
ers about the terms and operation of its home mortgage modi-
fication and foreclosure processes, in violation of the Nevada
Deceptive Trade Practices Act, Nev. Rev. Stat. §§ 598.0903-
.0999. Nevada also alleges that Bank of America violated an
existing consent judgment (“Consent Judgment”) in a prior
case between Nevada and several of Bank of America’s sub-
sidiaries, entered in Clark County District Court.
2726 STATE OF NEVADA v. BANK OF AMERICA
Bank of America removed this action to federal district
court, asserting federal subject matter jurisdiction as either a
“class action” or “mass action” under the Class Action Fair-
ness Act (“CAFA”), 28 U.S.C. § 1332(d), and as arising
under federal law, 28 U.S.C. § 1331. Denying Nevada’s
motion to remand, the federal district court concluded that it
has jurisdiction over this action as a CAFA “class action,” but
not as a “mass action,” and that it also has federal question
jurisdiction because resolving the state claims will require an
interpretation of federal law.
We granted Nevada’s request for leave to appeal the district
court’s denial of its motion to remand pursuant to 28 U.S.C.
§ 1453(c)(1). We conclude that because parens patriae
actions are not removable under CAFA, and the action does
not otherwise satisfy CAFA’s “mass action” requirements, the
district court lacks jurisdiction under CAFA. We also exercise
our interlocutory appellate jurisdiction under 28 U.S.C.
§ 1453(c) to review the district court’s determination that it
has federal question jurisdiction because the complaint refer-
ences the federal Home Affordable Mortgage Program and
the Fair Debt Collection Practices Act. We conclude that the
district court lacks federal question jurisdiction. Because there
is no basis for federal subject matter jurisdiction, this case
must be remanded to Nevada state court.
I.
The Nevada Deceptive Trade Practices Act (“DTPA”)
authorizes the Nevada Attorney General to “bring an action in
the name of the State of Nevada” against any person whom
the Attorney General “has reason to believe . . . has engaged
or is engaging in a deceptive trade practice.” Nev. Rev. Stat.
§ 598.0963(3). The State of Nevada filed its amended com-
plaint (“Complaint”) in the Clark County District Court on
January 19, 2011. The Complaint alleges that Bank of Amer-
ica violated the DTPA by misleading Nevada consumers who
sought modifications of residential mortgages. It also alleges
STATE OF NEVADA v. BANK OF AMERICA 2727
that Bank of America violated the terms of a February 24,
2009, Consent Judgment between Nevada and several of the
bank’s subsidiaries. The Clark County District Court entered
the Consent Judgment and retains enforcement jurisdiction.
This action is based on complaints Nevada has reviewed
and investigated from more than 150 consumers, housing
counselors and other industry sources. The Complaint alleges
that Bank of America has engaged in a pattern of misconduct
in which it has and continues to:
a. Mislead consumers with false promises that it will
act on their modifications within a set period of time,
but keeps them waiting for months, and sometimes
more than a year, beyond the promised term;
b. Mislead consumers with assurances that they will
not be foreclosed upon while the Bank considered
their requests for modifications. However Bank of
America has sold the homes of some Nevada con-
sumers and sent foreclosure notices to many more
while their requests for modifications were still
pending;
c. Misrepresent to consumers that they must be
delinquent on their loans in order to qualify for assis-
tance, even though neither Bank of America’s pro-
prietary programs nor the federal HAMP1 program
requires that homeowners have missed payments;
1
The Home Affordable Mortgage Program (“HAMP”), 12 U.S.C.
§ 5219a, is a federal program whereby the United States government pri-
vately contracts with banks to provide incentives to enter into residential
mortgage modifications. “In March 2009, the United States Department of
Treasury announced the details of the Home Affordable Modification Pro-
gram as part of the Making Home Affordable Program. Under HAMP,
individual loan servicers voluntarily enter into contracts with Fannie Mae,
acting as the financial agent of the United States, to perform loan modifi-
cation services in exchange for certain financial incentives.” Newell v.
Wells Fargo Bank, N.A., 2012 WL 27783, at *1 (N.D. Cal. Jan. 5, 2012).
2728 STATE OF NEVADA v. BANK OF AMERICA
d. Mislead consumers with false promises that their
initial, trial modifications would be made permanent
if and when they made the required three payments
on those plans, but then failed to convert those modi-
fications;
e. Tell consumers their modifications were denied
for reasons that were untrue, such as that: (i) the
owner of the loan refused to allow the modification
when Bank of America had full authority to modify
the loan without the investor’s approval; (ii) the
Bank had tried unsuccessfully to reach the consumer,
even though the consumer repeatedly called the
Bank; (iii) the loan was previously modified when it
was not; (iv) the borrower failed to make trial pay-
ments, when they made all payments; and (v) the
borrower was current on his or her loan, when delin-
quency is not a condition of a modification;
f. Falsely notify consumers or credit reporting agen-
cies that consumers are in default when they are not;
g. Mislead consumers with offers of modification on
one set of terms, and then provide agreements with
materially different terms, or inform consumers that
their modifications had been approved, but then tell
them that their requests were denied, often months
before.
