Patterson v. Dean Morris, L.L.P., 06-30215.
| Decision Date | 22 March 2006 |
| Docket Number | No. 06-30215.,06-30215. |
| Parties | Mary PATTERSON; Brian Battiste; Thomas Thibodeaux; Alex Hartley; Edna B. Taylor; Edward Carter; Helen Carter; Demeturie Simmons; Melvin Franklin; Ronald Singleton; Helen Ratcliff; Willie Brown; Charles K. Battiste; Leonard Acklin; Jawana Acklin, Plaintiffs-Appellees, v. DEAN MORRIS, L.L.P., et al., Defendants, Dean Morris, L.L.P.; Leader Mortgage Company, L.L.C.; Long Beach Mortgage Company; Mortgage Electronics Registration Systems, Inc.; Countrywide Home Loans, Inc.; John C. Morris, III; George B. Dean, Jr.; Candice A. Courteau; Charles H. Heck, Jr.; Washington Mutual Bank; Chase Home Finance, L.L.C. as Successor by Merger to Chase Manhattan Mortgage Corporation; National City Bank, as Successor by Merger to the Provident Bank; U.S. Bank, National Association, Defendants-Appellants. Robert Bauer; Salome Lucineo Boyd; Jim T. Bright; Debra Bright; Lionell J. Coleman; Lynn L. Coleman; Keenan Duckworth; Karen Duckworth; Mercedes Dutton; Matthew David Dyer; Terry Hardy, Sr.; Terese LaBeaud; Alton Pierce; Willie Lee Rauls; Rosalyn Veleary-Dodge, Plaintiffs-Appellees, v. Dean Morris L.L.P., et al., Defendants, Dean MORRIS, L.L.P.; Washington Mutual Bank; Mortgage Electronics Registration Systems, Inc.; Countrywide Home Loans, Inc.; Bank One Corporation; Ocwen Loan Servicing, L.L.C., Successor in Interest to Ocwen Federal Bank, F.S.B.; John C. Morris, III; George B. Dean, Jr.; Candice A. Courteau; Charles H. Heck, Jr.; Chase Home Finance, L.L.C., as Successor by Merger to Chase Manhattan Mortgage Corporation; Deutsche Bank Trust Company Americas, Defendants-Appellants. Mary Patterson; Larry Patterson; Brian Battiste; Debra Ellzey-Herron; Thomas Thibodeaux; Alex Hartley; Edna B. Taylor; Edward Carter; Helen Carter; Demeturie Simmons; Melvin Franklin; Ronald Singleton; Helen Ratcliff; Willie Brown; Charles K. Battiste; Leonard Acklin; Jawana Acklin, Plaintiffs-Appellees, v. Dean Morris, L.L.P., et al., Defendants, Dean Morris, L.L.P.; Leader Mortgage Company, L.L.C.; Long Beach Mortgage Company; Mortgage Electronics Registration Systems, Inc.; John C. Morris, III; George B. Dean, Jr.; Candice A. Corteau; Charles H. Heck, Jr.; U.S. Bank National Association; Defendants-Appellants. Mary Patterson; Larry Patterson; Brian Battiste; Debra Ellzey-Herron; Thomas Thibodeaux; Alex Hartley; Edna B. Taylor; Edward Carter; Helen Carter; Demeturie Simmons; Melvin Franklin; Ronald Singleton; Helen Ratcliff; Willie Brown; Charles K. Battiste; Leonard Acklin; Jawana Acklin, Plaintiffs-Appellees, v. Dean Morris, L.L.P., et al., Defendants, Dean Morris, L.L.P.; Leader Mortgage Company, L.L.C.; Long Beach Mortgage Company; Chase Home Finance, L.L.C., as Successor by Merger to Chase Manhattan Mortgage Corporation; Washington Mutual Bank; U.S. Bank, National Association; Mortgage Electronics Registration System, Inc.; Countrywide Home Loans, Inc.; John C. Morris, III; George B. Dean, Jr.; Candice A. Courteau; Charles H. Heck, Jr.; National City Bank, As Successor by Merger to the Provident Bank, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jennifer N. Willis, Cater & Willis, Gary J. Gambel, Murphy, Rogers & Sloss, Kyle D. Schonekas, Schonekas, Winsberg, Evans & McGoey, Michael E. Snow, David William Bernberg, New Orleans, LA, for Plaintiffs-Appellees.
Sidney A. Cotlar, Herman, Herman, Katz & Cotlar, Gustave A. Fritchie, III, Irwin, Fritchie, Urquhart & Moore, New Orleans, LA, for Defendants-Appellants.
John H. Beisner, O'Melveny & Myers, Washington, DC, Glenn Paul Orgeron, Kean, Miller, Hawthorne, D'Armond, McGowan & Jarman, New Orleans, LA, Elizabeth Lemond, O'Melveny & Myers, Newport Beach, CA, for Ocwen Loan Servicing LLC.
