College, Dent. Surg., P.R. v. Conn. Gen. Life Ins.

• Citation: 585 F.3d 33
• Decision Date: 22 October 2009
• Docket Number: No. 09-2201.,09-2201.
• Parties: COLLEGE OF DENTAL SURGEONS OF PUERTO RICO, Plaintiff, Appellee, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY and Metropolitan Life Insurance Company, Defendants, Appellants. Triple-S Management, Inc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

585 F.3d 33

COLLEGE OF DENTAL SURGEONS OF PUERTO RICO, Plaintiff, Appellee, v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY and Metropolitan Life Insurance Company, Defendants, Appellants Triple-S Management, Inc., et al., Defendants, Appellees.

No. 09-2201.

United States Court of Appeals, First Circuit.

Submitted September 1, 2009.

Decided October 22, 2009.

Charles P. Scheeler and DLA Piper LLP (US) on brief for defendant-appellant Connecticut General Life Insurance Company.

Frank Gotay-Barquet and Gotay & Perez, P.S.C. on brief for defendant-appellant Metropolitan Life Insurance Company.

Edna Hernández-Arroyo, María Luisa Martínez-López, and Ávila, Martínez & Hernández, P.S.C. on brief for plaintiff-appellee. Manuel A. Pietrantoni, César T. Alcover Acosta, Casellas Alcover & Burgos, P.S.C., Rafael Escalera Rodríguez, and Reichard & Escalera on brief for defendants-appellees Triple-S Management, Inc., Triple-S, Inc., Triple-C, Inc., La

Cruz Azul de Puerto Rico, Inc., and American Health, Inc.

José A. Acosta-Grubb, María L. Montalvo-Vera, José Luis Ramírez-Coll, and Fiddler Gonzáles & Rodríguez, P.S.C. on brief for defendant-appellee Delta Dental Plan of Puerto Rico, Inc.

German J. Brau and Usera Morell Bauzá Dapena & Cartagena on brief for defendants-appellees Preferred Medicare Choice, Inc., and MMM Health Care, Inc.

Luis Sánchez Betances, Adrián Sánchez Pagán, and Sánchez Betances, Sifre & Muñoz Noya, P.S.C. on brief for defendants-appellees MAPFRE Life Insurance Company and Mennonite General Hospital, Inc.

Carlos José Onetti Irizarry, Fermín M. Contreras Gómez, and Estuido Legal Fermín M. Contreras Gómez on brief for defendants-appellees Medical Card System, Inc., MCS Health Management Options, Inc., and MCS Advantage, Inc.

Before SELYA, BOUDIN and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The pivotal question in this appeal is whether removal jurisdiction under the Class Action Fairness Act (CAFA), Pub.L. No. 109-2, 119 Stat. 4 (2005), may attach even though the complaint does not specifically define a proposed class. The district court answered this question in the negative and remanded the case to the local court in which it had originated. Coll. of Dental Surgeons of P.R. v. Triple-S Mgmt., Inc., Civ. No. 09-1209, 2009 WL 1076308, at *2 (D.P.R. Apr. 21, 2009). On September 1, 2009, we granted an application for leave to pursue an interlocutory appeal from this ruling.

We now decide the appeal. After sketching the background facts and travel of the case, our response is in two main parts. First, we articulate the standards that apply in this circuit to guide the court of appeals in allowing or disallowing applications for leave to pursue discretionary appeals under CAFA. Second, we address the merits of the district court's order and conclude that the court acted prematurely in remanding the action. Consequently, we vacate the remand order and remit the case for further proceedings in the district court.

I. BACKGROUND

Because this litigation is in its infancy, we draw the facts from the complaint.

The College of Dental Surgeons of Puerto Rico (the College) is an entity created by the Puerto Rico legislature. See P.R. Laws Ann. tit. 20, §§ 111-123. With only minor exceptions, every dentist licensed to practice in Puerto Rico must belong. Id. § 114. The College has both the capacity to sue, id. § 112(a), and a statutory mandate to "protect" its members' interests as those interests relate to the practice of dentistry, id. § 112(h).

On February 11, 2009, the College sued twenty-five defendants (insurance companies, health maintenance organizations, and the like) in a Puerto Rico court. The complaint asserts a litany of claims on behalf of the College and its dentist-members. Among other things, the complaint alleges that the defendants engage in questionable and sometimes fraudulent practices anent contracting, claims processing, and the like, to the dentists' economic detriment.

The College's averments are divided into nine statements of claim, all arising under Puerto Rico law. Citing provisions of the Puerto Rico Rules of Civil Procedure, the complaint alleges that the pleaded facts qualify the case for treatment as a class action. In its concluding prayers, the complaint seeks a declaratory judgment, injunctive relief, and damages in excess of $150,000,000.

