CAFA (Class Action Fairness Act of 2005) Requires Appeal From Grant or Denial of Motion to Remand Be Made Within 7 Court Days Ninth Circuit Holds
On January 26, 2006, the Court of Appeals for the Ninth Circuit denied a motion to dismiss as untimely an appeal under CAFA (Class Action Fairness Act of 2005) from a district court order denying a motion to remand a putative class action to state court. Amalgamated Transit Union Local 1309 v. Laidlaw Transit Serv., Inc., 435 F.3d 1140 (9th Cir. 2006). Specifically, the Ninth Circuit held that “the petition for permission to take an appeal must be filed not more than seven court days after the district court’s order.” Id., at 1141.
The underlying action was filed in San Diego Superior Court in April 2005, and removed to federal court in June 2005. Plaintiffs moved to remand the matter to state court; the district court denied the motion on October 4, 2005, and the order thereon was entered October 5, 2005. Plaintiffs filed a notice of appeal therefrom on October 11, 2005.
On November 9, 2005, a defendant moved to dismiss the appeal. While the opinion addresses several issues, we focus here on the Ninth Circuit’s interpretation of CAFA’s provision for appeal of district court orders granting or denying motions for remand. 28 U.S.C. S 1453(c)(1) literally provides that review must be sought “not less than 7 days after entry of the order” (italics added). As the Court observed,
The Tenth Circuit in Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005), concluded that the statute contains a “typographical error,” and the word “less” should be “more,” thereby avoiding “a result demonstrably at odds with the intentions of its drafters.”
Amalgamated Transit, at 1145 (citations omitted).
The Ninth Circuit agreed, concluding that the legislative history reveals an intent “to create a time limit for appeal, specifically to require that the party seeking to appeal do so not more than seven days after the district court’s order.” 435 F.3d at 1146 (citations omitted, italics in original).
The Ninth Circuit thus joined the Tenth Circuit in “striking a word passed on by both Houses of Congress and approved by the President, and replacing it with a word of the exact opposite meaning.” 435 F.3d at 1146.
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