The Complaint also alleges that Bank of America is in con-
tempt of the Consent Judgment because of its failure to offer
loan modifications to eligible consumers and its practice of
conducting foreclosures while consumers are being consid-
ered for modifications. The Complaint seeks declaratory and
injunctive relief, civil penalties, restitution for defrauded
Nevada consumers, attorney’s fees and the costs of investiga-
tion.
STATE OF NEVADA v. BANK OF AMERICA 2729
Bank of America removed the case to the United States
District Court for the District of Nevada on February 23,
2011, asserting three theories of federal jurisdiction: (1) juris-
diction under CAFA, as both a “class action,” 28 U.S.C.
§ 1332(d)(2)-(10), and a “mass action,” 28 U.S.C.
§ 1332(d)(11); (2) federal question jurisdiction, 28 U.S.C.
§§ 1331, 1441(b); and (3) bankruptcy jurisdiction, 28 U.S.C.
§§ 1334(b), 1452. On March 22, 2011, Nevada moved to
remand the case to state court.
The district court denied Nevada’s remand motion on July
5, 2011, concluding that the case was a “class action” under
CAFA, 28 U.S.C. § 1332(d). As an alternative basis for fed-
eral jurisdiction, the district court concluded that the case
presented a federal question under 28 U.S.C. § 1331. The dis-
trict court also determined that the case did not satisfy
CAFA’s “mass action” prong, 28 U.S.C. § 1332(d)(11). On
July 15, 2011, Nevada timely requested permission to appeal
the denial of the remand motion pursuant to 28 U.S.C.
§ 1453(c). We held the petition for permission to appeal in
abeyance pending disposition of Washington v. Chimei
Innolux Corp., 659 F.3d 843 (9th Cir. 2011), which presented
the question of whether a state Attorney General parens
patriae action is a “class action” as defined by CAFA, and
then accepted the appeal on January 3, 2012.
II.
“Determinations regarding subject matter jurisdiction are
reviewed de novo.” Chapman v. Deutsche Bank Nat’l Trust
Co., 651 F.3d 1039, 1043 (9th Cir. 2011) (citation omitted).
“We review the ‘construction, interpretation, or applicability’
of CAFA de novo.” Chimei, 659 F.3d at 846-47 (quoting
Bush v. Cheaptickets, Inc., 425 F.3d 683, 686 (9th Cir. 2005)).
“We review de novo a district court’s denial of a motion to
remand to state court for lack of federal subject matter juris-
diction.” Chapman, 651 F.3d at 1043 (citation omitted).
Removal statutes are to be “strictly construed” against
2730 STATE OF NEVADA v. BANK OF AMERICA
removal jurisdiction. Syngenta Crop Prot., Inc. v. Henson,
537 U.S. 28, 32 (2002) (citation omitted).
III.
We first consider whether the district court correctly con-
cluded that this case was removable under CAFA. CAFA pro-
vides for the removal of class actions and mass actions
involving parties with minimal diversity. 28 U.S.C.
§ 1332(d)(2)(A). Under CAFA, a “class action” is defined as
“any civil action filed under Rule 23 of the Federal Rules of
Civil Procedure or similar State statute or rule of judicial pro-
cedure authorizing an action to be brought by 1 or more repre-
sentative persons as a class action.” 28 U.S.C.
§ 1332(d)(1)(B). A “mass action” is defined as “any civil
action . . . in which monetary relief claims of 100 or more per-
sons are proposed to be tried jointly on the ground that the
plaintiffs’ claims involve common questions of law or fact.”
28 U.S.C. § 1332(d)(11)(B)(i).
A.
[1] Since the district court issued its order holding that this
action is a CAFA “class action,” we have held to the contrary.
In Washington v. Chimei Innolux Corp., we held that attorney
general enforcement actions are not removable as “class
actions” under CAFA. 659 F.3d at 847. In Chimei, the attor-
neys general of Washington and California brought parens
patriae suits under their states’ antitrust laws, alleging that a
group of manufacturers and distributors engaged in a conspir-
acy to fix the prices of certain liquid crystal display panels. Id.
at 846. The defendants removed the cases to federal court,
arguing that “consumers were the real parties in interest for
the monetary relief claims, and that therefore the States’
parens patriae claims were disguised class actions removable
under CAFA.” Id. We rejected this argument, noting that
“[p]arens patriae suits lack the defining attributes of true
class actions. As such, they only ‘resemble’ class actions in
STATE OF NEVADA v. BANK OF AMERICA 2731
the sense that they are representative suits.” Id. at 850. See
also LG Display Co., Ltd. v. Madigan, 665 F.3d 768, 772 (7th
Cir. 2011) (parens patriae suit not a “class action” because
the “case was brought by the Attorney General, not by a rep-
resentative of a class”); West Virginia ex rel. McGraw v. CVS
Pharmacy, Inc., 646 F.3d 169, 174-76 (4th Cir. 2011) (West
Virginia Attorney General’s parens patriae action to enforce
consumer protection statute not removable under CAFA
because state statute lacked the procedural requirements of
Rule 23).
