April 20, 2007
1447(d) after Osborn v. Haley
Today, in Jaskolski, the Seventh Circuit distinguished the Supreme Court's recent decision in Osborn v. Haley and dismissed an appeal from a Westfall-Act-related remand order under 1447(d). In Osborn, The Supreme Court held that in removed cases, once the Attorney General issues a scope-of-employment certification, a district court has no authority to remand the case, even if it rejects the certification. And such a remand is reviewable on appeal because the Westfall Act creates an exception to 1447(d) when the AG issues the certification. Jaskolski was also a state-court suit, but the AG refused to certify that defendants were acting in the scope of employment. Rather than certifying and removing, the AG refused to certify and removed under 28 U.S.C. s2679(d)(3) to allow the district court to review the refusal to certify. The district court agreed with the AG, remanded the case, and the defendants appealed. Writing for the court, Judge Easterbrook distinguished Osborn and wrote:
[Osborn drew a] distinction between removed cases in which the Attorney General issues a scope-of-employment certification and those in which he does not” In the former situation, §2679(d)(2) supersedes §1447(d) because the district court has no authority to remand, no matter what the judge thinks about the propriety of the certification. In the latter, remand follows from the decision that the person seeking certification is not entitled to it. The district judge’s authority to review the Attorney General’s non-certification decision under §2679(d)(3) includes authority (indeed, an obligation) to remand. The Court wrapped up: “Only in the extraordinary case in which Congress has ordered the intercourt shuttle to travel just one way—from state to federal court—does today’s decision [limiting the scope of §1447(d)] hold sway.”
When the Attorney General declines to make a scope-of-federal-employment certification, the case properly may move in both directions: to federal court for review of the decision, then back to state court if the district judge finds that the Attorney General acted within his discretion. The “extraordinary case” of a statute forbidding remand does not obtain. -RR
April 19, 2007
The Thursday Interview
Click the link at the bottom of this post to listen to this week's installment of the Thursday Interview. This weeks interview is with Prof. Jean Sternlight of the University of Nevada-Las Vegas about her essay, Separate and Not Equal: Integrating Civil Procedure and ADR in Legal Academia, published in the Notre Dame Law Review. In the age of the "vanishing trial," I think this interview and Jean's essay need the attention of all CivPro Profs. Many thanks to Jean for a great interview.
April 18, 2007
CAFA Requires "Interpretational Heavy-Lifting"
Last week, in Lowery v. Alabama Power Co., the Eleventh Circuit confronted a "matter of first impression" when it interpreted CAFA's mass action provisions. The court identified four requirements for an action to be deemed a mass action under CAFA:
(1) an amount in controversy requirement of an aggregate of $5,000,000 in claims; (2) a diversity requirement of minimal diversity; (3) a numerosity requirement that the action involve the monetary claims of 100 or more plaintiffs; and (4) a commonality requirement that the plaintiffs' claims involve common questions of law or fact.
In addition to setting out these four threshold requirements, the court also did some "interpretational heavy-lifting" when it addressed section 1332(d)(11)(B)(i), which provides, in pertinent part, that "jurisdiction shall exist only over those plaintiffs whose claims in a mass action satisfy the jurisdictional amount requirements under subsection (a)." Section 1332(a) requires the amount in controversy to exceed $75 thousand. The Plaintiffs argued that, if any plaintiff's claim falls below the jurisdictional amount, the district court does not have subject matter jurisdiction over the case. The Defendants argued that the court need only remand those plaintiffs claims that fall below the jurisdictional amount.
The Eleventh Circuit sided with the Defendants' basic appraoch, but what should a district court do if the aggregate $5 million amount in controversy requirement or the 100 plaintiff numerosity requirement is no longer met after remanding those plaintiffs' claims who fall below the jurisdictional amount? The Eleventh Circuit followed the the Senate Judiciary Committee Report, which states:
If a mass action satisfies the criteria set forth in the section (that is, it involves the monetary relief claims of 100 or more persons that are proposed to be tried jointly on the ground that the claims involve common questions of law or fact and it meets the tests for federal diversity jurisdiction otherwise established by the legislation), it may be removed to a federal court, which is authorized to exercise jurisdiction over the action. Under the proviso, however, it is the Committee's intent that any claims that are included in the mass action that standing alone do not satisfy the jurisdictional amount requirements of section 1332(a) (currently $75,000), would be remanded to state court. Subsequent remands of individual claims not meeting the section 1332 jurisdictional amount requirement may take the action below the 100- plaintiff jurisdictional threshold or the $5 million aggregated jurisdictional amount requirement. However, so long as the mass action met the various jurisdictional requirements at the time of removal, it is the Committee's view that those subsequent remands should not extinguish federal diversity jurisdictional over the action.