Two defendants, Connecticut General Life Insurance Company and Metropolitan Life Insurance Company, sought to shift the battleground by filing a timely notice of removal to the federal district court. The removing defendants (appellants here) predicated removal on CAFA, 28 U.S.C. §§ 1332(d), 1453(b).¹ CAFA does not require the consent of all defendants to remove a class action to federal court. See id. § 1453(b).

Several parties moved to remand, arguing that CAFA did not give the district court subject matter jurisdiction. After some procedural skirmishing, not pertinent here, the district court ordered briefing on the jurisdictional issue. The appellants claimed that CAFA jurisdiction attached because the complaint contains class-type allegations sufficient to come within CAFA's scope. The College and the objecting defendants (collectively, the appellees) demurred; they contended that the complaint does not fall within CAFA's scope. The College never argued, however, that its suit is other than a class action.

In due course, the district court granted the motions to remand, reasoning in a terse order that the complaint does not "sufficiently define[ ]" the contours and membership of the plaintiff class and, thus, the College "has not defined a class [within] Federal pleading requirements." Coll. of Dental Surgeons, 2009 WL 1076308, at *2. On that basis, the court found CAFA jurisdiction wanting, without reaching questions raised by the appellees about whether any of CAFA's specific jurisdictional exceptions applied.

CAFA affords an opportunity for immediate appeal of a remand order if the court of appeals, in its discretion, grants leave so to proceed. 28 U.S.C. § 1453(c)(1). The appellants sought such permission. The appellees objected.

On September 1, 2009, we granted the application in an unpublished order. The entry of such an order starts the accrual of a sixty-day period within which the court of appeals must decide the matter. See id. § 1453(c)(2); see also DiTolla v. Doral Dental IPA of N.Y., LLC, 469 F.3d 271, 275 (2d Cir.2006) (holding that the statutorily prescribed period runs from the date that the application for leave to appeal is granted); Hart v. FedEx Ground Package Sys., Inc., 457 F.3d 675, 678 (7th Cir.2006) (same); Evans v. Walter Indus., Inc., 449 F.3d 1159, 1162-63 (11th Cir.2006) (same); Patterson v. Dean Morris, L.L.P., 444 F.3d 365, 368 (5th Cir.2006) (same); Bush v. Cheaptickets, Inc., 425 F.3d 683, 685-86 (9th Cir.2005) (same).

II. ANALYSIS

We divide our analysis into two segments, beginning with our rationale for granting review and only then turning to the meat of the appeal.

A. Leave to Appeal.

Generally, post-removal procedures are dictated by the provisions of 28 U.S.C. § 1447. These procedures apply to CAFA cases, but with some modifications. Pertinently, while most remand orders are not immediately appealable, see, e.g., Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127, 116 S.Ct. 494, 133 L.Ed.2d 461 (1995), CAFA allows a court of appeals to "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." 28 U.S.C. § 1453(c)(1). Because this grant of discretionary authority is relatively new and out of the ordinary, we take this opportunity to elucidate criteria that bear on our willingness to grant an application of this type.

We do not write on a wholly pristine page. Several other courts of appeals have touched upon this topic. A common theme is that the presence of an important CAFA-related question is a factor weighing in favor of allowing an application for leave to appeal. See, e.g., Bullard v. Burlington N. Santa Fe Ry. Co., 535 F.3d 759, 761 (7th Cir.2008); Estate of Pew v. Cardarelli, 527 F.3d 25, 29 (2d Cir.2008). The presence of a non-CAFA issue (even an important one) is generally not thought to be entitled to the same weight. See, e.g., Coffey v. Freeport McMoran Copper & Gold, 581 F.3d 1240, 1248 (10th Cir.2009). This dichotomy highlights the fact that the discretion granted under section 1453(c) is designed, in large part, to "develop a body of appellate law interpreting the legislation." S.Rep. No. 109-14, at 49 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 46.²

It follows, then, that uncertainty is also a factor that cuts in favor of an affirmative exercise of discretion; to warrant immediate appeal, the question presented usually will be unsettled. See, e.g., Bullard, 535 F.3d at 761. Along the same line, the court must assess whether the question, at first glance, appears to be either incorrectly decided or at least fairly debatable. If, on the face of the materials presented, it seems likely that the district court decided the question correctly, the need for immediate review is lessened. See, e.g., Tmesys, Inc. v. Eufaula Drugs, Inc., 462 F.3d 1317, 1319 (11th Cir.2006).

Another factor is whether the question is consequential to the resolution of the particular case. See, e.g., Estate of Pew, 527 F.3d at 29. A particularly important factor is whether the question is likely to evade effective review if left for consideration only after final judgment. Cf. Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 294 (1st Cir.2000) (establishing similar criteria for leave to appeal under Fed.R.Civ.P. 23(c)). Because CAFA is chiefly a jurisdictional statute, cases raising serious jurisdictional issues will often fit this model. By the same token, likelihood of recurrence may be relevant; if the question is one that is unlikely to recur, there is a weaker argument for...