[2] Our decision in Chimei, which Bank of America con-
cedes controls our decision as to whether this action is a
CAFA class action, makes clear that it cannot be so character-
ized.
B.
[3] Bank of America next argues that Nevada’s action is
nevertheless removable as a “mass action” under 28 U.S.C.
§ 1332(d)(11). A mass action is defined 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 plain-
tiffs’ claims involve common questions of law or fact, except
that jurisdiction shall exist only over those plaintiffs whose
claims in a mass action satisfy the [$75,000] jurisdictional
amount requirement” set forth in § 1332(a). 28 U.S.C.
§ 1332(d)(11)(B)(i).
[4] The district court ruled that this action does not qualify
as a “mass action” under the “event or occurrence” exclusion
in CAFA, which expressly provides that the term “mass
action” excludes any civil action in which “all of the claims
in the action arise from an event or occurrence in the State in
which the action was filed, and that allegedly resulted in inju-
ries in that State . . . .” 28 U.S.C. § 1332(d)(11)(B)(ii)(I). The
district court reasoned that it lacked mass action jurisdiction
because “the claims all allegedly arise from activity in
2732 STATE OF NEVADA v. BANK OF AMERICA
Nevada and all injuries allegedly resulted in Nevada.” This
was a misapplication of the “event or occurrence” exclusion.
[5] The “event or occurrence” exclusion applies only
where all claims arise from a single event or occurrence.
“[C]ourts have consistently construed the ‘event or occur-
rence’ language to apply only in cases involving a single
event or occurrence, such as an environmental accident, that
gives rise to the claims of all plaintiffs.” Lafalier v. Cinnabar
Serv. Co., Inc., 2010 WL 1486900, at *4 (N.D. Okla. Apr. 13,
2010). Moreover, the legislative history of CAFA supports
this interpretation, making clear that the exception was
intended to apply “only to a truly local single event with no
substantial interstate effects” in order to “allow cases involv-
ing environmental torts such as a chemical spill to remain in
state court if both the event and the injuries were truly local.”
S. Rep. No. 109-14, at 41 (2005), reprinted in 2005
U.S.C.C.A.N. 3, 44. The Complaint in this case alleges wide-
spread fraud in thousands of borrower interactions, and thus
this action does not come within the “event or occurrence”
exclusion.2 Therefore, we hold that the “event or occurrence”
exclusion, 28 U.S.C. § 1332(d)(11)(B)(ii)(III), does not apply
to this action.
[6] We have not yet had occasion to decide whether a
state’s parens patriae action is removable as a mass action.
The two circuits that have addressed this question, the Sev-
enth and Fifth, have reached conflicting results. See Madigan,
665 F.3d at 772 (parens patriae suit not a mass action because
the Attorney General is the only plaintiff); Louisiana ex rel.
Caldwell v. Allstate Ins. Co., 536 F.3d 418, 429 (5th Cir.
2008) (state’s parens patriae antitrust action against insurance
companies qualifies as mass action because insurance policy-
holders are the “real parties in interest”).
2
Nevada did not argue below for application of the “event or occur-
rence” exclusion, and does not attempt to justify the district court’s con-
clusion on appeal.
STATE OF NEVADA v. BANK OF AMERICA 2733
In Madigan, the Illinois Attorney General filed an action in
state court against manufacturers of liquid crystal display pan-
els for violations of the Illinois Antitrust Act. 665 F.3d at 769.
The complaint sought injunctive relief, civil penalties, and tre-
ble statutory damages for the state as a purchaser and, as
parens patriae, for injured residents. Id. Concluding that the
suit was not a mass action, the Seventh Circuit reasoned that
it did not involve “monetary relief claims of 100 or more per-
sons . . . proposed to be tried jointly,” as required by CAFA,
because “only the Illinois Attorney General makes a claim for
damages (among other things), precisely as authorized by the
IAA.” Id. at 772. The Seventh Circuit also reasoned that a suit
is not a “mass action” if “ ‘all of the claims in the action are
asserted on behalf of the general public (and not on behalf of
individual claimants or members of a purported class) pursu-
ant to a State statute specifically authorizing such action,’ ”
quoting the statutory language of § 1332(d)(11)(B)(ii)(III). Id.
The Madigan defendants argued, like Bank of America
here, that the court should apply a “claim by claim” analysis
to conclude that the action was “really” to recover damages
for the hundreds of persons who purchased the unlawfully
priced LCD panels and that those purchasers were the real
parties in interest for the non-enforcement-related claims in
the suit, thus satisfying the “mass action” requirements. Id. at
772-73. The Seventh Circuit rejected this approach, instead
looking at the complaint as a whole, and concluding that the
State was the real party in interest. Id. at 774. It reasoned,
“Whether a state is the real party in interest in a suit ‘is a
question to be determined from the essential nature and effect
of the proceeding.’ ” Id. at 773 (quoting Nuclear Eng’g Co.
v. Scott, 660 F.2d 241, 250 (7th Cir. 1981)) (internal quotation
marks omitted).
