Thomas Evenstad v. Terry L. Carlson

1The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-8014
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David Saab, on behalf of himself *
and all others similarly situated, *
*
Petitioner, * Petition for Permission to
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Home Depot U.S.A., Inc., a *
Delaware corporation, *
*
Respondent. *
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Submitted: September 26, 2006
Filed: November 22, 2006
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Before WOLLMAN, BRIGHT, and MELLOY, Circuit Judges.
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BRIGHT, Circuit Judge.
David Saab filed a suit against Home Depot in Missouri state court on behalf
of himself and others. Home Depot removed the putative class action to federal
district court 1, showing that the parties are diverse and the amount in controversy
exceeded $75,000. See 28 U.S.C. §§ 1332(a) (traditional diversity jurisdiction), 1441
(describing removal). The district court then denied Saab’s motion to remand his case

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2Home Depot made no assertion of jurisdiction under CAFA provisions under
§ 1332(d) where the sum in controversy must exceed $5,000,000 excessive of interest
and costs.
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to the Circuit Court of Jackson County, Missouri. Saab now petitions this court to
accept an appeal, pursuant to 28 U.S.C. § 1453(c)(1), to review the district court’s
decision. We determine, however, that § 1453(c)(1) does not permit us to accept an
appeal from the denial of a motion to remand when a class action has been removed
to federal court on the basis of traditional diversity jurisdiction, § 1332(a). Because
we lack appellate jurisdiction, we dismiss Saab’s petition.
Our authority to review the denial of a motion to remand is strictly limited. See
28 U.S.C. § 1447(d); Caterpillar, Inc., v. Lewis, 519 U.S. 61, 74 (1996) (order
denying motion to remand generally not final order subject to review). Saab,
however, attempts to avail himself of the review provisions contained in the Class
Action Fairness Act of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005). CAFA
vests original jurisdiction in the federal district courts if a class action meets several
criteria.2 See 28 U.S.C. § 1332(d). In order to “develop a body of appellate law
interpreting the legislation without unduly delaying the litigation of class actions,” S.
Rep. No. 109-14, at 49 (2005), the Act permits our court to “accept an appeal from an
order of a district court granting or denying a motion to remand a class action.” See
28 U.S.C. § 1453(c)(1).
Saab urges us to interpret § 1453(c)(1) expansively and to give federal courts
of appeal the jurisdiction to review the grant or denial of a motion to remand any class
action.
This argument does not differentiate between class actions removed pursuant
to § 1332(a) (traditional diversity jurisdiction) or § 1332(d) (CAFA diversity
jurisdiction). We reject this contention.

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CAFA added section § 1453(c), “Review of remand orders,” which applies “to
any removal of a case under this section.” See 28 U.S.C. § 1453(c)(1). Saab suggests
that “this section” must refer to § 1453, which, according to petitioner, does not limit
its scope to class actions removed under § 1332(d). Section 1453(a), however, defines
“class”, “class action”, “class certification order”, and “class member” by reference
to § 1332(d)(1), the diversity jurisdiction provision added by CAFA. See § 1453(a).
Thus, we do not interpret “class action” as it is employed in § 1453(c) to
encompass all class actions. Rather, we must limit § 1453(c)’s review provisions to
those class actions brought under CAFA. Our reading is consistent with the
legislative history of CAFA, which includes the observation that, “[n]ew subsection
1453(c) provides discretionary appellate review of remand orders under this
legislation but also imposes time limits.” S. Rep. No. 109-14, at 49 (emphasis added).
We therefore hold, joining our sister the Fifth Circuit, see Patterson v. Morris,
448 F.3d 736, 742 (5th Cir. 2006); Wallace v. Louisiana Citizens Prop. Ins. Corp., 444
F.3d 697, 700 (5th Cir. 2006), that the review provisions of 28 U.S.C. § 1453(c) are
limited to class actions brought under CAFA, 28 U.S.C. § 1332(d). Accordingly, we
dismiss the petition for permission to appeal.
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