Walter Whitaker Rayner, Watkins, Ludlam, Winter & Stennis, Jackson, MS, Jeffrey A. Schwartz, Watkins, Ludlam, Winter & Stennis, New Orleans, LA, for Mortgage Electronic Registration Systems, Inc.
Russell W. Rudolph, Seale & Ross, Hammond, LA, Thomas M. Heffreon, Goodwin Procter, Washington, DC, for Long Beach Mortgage Co. and Washington Mut. Bank.
Gerard E. Wimberly, Jr., McGlinchey Stafford, New Orleans, LA, for Countrywide Home Loans, Inc. and Deutsche Bank Trust Co.
James A., Brown, Liskow & Lewis, New Orleans, LA, for Chase Home Finance, LLC and Bank One Corp.
Charles F. Gay, Jr., Adams & Reese, New Orleans, LA, Robert Bruce Allensworth, Kirkpatrick & Lockhart, Boston, MA, for National City Bank.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before SMITH, GARZA and PRADO, Circuit Judges.
This appeal come to us under the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. 109-2, 119 Stat. 4 (2005). We have motions to decide before briefing is completed on the merits. Because of CAFA's limitations on the period of time in which we must rule on the merits of the appeal, we need to determine whether that period begins with the filing of the petition for leave to appeal or, instead, with our order granting leave to appeal. We conclude that the time runs from the order.
CAFA includes special procedural provisions to exempt certain class actions from 28 U.S.C. § 1447(d), which generally prohibits appellate review of orders of remand. A new section of the Judicial Code, id. § 1453, entitled "Removal of Class Actions," establishes limited appellate review of orders granting or denying remand in class actions, as follows:
(1) In general. — Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), 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.
(2) Time period for judgment. — If the court of appeals accepts an appeal under paragraph (1), the court shall complete all action on such appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed, unless an extension is granted under paragraph (3).
(3) Extension of time period. — The court of appeals may grant an extension of the 60-day period described in paragraph (2) if —
(A) all parties to the proceeding agree to such extension, for any period of time; or
(B) such extension is for good cause shown and in the interests of justice, for a period not to exceed 10 days.
(4) Denial of appeal. — If a final judgment on the appeal under paragraph (1) is not issued before the end of the period described in paragraph (2), including any extension under paragraph (3), the appeal shall be denied.
The district court actions in which we have this consolidated appeal were filed in state court and were removed to federal court on the jurisdictional basis of CAFA and federal bankruptcy jurisdiction. On January 25, 2006, the district court entered an order of remand. On February 3, some of the defendants (hereinafter "appellants") filed in this court a petition for permission to appeal the remand order.1
On March 6, this panel granted leave to appeal. On March 7, the clerk of court issued an expedited briefing schedule.2 Appellants have filed a motion based on the following statement: "It is possible that some may assert that the 60-day period will expire prior to the expiration of the current briefing schedule; therefore, appellants seek an emergency order clarifying the time of the `filing' of the appeal and granting an extension of time as allowed by [CAFA]."3 The appellees have refused to agree to an extension as would be permitted by § 1453(c)(3)(A).
II.
The plain language of § 1453(c)(1) and (2) is that a court of appeals has the option to "accept" an appeal that is sought under CAFA from an order granting or denying a motion to remand to state court. Naturally this indicates the appeal is discretionary with the court of appeals, which may reject it by denying the petition for permission to appeal, in which case there is (and never was) an appeal in the usual sense.
By this easy reading, a requested appeal under CAFA is subject to Federal Rule of Appellate Procedure 5, which governs (and is entitled) "Appeal by Permission." Importantly, rule 5(d)(2) says that
This subsection leads us to the conclusion that it is the order granting leave to appeal that triggers the sixty-day period for a court of appeals to enter judgment. That is the result reached in a recent, careful opinion, on which the dissent also relies, in Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435 F.3d 1140 (9th Cir.2006). That court persuasively concluded that "in enacting § 1453(c)(1) Congress intended to mirror the procedures for taking an appeal pursuant to [28 U.S.C.] § 1292(b)." Id. at 1145. As that court reasoned, it follows that "a party seeking to appeal under § 1453(c)(1) must comply with the requirements of [rule] 5." Id.
By reference to § 1292(b) and rule 5, the Ninth Circuit observed that "Congress chose in the language of the statute to require the filing of an `application,' the same word used in § 1292(b), not a `notice of appeal.'" Id. The distinction is important: When a party files a notice of appeal, there is, at that very point in time, an appeal, albeit one that may later be subject to dismissal for jurisdictional or procedural insufficiency. Where, however, a party "applies" for leave to appeal, or "seeks permission" to do so, there is logically no appeal until the court vested with the authority to grant or deny leave has done so.4
One objection the dissent raises to recognizing the order granting leave to appeal as the trigger for counting the sixty days is that by delaying a decision on...
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...1453(c)(1) Congress intended to mirror the procedures for taking an appeal pursuant to [28 U.S.C.] § 1292(b)." Patterson v. Dean Morris, L.L.P., 444 F.3d 365, 369 (5th Cir. 2006) (quoting Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1145 (9th......
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