In Caldwell, on the other hand, the Fifth Circuit adopted
this “claim-by-claim” approach to identify the real party in
interest in a parens patriae action brought by the State of
Louisiana. Caldwell, 536 F.3d at 430. Louisiana filed an anti-
2734 STATE OF NEVADA v. BANK OF AMERICA
trust suit in state court against several insurance companies,
seeking to enforce the Louisiana Monopolies Act and to
recover treble damages, among other relief. Id. at 423. The
Fifth Circuit dissected the claims to “conclude that as far as
the State’s request for treble damages is concerned, the poli-
cyholders are the real parties in interest,” because the plain
language of the Monopolies Act authorized only injured indi-
viduals to recover for treble damages. Id. at 429. Louisiana’s
argument that it was the real party in interest was belied by
the language in the complaint, which sought recovery of
“damages suffered by individual policyholders.” Id. at 428(emphasis in original). The Fifth Circuit also relied upon the
essential nature of an antitrust proceeding, reasoning that
“given that the purpose of antitrust treble damages provisions
are to encourage private lawsuits by aggrieved individuals for
injuries to their business or property,” it had no reason to
believe that individual policyholders were not the real parties
in interest. Id. at 430 (citing Hawaii v. Standard Oil Co., 405
U.S. 251, 262 (1972)).
[7] As both sides agree, the characterization of this case as
a “mass action” thus turns on whether the State of Nevada or
the hundred-plus consumers on whose behalf it seeks restitu-
tion are the real party(ies) in interest. This determination
affects both CAFA’s numerosity requirement, 28 U.S.C.
§ 1332(d)(11)(B)(i), and its minimal diversity requirement,
§ 1332(d)(2)(A), because defendants are not citizens of
Nevada and Nevada is not a citizen for purposes of diversity
analysis, Dyack v. N. Mariana Islands, 317 F.3d 1030, 1037
(9th Cir. 2003).
Relying on our recent decision in Department of Fair
Employment and Housing v. Lucent Technologies, Inc., 642
F.3d 728 (9th Cir. 2011), the district court, though recogniz-
ing that “district courts are mainly in agreement that when a
state attorney general brings such a case, the fact that a dis-
crete class of individuals will receive restitution does not
defeat the fact that the gravamen of the action is protection of
STATE OF NEVADA v. BANK OF AMERICA 2735
the public welfare,” nevertheless concluded that the individual
consumers are the real parties in interest for the restitution,
declarative and injunctive claims for relief.
In Lucent, we considered whether the district court had
diversity jurisdiction over an action filed by the California
Department of Fair Employment and Housing (“DFEH”) on
behalf of a single aggrieved employee. Id. at 735. This ques-
tion turned on whether DFEH or the employee was the real
party in interest, because if the State had only the general
interest it holds on behalf of all its citizens and their welfare,
it would not satisfy the “real party to the controversy require-
ment for the purposes of defeating diversity” jurisdiction. Id.
at 737. Though the statute at issue, the California Fair
Employment and Housing Act (“FEHA”), Cal. Gov’t Code
§ 12900 et seq., declares the State’s interest in protecting all
persons from employment discrimination, that governmental
interest was too “general” to render the State a real party in
the controversy. Lucent, 642 F.3d at 738. Moreover, the relief
sought included reinstatement and payment of compensatory
and punitive damages to the aggrieved individual, who was
also able to secure the equitable relief sought by the State.
Lucent, 642 F.3d at 739. Any relief that was unique to DFEH
was “tangential” to the relief sought for the employee, and
thus could not render DFEH a real party in interest. Id.[8] Our rationale for finding that the aggrieved individual
was the real party in interest in Lucent compels the conclusion
that Nevada is the real party in interest here. Unlike the Cali-
fornia DFEH, which sued on behalf of a single aggrieved
employee, here, the Nevada Attorney General sued to protect
the hundreds of thousands of homeowners in the state alleg-
edly deceived by Bank of America, as well as those affected
by the impact of Bank of America’s alleged frauds on
Nevada’s economy. In Lucent, we addressed whether there
was a “substantial state interest” separate and distinct from
the relief sought on behalf of the individual; there, the inter-
ests that were unique to the State were merely “tangential.”
2736 STATE OF NEVADA v. BANK OF AMERICA
Id. Furthermore, in Lucent we adopted the approach of look-
ing at the case as a whole to determine the real party in inter-
est, rather than the claim-by-claim approach adopted in
Caldwell and advocated by Bank of America. Id. at 740 (quot-
ing Geeslin v. Merriman, 527 F.2d 452, 455 (6th Cir. 1975),
for the proposition that “[t]he question as to whether or not
the state is the real party in interest must be determined by the
essential nature and effect of the proceeding as it appears
from the entire record”).