The Court also decided that, where a defendant removes a case to federal district court under CAFA, the burden is on the defendant to establish jurisdiction. The court also determined that the defendant must establish jurisdiction by a preponderance of the evidence but did not seem happy about its decision.
We are bound to adhere to circuit precedent. Defendants must establish the jurisdictional amount by a preponderance of the evidence. We note, however, that in situations like the present one--where damages are unspecified and only the bare pleadings are available--we are at a loss as to how to apply the preponderance burden meaningfully. We have no evidence before us by which to make any informed assessment of the amount in controversy. All we have are the representations relating to jurisdiction in the notice of removal and the allegations of the plaintiffs' third amended complaint. As such, any attempt to engage in a preponderance of the evidence assessment at this juncture would necessarily amount to unabashed guesswork, and such speculation is frowned upon . . .
we conclude that the removal-remand scheme set forth in 28 U.S.C. §§ 1446(b) and 1447(c) requires that a court review the propriety of removal on the basis of the removing documents. If the jurisdictional amount is either stated clearly on the face of the documents before the court, or readily deducible from them, then the court has jurisdiction. If not, the court must remand. Under this approach, jurisdiction is either evident from the removing documents or remand is appropriate. Significantly, if a defendant can only carry the burden of establishing jurisdiction under these circumstances, then the defendant could have satisfied a far higher burden than preponderance of the evidence. Regardless, our precedent compels us to continue forcing this square peg into a round hole.
Despite the length of this post, I'm hardly scratching the surface of this opinion. I think CAFA is going to require a lot of posts for many years. I can't decide if I'm happy about that fact.
April 17, 2007
On September 7, Charleston School of Law will host a one-day symposium entitled "Punitive Damages, Due Process, and Deterrence: The Debate After Williams." The symposium will focus on the impact of the Supreme Court's decision in Philip Morris USA v. Williams and will include a distinguished list of speakers and panelists. Click the link at the bottom of this post for a copy of the program and a list of confirmed speakers and panelists. For even more information, you can contact Sheila B. Scheuerman, the conference organizer.
April 16, 2007
Our own Court of Appeals
Last week was the first ever hearing of the Baylor Court of Appeals. Given the feedback from the lawyers and students involved, it won't be the last. This court had the typical players flipped. Instead of students arguing a mock case from a mock record with guest judges, the students were the ones in robes. The advocates were two local lawyers, one of whom is scheduled to argue this case before an appeals court soon. The other was a colleague who agreed to prepare the other side. The idea was to provide a testing ground to the lawyers that would simulate an important audience at the court of appeals and to expose the students to a real-life appeal, filled with procedural complexities and an obnoxiously voluminous record.
I drafted 6 students to handle the case. They were divided into 3 teams of 2, each team comprising one judge and one clerk. I selected 6 students who very closely resembled (in terms of aptitude and experience) the first people who will read the briefs in the appellate court: the clerks. The lawyers provided each team with a binder that contained the appellate briefing, the trial-court order, the excerpts of the record, and a CD with the rest of the record. Each team was instructed not to discuss the case with any other team, thus ensuring the panel would come to argument with different views of what is significant. I had an assistant who arranged for robes for the judges, videotaping, and other details. The lawyers brought a court reporter, and we recorded the argument.
The students dove in, and the results and educational experience were outstanding. The students learned, not only how to sort through the procedural and factual complexities, but also about the importance of making a record in the trial court. Also, lights continued to go one regarding what truly is persuasive to a decision-maker, since now they saw things from the other side. The lawyers raved about the preparation and insight. I will not hesitate to do it again if the opportunity arises. Of course the success depends upon talented and motivated students; but that's never lacking around here. Please do share any thoughts about similar experiences or ideas to improve the process we followed. --RR