11th Circuit Determines that Rule 5 Requirements Apply to Interlocutory Appeals of CAFA Remand Orders

Per Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., --- F.3d ----, 2007 WL 92756 (11th Cir. Jan. 16, 2007):

This consolidated appeal involves two putative class action cases (involving the same issues) which were removed to federal court under 28 U.S.C. § 1453, the Class Action Fairness Act (CAFA). The complaints in the two actions were filed in state court (by the same counsel) before the effective date of CAFA, but the summons were not provided to the clerks of the state courts until after the effective date. Relying on the filing date, the plaintiffs contend that the actions are not controlled by CAFA, and they moved to remand on that ground and for the additional reason that the amount in controversy requirement was not met. The district court denied the motion to remand in each case, and within seven days each plaintiff filed a notice of appeal in the district court. Neither filed in this Court a petition for permission to appeal.

Unless we have appellate jurisdiction, "we cannot review whether a judgment is defective, not even where the asserted defect is that the district court lacked jurisdiction." United States v. Machado, 465 F.3d 1301, 1306 (11th Cir.2006). Interlocutory appellate jurisdiction to review CAFA remand orders is provided in 28 U.S.C. § 1453(c)(1). We held in Evans v. Walter Industries, Inc., 449 F.3d 1159, 1162 (11th Cir.2006), that § 1453(c)(1) appeals are subject to the requirements of Fed. R.App. P. 5. That holding should have come as no surprise to anyone, because Rule 5 applies to appeals "within the court of appeals' discretion," id. 5(a)(1), and § 1453(c)(1) plainly makes appeals from CAFA remand rulings discretionary. 28 U.S.C. § 1453(c)(1) ("[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 ...."). All four of the other circuits that have decided the issue have also concluded that the requirements of Rule 5 apply to interlocutory appeals of CAFA remand orders. See DiTolla v. Doral Dental IPA of N.Y., 469 F.3d 271, 273 (2d Cir.2006); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 679 (7th Cir.2006); Patterson v. Dean Morris, L.L.P., 444 F.3d 365, 368-69 (5th Cir.2006); Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., 435 F.3d 1140, 1144 (9th Cir.2006).

Filing a notice of appeal in the district court, which is all these two plaintiffs and would-be appellants did, does not comply with the requirement of Rule 5(a)(1) & (2) that a petition for permission to appeal be filed with the circuit clerk within the time specified in the authorizing statute for the discretionary appeal. Ala. Labor Council v. Alabama, 453 F.2d 922, 923 (5th Cir.1972). Our predecessor court has held at least three times that the requirements of Rule 5 are jurisdictional. Aparicio v. Swan Lake, 643 F.2d 1109, 1111 (5th Cir. Apr.1981); Cole v. Tuttle, 540 F.2d 206, 207 n. 2 (5th Cir.1976); Ala. Labor Council, 453 F.2d at 923-25. Those decisions are binding on us under the prior panel precedent rule. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981). . . . Until either the Supreme Court or this Court sitting en banc overrules the Aparicio, Cole, and Alabama Labor Council decisions, we are bound by them to conclude that the requirements of Appellate Rule 5 are jurisdictional. . . . The jurisdiction question is something of a red herring, anyhow. If we were free to and did hold that Rule 5 was not a jurisdictional requirement but only a claim-processing rule, we would still be compelled to dismiss this appeal.