We therefore examine “the essential nature and effect of
the proceeding as it appears from the entire record,” Lucent,
642 F.3d at 740, and conclude that Nevada—not the individ-
ual consumers—is the real party in interest in this contro-
versy. Nevada brought this suit pursuant to its statutory
authority under the DTPA because of its interest in protecting
the integrity of mortgage loan servicing. Unlike in Caldwell,
there is no doubt that the Attorney General has statutory
authority to pursue such claims. Foreclosures work a wide-
spread and devastating injury not only to those borrowers who
are defrauded, but also on other Nevada residents and the
Nevada economy as a whole. Nevada has been particularly
hard-hit by the current mortgage crisis, and has a specific,
concrete interest in eliminating any deceptive practices that
may have contributed to its cause. Cf. Lucent, 642 F.3d at 738(state’s interest too “general” to render it a party in interest).
The Center for Responsible Lending estimates that from 2009
to 2012, foreclosures on neighboring homes will result in lost
home equity in nearly one million homes across Nevada,
amounting to total lost home equity of $54.5 billion.3 The city
of Las Vegas has the second highest foreclosure rate in the
nation.4 Considering the devastating effect of the foreclosure
3
Ctr. for Responsible Lending, The Cost of Bad Lending in Nevada
(Aug. 2011), available at www.responsiblelending.org/mortgage-
lending/tools-resources/factsheets/nevada.html.
4
Debbie Bocian, et al., Lost Ground 2011: Disparities in Mortgage
Lending and Foreclosures at Appendix 2 (Nov. 2011), available at
www.responsiblelending.org/mortgage-lending/research-analysis/lost-
ground-2011.html.
STATE OF NEVADA v. BANK OF AMERICA 2737
crisis on Nevada, it is unsurprising that the Attorney General
would exercise her statutory right to “bring an action in the
name of the State of Nevada” against any person whom she
“has reason to believe . . . has engaged or is engaging in a
deceptive trade practice” related to mortgage-financing. Nev.
Rev. Stat. § 598.0963(3).
[9] Nevada’s sovereign interest in protecting its citizens
and economy from deceptive mortgage practices is not dimin-
ished merely because it has tacked on a claim for restitution.
See, e.g., Madigan, 665 F.3d at 773-74 (parens patriae suit
not removable under CAFA despite claim for treble damages
on behalf of harmed residents). In Chimei, although we did
not reach the issue of whether a claim for restitution in a con-
sumer protection action rendered the consumers the real par-
ties in interest, the district court had concluded that “the
States of California and Washington are the real parties in
interest because both States have a sovereign interest in the
enforcement of their consumer protection and antitrust laws
. . . [and] in securing an honest marketplace and the economic
well-being of their citizens.” In re TFT-LCD (Flat Panel)
Antitrust Litig., 2011 WL 560593, at *5 (N.D. Cal. Feb. 15,
2011). Here, as in Chimei, the restitution that Nevada seeks,
“while on behalf of its consumers, would first be paid to the
State and distributed on an equitable basis.” Id. That individ-
ual consumers may also benefit from this lawsuit does not
“negate [Nevada’s] substantial interest[ ] in [this] case[ ].” Id.See also City & Cnty. of San Francisco v. PG & E Corp., 433
F.3d 1115, 1126 (9th Cir. 2006) (“In this case, as in every
case involving restitution, a successful result for the govern-
mental entities may well result in money being paid to private
parties . . . . However, the . . . restitution claims filed by the
governmental entities in this case are fundamentally law
enforcement actions designed to protect the public.”) Simi-
larly, any award of restitution damages here would be paid
directly to Nevada and then distributed to individual consum-
ers. See Nev. Rev. Stat. § 598.0975(3)(b).
2738 STATE OF NEVADA v. BANK OF AMERICA
In a virtually identical action brought by the Arizona Attor-
ney General against Bank of America, the District Court of
Arizona also reasoned that the fact “[t]hat some private par-
ties may receive restitution does not negate the State’s sub-
stantial interest or render the entire action removable.”
Arizona ex rel. Horne v. Countrywide Fin. Corp., No. CV-11-
00131-FJM, 2011 WL 995963, at *3 (D. Ariz. Mar. 21,
2011). As in the Arizona case, the State of Nevada is the real
party in interest because of its “interest in ‘protecting the
integrity of the residential mortgage loan business’ and pre-
venting consumer fraud in loan modifications and foreclo-
sures.” Id. Moreover, “the State has an interest in the
enforcement of its own state court judgment and its consumer
fraud laws.” Id.The state’s strong and distinct interest in this litigation is
further strengthened by the other forms of relief it seeks.
Unlike in Lucent, where the interests that were unique to
DFEH’s lawsuit were “tangential,” here Nevada seeks sub-
stantial relief that is available to it alone. First, it seeks
enforcement of the Consent Judgment, which explicitly dis-
claims a private right of action. Second, it seeks civil penalties
under the DTPA, which are not available to individual con-
sumers. See Nev. Rev. Stat. § 598.0999(2). Third, it seeks
injunctive relief, with respect to which the State faces a much
lower standard of proof than would be required for a lawsuit
brought by individual consumers. Under Nevada law, “[t]o
obtain injunctive relief in a statutory enforcement action
[alleging a deceptive trade practice], a state or government
agency need only show . . . a reasonable likelihood that the
statute was violated.” Nevada ex rel. Office of the Att’y Gen.
v. NOS Commc’ns, Inc., 84 P.3d 1052, 1055 (Nev. 2004). A
private party, on the other hand, would be required to satisfy
the higher burden of demonstrating irreparable harm and an
inadequate legal remedy. Id. at 1054. Fourth, Nevada seeks to
recoup the costs of its substantial investigation into Bank of
America’s practices.
