444 F.3d 697 (5th Cir. 2006), 06-00009, Wallace v. Louisiana Citizens Property Ins. Corp.

Docket Nº:06-00009.
Citation:444 F.3d 697
Party Name:James WALLACE; Rebecca Wallace; Sandra Quillin; Dellarene Hodges; Raphael Orgeron; Dianne Orgeron; Individually & On Behalf of All Others Similarly Situated, Plaintiffs-Respondents, v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION; et al., Defendants, Louisiana Citizens Property Insurance Corporation; ANPAC Louisiana Insurance Company; Louisian
Case Date:March 31, 2006
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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444 F.3d 697 (5th Cir. 2006)

James WALLACE; Rebecca Wallace; Sandra Quillin; Dellarene Hodges; Raphael Orgeron; Dianne Orgeron; Individually & On Behalf of All Others Similarly Situated, Plaintiffs-Respondents,

v.

LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION; et al., Defendants,

Louisiana Citizens Property Insurance Corporation; ANPAC Louisiana Insurance Company; Louisiana Farm Bureau Casualty Insurance Co.; Louisiana Farm Bureau Mutual Insurance Co., Defendants-Petitioners.

No. 06-00009.

United States Court of Appeals, Fifth Circuit.

March 31, 2006

Page 698

Allan B. Berger, Allan Berger & Associates, Randy Jay Ungar, Ungar & Byrne, Bruce L. Feingerts, Feingerts & Kelly, Patrick G. Kehoe, Jr., New Orleans, LA, Philip Francis Cossich, Jr., Cossich, Sumich & Parsiola, Belle Chasse, LA, Terrence J. Lestelle, Andrea S. Lestelle, Lestelle & Lestelle, William Peter Connick, Sr., Connick & Connick, Metairie, LA, J. Van Robichaux, Jr., Covington, LA, for Plaintiffs-Respondents.

Randall L. Kleinman, Roger Douglas Marlow, Hulse & Wanek, New Orleans, LA, for ANPAC Louisiana Ins. Co.

Harry Alston Johnson, III, Phelps Dunbar, Baton Rouge, LA, Andrew L. Plauche, Jr., Plauche, Maselli, Landry & Parkerson, New Orleans, LA, for Louisiana Farm Bureau Cas. Ins. Co. and Louisiana Farm Bureau Mut. Ins. Co.

John W. Waters, Jr., Bienvenu, Foster, Ryan & O'Bannon, New Orleans, LA, for Louisiana Citizens Property Ins. Corp.

Petition for Leave to Appeal Under 28 U.S.C. § 1453(c).

Before SMITH, GARZA and PRADO, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Louisiana Farm Bureau Mutual Insurance Company, Louisiana Farm Bureau Casualty Insurance Company ("Farm Bureau"), Louisiana Citizens Property Insurance Corporation ("LCPIC"), and ANPAC Louisiana Insurance Company ("ANPAC") (collectively "Petitioners") petition for this court to accept their appeal under 28 U.S.C. § 1453(c)(1), contending that the district court erred in remanding the underlying case to state court, because it was properly removed to federal district court under 28 U.S.C. § 1441(e)(1)(B). 1

I

The Insurers listed above are defendants in the action below ("the Wallace

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action"), a class action brought in Louisiana State court by individuals ("Plaintiffs") who incurred flood damage due to Hurricane Katrina. Farm Bureau (on behalf of themselves and the other defendants) removed to the United States District Court for the Eastern District of Louisiana, asserting that subject matter jurisdiction over the case existed under § 1441(e)(1)(B). This section, part of the Multiparty, Multiforum Trial Jurisdiction Act ("MMTJA"), provides, in part:

[A] defendant in a civil action in a State court may remove the action to the district court ... if ... the defendant is a party to an action which is or could have been brought ... under section 1369 in a United States district court and arises from the same accident as the action in State court, even if the action to be removed could not have been brought in a district court as an original matter.

28 U.S.C. § 1441(e)(1)(B). Petitioners contend that they meet the requirements of § 1441(e)(1)(B) because they are parties to a separate class action based on 28 U.S.C. § 1369 ("the Chehardy action") which arises from the same accident (Hurricane Katrina) as the instant case. 2 Specifically, Petitioners are defendants in a currently-pending class action suit in the United States District Court for the Middle District of Louisiana, Chehardy, et al. v. Louisiana Ins. Comm., et al. In the Wallace action, they aver that because the District Court for the Middle District may exercise subject matter jurisdiction under 28 U.S.C. § 1369(a) over the Chehardy suit, a case that also deals with insurance claims flowing from Hurricane Katrina, the District Court for the Eastern District may exercise supplemental subject matter jurisdiction over the Wallace suit under § 1441(e)(1)(B).

The district court remanded to state court, reasoning that the mandatory abstention provisions of § 1369(b) did not permit the suit to be heard in federal court. 3 Farm Bureau now ask this court to accept consideration of their appeal, arguing on the merits that the district court erred when it read § 1369(b)'s limitations into the removal statute of § 1441(e)(1)(B).

II

Generally, the power of the federal courts to review a remand order is limited. 28 U.S.C. 1447(d); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995). Petitioners argue, however, that we may hear the appeal under 28 U.S.C. § 1453(c)(1), part of the recently enacted Class Action Fairness Act ("CAFA"), which states:

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