STATE OF NEVADA v. BANK OF AMERICA 2739
[10] The Complaint, read as a whole, demonstrates that
Nevada is the real party in interest in this action. Therefore,
neither CAFA’s minimal diversity requirement, 28 U.S.C.
§ 1332(d)(2)(A), nor its numerosity requirement, 28 U.S.C.
§ 1332(d)(11)(B)(i), is satisfied. The State of Nevada is the
real party in interest, so the action falls 99 persons short of a
“mass action.”5
IV.
As an alternative basis for its exercise of jurisdiction over
this action, the district court held that it had federal question
jurisdiction because resolution of the State’s claims “neces-
sarily requires the construction of federal law.” Although the
Complaint alleges purely state law claims, the district court
concluded that it would be required to construe HAMP to
determine whether Bank of America misrepresented what the
HAMP program permits or requires. Bank of America con-
tends that our interlocutory appellate jurisdiction does not
extend to review of this jurisdictional basis. We disagree, and
conclude that the district court lacks federal question jurisdic-
tion over this action.
A.
Under CAFA, “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
more than 10 days after entry of the order.” 28 U.S.C.
§ 1453(c)(1). Section 1453(c) modifies 28 U.S.C. § 1447(d),
5
Because we conclude that this case is not a mass action, we need not
decide whether it falls under the “general public” exception to mass action
jurisdiction. See 28 U.S.C. § 1332(d)(11)(B)(ii)(III) (providing that the
term “mass action” does not include any action in which “all of the claims
in the action are asserted on behalf of the general public (and not on behalf
of individual claimants or members of a purported class) pursuant to a
State statute specifically authorizing such action”).
2740 STATE OF NEVADA v. BANK OF AMERICA
which sets forth the general rule that “[a]n order remanding
a case to the State court from which it was removed is not
reviewable on appeal or otherwise.” Bank of America con-
tends that § 1453(c)(1) confers appellate jurisdiction limited
to the CAFA issues in the district court’s order, and that
Nevada’s failure to also seek certification under 28 U.S.C.
§ 1292(b) of the district court’s decision that it has federal
question jurisdiction precludes appellate review.
[11] We have not previously addressed whether we pos-
sess appellate jurisdiction over a non-CAFA issue decided in
an order appealable under § 1453(c)(1), although the question
seems straightforward. The plain language of § 1453(c)(1)
confers jurisdiction over “an order of a district court granting
or denying a motion to remand a class action.” 28 U.S.C.
§ 1453(c)(1). The Tenth Circuit recently “concluded that it
was ‘free to consider any potential error in the district court’s
decision, not just a mistake in application of the Class Action
Fairness Act.’ ” Coffey v. Freeport McMoran Copper & Gold,
581 F.3d 1240, 1247 (10th Cir. 2009) (quoting Brill v. Coun-
trywide Home Loans, Inc., 427 F.3d 446, 451-52 (7th Cir.
2005)). We are also guided by the Supreme Court’s conclu-
sion that an appellate court’s interlocutory jurisdiction under
28 U.S.C. § 1292(b) permits it to “address any issue fairly
included within the certified order because it is the order that
is appealable, and not the controlling question identified by
the district court.” Yamaha Motor Corp. v. Calhoun, 516 U.S.
199, 205 (1996). Moreover, it is well established that “a court
may raise the question of subject matter jurisdiction, sua
sponte, at any time during the pendency of the action, even on
appeal.” Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir.
2002).
Bank of America’s reliance on Anderson v. Bayer Corp.,
610 F.3d 390 (7th Cir. 2010), and Patterson v. Dean Morris,
L.L.P., 448 F.3d 736 (5th Cir. 2006), is misplaced. In each of
those appeals, the circuit courts reviewed orders by the district
courts that had remanded to state court cases removed under
STATE OF NEVADA v. BANK OF AMERICA 2741
CAFA for failure to satisfy CAFA’s removal requirements.
On appeal, the Fifth and Seventh Circuits affirmed the district
courts’ remand orders, and determined that they lacked juris-
diction to consider other jurisdictional bases for removal to
federal court because orders granting remand are generally
non-reviewable under 28 U.S.C. § 1447(d). See Anderson,
610 F.3d at 394; Patterson, 448 F.3d at 742. Each circuit
decision reasoned that it would be statutorily prohibited from
reviewing the non-CAFA issue if that had been the district
court’s sole basis for remand. See Anderson, 610 F.3d at 394(“Typically, federal courts of appeal are barred from review-
ing district court orders remanding removed cases to state
court.”); Patterson, 448 F.3d at 742 (after concluding that
CAFA is inapplicable, “[a]ll that remains is an order equitably
remanding these actions under § 1452(b), which we cannot
reach without contravening a plain statutory command”).
Conversely, here, we review an order denying remand on both
CAFA and federal question grounds. There is no equivalent
statutory constraint on our power to exercise appellate juris-
diction over an order denying remand. See, e.g., Sheeran v.
Gen. Elec. Co., 593 F.2d 93, 97 (9th Cir. 1979).
[12] We therefore conclude that because § 1453(c)(1) per-
mits appellate review of remand orders “notwithstanding sec-
tion 1447(d),” we have the discretion to entertain the issue of
whether another basis for federal jurisdiction exists that would
justify the district court’s denial of Nevada’s motion. Given
the well-established principle that we may affirm the district
court’s order on any ground fairly presented in the record,
Van Asdale v. Int’l Game Tech., 577 F.3d 989, 994 (9th Cir.
2009), we exercise our discretion to consider whether the dis-
trict court correctly concluded that it had federal question
jurisdiction. See Coffey, 581 F.3d at 1247 (“There is no lan-
guage [in § 1453(c)(1)] limiting the court’s consideration
solely to the CAFA issues in the remand order.”).
We reject Bank of America’s suggestion that, in these cir-
cumstances, Nevada could only obtain interlocutory review of
2742 STATE OF NEVADA v. BANK OF AMERICA
the issue of federal question jurisdiction through the certifica-
tion process as both impractical and contrary to the purposes
of CAFA. As the legislative history of CAFA demonstrates,
the purpose of § 1453(c) “ ‘is to develop a body of appellate
law interpreting [CAFA] without unduly delaying the litiga-
tion of class actions.’ ” Coffey, 581 F.3d at 1247 (quoting S.
Rep. No. 109-14, at 49, reprinted in 2005 U.S.C.C.A.N. at 46)
(alterations in original). To secure expedited review,
§ 1453(c)(2) requires that once the appellate court accepts the
appeal of the order, it “shall complete all action on such
appeal, including rendering judgment, not later than 60 days
after the date on which such appeal was filed . . . .” Section
1292(b) does not contain a similar time constraint for review.
Requiring compliance with the certification process for
review of an independent basis for the district court’s exercise
of jurisdiction could delay the litigation indefinitely, thus
undermining the very purpose of CAFA. While the CAFA
issues would be resolved within 60 days, the district court and
the parties would remain in the dark as to whether they should
proceed in state or federal court. In enacting CAFA, Congress
could not have intended such an absurd result.
B.
Declining to exercise our discretion to determine whether
the district court has federal question jurisdiction under 28
U.S.C. § 1331 over this case would result in wasted judicial
resources where, as here, we conclude that there is no federal
question jurisdiction.
[13] The Supreme Court has never stated a “single, pre-
cise, all-embracing test for jurisdiction over federal issues
embedded in state-law claims between nondiverse parties.”
Grable & Sons Metal Prods. v. Darue Eng’g & Mfg., 545
U.S. 308, 314 (2005) (internal quotation marks and citation
omitted). A state cause of action invokes federal question
jurisdiction only if it “necessarily raise[s] a stated federal
issue, actually disputed and substantial, which a federal forum
STATE OF NEVADA v. BANK OF AMERICA 2743
may entertain without disturbing any congressionally
approved balance of federal and state judicial responsibili-
ties.” Id. This type of federal question jurisdiction applies to
a “special and small category” of cases, into which this case
does not fall. Empire Healthchoice Assurance v. McVeigh,
547 U.S. 677, 699 (2006).
[14] Here, the Complaint raises exclusively state law
claims. Nevada alleges that Bank of America violated the
DTPA and the Consent Judgment. The Complaint does allege
misrepresentations about the federal HAMP program and vio-
lations of the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq. Specifically, the Complaint alleges
that Bank of America “[m]isrepresent[ed] to consumers that
they must be delinquent on their loans in order to qualify for
assistance, even though neither Bank of America’s proprietary
programs nor the federal HAMP program requires that home-
owners have missed payments.” The Complaint also alleges
that Bank of America’s misrepresentations to credit agencies
concerning consumers’ credit history “violate the Fair Debt
Collection Practices Act, 15 U.S.C. §§ 1692e(2)(A) & (8),
and, as a result, the Nevada Deceptive Trade Practices Act.”
[15] By so alleging, Nevada does not “necessarily raise a
. . . substantial” issue of federal law. Grable, 545 U.S. at 314.
The “mere presence of a federal issue in a state cause of
action does not automatically confer federal-question jurisdic-
tion.” Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804,
813 (1986). The federal issues here are not “pivotal” to
Nevada’s case. Lippitt v. Raymond James Fin. Servs. Inc., 340
F.3d 1033, 1046 (9th Cir. 2003). The gravamen of the Com-
plaint is that Bank of America violated Nevada’s DTPA
through numerous misrepresentations, some about the HAMP
program, and some which also violate the FDCPA. For exam-
ple, Nevada alleges that Bank of America violated the DTPA
by: “promising to act upon requests for mortgage modifica-
tions within a specific period of time” and then failing to do
so; giving consumers “false assurances that their homes
2744 STATE OF NEVADA v. BANK OF AMERICA
would not be foreclosed while their requests for modifications
were pending”; providing “inaccurate and deceptive reasons
for denying . . . requests for modifications”; and “misrepre-
senting that consumers [had] been approved for modifica-
tions.” “When a claim can be supported by alternative and
independent theories—one of which is a state law theory and
one of which is a federal law theory—federal question juris-
diction does not attach because federal law is not a necessary
element of the claim.” Rains v. Criterion Sys., Inc., 80 F.3d
339, 346 (9th Cir. 1996).
Nor does the Complaint’s reference to the FDCPA neces-
sarily raise a substantial issue of federal law. The Nevada
DTPA includes a “borrowing” provision, making it a viola-
tion of the DTPA to “[v]iolate[ ] a state or federal statute or
regulation relating to the sale or lease of goods or services.”
Nev. Rev. Stat. § 598.0923(3). California’s Unfair Competi-
tion Law (“UCL”), Cal. Bus. & Prof. Code § 17200, contains
a similar “borrowing” provision, and “California district
courts have held that mere references to federal law in UCL
claims do not convert the claim into a federal cause of
action.” Guerra v. Carrington Mortg. Servs. LLC, 2010 WL
2630278, at *2 (C.D. Cal. June 29, 2010) (citations omitted);
see also Garduno v. Nat’l Bank of Ariz., 738 F. Supp. 2d
1004, 1009 (D. Ariz. 2010). Bank of America concedes that
the mere use of a federal statute as a predicate for a state law
cause of action does not necessarily transform that cause of
action into a federal claim, but asserts that this case is an
exception to the general rule because it poses substantial
questions about the scope and applicability of the
FDCPA—specifically, whether the FDCPA applies at all to
mortgage loan servicers. However, the Supreme Court has
cautioned against finding federal question jurisdiction on the
ground that a case presents a novel issue of federal law: “We
do not believe the question whether a particular claim arises
under federal law depends on the novelty of the federal
issue.” Merrell Dow, 478 U.S. at 817. Therefore, Nevada’s
STATE OF NEVADA v. BANK OF AMERICA 2745
glancing reference to federal law is insufficient to confer fed-
eral jurisdiction over Nevada’s state law claims.
Even where a state law claim does necessarily turn on a
substantial and disputed question of federal law, removal is
subject to a “possible veto” where exercising federal jurisdic-
tion is not “consistent with congressional judgment about the
sound division of labor between state and federal courts gov-
erning the application of § 1331.” Grable, 545 U.S. at 313.
The exercise of federal jurisdiction must not “disturb[ ] any
congressionally approved balance of federal and state judicial
responsibilities.” Id. at 314. The Supreme Court has instructed
federal courts to approach 28 U.S.C. § 1331 “ ‘with an eye to
practicality and necessity.’ ” Merrell Dow, 478 U.S. at 810(quoting Franchise Tax Bd. v. Constr. Laborers Vacation
Trust, 463 U.S. 1, 20 (1983)). The Court has “consistently
emphasized that, in exploring the outer reaches of § 1331,
determinations about federal jurisdiction require sensitive
judgments about congressional intent, judicial power, and the
federal system.” Id.
Here, unlike in Grable, exercising federal question jurisdic-
tion would have more than a “microscopic effect on the
federal-state division of labor.” Grable, 545 U.S. at 315. State
courts frequently handle state-law consumer protection suits
that refer to or are predicated on standards set forth in federal
statutes. Exercising federal question jurisdiction over any
state law claim that references a federal consumer protection
statute would “herald[ ] a potentially enormous shift of tradi-
tionally state cases into federal courts.” Id. at 319.
[16] The Nevada Attorney General brought this parens
patriae action in state court to enforce its own state consumer
protection laws. Nevada alleges only state law causes of
action, brought to protect Nevada residents. Under these cir-
cumstances, the “claim of sovereign protection from removal
arises in its most powerful form.” McGraw, 646 F.3d at 178(internal quotation marks omitted). “[C]onsiderations of com-
2746 STATE OF NEVADA v. BANK OF AMERICA
ity make [federal courts] reluctant to snatch cases which a
State has brought from the courts of that State, unless some
clear rule demands it.” Franchise Tax Bd., 463 U.S. at 21
n.22. Removing a state’s action from its own courts must
“serve[ ] an overriding federal interest.” McGraw, 646 F.3d at
178. Bank of America has not demonstrated that any “clear
rule demands” removal, nor that removal “serves an overrid-
ing federal interest.” Therefore, Nevada’s strong sovereign
interest in enforcing its state laws—and its state-law-created
Consent Judgment—in the courts of its own state weighs in
favor of remand to its state court system.
V.
[17] For the foregoing reasons, we reverse the district
court’s order denying Nevada’s motion to remand. The dis-
trict court is instructed to remand this case to the Eighth Judi-
cial District Court in Clark County, Nevada.
REVERSED.